On appeal is the joint decision^[1] dated December 20, 2000, of the Regional Trial Court of Pasay City, Branch 117, in Criminal Cases Nos. 95-7580, 95-7581 and 95-7582 for three counts of estafa as defined and penalized under Article 315, paragraph 2 (d) of the Revised Penal Code. The trial court found appellant guilty beyond reasonable doubt on each count of estafa and sentenced her pursuant to P. D. No. 818 to imprisonment of 30 years of reclusion perpetua, and to pay the sum of P172,000 as indemnity in Criminal Case No. 95-7580; imprisonment of 30 years of reclusion perpetua, and payment of P172,000 as indemnity in Criminal Case No. 95-7581; and imprisonment of 30 years of reclusion perpetua and payment of P86,000 as indemnity in Criminal Case No. 95-7582.

Appellant was charged under separate informations, which read as follows:

Criminal Case No. 95-7580:

That on or about the 18^th day of May 1994, in Pasay City, Metro Manila, Philippines, and within the jurisdiction of this Honorable Court the above-named accused, Rica G. Cuyugan, defrauded and deceived private Complainant Norma Abagat in the following manner to wit: that said accused with intent to defraud and well knowing that her account with the bank was already closed, did then and there wilfully, unlawfully and feloniously, make out and issue to private Complainant the following checks:

FEBTC

Check No.                 Date                         Amount

1. 03A058536P              06-25-94                      P360,000.00

2. 03A058546P              07-22-94                      36,000.00

in the total amount of P396,000.00 simultaneous with the receipt by the accused of cash money from private Complainant also in the total amount of P396,000.00 but which checks when presented to the drawee bank on their maturity dates were promptly dishonored for reasons of "Account Closed" and notwithstanding demands made on her, accused failed and refused and still fails to redeem or make good the said check's face value thereof, to the damage and prejudice of the private Complainant in the total aforesaid amount of P396,000.00.

Contrary to Law.^[2]

Criminal Case No. 95-7581:

That on or about the 25^th day of May 1994, in Pasay City, Metro Manila, Philippines, and within the jurisdiction of this Honorable Court the above-named accused, Rica G. Cuyugan, defrauded and deceived private Complainants Rodrigo and Norma Abagat in the following manner to wit: that said accused with intent to defraud and well knowing that her account with the bank was already closed, did then and there wilfully, unlawfully and feloniously make out and issue to private Complainants the following checks:

FEBTC

Check No.               Date                         Amount

1. 03A058480P              07-25-94                      P300,000.00

2. 03A059550P              08-13-94                      9,000.00

in the total amount of P309,000.00 simultaneous with the receipt by the accused of cash money from private Complainants Rodrigo and Norma Abagat, respectively, valued in the total amount of P309,000.00 but which checks when presented to the drawee bank on their maturity dates were promptly dishonored for reasons of "Account Closed" and notwithstanding demands made on her, accused failed and refused and still fails to redeem or make good the said check's face value thereof, to the damage and prejudice of the private Complainants in the total aforesaid amount of P309,000.00.

Contrary to Law.^[3]

Criminal Case No. 95-7582:

That on or about the 12^th day of May 1994, in Pasay City, Metro Manila, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused defrauded and deceived private Complainant Norma Abagat in the following manner to wit: that the accused with intent to defraud and well-knowing that her account with the bank has no sufficient funds, wilfully, unlawfully and feloniously make out and issue to the private Complainant Far East Bank and Trust Company Check No. 03A058532P postdated June 10, 1994 in the amount of P150,000.00 simultaneous with, for and in consideration of cash money from private Complainant in the total amount of P150,000.00 but which check when presented to the drawee bank on maturity date was promptly dishonored for reason of "Drawn Against Insufficient Funds" (DAIF) and notwithstanding demands on her, accused failed and refused and still fails and refuses to redeem or make good the said check or its value, to the damage and prejudice of the private Complainant in the total aforesaid amount of P150,000.00.

Contrary to Law.^[4]

Inasmuch as the three cases are interrelated, involving the same parties and similar causes of action, they were consolidated.

On October 18, 1995 appellant was arraigned, and with the assistance of counsel, pleaded not guilty. A joint trial on the merits ensued thereafter.

The prosecution presented complaining witnesses, Rodrigo Abagat and Norma David Abagat.

RODRIGO ABAGAT testified that he is engaged in the business of supplying dry goods, such as materials for building construction as well as communication parts, to the Philippine Air Force. In the morning of May 10, 1994, he narrated that he was at the Villamor Airbase together with his wife, Norma David Abagat, and appellant Rica Cuyugan. He and his wife met with appellant at the Villamor Golf Club to discuss the matter of appellant's dire need for money on account of the supplies she wanted to buy for the Philippine Armed Forces.^[5] He said that they gave appellant, on staggered basis, the amount totaling to P855,000. They agreed to give her the amount provided that appellant would issue checks to cover the value of the money given her.^[6]

When the checks were presented for payment, they were all dishonored either on account of DAIF (drawn against insufficient funds) or for reason of ACCOUNT CLOSED.^[7] He forthwith informed appellant of the dishonor of the checks by sending her a demand letter on January 12, 1995.^[8] Despite repeated demands, appellant failed to make good the checks, which constrained the Abagat spouses to file in May 1995 a complaint for estafa against appellant. It was only then that they filed the complaint as they gave appellant an opportunity to settle her obligations to no avail.^[9]

On cross-examination, Rodrigo admitted that appellant is a family friend and is in fact related by affinity to his wife. He likewise admitted that he received from appellant the sum of P100,000 applied against the check drawn in his favor.^[10]

NORMA DAVID ABAGAT substantially corroborated the testimony of her husband. She accompanied her husband when he met with appellant and witnessed the exchange of money and checks between them.

On cross-examination Norma admitted that the checks issued by appellant were mere guarantees for the return of their money.^[11]

The defense presented appellant RICA G. CUYUGAN. She testified that she is a businesswoman who furnished the Armed Forces of the Philippines (AFP) with office supplies, construction materials, and signal and communication spare parts. She had been engaged in this business since 1977. She affirmed that her husband is the cousin of private complainant Norma Abagat.^[12]

Appellant stated that it was Norma Abagat who requested that the Abagats participate in the big supply project for the Philippine Army. The Abagat spouses gave her P150,000 which represented the P135,000 principal as partner for that construction project with the Philippine Army and the remaining P15,000 representing the 10% profit share.^[13] In return, she issued a postdated check covering the P150,000 as proof that the Abagat spouses had invested their money with her.^[14]

She claimed that she was the industrial partner as she did all the legwork in getting the projects. They then shared in the profits after deducting all the miscellaneous expenses.

She issued another postdated check worth P360,000 in exchange for the P270,000 that Norma Abagat gave her, less expenses and profit share. She also issued another check for P36,000 representing interest for four months at P9,000 per month.^[15] On account of another deal she closed with the Philippine Army, she issued to Norma another check worth P300,000 as the latter's share in said deal, and a check worth P9,000 as interest for the former.^[16]

Appellant made payments to the Abagat spouses by depositing the total amount of P575,000 in the latter's bank account with Maybank (formerly Philippine Republic Bank).^[17]

She further testified on cross-examination that when the checks bounced, she issued four replacement checks in the sala of the trial judge but these checks also bounced.^[18]

ADELARDO GUEVARRA, bank account analyst at Maybank Philippines, Villamor Airbase branch, testified that as part of his duties and functions he posted and recorded deposit accounts and withdrawals.^[19] He claimed to be familiar with the Maybank account of Rodrigo Abagat and that deposits were made in said account but he had no knowledge who deposited these amounts.^[20]

LT. COL. RAMOS L. AQUINO, Logistics Supply Officer of the Philippine Army, was the final witness for the defense. He testified that he knew appellant quite well and the latter had introduced him to Norma Abagat who owned NDA Trading. He also affirmed that appellant dealt with the Philippine Army in supplying it with materials for certain projects.^[21]

The trial court found appellant guilty beyond reasonable doubt of estafa committed by means of false pretenses or fraudulent acts executed prior to or simultaneously with the commission of the fraud, that is by postdating a check or issuing a check in payment of an obligation when the offender had no funds in the bank, or his funds deposited therein were not sufficient to cover the amount of the check.^[22]

Hence this appeal where appellant assigns the lone error that:

THE TRIAL COURT ERRED IN FINDING ACCUSED APPELLANT RICA G. CUYUGAN GUILTY BEYOND REASONABLE DOUBT OF THREE (3) COUNTS OF ESTAFA.

The issue is whether the trial court erred in convicting appellant for three counts of estafa and sentencing her pursuant to Article 315, 2 (d) of the Revised Penal Code as amended by P.D. No. 818.

Appellant contends that the agreement entered into by her and the Abagat spouses was for a partnership transaction for the supply of materials for the Armed Forces. She further asserts that the Abagat spouses had known her for a long time and had previous business dealings with her. It was actually on account of her good credit standing that they were convinced to become her partners. She issued the subject checks as mere guarantees, according to appellant, hence they were postdated.

Incidentally, appellant also assails the penalty imposed by the trial court on the ground that it violates the constitutional provision on cruel, degrading or inhuman punishment. Considering that this appeal could be decided on other grounds, however, we need not now pursue the issue of unconstitutionality of P.D. No. 818, which amended Article 315, 2 (d) of the Revised Penal Code, as earlier amended by R.A. No. 4885.

For the appellee, the Office of the Solicitor General (OSG) states that although appellant incurred criminal liability, she should only be penalized for violation of BP 22 and not for estafa because the prosecution failed to establish fraud. According to the OSG, contrary to appellant's claim that the sum of P855,000 given to her by the Abagat spouses represented the latter's investment in a supposed partnership, the evidence clearly established that the P855,000 was a loan extended by the spouses to appellant. However, the prosecution failed to prove beyond a reasonable doubt fraud or bad faith on the part of appellant in issuing the postdated checks.

We find the appeal meritorious.

Generally, findings and conclusion of the trial court are binding upon us in the absence of a clear showing of arbitrariness or palpable error^[23] or unless it has plainly overlooked certain facts of substance and value that, if considered, might affect the result of the case.^[24]

We agree with the OSG that the prosecution failed to discharge its burden of proving beyond reasonable doubt that the offense of estafa as defined by the Revised Penal Code in Article 315, 2 (d), was committed by the appellant. More particularly, the prosecution did not prove the existence of fraud to constitute the issuance of the check as fraud contemplated by the law on estafa. As we previously held:

To constitute estafa under this provision the act of postdating or issuing a check in payment of an obligation must be the efficient cause of defraudation, and as such it should be either prior to, or simultaneous with the act of fraud. The offender must be able to obtain money or property from the offended party because of the issuance of a check whether postdated or not. That is, the latter would not have parted with his money or other property were it not for the issuance of the check.^[25]

In this case, the trial court failed to consider the testimonies of both the private complainants with respect to the agreement that the checks issued by appellant shall be mere guarantees for the eventual payment of the money given to appellant.

As aptly pointed out by the OSG, Norma Abagat admitted on cross-examination that the checks that appellant issued merely guaranteed the payment of the loan.^[26] Rodrigo Abagat likewise admitted as much and even testified on cross-examination that he intended to impose a monthly interest at the rate of 5% on the amount lent.^[27] The OSG observed that it was not the issuance of the checks that prompted the Abagat spouses to part with their money but rather, the liberality to help appellant who is the wife of Norma's cousin, as well as the expectation to collect interest payment for the loan extended to appellant.

The transaction between appellant and the Abagat spouses, in our view, was one for a loan of money to be used by appellant in her business and she issued checks to guarantee the payment of the loan. As such, she has the obligation to make good the payment of the money borrowed by her. But such obligation is civil in character and in the absence of fraud, no criminal liability under the Revised Penal Code arises from the mere issuance of postdated checks as a guarantee of repayment. We find appellant's allegation, that the Abagat spouses entered into a joint venture agreement with her for the supply of materials with the AFP, is self-serving. But we also note that the trial court convicted appellant on a general allegation that all the elements of estafa under Article 315, 2 (d) of the Revised Penal Code had been proved by the prosecution without making any reference to or giving any proof of the actual fraud that appellant allegedly committed to make her liable for estafa. It is elementary that where an allegation in the information is an essential element of the crime, the same must be proved beyond reasonable doubt to sustain a conviction. In this case, the prosecution did not establish specifically and conclusively the fraud alleged as an element of the offenses charged.

Considering that the informations against appellant involved violation of Art. 315, 2 (d) of the Revised Penal Code, we take exception to the OSG's recommendation^[28] that appellant should be held liable for violations of BP 22. Appellant cannot be convicted of a crime for which she was not properly charged, for that would violate appellant's constitutional right to be informed of the accusation against her.^[29] The purpose of the constitutional guarantee that a person accused of an offense be informed of the accusation against him is (a) to furnish the accused with such a description of the charge against him as will enable him to make his defense; (b) to avail himself of his conviction or acquittal, for protection against a further prosecution for the same cause; and (c) to inform the court of the facts alleged, so that it may decide whether they are sufficient in law to support a conviction, if one should be had.^[30]

The informations filed with the regional trial court were for three counts of estafa. Earlier, the informations for BP 22 covering the same checks filed with the Metropolitan Trial Court of Pasay City, Branch 44, were provisionally dismissed on November 13, 1996.^[31] These cases were not re-filed nor consolidated with the informations for estafa before the RTC of Pasay. Accordingly, appellant was never apprised of the fact that she may still be held liable for BP 22 and so never had an opportunity to defend herself against an accusation for an offense under the special law. BP 22 cannot be deemed necessarily included in the crime of estafa under RPC, Article 315, 2 (d). The offense of fraud defined under the Revised Penal Code is malum in se, whereas BP 22, also known as Bouncing Checks Law, is a special law which punishes the issuance of bouncing checks, a malum prohibitum. Fraud or estafa under the Revised Penal Code is a distinct offense from the violation of the Bouncing Checks Law. They are different offenses, having different elements.^[32] In this case, since appellant is accused of violating a particular provision of the Revised Penal Code on estafa, she may not be convicted for violation of BP 22 without trenching on fundamental fairness.

The trial court found sufficient evidence that appellant already paid the amount of P425,000 out of her total indebtedness of P855,000. Apparently, appellant made a belated effort to make good her obligation. Be that as it may, there is a remaining balance of her obligation in the amount of P430,000 as the difference between P855,000 less P425,000. This amount of P430,000 should be paid by appellant as a just obligation owing to the spouses Rodrigo and Norma Abagat. In addition, interest of 12 percent per annum, to be computed in accordance with Article 1169,^[33] should also be paid by her. For where the debtor incurs in delay, he has to pay interest by way of damages, in conformity with our ruling in Eastern Shipping Lines, Inc. vs. Court of Appeals.^[34]

WHEREFORE, the judgment dated December 20, 2000, of the Regional Trial Court of Pasay City, Branch 117, in Criminal Cases Nos. 95-7580, 95-7581, and 95-7582 finding appellant RICA G. CUYUGAN, liable for three counts of estafa is REVERSED and SET ASIDE. Appellant is ACQUITTED, for lack of sufficient evidence to prove fraud beyond reasonable doubt. However, she is ordered to pay private complainants the balance of her obligation in the amount of P430,000 plus interest of twelve percent (12%) per annum until fully paid. She is hereby ordered RELEASED immediately from confinement in the Correctional Institution for Women, Mandaluyong City, unless she is being held for another lawful cause. The Director of the Bureau of Corrections is directed to inform the Court of the action taken hereon within five days from notice.

SO ORDERED.

Bellosillo, (Chairman), Mendoza, and Callejo, Sr., JJ., concur.
Austria-Martinez, J., on leave.

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^[1] Rollo, pp. 27-36.

^[2] Id. at 11.

^[3] Id. at 13.

^[4] Id. at 15.

^[5] TSN, July 17, 1996, pp. 4-8.

^[6] Id. at 9.

^[7] Id. at 20-21.

^[8] Id. at 23.

^[9] Id. at 26-27.

^[10] TSN, August 14, 1996, pp. 27-28.

^[11] TSN, March 29, 2000, p. 41.

^[12] TSN, May 19, 2000, p. 5.

^[13] Id. at 7-8.

^[14] Id. at 11.

^[15] Id. at 18.

^[16] Rollo, p. 32.

^[17] TSN, May 19, 2000, pp. 22-23.

^[18] Rollo, p. 33.

^[19] TSN, June 28, 2000, pp. 4, 6-7.

^[20] Supra note 18 at 33.

^[21] Ibid.

^[22] Article 315, 2 (d), Revised Penal Code.

^[23] See People vs. Molina, et al., 292 SCRA 742, 765 (1998).

^[24] People vs. Laceste, et al., 293 SCRA 397, 407 (1998).

^[25] Vallarta vs. Court of Appeals, 150 SCRA 336, 340 (1987).

^[26] Rollo, p.116.

^[27] Id. at 111.

^[28] Memorandum for Plaintiff-Appellee, Rollo, pp. 114-115.

^[29] Article III, Sec. 14 (2), 1987 Constitution.

^[30] People vs. Manalili, et al., 294 SCRA 220, 258 (1998); citing US vs. Karelsen, 3 Phil. 223, 226 (1904).

^[31] Records, Annex "F" of Comment to Appellee's Brief. Cf People vs. Chua, 315 SCRA 327 (1999).

^[32] Uy vs. Court of Appeals, 276 SCRA 367, 375 (1997).

^[33] Art. 1169, Civil Code:

Those obliged to deliver or to do something incur in delay from the time the obligee judicially or extrajudicially demands from them the fulfillment of their obligation.

x x x

^[34] 234 SCRA 78, 95 (1994).