Definition, nature and prerequisited in the issuance of subpoena

As stated at the outset hereof, the Court of Appeals, in a decision dated 20 August 2002,[4] dismissed the petition and accordingly affirmed the impugned resolutions of the RTC. With his motion for reconsideration having been denied by the same court in its resolution of 12 May 2003,[5] petitioner is now with us via the present recourse on his submissions that –





As we see it, the pivotal issue is whether or not the three (3) courts below committed reversible error in denying petitioner’s request for the issuance of subpoena ad testificandum and subpoena duces tecum in connection with the five (5) criminal cases for violation of BP 22 filed against him and now pending trial before the MTCC.

We rule in the negative.

A subpoena is a process directed to a person requiring him to attend and to testify at the hearing or trial of an action or at any investigation conducted under the laws of the Philippines, or for the taking of his deposition.[6]

In this jurisdiction, there are two (2) kinds of subpoena, to wit: subpoena ad testificandum and subpoena duces tecum.  The first is used to compel a person to testify, while the second is used to compel the production of books, records, things or documents therein specified.  As characterized in H.C. Liebenow vs. The Philippine Vegetable Oil Company:[7]

The subpoena duces tecum is, in all respects, like the ordinary subpoena ad testificandum with the exception that it concludes with an injunction that the witness shall bring with him and produce at the examination the books, documents, or things described in the subpoena.

Well-settled is the rule that before a subpoena duces tecum may issue, the court must first be satisfied that the following requisites are present:  (1) the books, documents or other things requested must appear prima facie relevant to the issue subject of the controversy (test of relevancy); and (2) such books must be reasonably described by the parties to be readily identified (test of definiteness). Again, to quote from H.C. Liebenow:[8]

In determining whether the production of the documents described in a subpoena duces tecum should be enforced by the court, it is proper to consider, first, whether the subpoena calls for the production of specific documents, or rather for specific proof, and secondly, whether that proof is prima facie sufficiently relevant to justify enforcing its production.  A general inquisitorial examination of all the books, papers, and documents of an adversary, conducted with a view to ascertain whether something of value may not show up, will not be enforced. (Emphasis supplied)

Further, in Universal Rubber Products, Inc. vs. CA, et al.,[9] we held:

Well-settled is Our jurisprudence that, in order to entitle a party to the issuance of a ‘subpoena duces tecum,’ it must appear, by clear and unequivocal proof, that the book or document sought to be produced contains evidence relevant and material to the issue before the court, and that the precise book, paper or document containing such evidence has been so designated or described that it may be identified. (Emphasis supplied)

Going by established precedents, it thus behooves the petitioner to first prove, to the satisfaction of the court, the relevancy and the definiteness of the books and documents he seeks to be brought before it.

Admittedly, the books and documents that petitioner requested to be subpoenaed are designated and described in his request with definiteness and readily identifiable. The test of definiteness, therefore, is satisfied in this case.

It is, however, in the matter of relevancy of those books and documents to the pending criminal cases that petitioner miserably failed to discharge his burden.

In the recent case of Aguirre vs. People of the Philippines,[10] the Court reiterated the following discussions regarding violations of BP 22:

xxx what the law punishes is the issuance of a bouncing check not the purpose for which it was issued nor the terms and conditions relating to its issuance.  The mere act of issuing a worthless check is malum prohibitum.  (Cruz vs. Court of Appeals, 233 SCRA 301).  All the elements, therefore, of the violation of Batas Pambansa Blg. 22 are all present in the instant criminal cases and for which the accused is solely liable, to wit: [a] the making, drawing and issuance of any check to apply to 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] 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. (Navarro vs. Court of Appeals, 234 SCRA 639).

We stress that the gravamen of the offense under BP 22 is the act of making or issuing a worthless check or a check that is dishonored upon its presentment for payment.[11] The offense is already consummated from the very moment a person issues a worthless check, albeit payment of the value of the check, either by the drawer or by the drawee bank, within five (5) banking days from notice of dishonor given to the drawer is a complete defense because the prima facie presumption that the drawer had knowledge of the insufficiency of his funds or credit at the time of the issuance of the check and on its presentment for payment is thereby rebutted by such payment.[12]

Here, petitioner would want it appear that the books and documents subject of his request for subpoena duces tecum are indispensable, or, at least, relevant to prove his innocence. The Court disagrees.

Based on the records below and as correctly pointed out by the Court of Appeals, petitioner had been issued by Cal’s Corporation with temporary receipts in the form of yellow pad slips of paper evidencing his payments, which pad slips had been validated by the corporation itself.  Clear it is, then, that the production of the books and documents requested by petitioner are not indispensable to prove his defense of payment.  In the words of the appellate court:

The Petitioner admitted, when he testified in the Regional Trial Court, that he had been issued temporary receipts in the form of yellow pad slips of paper, by the Private Respondent, for his payments which were all validated by the Private Respondent (Exhibits ‘8’ and ‘F’ and their submarkings).  Even if the temporary receipts issued by the Private Respondent may not have been the official receipts for Petitioner’s payments, the same are as efficacious and binding on the Private Respondent as official receipts issued by the latter.

We do not find any justifiable reason, and petitioner has not shown any, why this Court must have to disbelieve the factual findings of the appellate court.  In short, the issuance of a subpoena duces tecum or ad testificandum to compel the attendance of Vivian Deocampo or Danilo Yap of Cal’s Corporation or their duly authorized representatives, to testify and bring with them the records and documents desired by the petitioner, would serve no purpose but to further delay the proceedings in the pending criminal cases.

Besides, the irrelevancy of such books and documents would appear on their very face thereof, what the fact that the requested Audited Income Statements, Audited Balance Sheets, Income Tax Returns, etc. pertained to the years 1994 to 1999 which could not have reflected petitioner’s alleged payment because the subject transaction happened in 1993.  Again, we quote from the assailed decision of the Court of Appeals:

The checks subject of the criminal indictments against the Petitioner were drawn and dated in 1993.  The Petitioner has not demonstrated the justification, for the production of the books/records for 1994, and onwards, up to 1999.  Especially so, when the Informations against the Petitioner, for violations of BP 22, were filed, with the Trial Court, as early as 1994.

We are inclined to believe, along with that court, that petitioner was just embarking on a “fishing expedition” to derail “the placid flow of trial”.

With the above, it becomes evident to this Court that petitioner’s request for the production of books and documents referred to in his request are nakedly calculated to merely lengthen the proceedings in the subject criminal cases, if not to fish for evidence. The Court deeply deplores petitioner’s tactics and will never allow the same.

WHEREFORE, the instant petition is DENIED and the challenged decision and resolution of the Court of Appeals AFFIRMED.


About Erineus

Born on December 28, 1965, Surallah, South Cotabato, Southern Mindanao, Philippines.
This entry was posted in Anti Bouncing Check, Subpoeana and tagged . Bookmark the permalink.

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