G.R. No.

L-64129-31 November 18, 1991 (5 years of prison correcional maximum, as maximum, with the
accessory penalties provided by law, and to pay the costs.
FERMINA RAMOS, petitioner,
vs. SO ORDERED. (Rollo, pp- 37-38)
THE COURT OF APPEALS AND THE PEOPLE OF THE
PHILIPPINES, respondents. The three (3) informations under which the herein petitioner was
prosecuted and later on found criminally liable read as follows:
Simeon N. Millan, Jr., for petitioner.
Criminal Case No. 3349:

xxx xxx xxx

MEDIALDEA, J.: That on or about May 19, 1976, in the Municipality of Tagum,
Davao, Philippines, and within the jurisdiction of this Court, the
This is a petition for review on certiorari of the November 9, 1982 decision herein accused, conspiring, confederating and helping one
of the Court of Appeals in CA-G.R. Nos. 23626CR; 23627-CR; and 23628- another, intentionally, feloniously and criminally, with deceit and
CR entitled "People of the Philippines v. Fermina Ramos, Lourdes Orpiano intent to defraud the Family Savings Bank, Tagum Branch, Tagum,
and Mariano Barretto;" "People of the Philippines v. Fermina Ramos, Davao, FERMINA RAMOS, the then Manager of the offended bank
Lourdes Gonzales, Francisco Gonzales and Mariano Barreto; and People (Family Savings Bank), authorized one of her co-accused,
of the Philippines v. Fermina Ramos, Lourdes Gonzales, Francisco LOURDES ORPIANO, to withdraw and was paid right there and
Gonzales, alias 'E. Rivera and John Doe," respectively which affirmed with then on May 19,1976, in RCBC Check (Tagum) No. 85297, the
modifications the judgments of the Court of First Instance (now Regional payee of the same is the accused LOURDES ORPIANO, which
Trial Court) of Tagum, Davao Branch IX, presided by Judge Felix L. Moya, she subsequently endorsed it to her co-accused Mariano Barrette,
by finding he guilty as co-principal of the crime of estafa with unfaithfulness in the sum of 'TWENTY-EIGHT THOUSAND (P28,000.00)
or abuse of confidence under Article 315 subparagraph l(b) o the Revised PESOS, against her uncollected and uncleared check deposit,
Penal Code instead of estafa thru reckless negligence. The dispositive whose drawer is Lourdes Orpiano, PCIB DVO Check No. 77946 in
portion of the Court of Appeals decision reads as follows: the sum of TWENTY-EIGHT THOUSAND, P28,000.00) PESOS,
and when PCIB DVO Check was presented by the Family Savings
WHEREFORE, the judgments of the trial court in Crim. Case Nos. Bank thru their Depository Bank for clearing, the same was
3349, 3350 and 3351 finding the accused Fermina Ramos gull dishonored by the Drawee Bank, to the damage and prejudice of
beyond reasonable doubt, as principal, in the commission of the the Family Savings Bank in the aforestated sum.
crime of estafa is hereby affirmed, but with modification of the
penalties imposed upon her as follows: Contrary to law.

In Criminal Case No. 3349, she is hereby sentenced to suffer Criminal Case No. 3350:
indeterminate penalty of imprisonment ranging from five (5) years
of prision correcional maximum, as minimum, to eight (8) years xxx xxx xxx
of prision mayor, as maximum, with the accessory penalties
provided b law, and to pay the costs. That on or about May 19, 1976, in the Municipality of Tagum,
Davao, Philippines, and within the jurisdiction of this Court, the
In Criminal Cases Nos. 3350 and 3351, she is sentenced to sure herein accused, conspiring, confederating and helping one
in each case an indeterminate penalty of imprisonment ranging fro another, intentionally, feloniously and criminally, with deceit and
two (2) years of prison correcional minimum, as minimum, to five with intent to defraud the Family Savings Bank, Tagum Branch,
 Tagum, Davao, FERMINA RAMOS, the then Manager of the same was dishonored by the Drawee Bank, to the damage and
offended bank (Family Savings Bank), allowed one of her co,- prejudice of the Family Savings Bank in the aforestated sum.
accused, LOURDES GONZALES, to withdraw and was paid right
then and there on May 19, 1976, in BPI TAG Check No. 85325 in Contrary to law.
the amount of P20,440.00, the payee of the same is "Cash," which
was subsequently deposited in the Rizal Commercial Banking The foregoing criminal charges were among the twenty-three (23) criminal
Corporation, Tagum Branch, Tagum, Davao, in the savings charges filed by the Provincial Fiscal of Davao against the petitioner and
account of accused MARIANO BARRETTO No. 6838, against her her other co-accused, four (4) of which were dismissed for lack of basis,
uncollected and uncleared check deposit (Joint Savings Account six (6) were dismissed for insufficiency of evidence, and ten (10) were
of accused-spouses Francisco Gonzales and Lourdes Gonzales), dismissed with the trial court finding that the Family Savings Bank (FSB)
whose drawer is LOURDES GONZALES, BPI TAG Check No. had no cause to complain because the acts complained of were found to
100190 in the sum of THIRTY EIGHT THOUSAND FOUR have been done with the knowledge and consent of the higher ranking
HUNDRED (P38,400.00) PESOS, and when said BPI TAG Check bank officials.
was presented by the Family Savings Bank thru their Depository
Bank for clearing, the same was dishonored by the Drawee Bank,
In three separate decisions, the trial court convicted petitioner Ramos not
to the damage and prejudice of the Family Savings Bank in the
of the charges alleged in the complaint but of three (3) counts of Estafa
aforestated sum.
Thru Reckless Imprudence, thus:
Contrary to law.
Criminal Case No. 3349:
Criminal Case No. 3351:
WHEREFORE, finding accused FERMINA
RAMOS GUILTY beyond reasonable doubt of the crime of Estafa
xxx xxx xxx Thru Reckless Imprudence under Art. 365 of the Revised Penal
Code, in conjunction with Art. 315 (1st) of the same Code, she is
That on or about May 19, 1976, in the Municipality of Tagum, ordered to serve an indeterminate sentence of SIX (6) MONTHS,
Davao, Philippines, and within the jurisdiction of this Court, the maximum period of arresto mayor, as minimum penalty, to ONE
herein accused, conspiring, confederating and helping one (1) YEAR and ONE (1) DAY, minimum period of prision
another, intentionally, feloniously and criminally, with deceit and correccional, as maximum penalty; to suffer all the accessory
with intent to defraud the Family Savings Bank, Tagum Branch, penalties provided by law; and to pay the costs of this suit.
Tagum, Davao, FERMINA RAMOS, the then Manager of the
offended bank (Family Savings Bank), allowed one of her co- Since a separate civil action is pending, the court shall not order
accused, LOURDES GONZALES, to withdraw and was paid right civil restitution.
then and there on May 19, 1976, in BPI TAG Check No. 241132 in
the amount of P18,560.00, the payee of the same is "Cash," which
SO ORDERED.
was subsequently deposited in the Rizal Commercial Banking
Corporation, Tagum Branch, Tagum, Davao, in the savings
account of accused FERMINA RAMOS No. 6835, against her Criminal Case No. 3350:
uncollected and uncleared check deposit (Joint Savings Account
of accused-spouses Francisco Gonzales and Lourdes Gonzales), WHEREFORE, finding accused FERMINA
whose drawer is alias "E. RIVERA," RCBC CAG Check No. RAMOS GUILTY beyond reasonable doubt of the crime of Estafa
1868051 in the sum of THIRTY-NINE THOUSAND (P39,000.00) Thru Reckless Imprudence under Art. 365 (1st) of the same code,
PESOS, and when said RCBC CAG Check was presented by the she is ordered to serve an indeterminate sentence of SIX (6)
Family Savings Bank thru their Depository Bank for clearing, the MONTHS, maximum period ofarresto mayor, as minimum penalty,
to ONE (1) YEAR and ONE (1) DAY, minimum period of prision
 correccional, as maximum penalty; to suffer all the accessory The officer in charge of approving the withdrawal should verify that:
penalties provided by law; and to pay the costs of this suit.
l) The amount being withdrawn is 'available' for withdrawal.
Since a separate civil action is pending, the court shall not order This means that the balance of the account is sufficient and
civil restitution. is not against a check deposit which is not yet cleared.

SO ORDERED. In case it is against a check which is presumed to be

cleared having been deposited for more than three (3)
Criminal Case No. 3351: commercial banking days and with no notice of return, in
order (sic) to exercise more care, further verification may
WHEREFORE, finding accused FERMINA be made from depository bank and our check registry as to
RAMOS GUILTY beyond reasonable doubt of the crime of Estafa date of deposit, clearance, etc. in order to be doubly sure
Thru Reckless Imprudence under Art. 365 of the Revised Penal that the check deposited was good. (Records, Exhibit D)
Code in conjunction with Art. 315 (1st) of the same code, she is
ordered to serve an indeterminate sentence of SIX (6) MONTHS, xxx xxx xxx
maximum period of arresto mayor, as minimum penalty, to ONE
(1) YEAR and ONE (1) DAY, minimum period of prision During the term of the herein petitioner, she received an order to stop
correccional, as maximum penalty; to suffer all the accessory DAUD which brought about the following quoted telegram sent by her on
penalties provided by law; and to pay the costs of this suit. March 30, 1976 to AVP Ramirez:

Since a separate civil action is pending, the court shall not or civil AVP GERRY RAMIREZ
restitution.
FAMILY SAVINGS BANK
SO ORDERED.
CEBU CITY
From the records, the facts are as follows:
I HAVE FOLLOWED YOUR ORDER TO STOP DAUD. BUT MANY
On January 27, 1976, petitioner Fermina Ramos was designated Acting CANNOT COVER-UP THEIR OD AS OF NOW. WHICH WOULD
Branch Manager of the FSB in Tagum, Davao due to the transfer of the BE BETTER TO ISSUE PN AS PER LILIAN'S (DE LEON) ADVICE
then branch manager, Mr. Johnny Cuan to another branch. She was OR TO CONTINUE GIVING ACCOMMODATION UNTIL CLIENT
appointed branch manager effective February 16, 1976 which position she CAN LIQUIDATE SIR, THE GIVING OF ACCOMMODATION AS
held until the middle of June of the same year. During the term of her YOU KNOW IS NOT MY DOING, MINE IS ONLY A
predecessor Mr. Cuan, as branch manager of Tagum, the latter was CONTINUATION OF THE PAST MANAGEMENT AND NOW
authorized by the bank's Assistant Vice President Gerry Ramirez of the THAT I TRIED TO STOP THIS IS THE EFFECT, IN CASE
FSB, Cebu City to allow the drawing against uncleared check deposits OFFICERS WILL BE THE ONE TO ANSWER FOR THIS I'LL
(DAUD) to certain clients of the bank. Apparently, this practice was in ANSWER ONLY THOSE ACCOMMODATION WHICH
violation of the bank's operation manual (O.M.S. No. 2:07), the pertinent ORIGINATED ON MY TERM OF MANAGEMENT. THANK YOU.
provisions of which provide: (Records, Exhibit 4)

All withdrawals must be approved and signed by the authorized On April 1, 1976, petitioner received VP Ramirez's response to wit:
officer of every branch designated by the Board of Directors.
Authority to approve withdrawals below P200 may be given by the REUR TELEGRAM DATED MARCH 31 I AGREE WITH YOU
VP in charge. WITH REGARDS TO THE RESPONSIBILITY OF THE PAST
 MANAGEMENT BECAUSE I HAVE THE IMPRESSION THAT ALL May 5, 1976, the deposit and withdrawal of P29,000.00 resulting in
THESE PRACTICES HAD BEEN DISCONTINUED BEFORE the filing of Criminal Case No. 3343 with this branch;
YOUR ASSUMPTION AS MANAGER PLEASE FOLLOW AS
INSTRUCTED BY LILIAN I SHALL BE THERE BEFORE APRIL 9. May 6, 1976, the deposit and withdrawal of P10,000.00, resulting
(Records, Exhibit 5) in the filing of Criminal Case No. 3345 with this branch; and

It appears that the accused, in violation of the bank's policy and without May 17, 1976, the deposit and withdrawal of P29,000.00, resulting
authority from either Ramirez or De Leon, not only continued to grant in the filing of Criminal Case No. 3347 with branch VIII.
DAUD accommodations to old depositors who had enjoyed such privilege
under her predecessors, but also extended the same privilege to new On May 19, 1976, PCIB DVO Check No. 77946, (Exh. "A-1-3349-
clients of the bank. Among those new clients were Lourdes Orpiano, her B"), for P28,000.00 drawn by Lourdes Orpiano was deposited by
co-accused in Crim. Case No. 3349, and the spouses Lourdes and her in her savings account at the FSB Tagum, Branch (Exh. F-5).
Francisco Gonzales, her co-accused in Crim. Cases Nos. 3350 and 3351. At that time, her account balance was only P234.34.

Hereunder are the events chronicled by both the trial and the respondent As a result of that "deposit" her account balance went up to
appellate courts which led to the filing of the aforesaid criminal charges: P28,234.34.

1. Crim. Case No. 3349 — People v. Fermina Ramos, Lourdes On the same date, without waiting for the clearance of Orpiano's
Orpiano and Mariano Barreto check, the Branch Manager, Fermina Ramos allowed her said co-
accused to withdraw from her account the amount of P28,000.00
With the approval of the accused Fermina Ramos, Savings (Exh. "A-1-3349-A"), the very amount which she deposited that day
Account No. 1531006558 of Lourdes Orpiano was opened on with an uncleared check. Thus her balance returned to the original
January 31, 1976 with an initial deposit of P2,800 (Exh. F). amount of P234.34. The withdrawal was paid to Orpiano by FSB in
the form of RCBC Tagum Check No. 85297 for P28,000 drawn by
Fermina Ramos approved ten (10) withdrawals against uncleared FSB on its account at the Rizal Commercial Banking Corporation
check deposits of Lourdes Orpiano, on the following dates: in Tagum (Exh. A-1-3349-A). The check was payable to Orpiano
who indorsed it to Mariano Barretto. When Orpiano's PCIB DVO
March 23, 1976, the deposit and withdrawal of P52,000, resulting Check was presented by FSB thru its depository bank for clearing,
in the filing of Criminal Case No. 3337 with Branch VIII; it was dishonored by the drawee bank for having been drawn
against insufficient funds (Exh. A-1-3349-F).
April 8, 1976, the deposit and withdrawal of P35,000.00, resulting
in the filing of Criminal Case No. 3331 with this Branch; 2. Crim. Case No. 3350 — People v. Fermina Ramos, Lourdes
Gonzales, Francisco Gonzales and Mariano Barretto.
April 10, 1976, the deposit and withdrawal of P35,000.00, resulting
in the filing of Criminal Case No. 3333 with this branch; 3. Crim. Case No. 3351 — People v. Fermina Ramos, Lourdes
Gonzales, Francisco Gonzales, E. Rivera and John Doe, (pp. 30-
April 12, 1976, the deposit and withdrawal of P35,000.00, resulting 31, Rollo)
in the filing of Criminal Case No. 3334 with this branch;
The joint savings account no. 1504010272 of the spouses
April 26, 1976, the deposit and withdrawal of P29,000.00, resulting Francisco Gonzales and Lourdes Gonzales was opened on March
in the filing of Criminal Case No. 3339 with Branch VIII; 4, 1976 with the FSB Tagum Branch, with the approval of the
accused Fermina Ramos. Their initial deposit was only P500 (Exh.
E-3).
Four withdrawals against uncleared check deposits were made by into Fermina Ramos' Savings Account No. 6835 in the Rizal
Francisco Gonzales and/or Lourdes Gonzales on the following Commercial Banking Corporation in Tagum (Exh. C-1-3351-
dates, with the approval of the branch manager Fermina Ramos; B). This transaction is the subject of Crim. Case No. 3351.

April 23, 1976 — drawing against uncleared check deposit of The second withdrawal was paid to Lourdes Gonzales in the form
P39,000 resulting in the filing of Criminal Case No. 3336 in this of a BPI Tag Check No. 85325 in the amount of P20,440, payable
Branch IX. to "cash," drawn by the FSB Tagum branch on its account in the
Bank the Philippine Islands in Tagum (Exh. C-1-3350-C). It was
April 27, 1976 — drawing against uncleared check deposit later deposited in the Savings Account No. 6838 of Mariano
P39,000 resulting in the filing of Criminal Case No. 3352 in Branch Barretto in the Rizal Commercial Banking Corporation, Tagum,
VIII. Branch. This transaction is the subject of Crim. Case No. 3350.

May 19, 1976 — drawing against uncleared check deposit of Both Rivera's RCBC Check No. 1868051 and Lourdes Gonzales'
P39,000 resulting in the filing of Criminal Case No. 3351 in Branch BPI Check No. 100190 were dishonored by the drawee banks
IX. (Exh. E-2).

May 19, 1976 — drawing against uncleared check deposit of xxx xxx xxx
P38,400 resulting in the filing of this Criminal Case No. 3350 in
Branch IX also. In June 1976, the deluge of bouncing checks deposited in the FSB
Tagum branch and withdrawn without prior clearance, pursuant the
On May 19, 1976 the standing balance in the ledger of the joint DAUD accommodations granted by the accused became
savings account of Francisco and Lourdes Gonzales was only unmanageable. Even the checks issued by the FSB Tagum branch
P3.25. On that day, an uncleared RCBC Check No. 186851 (sic) were longer being honored by its depository banks. In her letter of
(Exh. C-1-3351) for P39,000 drawn by a certain E. Rivera on the May 30, 1976 to Mercedes Gotianum, FSB Executive Vice-
Rizal Commercial Banking Corporation, Cagayan de Oro City, was President, the accused disclosed that "we no longer could
deposited by the Gonzales spouses in their joint savings account, withdraw against uncleared deposits. Out-of-town checks are to be
thus raising their account balance to P39,003.25. credited to our account upon clearing only." (Exh. 8-A)

On the same day, another uncleared check, BPI Tagum No. An audit of the Tagum branch was ordered by the FSB central
100190 for P38,400 drawn by Lourdes Gonzales on her account at office. It resulted in the filing of twenty-three (23) criminal
the Bank of the Philippine Islands, Tagum Branch (Exh. C-1-3350- complaints for estafa against the depositors and Fermina Ramos.
D), was deposited by her in her and her husband's joint savings Ten (10) of them were assigned to Branch VIII and thirteen (13)
account at the FSB, Tagum (Exh. E-2), further raising their account were assigned Branch IX, the sala of Judge Felix Moya (Rollo, pp.
balance to P77,403.25. 30-33)

Later on the same day, May 19, 1976, Francisco Gonzales and As the other accused remained at large, petitioner was tried separately.
Lourdes Gonzales made two withdrawals from their joint savings Thereafter, Judge Felix L. Moya convicted her estafa through reckless
account, with the approval of the accused Fermina Ramos. negligence in three (3) of the thirteen (13) cases assigned to his sala and
acquitted her in all the rest. These three (3) cases are the subject matter
The first was for P18,560.00 (Exh. C-1-3351-A) which was paid to of this petition. The other cases assigned to Branch VIII of the same
them in the form of a "cash" check, BPI Tag Check No. 241132, Regional Trial Court were also dismissed.
drawn by the FSB on its account in the Bank of the Philippine
Islands in Tagum (Exh. C-1-3351-A). This check later found its way
Petitioner appealed to the Court of Appeals which modified the trial court's documents which are not intended to supplant the probative value of said
decision and convicted the accused of estafa with unfaithfulness or abuse documents. But together with the other evidence presented such as the
of confidence under Article 315 subparagraph 1(b) of the Revised Penal account ledgers of petitioner's co-accused, a number of inter-office
Code. Accordingly, the penalties imposed by the trial court based on Article correspondence between the petitioner and her superiors as well as the
365 were set aside by the respondent Court which imposed the penalty xerox copies of the uncleared checks deposited to the FSB and the checks
prescribed under Article 315. issued by the latter corresponding to the withdrawals against said
uncleared checks, they present indubitable proof that DAUD was allowed
In this petition for review, petitioner raised the following errors allegedly by petitioner even after that practice was prohibited. Besides, these
committed by the Court of Appeals: documents and the testimony of another prosecution witness Francisco
Juele, Jr., an employee of the FSB, Tagum Branch, corroborate with each
1. Finding that there was evidence adduced in 3351--regardless of other. From material dates, the amounts involved, the check numbers the
whether it was competent and adequate or not; names of the different depository banks, to the signatures of the parties
involved, especially that of the signature of the herein petitioner as the
approving officer, the authencity these documents is apparent.
2. Finding that in 3349 and 3350 the evidence adduced was
competentand adequate for conviction;
In Commissioner of Internal Revenue v. Fireman's Fund Ins., Co., G. R.
No. L-30644, March 9, 1987, 148 SCRA 315, 323 it was held that the court
3. Finding that the acts complained of constitute estafa under Art.
is not precluded from admitting documents other than the best evidence to
315 of the Revised Penal Code; and
prove a party's allegations, thus:
4. Finding that there was conspiracy between the several accused
There is no argument to petitioner's contention that the insurance
and so, where there was defraudation, there was deliberate
policies with the corresponding documentary stamps affixed are
defraudation and not just defraudation made possible by
the best evidence to prove payment of said documentary stamp
negligence of the petitioner Fermina Ramos. (Petitioner's Brief, p.
tax. This rule however does not preclude the admissibility of other
54, Rollo )
proofs which are uncontradicted and of considerable weight, such
as: copies of the applications for managers' checks, copies of the
After a review of the records, the Court finds that the first (2) assignments manager's check vouchers of the bank showing the purchases of
of error made by the petitioner are untenable. Well-settled is the rule that documentary stamps corresponding to the various insurance
factual findings made by the trial court, as well as those of the Court of policies issued during the years 1952-1958 duly and properly
Appeals, are entitled to great weight and respect. But even after a careful identified by the witnesses for respondent company during the
review of the said factual findings contained in the records, this Court is hearing and admitted by the respondent Court of Tax Appeals.
not persuaded by the petitioner's contention that all the evidence
presented are incompetent and inadequate for conviction in the cases at
Moreover, the entries in the account ledgers of the depositors which are
bar.
on file on the bank may be regarded as originals under paragraph c,
Section 4, Rule 30 of the Rules of Court, the pertinent provisions of which
Petitioner contends that the audit worksheets of Elrey Ramos and xerox reads:
copies of the dishonored checks and check return slip in Crim. No. Case
3349 are inadmissible because they do not constitute the best evidence.
Section 4(c). When an entry is repeated in the regular course of
business, one being copied from another at or near the time of the
We see no error on the part of the trial judge in admitting the testimony of transaction, all the entries are likewise equally regarded as
the bank auditor Elrey Ramos based on the worksheets he prepared in the originals.
process of his investigation regarding the unauthorized DAUD extended
by the petitioner to her accused. These worksheets, as correctly pointed
out by Solicitor General, are organized data culled from the pertinent bank
The above-cited provision alone is sufficient to reject petitioner's code, the penalty shall be termed prision
contention that the documents admitted by the trial court which were mayor or reclusion temporal, as the case may be.
among the bases of her conviction do not constitute the best evidence.
1. with unfaithfulness or abuse of confidence, namely:
We agree with respondent court that the cases-subject matter of this
petition do not involve violations of B.P. 22 or estafa under paragraph 2(d) xxx xxx xxx
of Article 315 of the Revised Penal Code but rather, estafa with
unfaithfulness or abuse of confidence under Article 315 subparagraph 1(b) (b) by misappropriating or converting, to the prejudice of
of the same code, in that the herein petitioner conspired and cooperated another, money, goods, or other personal property
with her co-accused to defraud the bank by allowing them to withdraw received by the offender in trust or on commission, or for
funds of the bank against their worthless check deposits. administration, or under any other obligation involving the
duty to make delivery of or to return the same, even though
As correctly ruled by the respondent court, the Regional Trial Court erred such obligation be totally or partially guaranteed by a bond,
in convicting the petitioner under Article 365 (criminal negligence) in or by denying having received such money, goods, or other
connection with Article 315 of the Revised Penal Code, instead of under property. (pp. 36-37, Rollo)
Article 315, solely, as co-principal. The pertinent portion of the respondent
court's decision reads: It is not, however, sufficient to hold that petitioner conspired with
her co-accused to defraud the bank on the basis of a showing that
The crime committed by the accused was estafa with the checks deposited to the bank indeed bounced. There is still a
unfaithfulness or abuse of confidence under Article 315 need to prove conspiracy which, on the other hand, can be shown
subparagraph 1 (b) of the Revised Penal Code, in that she by circumstantial evidence. It is well-settled that direct proof is not
conspired and cooperated with her co-accused to defraud the bank essential to show conspiracy. It need not be shown that the parties
by allowing them to withdraw funds of the bank against their actually came together and agreed in expressed terms to enter in
worthless check deposits. Her cooperation was intentional, and pursue a comm design. The existence of the assent of minds
deliberate and malicious, not unwitting or merely negligent. which is involved a conspiracy may be, and, from the secrecy of
Consequently, as correctly pointed out by the Solicitor General, the the crime, usually must be, inferred by the court from proof of facts
trial court erred in penalizing her under Article 365, instead of under and circumstances which, taken together, apparently indicate that
Article 315, of the Revised Penal Code which provides: they are merely parts of some complete whole.

Art. 315. Swindling (estafa). — Any person who shall In resume, it is clear from the evidence that petitioner allowed
defraud another by any of the means mentioned withdrawals on uncleared checks deposited into the accounts of
hereinbelow shall be punished by: her co-accused, i.e., four (4) withdrawals for the spouses Francisco
and Lourdes Gonzales and ten (10) withdrawals on the accounts
1st. The penalty of prision correccional in its maximum of Lourdes Orpiano. These, by themselves, are irregular and
period to prision mayor in its minimum period, if the amount suspicious acts. Firstly, they were contrary to specific bank's
of the fraud is over P12,000 pesos but does not exceed policies and procedures (Exh. "D"). Petitioner's justification that
P22,000 pesos, and if such amount exceeds the latter sum, she was merely following her predecessor's practice, is belied by
the penalty provided in this paragraph shall be imposed in the fact that her co-accused were not included in the list of
its maximum period, adding one year for each additional depositors allowed DAUD accommodations as said co-accused
10,000 pesos; but the total penalty which may be imposed opened their accounts only when the manager of the FSB was
shall not exceed twenty years. In such cases, and in already the petitioner. Furthermore, it was admitted by the
connection with the accessory penalties which may be petitioner herself that she was repeatedly ordered by her superiors
imposed and for the purpose of the other provisions of this to stop giving DAUD accommodations. Notwithstanding the
specific instructions, petitioner repeatedly granted Q — And will you please tell this Honorable Court what
accommodations in at least fourteen (14) instances and despite instructions did you receive with respect to the transaction
her knowledge that prior checks deposited by her co-accused made by Segundina Orpiano?
turned out to be unfunded. See these clearly indicate that she
acted maliciously or in bad faith by assuming to dispose the money A — The instruction was, she has to attend to it personally.
of the bank as if it were her own, thereby committing conversion (Ibid, p. 21)
and a clear breach of trust. She performed an indispensable act
necessary to enable her and her co-accused to accomplish the xxx xxx xxx
criminal purpose they had in mind. Apart from the foregoing,
conspiracy was further strengthened by the testimonial evidence
Q — And will you please tell us again if any instruction was
given by one of the employees of the bank, Mr. Francisco Juele
given to you or to the bank regarding these transactions of
who testified as follows:
Mr. Barreto in the bank?
Fiscal Isagani Fuentes:
A — The instruction was, she has to attend personally to
the transaction of the depositor. (Ibid, pp. 23-24)
Q — Could you remember what other transaction
transpired in the bank when this depositor made
What is even more alarming is the fact that there was one check
transaction there?
(BPI Tag Check No. 241132, drawn by the FSB on its account in
the Bank of P.I. in Tagum, Exh. C-1-3351-A), proceeds of a
A — She instructed us that whenever this depositor comes, withdrawal, which went into the personal account of petitioner
she has to attend to her transaction personally. Fermina Ramos. This is a clear proof of her evident intention to
benefit from these transactions. And despite this very disturbing
Q — With Mrs. Gonzales? evidence, petitioner made no effort to justify the same.

A — Yes, Sir. (TSN, March 1, 1978, p. 14) ACCORDINGLY, the petition is hereby DENIED and the assailed
decision of the respondent Court of Appeals is AFFIRMED.
xxx xxx xxx
SO ORDERED.
Q — And again, will you please tell us if there was anything
that the accused Mrs. Ramos have instructed the bank
about this particular depositor?

A — The instruction was, she has to attend to the

transaction personally.

Q — And aside from these transactions made by the

accused Lourdes Orpiano, was there any other
transactions with the bank aside from these?

A — None, Sir. (Ibid, pp. 18-19)

xxx xxx xxx