Before us is a petition for review on certiorari filed by petitioner Engr. Bayani Magdayao of the Decision^[1] of the Court of Appeals in CA-G.R. CR No. 20549 affirming the Decision^[2] of the Regional Trial Court, Dipolog City, Branch 8, convicting the petitioner of violation of Batas Pambansa (B.P.) Blg. 22.

The Antecedents

An Information was filed charging petitioner with violation of B.P. Blg. 22 on September 16, 1993, the accusatory portion of which reads:

On or about September 30, 1991, at Dipolog City, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, knowing fully well that he did not have sufficient funds in or credit with the drawee bank, Philippine National Bank, Dipolog Branch, did then and there willfully, unlawfully and feloniously make, draw, issue and deliver to one RICKY OLVIS, in payment of his obligation to the latter, PNB Check No. 399967 dated September 30, 1991 in the amount of SIX HUNDRED THOUSAND PESOS (P600,000.00), Philippine Currency, which check, however, when presented for payment with PNB-Dipolog Branch, was dishonored and refused payment for the reason that it was drawn against insufficient funds, and despite repeated demands made by the private complainant on the accused, the latter, failed to make good the check's value, to the damage and prejudice of RICKY OLVIS in the aforestated amount.

CONTRARY TO LAW.^[3]

When arraigned, the petitioner, assisted by counsel, entered a plea of not guilty.

When the case for trial was called on June 7, 1995 for the prosecution to adduce its evidence, the petitioner and his counsel were absent. On motion of the prosecution, the court allowed it to adduce evidence. The prosecution presented the private complainant, Ricky Olvis, who testified on direct examination that on September 30, 1991, the petitioner drew and issued to him Philippine National Bank (PNB) Check No. 399967 dated September 30, 1991 in the amount of P600,000.00. The said check was drawn against the latter's account with the PNB, Dipolog City Branch, and issued in payment of the petitioner's obligation with Olvis. The latter deposited the check on October 1, 1991 in his account with the BPI-Family Bank, Dipolog City Branch, but the drawee bank dishonored the check for the reason "Drawn Against Insufficient Funds" stamped on the dorsal portion of the check. Olvis testified that when informed that his check was dishonored, the petitioner pleaded for time to pay the amount thereof, but reneged on his promise. Olvis then filed a criminal complaint against the petitioner for violation of B.P. Blg. 22 on September 4, 1992, docketed as I.S. No. 92-368. The petitioner again offered to repay Olvis the amount of the obligation by retrieving the dishonored check and replacing the same with two other checks: one for P400,000.00 and another for P200,000.00 payable to Olvis. Taking pity on the petitioner, he agreed. He then returned the original copy of the check to the petitioner, but the latter again failed to make good on his promise and failed to pay the P600,000.00.

The prosecution wanted Olvis to identify the petitioner as the drawer of the check, but because of the latter's absence and that of his counsel, the direct examination on the witness could not be terminated. The prosecution moved that such direct examination of Olvis be continued on another date, and that the petitioner be ordered to appear before the court so that he could be identified as the drawer of the subject check. The trial court granted the motion and set the continuation of the trial on June 13, 1997. In the meantime, the prosecution marked a photocopy of PNB Check No. 399967 as Exhibit "A," and the dorsal portion thereof as Exhibit "A-1."

After several postponements at the instance of the petitioner, he and his counsel failed to appear before the court for continuation of trial. They again failed to appear when the case was called for continuation of trial on November 21, 1995. The prosecution offered in evidence the photocopy of PNB Check No. 399967, which the court admitted. The trial court, thereafter, issued an Order declaring the case submitted for decision.^[4] The petitioner filed a motion for a reconsideration of the Order, which the trial court denied on January 26, 1996.

The petitioner then filed an Omnibus Supplemental Motion and to Allow Him to Adduce Evidence alleging, inter alia, that:

h) Despite the absence of the original, with only a xerox copy of the PNB Check worth P600,000.00, and further stressing that the same was paid, the prosecutor insisted, against the vigorous objection of accused, in filing the case in Court. Plenty of water passed under the bridge since then;^[5]

In its Opposition to the said motion, the prosecution averred that it dispensed with the presentation of the original of the dishonored check because the same had been returned to the petitioner. It also pointed out that the petitioner failed to object to the presentation of the photocopy of the dishonored check.

In a Special Manifestation, the petitioner insisted that the photocopy of the subject check was inadmissible in evidence because of the prosecution's failure to produce the original thereof. On July 8, 1996, the trial court issued an Order denying the petitioner's motion. The petitioner's motion for reconsideration thereon was, likewise, denied by the trial court.

On January 29, 1996, the trial court rendered judgment convicting the petitioner of the crime charged. The fallo of the decision reads:

WHEREFORE, finding the guilt of the accused established beyond reasonable doubt, the herein accused, Engr. Bayani Magdayao is convicted of the crime charged against him for Violation of Batas Pambansa Bilang 22, as principal by direct participation, and pursuant to Section 1 thereof sentenced to suffer the penalty of imprisonment for a period of six (6) months of arresto mayor and to pay the costs. The accused is further ordered to pay the private complainant the sum of P600,000.00 corresponding to his obligation due to the private offended party.

SO ORDERED.^[6]

On appeal to the Court of Appeals, the petitioner assigned the following errors:

I

THE LOWER COURT ERRED IN CONVICTING THE ACCUSED OF THE CRIME CHARGED SOLELY ON THE BASIS OF THE FOLLOWING EVIDENCE:

1. MACHINE OR PHOTOSTATIC COPY OF PNB CHECK NO. 399967 DATED SEPTEMBER 30, 1991;
   
   
2. WORD "DAIF" AT THE BACK OF THE PHOTOSTATIC COPY OF SAID CHECK;
   
   
3. UNCORROBORATED ORAL TESTIMONY OF PRIVATE COMPLAINANT.
   

II

THE LOWER COURT ERRED IN CONVICTING THE ACCUSED WITHOUT HIM BEING POSITIVELY IDENTIFIED BY THE COMPLAINANT OR OTHER WITNESS.

III

THE LOWER COURT ERRED WHEN IT RENDERED THE DECISION WITH ALLEGED FINDINGS OF FACTS NOT SUFFICIENTLY SUPPORTED BY EVIDENCE.

IV

THE LOWER COURT ERRED IN AWARDING CIVIL INDEMNITY TO PRIVATE COMPLAINANT IN THE AMOUNT OF SIX HUNDRED THOUSAND PESOS.^[7]

On December 21, 2001, the CA rendered judgment affirming the decision of the trial court. The appellate court also denied the petitioner's motion for reconsideration.

In his petition at bar, the petitioner merely reiterates the errors he ascribed to the RTC in his appeal before the CA, and prays that the decisions of the trial and appellate courts be set aside.

The Ruling of the Court

The petition has no merit.

On the first three assignments of error, the petitioner avers that the prosecution failed to prove his guilt beyond reasonable doubt of the crime charged because of the following: (a) the photocopy of PNB Check No. 399967, adduced in evidence by the prosecution, is inadmissible in evidence under Rule 129, Section 1 of the Revised Rules of Evidence; hence, has no probative weight; b) the prosecution failed to present the BPI-Family Bank teller to testify on the presentment of PNB Check No. 399967 and the dishonor thereof; and (c) the prosecution failed to prove that it was he who drew and delivered the dishonored check to the private complainant, and that he was properly notified of the dishonor of the said check. The petitioner also asserts that there was no legal basis for the award of the amount of P6,000.00 as civil indemnity.

We rule against the petitioner.

Section 1 of B.P. Blg. 22 for which the petitioner was charged, reads:

Section 1. Checks without sufficient funds. Any person who makes or draws and issues any check to apply on account or for value, knowing at the time of issue that he does not have sufficient funds in or credit with the drawee bank for the payment of such in full upon presentment, which check is subsequently dishonored by the drawee bank for insufficiency of funds or credit or would have been dishonored for the same reason had not the drawer without any valid reason, ordered the bank to stop payment, shall be punished by imprisonment of not less than thirty (30) days but not more than one (1) year or by a fine of not less than but not more than double the amount of the check which fine shall in no case exceed Two Hundred Thousand Pesos, or both such fine and imprisonment at the discretion of the court.

To warrant the petitioner's conviction of the crime charged, the prosecution was burdened to prove the following essential elements thereof:

(1) The making, drawing and issuance of any check to apply for account or for value;

(2) The knowledge of the maker, drawer, or issuer that at the time of issue he does not have sufficient funds in or credit with the drawee bank for the payment of such check in full upon its presentment; and

(3) The subsequent dishonor of the check by the drawee bank for insufficiency of funds or credit or dishonor for the same reason had not the drawer, without any valid cause, ordered the bank to stop payment.^[8]

The gravamen of the offense is the act of making or issuing a worthless check or a check that is dishonored upon presentment for payment.^[9] As to the second element, knowledge on the part of the maker or drawer of the check of the insufficiency of the funds in or credit with the bank to cover the check upon its presentment refers to the state of mind of the drawer; hence, it is difficult for the prosecution to prove. The law creates a prima facie knowledge on the insufficiency of funds or credit, coincidental with the attendance of the two other elements. As such, Section 2 provides:

SEC. 2. Evidence of knowledge of insufficient funds. The making, drawing and issuance of a check payment of which is refused by the drawee because of insufficient funds in or credit with such bank, when presented within ninety (90) days from the date of the check, shall be prima facie evidence of knowledge of such insufficiency of funds or credit unless such maker or drawer pays the holder thereof the amount due thereon, or makes arrangements for payment in full by the drawee of such check within five (5) banking days after receiving notice that such check has not been paid by the drawee.

We agree with the petitioner that it was incumbent upon the prosecution to adduce in evidence the original copy of PNB Check No. 399967 to prove the contents thereof, more specifically the names of the drawer and endorsee, the date and amount and the dishonor thereof, as well as the reason for such dishonor. Section 3, Rule 129 of the Revised Rules on Evidence specifically provides that when the subject of inquiry is the contents of the document, no evidence shall be admissible other than the original thereof. The purpose of the rule requiring the production by the offeror of the best evidence is the prevention of fraud, because if a party is in possession of such evidence and withholds it and presents inferior or secondary evidence in its place, the presumption is that the latter evidence is withheld from the court and the adverse party for a fraudulent or devious purpose which its production would expose and defeat.^[10] As long as the original evidence can be had, the court should not receive in evidence that which is substitutionary in nature, such as photocopies, in the absence of any clear showing that the original writing has been lost or destroyed or cannot be produced in court. Such photocopies must be disregarded, being inadmissible evidence and barren of probative weight.^[11]

Furthermore, under Section 3(b), Rule 130 of the said Rules, secondary evidence of a writing may be admitted when the original is in the custody or under the control of the party against whom the evidence is offered, and the latter fails to produce it after reasonable notice. To warrant the admissibility of secondary evidence when the original of a writing is in the custody or control of the adverse party, Section 6 of Rule 130 provides that the adverse party must be given reasonable notice, that he fails or refuses to produce the same in court and that the offeror offers satisfactory proof of its existence:

When original document is in adverse party's custody or control. If the document is in the custody or under the control of the adverse party, he must have reasonable notice to produce it. If after such notice and after satisfactory proof of its existence, he fails to produce the document, secondary evidence may be presented as in the case of its loss.

The mere fact that the original of the writing is in the custody or control of the party against whom it is offered does not warrant the admission of secondary evidence. The offeror must prove that he has done all in his power to secure the best evidence by giving notice to the said party to produce the document.^[12] The notice may be in the form of a motion for the production of the original or made in open court in the presence of the adverse party or via a subpoena duces tecum, provided that the party in custody of the original has sufficient time to produce the same. When such party has the original of the writing and does not voluntarily offer to produce it or refuses to produce it, secondary evidence may be admitted.^[13]

In this case, Olvis, the private complainant, testified that after the check was dishonored by the drawee bank for insufficiency of funds, he returned it to the petitioner upon the latter's offer to pay the amount of the check by drawing and issuing two checks, one for P400,000.00 and the other for P200,000.00. However, the petitioner still failed to satisfy his obligation to Olvis:

Q	Sometime in the month of May 1991, do you remember that (sic) you have any transaction with the accused?
A	Yes, Sir.
Q	What was the transaction about?
A	It was about our joint venture in Ipil.
Q	What did the accused in this case issue to you?
A	He issued me a check worth six hundred thousand pesos (P600,000.00).
Q	If the photostatic copy of the check [would] be presented to you, would you be able to identify it?
A	Yes, Sir.
Q	I am showing to you a photostatic copy of PNB Dipolog Branch Check # 399967 with a maturity date on September 30, 1991 in the amount of six hundred thousand pesos (P600,000.00), is this the check issued to you?
A	Yes, Sir.
Q	Here is a signature at the bottom corner of this check, whose signature is this?
A	Bayani Magdayao['s].
Q	In other words, this check was issued for a valuable consideration in connection with the project you have in Ipil?
A	Yes, Sir.
Q	What did you do with the check?
A	I deposited this in BPI-Family Bank, but it was drawn against insufficient fund.
Q	When did you deposit the check?
A	Sometime in October.
Q	October, what year?
A	In 1991, Sir.
Q	Within a reasonable period from the maturity date of the check, you caused it to be deposited?
A	Yes, Sir.
Q	And this check was dishonored by the depository bank, that the account to which it was drawn does not have sufficient fund, is that indicated in this check?
A	Yes, Sir.
Q	Where is that indication of dishonor for lack of sufficient fund?
A	Here, Sir.
INTERPRETER: Witness pointing to the check.
ATTY. CO:
	We pray, Your Honor, that the photostatic copy of the check be marked as Exhibit "A." The reason why it was dishonored, found at the back of this check, indicated as "DAIF" meaning to say: "Drawn Against Insufficient Fund" be marked as Exhibit "A-1."
…
Q	After being informed that the check was dishonored by the drawee bank, what did you do?
A	I went to Magdayao's house and asked for payment but he refused to pay.
Q	When you say Magdayao, are you referring to the accused in this case, Bayani Magdayao?
A	Yes, Sir.
Q	It appears that this is merely a photostatic copy of the check, where is the original of the check?
A	Magdayao replaced the original check worth six hundred thousand pesos (P600,000.00), and he gave me another check worth four hundred thousand pesos (P400,000.00) and two hundred thousand pesos (P200,000.00).
Q	At the time the accused in this case replaced this check worth six hundred thousand (P600,000.00), was the case already pending before the City Fiscal's Office or before this Honorable Court?
A	Yes, Sir, it is pending.
Q	Until now the amount of six hundred thousand pesos (P600,000.00) has not been paid to you?
A	Yes, Sir.[14]

In his "Motion to Suspend Proceedings" in the trial court, the petitioner admitted that he received the original copy of the dishonored check from the private complainant^[15] and that he caused the non-payment of the dishonored check.^[16] The petitioner cannot feign ignorance of the need for the production of the original copy of PNB Check No. 399967, and the fact that the prosecution was able to present in evidence only a photocopy thereof because the original was in his possession. In fact, in the Omnibus Supplemental Motion dated February 8, 1996, and in his Special Manifestation filed on May 28, 1996, the petitioner complained of the prosecution's violation of the best evidence rule. The petitioner, however, never produced the original of the check, much less offered to produce the same. The petitioner deliberately withheld the original of the check as a bargaining chip for the court to grant him an opportunity to adduce evidence in his defense, which he failed to do following his numerous unjustified postponements as shown by the records.

There was no longer a need for the prosecution to present as witness the employee of the drawee bank who made the notation at the dorsal portion of the dishonored check^[17] to testify that the same was dishonored for having been drawn against insufficient funds. The petitioner had already been informed of such fact of dishonor and the reason therefor when Olvis returned the original of the check to him. In fact, as shown by the testimony of Olvis, the petitioner drew and issued two other separate checks, one for P400,000.00 and the other for P200,000.00, to replace the dishonored check.

Because of his dilatory tactics, the petitioner failed to adduce evidence to overcome that of the prosecution's.

The petitioner's contention that Olvis failed to identify him as the drawer of the subject check is nettlesome. It bears stressing that Olvis was ready to identify the petitioner after his direct examination, but the latter and his counsel inexplicably failed to appear. The direct examination of Olvis had to be continued to enable him to point to and identify the petitioner as the drawer of the check. This is shown by the transcript of the stenographic notes taken during the trial, viz:

ATTY. CO:

Considering that the accused is not present, Your Honor, I would like to manifest that the private offended party be given the opportunity to identify the accused for purposes of this case.^[18]

The trial court issued an Order on June 7, 1995, directing the petitioner, under pain of contempt, to appear before it to enable Olvis to identify him:

After the declaration of the first and only witness for the prosecution, the private prosecutor prayed to set the case for continuation of the trial, and ordering the defendant to appear to allow the prosecution to establish his identity.

Set the case for continuation of the trial on June 13, 1995, ordering the accused to appear personally for purposes of his identification in court under pain of contempt if he fails to comply unjustifiably with this order. The defense shall be allowed to cross examine the witness for the prosecution if desired, otherwise, his right of cross-examination shall be considered waived completely.

SO ORDERED.^[19]

The petitioner defied the Order of the court and failed to appear as directed, and as gleaned from the records

(14) June 7, 1995 The accused and counsel did not appear; hence, the prosecution was allowed to present its evidence ex-parte. The private complainant was presented to testify in the direct-examination, reserving the right of cross-examination on the part of the accused, and setting the case for the purpose on June 13, 1995.

(15) June 13, 1995 The accused did not appear, but the defense counsel requested for a resetting of the cross-examination to be conducted. The request was granted over the objection of the prosecution, and set the continuation of the trial to August 31, 1995.

(16) August 31, 1995 As in previous occasions, the accused did not appear and defense counsel requested for another resetting, and despite the vigorous opposition by the prosecution, the trial was postponed to October 3, 1995, with the understanding that if the accused will not appear, it would be taken to mean that he waived his right to cross-examination and to present evidence in his defense.

(17) October 3, 1995 Atty. Narciso Barbaso appeared as a new counsel for the accused but requested that he be allowed to read first the transcript of the direct testimony of the plaintiff's witness to be cross-examined. The request was granted, and the trial was reset to November 21, 1995.

(18) November 21, 1995 The accused and his counsel both did not appear. The prosecution formally offered Exh. "A" in evidence, and upon its admission, the prosecution rested its case, and prayed that as stated in the previous order of the court dated August 31, 1995, the case shall be considered submitted for judgment, which request was granted.

(19) December 7, 1995 The defense filed a motion for reconsideration of the order dated November 21, 1995. The court required the defense to file a supplemental motion stating the nature of its evidence to be presented if allowed to enable the court to determine the merit of the motion for reconsideration, but despite the lapsed (sic) of the period set by the court, the accused did not comply; hence, the denial of the motion for reconsideration, and set the case for promulgation of the judgment on February 19, 1996.

(20) Then came the Omnibus Supplemental Motion, etc., by the accused dated February 8, 1996, and by reason thereof, the promulgation of the judgment set on February 19, 1996, was held in abeyance.

(21) The defense counsel filed a motion to withdraw as counsel for the accused dated February 27, 1996, and which was granted by the order of the court dated March 1, 1996.

[(22)] May 28, 1996 A Special Manifestation dated May 21, 1996 in support of the Omnibus Supplemental Motion filed thru another lawyer appearing as a new counsel for the accused, now under consideration.^[20]

Contrary to the petitioner's claim, the trial court did not award P6,000.00 as civil indemnity in favor of Olvis; it ordered the petitioner to pay him P600,000.00, the amount of the subject check. Having failed to pay the amount of the check, the petitioner is liable therefor and should be ordered to pay the same to the private complainant in this case.^[21]

On the second assigned error, the petitioner faulted the trial court for imposing a penalty of imprisonment instead of a penalty of fine, and cites SC Circular No. 12-2000 to bolster his contention. He suggests that since he is merely a first offender, he should be sentenced to pay a fine double the amount of the check.

The Office of the Solicitor General, on the other hand, objects to the petitioner's plea on the ground that when the latter drew and issued the dishonored check to the private complainant, he knew that the residue of his funds in the drawee bank was insufficient to pay the amount thereof.

Considering the facts and circumstances attendant in this case, we find the petitioner's plea to be barren of merit. Administrative Circular No. 13-2001 provides:

It is, therefore, understood that:

1. Administrative Circular 12-2000 does not remove imprisonment as an alternative penalty for violations of BP 22;
   
   
2. The Judges concerned may, in the exercise of sound discretion, and taking into consideration the peculiar circumstances of each case, determine whether the imposition of a fine alone would best serve the interest of justice, or whether forbearing to impose imprisonment would depreciate the seriousness of the offense, work violence on the social order, or otherwise be contrary to the imperatives of justice;
   
   
3. Should only a fine be imposed and the accused be unable to pay the fine, there is no legal obstacle to the application of the Revised Penal Code on subsidiary imprisonment.^[22]
   

The records show that despite the numerous opportunities given to him by the trial court, the petitioner refused to adduce any evidence in his behalf. Moreover, the Court of Appeals found the petitioner's appeal to be devoid of merit. Considering the factual milieu in this case, there is every reason for the Court to reject the plea for a penalty of fine and maintain the penalty of imprisonment the trial court imposed on the petitioner.

IN LIGHT OF ALL THE FOREGOING, the petition is DENIED DUE COURSE. The assailed decision of the Court of Appeals is AFFIRMED. Costs against the petitioner.


SO ORDERED.

Puno, (Chairman), Austria-Martinez, Tinga, and Chico-Nazario, JJ., concur.

---

^[1] Penned by Justice Cancio C. Garcia (now Presiding Justice of the Court of Appeals), with Associate Justices Roberto A. Barrios and Bienvenido L. Reyes, concurring.

^[2] Penned by Judge Pacifico M. Garcia.

^[3] Records, p. 1.

^[4] Records, pp. 110-111.

^[5] Id. at 128.

^[6] Id. at 301-302.

^[7] CA Rollo, p. 31.

^[8] Wong vs. Court of Appeals, 351 SCRA 100 (2001).

^[9] Meriz vs. People, 368 SCRA 524 (2001).

^[10] Francisco, the Revised Rules of Court of the Philippines, Volume VII, Part I, 1990 ed., p. 133.

^[11] Intestate Estate of the Late Don Mariano San Pedro vs. Court of Appeals, 265 SCRA 733 (1996).

^[12] Supra, note 10 at 169.

^[13] Id. at 170.

^[14] TSN, 7 June 1995, pp. 3-7.

^[15] Records, p. 33.

^[16] Id. at 34.

^[17] Exhibit "A-1."

^[18] TSN, 7 June 1995, pp. 6-7.

^[19] Records, p. 96.

^[20] Id. at 169-170.

^[21] Rule 111, Section 1 of the Revised Rules of Criminal Procedure.

^[22] Rollo, p. 132.