JUDICIAL NOTICE

BPI v CTA
Before us is a Petition for Review assailing Decision of the Court of Appeals
denying Petitioners claim for refund .
"It appears from the foregoing 1989 Income Tax Return that petitioner had a
total refundable amount of P297,492 inclusive of the P112,491.00 being
claimed as tax refund in the present case. However, petitioner declared in the
same 1989 Income Tax Return that the said total refundable amount of
P297,492.00 will be applied as tax credit to the succeeding taxable year.
On October 11, 1990, petitioner filed a written claim for refund in the amount
of P112,491.00 with the respondent Commissioner of Internal Revenue alleging
that it did not apply the 1989 refundable amount of P297,492.00 (including
P112,491.00) to its 1990 Annual Income Tax Return or other tax liabilities due
to the alleged business losses it incurred for the same year.
TA Case No. 4897
Petitioner also calls the attention of this Court, as it had done before the CTA,
to a Decision rendered by the Tax Court in CTA Case No. 4897, involving its
claim for refund for the year 1990. In that case, the Tax Court held that
"petitioner suffered a net loss for the taxable year 1990 x x x."
[18]
Respondent,
however, urges this Court not to take judicial notice of the said case.
[19]

As a rule, "courts are not authorized to take judicial notice of the contents of
the records of other cases, even when such cases have been tried or are
pending in the same court, and notwithstanding the fact that both cases may
have been heard or are actually pending before the same judge."
[20]

Be that as it may, Section 2, Rule 129 provides that courts may take judicial
notice of matters ought to be known to judges because of their judicial
functions. In this case, the Court notes that a copy of the Decision in CTA Case
No. 4897 was attached to the Petition for Review filed before this Court.
Significantly, respondents do not claim at all that the said Decision was
fraudulent or nonexistent. Indeed, they do not even dispute the contents of the
said Decision, claiming merely that the Court cannot take judicial notice
thereof.
To our mind, respondents reasoning underscores the weakness of their case.
For if they had really believed that petitioner is not entitled to a tax refund,
they could have easily proved that it did not suffer any loss in 1990. Indeed, it
is noteworthy that respondents opted not to assail the fact appearing therein --
that petitioner suffered a net loss in 1990 in the same way that it refused to
controvert the same fact established by petitioners other documentary
exhibits.
In any event, the Decision in CTA Case No. 4897 is not the sole basis of
petitioners case. It is merely one more bit of information showing the stark
truth: petitioner did not use its 1989 refund to pay its taxes for 1990.
WHEREFORE, the Petition is hereby GRANTED. The Commissioner of Internal
Revenue is ordered to refund to petitioner the amount of P112,491 as excess
creditable taxes paid in 1989. No costs.
Expert Travel &Tours Inc. vs CA
GR 152392, May 26, 2005
Callejo Sr. J.

Facts: Korean Air Lines (KAL) filed a complaint against Expert Travel & Tours
Inc (ETI) with the RTC of Manila for collection of sum of money plus attorneys
fees and damages. The verification and certification against non-forum
shopping was signed by Atty. Mario Aguinaldo, who indicated therein that he
was the resident agent and legal counsel of KAL and had caused the
preparation of the complaint. ETI moved to dismiss the complaint on the
ground that said lawyer was not authorized to execute the verification and
certification against non-forum shopping as required by Section 5 Rule 7 of the
Rules of Court. KAL opposed the motion, contending that Atty. Aguinaldo was
its resident agent and was reported as such with the SEC as required by the
Corporation Code of the Philippines. Also, it further alleged that Atty.
Aguinaldo was the Corporate Secretary of KAL. At the hearing, Atty. Aguinaldo
claimed that thru a resolution of KAL Board of Directors approved during a
special meeting, he was authorized to file the complaint. Thru an affidavit
submitted by its general manager, it was alleged that a special teleconference
was held and and in that same teleconference the Board approved a resolution
authorizing him to execute the certification against non-forum shopping and
to file the complaint. However, the general manager provided no written copy of
the said resolution.

ETI filed a motion for reconsideration, contending that the court cannot take
judicial notice of the said teleconference without any hearing, which was
denied by the RTC. CA also denied the appeal.

Issue: Whether or not the court can take judicial notice of the said
teleconference.
Held: Things of common knowledge of which courts take judicial matters
coming to the knowledge of men generally in the course of the ordinary
experiences of life, or they may be matters which are generally accepted by
mankind as true and are capable of ready and unquestionable determination.
But a court cannot take judicial notice of any fact which, in part, is dependent
on the existence or non-existence of a fact of which the court has no
constructive knowledge.
In this age of modern technology, the courts may take judicial notice that
business transactions may be made by individuals through teleconferencing.
Teleconferencing is interactive group communication through an electronic
medium, bringing people together under one roof even though they are
separated by hundreds of miles.
The Court is not convinced that one was conducted; even if there had been one,
the Court is not inclined to believe that a board resolution was duly passed
specifically authorizing Atty. Aguinaldo to file the complaint and execute the
required certification against non forum shopping.
Petition granted.
Rule 130 Rules of Admissibility-
Real Evidence

Lee vs People
OBERT CRISANTO D. LEE, petitioner, vs. PEOPLE OF THE PHILIPPINES
and ATOZ TRADINGCORPORATION, respondents.[G.R. No. 157781. April
11, 2005]FACTS:

Lee is Atoz Trading Corporations sales manager. OceanFeed Mills, Lee handled
said account. Whenever the Ocean Feed Mills remit their payment,it goes to Lees account
at UCPB and then Lee would withdraw that money from UCPB, sometimes in cash and
sometimes in the form of managers check payable to Atoz Trading. However, during the
trial, Atoz Trading Corporations cashier testified that she did not receive any
payment from Ocean Feed Mills.When Lee ceased reporting for work, Atoz audited
some of the accounts handled by him. It was then that Atoz discovered Ocean Feed
Mills unpaid account. Atoz thus notifiedOcean Feed Mills that Lee was no longer
connected with the corporation, and advised it to verify its accounts. However, Ocean
Feed Mills informed Atoz that they have already fully settled their accounts and
even made over payments. The President of Atoz claimed that he went
to Paraaque, accompanied by his counsel and some policemen, and tried to
locate Lee and that upon finding him they asked him to remit the payments
made by Ocean Feed Mills to Atoz Trading Corporation. The trial court rendered
judgment finding Lee guilty beyond reasonable doubt of nine (9)counts of the crime of
Estafa, defined and penalized under Art. 315, par. 1(b) of the RevisedPenal Code.The
petitioner appealed the decision which the CA dismissed, hence this petition forreview.

ISSUE:

Whether or not petitioner can be convicted for the crime of estafa thru
conversion(art. 315, par. 1-[b] of the revised penal code), lacking the element of
formal demand before the filing of the cases against him.

RULING:

The petition was denied for lack of merit. Demand is not an element of the
felony or a condition precedent to the filing of a criminal complaint for
estafa. Indeed, the accused may be convicted of the felony under Article315,
paragraph 1(b) of the Revised Penal Code if the prosecution proved misappropriationor
conversion by the accused of the money or property subject of the Information. In
aprosecution for estafa, demand is not necessary where there is evidence
of misappropriation or conversion. However, failure to account upon
demand, for funds or property held in trust, is circumstantial evidence of
misappropriation.Demand need not be formal. It may be verbal. In the
present case, the prosecution adduced proof upon cross-examination of
thepetitioner Lee that he failed to return the funds held in trust before
the complaint for estafawas filed against him. Further, the cashier of Atoz
Trading Corporation stated that the accused did not remit the payments of
Ocean. It is evident that the accused assumed the right to dispose of the
remittances as if it were his own, thus, committing conversion with unfaithfulness and
a clear breach of trust.




Mallari vs People
To warrant conviction based on circumstantial evidence, the totality of the circumstances must
eliminate beyond reasonable doubt the possibility of innocence; otherwise, the accused must be
acquitted.
Petition for Review
[1]
on Certiorari under Rule 45 in relation to Rule 125 of the Rules of Court,
seeking to reverse, set aside, nullify and/or modify the December 18, 2001 Decision
[2]
of the
Court of Appeals
Private complainant Erlinda Boyose was a teacher at the Bustamante High School,
Davao City from 1977 up to 1989. At the start, she had a good working relationship
with the school principal, appellant Melanio Mallari. However, their relationship
turned sour when she began to question appellant Mallari on alleged unaccounted
school funds.
Leonardo Bontia admitted to be the gunman. He pointed to appellant Mallari as the
one who hired him to kill Boyose. On the [other] hand, Zaldy Bontia admitted to
have been hired by Mallari to look for a gunman to kill Erlinda Boyose and that he
was the one who recommended to Mallari his brother Leonardo Bontia to do the job
for a fee.
Melanio Mallari, Leonardo Bontia and Zaldy Bontia, were accordingly charged by
Asst. City Prosecutor Jose Emmanuel M. Castillo of the crime of Frustrated Murder,
Ruling:
A close perusal of the testimonies of the witnesses presented against
petitioner reveals the absence of direct evidence establishing his criminal
participation. Nonetheless, in the absence of direct proof, a conviction may
still be based on circumstantial evidence. But to warrant such conviction, the
following requisites must concur: (1) there is more than one circumstance, (2)
the facts from which the inferences are derived are proven, and (3) the
combination of all the circumstances is such as to produce a conviction
beyond reasonable doubt.
[26]

Corollary to the constitutional precept that the accused is presumed
innocent until the contrary is proved, a conviction based on circumstantial
evidence must exclude each and every hypothesis consistent with
innocence.
[27]
Hence, if the totality of the circumstances eliminates beyond
reasonable doubt the possibility of innocence, conviction is proper; otherwise,
the accused must be acquitted.
[28]

The first circumstance -- that Mallari had an axe to grind against the
victim because of her persistent inquiries regarding the use or misuse of
school funds -- appears to be a conclusion based merely on the impression
of the victim herself. Other than the one letter
[31]
she wrote to petitioner, only
her self-serving statement supported her allegation that she had questioned
persistently (several times) his supposed administrative malpractices as
school principal.
Be that as it may, a reading of that letter, which was indeed replete with
denigrating statements against him, probably served as a motive for a reprisal
from him, if its contents were not treated as constructive criticism. To the
extent that it tends to establish motive, this circumstance may be taken into
consideration in the overall assessment of the evidence against him.
The second to the fourth circumstances
[32]
are not directly established by
the evidence against petitioner. None of the prosecution witnesses testified
thereon. A scrutiny of the records of the case reveals that those
circumstances were derived from the Written Statements
[33]
that had been
made by petitioners co-accused and presented when Prosecution Witnesses
Carvajal and Naive testified. These witnesses were the police investigators
who had reduced into writing the statements of Leonardo and Zaldy Bontia at
the time of the arrest of the latter two.
Section 36 of Rule 130 of the Rules of Court provides that witnesses can
testify only with regard to facts of which they have personal knowledge;
otherwise, their testimonies would be inadmissible for being hearsay.
[34]
In the
present case, neither of the said witnesses had personal knowledge of the
second to the fourth circumstances considered by the appellate court, or of
the rest of the statements made by the declarants in their respective Written
Statements. The witnesses merely attested to the voluntariness and due
execution of the Bontias respective extrajudicial confessions. Thus, insofar
as the substance of those confessions is concerned, the testimonies of the
police witnesses are mere hearsay.
[35]

The fifth and the sixth circumstances refer to the aforementioned Written
Statements of petitioners co-accused who did not, however, testify against
him. Well-settled is the rule that extrajudicial declarations are inadmissible in
evidence against the declarants co-accused.
[36]
The admission by the court of
such declarations violates the incriminated persons right to due process. This
principle holds if, as in the case before us, the declarants fail to take the
witness stand and thereby deny the accused-petitioner the fundamental right
to confront and cross-examine them face-to-face, in order to test their
truthfulness and credibility.
True, there are exceptions to this rule, such as when the confession is
used as circumstantial evidence to show the probability of the participation of
the co-accused in the crime, or when the confession is corroborated by other
pieces of evidence.
[37]
In such instances, the significance of the confession
comes to the fore, but only in relation to the other circumstantial evidence
establishing the guilt of the person incriminated. In the instant case, the
merits of the fifth and the sixth circumstances mentioned by the appellate
court depend, therefore, on the strength of the other circumstantial evidence
against petitioner.
But, as discussed so far, just the first circumstance, establishing
petitioners motive, may be given due weight. Only one more remains to be
considered, as the three other circumstances have been discounted as
hearsay.
This last circumstance cited by the appellate court pertains to a supposed
letter of Leonardo Bontia addressed to the victim, containing explicit details
regarding the commission of the crime and asking for forgiveness. The latter
was presented as part of the testimony of the victim, Erlinda Boyose.
There is another circumstance, not mentioned by the appellate court but
advanced by the Office of the Solicitor General: that Prosecution Witness
Edwin Amparado declared that he had been contacted by petitioner to kill
Boyose. Let us first recall the testimony of that witness, as related by the trial
court:
On December 11, 1990, Edwin Amparado testified that he personally knows accused
Mallari because he studied at F. Bangoy Barangay High School where Melanio
Mallari was the principal from 1983 to 1984, that he also knows Zaldy Bontia, that the
last time he saw Zaldy Bontia was in February 1989 in the house of Melanio Mallari
located at Juan Luna, corner Chavez Streets, that he went to the house of Melanio
Mallari to pledge his electric fan, that Melanio Mallari asked him to kill Mrs. Boyose
who used to be his neighbor at Doa Pilar Village but nothing came out of it, that later
he heard over the radio that Mrs. Boyose was shot, that he knows Andy Magdadaro
who was his neighbor in Agdao, that they talked about the plan to kill Mrs. Boyose,
that Andy Magdadaro was only waiting for his go-signal, that he executed an affidavit
regarding the offer of Melanio Mallari to kill Mrs. Boyose. He said on cross-
examination that he did not feel disgusted when Mallari asked him to kill Mrs.
Boyose, that he thought of killing Mrs. Boyose and relayed the offer to Andy
Magdadaro the same job, that he is close to Mr. Mallari, that the job of killing Mrs.
Boyose was the only illegal job offered to him by Melanio Mallari, that during that
time he needed money because his wife was pregnant, that he relayed the offer to
Andy Magdadaro because he is a rebel returnee.
[41]

It appears that the prosecution presented Amparado merely to show that
petitioner had criminal intent against the victim. The testimony of the witness,
however, concerned petitioners alleged proposal to him (not to the Bontias) to
kill Boyose -- an act that, by his own admission, did not materialize. Even if
indeed petitioner made such a proposal, it did not necessarily mean that it
was also made to the Bontias, absent any strong supporting evidence. The
witness does not in fact appear privy to any conspiracy between petitioner and
the Bontias.
Thus, insofar as the actual attempt on the life of Boyose is concerned,
Amparados testimony is clearly irrelevant or of no probative weight. It does
not tend to establish, to any reasonable degree, the probability of a fact in
issue
[42]
-- whether petitioner had induced or conspired with the Bontias to kill
Boyose. Hence, the testimony is worthless in establishing the guilt of
petitioner of the crime charged against him.
In the final analysis, other than the victims letter to petitioner tending to
establish his ill motive, there is hardly any evidence to corroborate his co-
accuseds extrajudicial confessions (later recanted) or to establish the
probability of his actual participation (by inducement) in the commission of the
crime. Considering that the strength of the prosecution evidence against him
falls short of the required quantum of proof beyond reasonable doubt, his
constitutional right to be presumed innocent must prevail.
The Court has repeatedly held that when the circumstances shown to exist
yield at least two inferences -- one of which is consistent with the presumption
of innocence and the other with the finding of guilt -- the Court must acquit the
accused, because the evidence does not then fulfill the test of moral certainty
or suffice to support a judgment of conviction.
[43]

Consistent with the above principles, and in view of the dearth of evidence
to prove his guilt beyond reasonable doubt, petitioner must be acquitted.

CITIBANK, N.A. MASTERCARD, petitioner, vs. EFREN S.
TEODORO, respondent.
Before secondary evidence may be admitted to prove the contents of
original documents, the offeror must prove the due execution and the
subsequent loss or unavailability of the original.
The Case
The Petition for Review
[1]
before us assails the July 31, 2001 Decision
[2]
and
the November 22, 2001 Resolution
[3]
of the Court of Appeals
The Facts
Petitioner operates a credit card system through which it extends credit
accommodations to its cardholders for the purchase of goods and services
from its member establishments. The purchases are later on paid for by
cardholders upon receipt of the billings or statements of account from the
company. Respondent Efren S. Teodoro was one such cardholder. On
December 14, 1990, he applied for membership with petitioner. After his
application was approved, he was issued Citibank, N.A. Mastercard No. 5423-
3920-4457-7009.
Respondent made various purchases through his credit
card. Accordingly, he was billed by petitioner for those purchases, for which
he tendered various payments.
Petitioner claims that as of January 20, 1995, the obligations of
respondent stood at P191,693.25, inclusive of interest and service
charges. Several times it demanded payment from him, but he refused to
pay, claiming that the amount demanded did not correspond to his actual
obligations. His refusal prompted petitioner to file a Complaint for collection
on January 25, 1996 before the Regional Trial Court (RTC) of Makati
City. The case was docketed as Civil Case No. 96-092 and raffled to Branch
133.
During the trial, petitioner presented several sales invoices or charge
slips, which added up to only P24,388.36. Although mere photocopies
of the originals, the invoices were marked in evidence as Exhibits F to
F-4
Ruling of the Court of Appeals
The focal issue of the case according to the CA was whether the
photocopies of the sales invoices or charge slips, marked as Exhibits F to
F-4, were competent proofs of the obligations of respondent. These were
the only evidence presented by petitioner that could prove the actual
amount of obligation he had incurred in favor of the former. In reversing
the trial courts, the CA ruled that this evidence was insufficient to prove any
liability on respondents part.
Although petitioner was able to prove the existence of the original sales
invoices, it failed to prove their due execution or to account for their loss or
unavailability.
Issues
II. Whether or not the Court of Appeals erred in holding that petitioner failed to prove
the due execution and the cause of the unavailability and non-production of the
charge slips marked in evidence as Exhibits F to F-4.
[9]

In brief, the main issue boils down to whether the photocopies of the sales
invoices or charge slips marked during trial as Exhibits F to F-4 are
admissible in evidence.
Main Issue:
Admissibility of Photocopies
Petitioner contends that the testimony
[10]
of its principal witness - Mark
Hernando, assistant manager of Citibank, N.A. Mastercard -- proves the
following:
a) the existence or due execution of the original sales invoices which sufficiently
proved respondents liability of P24,388.36;
b) the loss or unavailability of the original sales invoices; and
c) petitioners reasonable diligence and good faith in the search for or attempt to
produce the originals.
The original copies of the sales invoices are the best evidence to prove
the alleged obligation. Photocopies thereof are mere secondary evidence. As
such, they are inadmissible because petitioner, as the offeror, failed to prove
any of the exceptions provided under Section 3
[13]
of Rule 130 of the Rules of
Court, as well s the conditions of their admissibility. Because of the
inadmissibility of the photocopies in the absence of the originals, respondents
obligation was not established.

Section 5 of Rule 130 of the Rules of Court states:
SEC. 5. When original document is unavailable. When the original document has
been lost or destroyed, or cannot be produced in court, the offeror, upon proof of its
execution or existence and the cause of its unavailability without bad faith on his part,
may prove its contents by a copy, or by a recital of its contents in some authentic
document, or by the testimony of witnesses in the order stated.
Applying the above Rule to the present case, before a party is allowed to
adduce secondary evidence to prove the contents of the original sales
invoices, the offeror must prove the following: (1) the existence or due
execution of the original; (2) the loss and destruction of the original or the
reason for its nonproduction in court; and (3) on the part of the offeror, the
absence of bad faith to which the unavailability of the original can be
attributed.
[14]
The correct order of proof is as follows: existence, execution, loss,
and contents. At the sound discretion of the court, this order may be changed
if necessary.
[15]

In the present case, the existence of the original sales invoices was
established by the photocopies and the testimony of
Hernandez. Petitioner, however, failed to prove that the originals had been
lost or could not be produced in court after reasonable diligence and good
faith in searching for them.
Indeed, the loss of the originals and reasonable diligence in the search for
them were conditions that were not met, because the sales invoices might
have been found by Equitable. Hernandez, testifying that he had requested
the originals from Equitable, failed to show that he had subsequently followed
up the request.
[16]

Finally, when more than one original copy exists, it must appear that all of
them have been lost, destroyed, or cannot be produced in court before
secondary evidence can be given of any one. A photocopy may not be used
without accounting for the other originals.
[17]

In the present case, triplicates were produced, although the
cardholder signed the sales invoice only once.
[19]
During the trial,
Hernandez explained that an original copy had gone to respondent,
another to the merchant, and still another to petitioner.
[20]

Each of these three copies is regarded as an original in accordance
with Section 4 (b) of Rule 130 of the Rules of Court.
[21]
Petitioner failed to
show that all three original copies were unavailable, and that due
diligence had been exercised in the search for them.
WHEREFORE, the Petition is DENIED. Costs against petitioner.
Pacasum vs people.
Before Us is a petition for review on certiorari which seeks to set aside the Decision
1
of the
Sandiganbayan in Crim. Case No. 27483 promulgated on 7 August 2007 which found petitioner
Normallah A. Pacasum guilty of Falsification under Article 171, paragraph 1 of the Revised Penal
Code, and its Resolution
2
dated 22 October 2007 denying petitioners Motion for Reconsideration
and Motion for New Trial/Reception of Newly Discovered Evidence.
On 2 May 2002, petitioner was charged before the Sandiganbayan with Falsification of Public
Documents, defined and punished under paragraph 1 of Article 171 of the Revised Penal Code,
committed as follows:
That on or about August 22-23, 2000, or sometime prior or subsequent thereto in Cotabato City,
Philippines and within the jurisdiction of this Honorable Court, the accused NORMALLAH A.
PACASUM, a high ranking public official being the Regional Secretary of the Department of Tourism
in the Autonomous Region in Muslim Mindanao, Cotabato City falsified her Employee
Clearance
3
submitted to the Office of the Regional Governor of the Autonomous Region in Muslim
Mindanao, by imitating the signature of Laura Y. Pangilan, the Supply officer I of the DOT-ARMM, for
the purpose of claiming her salary for the months of August and September 2000.
4

Ruling:
Petitioner denies the allegation. Petitioner faults the Sandiganbayan for applying the presumption
that if a person had in his position a falsified document and he made use of it (uttered it), taking
advantage of it and profiting thereby, he is presumed to be the material author of the falsification. He
argues that the Sandiganbayan overlooked the fact that there was no evidence to prove that
petitioner made use of or uttered the Employees Clearance, because there was no evidence that
she submitted it -- if not, at least caused it to be submitted to the Office of the Regional Governor. To
support such claim, she said there were no "receipt marks" in the Employees Clearance to show that
the Office of the Regional Governor received said documents.
1. Rule that in the absence of satisfactory explanation, one who is found in possession of, and
who has used, a forged document, is the forger and, therefore, guilty of falsification.
61
The
effect of a presumption upon the burden of proof is to create the need of presenting evidence
to overcome the prima facie case created, which, if no contrary proof is offered, will thereby
prevail.
62
A prima facie case of falsification having been established, petitioner should have
presented clear and convincing evidence to overcome such burden. This, she failed to do.
Aware that the prosecution failed to present the original from which the photocopy of
petitioners Employees Clearance was supposed to have been obtained, she maintains that
the Sandiganbayan should have doubted the authenticity and probative value of the
photocopy of the Employees Clearance.
2. The Sandiganbayan correctly admitted in evidence the photocopy of the Employees
Clearance. We agree when it ruled:
Section 3, Rule 130 of the Rules of Court provides that when the subject of inquiry is the
contents of a document, no evidence shall be admissible other than the original document itself. The
purpose of the rule requiring the production by the offeror of the best evidence if 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. Hence, 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 has been lost or destroyed or cannot be produced in court. Such photocopies must be
disregarded, being inadmissible evidence and barren of probative weight.
The foregoing rule, however, admits of several exceptions. Under Section 3(b) of Rule 130,
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." And 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 as follows:
Sec. 6. When original document is in adverse partys custody or control. If the document is
in the custody or 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 loss.
Thus, the mere fact that the original is in the custody or control of the adverse 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 which 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.
Here, the accused admitted that her Employees Clearance was always in the possession of her
assistant secretary, [Marie Cris] Batuampar. So the prosecution in its effort to produce the original
copy of the said Employees Clearance of the accused, thru Assistant Special Prosecutor Anna
Isabel G. Aurellano of the Office of the Prosecutor, sent on May 31, 2005 thru the COA Telegraph
Office at Quezon City two (2) telegram subpoenas addressed to accused Normallah Pacasum, and
[Marie Cris] Batuampar ordering them to submit to the Office of the Special Prosecutor on or before
June 8, 2005, the original of the Employees Clearance in the name of Normallah Alonto Lucman-
Pacasum for the release of her August and September 2000 salary as DOT Regional Secretary.
Notwithstanding receipt of the said telegram subpoena by her uncle Manso Alonto in her residence
on June 1, 200[5], the accused did not appear before or submit to Assistant Special Prosecutor
Anna Isabel G. Aurellano, the original of the said Employees Clearance, much less offered to
produce the same.