Republic of the Philippines representative, Ricardo Bangayan (Bangayan).

SUPREME COURT Respondent Sally Go, alternatively referred to as Sally

Manila Sia Go and Sally Go-Bangayan, is Bangayan’s wife,
who was employed in the company as a cashier, and
THIRD DIVISION was engaged, among others, to receive and account
for the payments made by the various customers of
G.R. No. 168644 February 16, 2010 the company.

BSB GROUP, INC., represented by its President, In 2002, Bangayan filed with the Manila Prosecutor’s
Mr. RICARDO BANGAYAN, Petitioner, Office a complaint for estafa and/or qualified
vs. theft5 against respondent, alleging that several
SALLY GO a.k.a. SALLY GO- checks6 representing the aggregate amount of
BANGAYAN, Respondent. ₱1,534,135.50 issued by the company’s customers in
payment of their obligation were, instead of being
DECISION turned over to the company’s coffers, indorsed by
respondent who deposited the same to her personal
PERALTA, J.: banking account maintained at Security Bank and
Trust Company (Security Bank) in Divisoria, Manila
This is a Petition for Review under Rule 45 of the Rules Branch.7 Upon a finding that the evidence adduced
of Court assailing the Decision of the Court of Appeals was uncontroverted, the assistant city prosecutor
in CA-G.R. SP No. 876001 dated April 20, 2005, which recommended the filing of the Information for qualified
reversed and set aside the September 13, 20042 and theft against respondent.8
November 5, 20043 Orders issued by the Regional Trial
Court of Manila, Branch 364 in Criminal Case No. 02- Accordingly, respondent was charged before the
202158 for qualified theft. The said orders, in turn, Regional Trial Court of Manila, Branch 36, in an
respectively denied the motion filed by herein Information, the inculpatory portion of which reads:
respondent Sally Go for the suppression of the
testimonial and documentary evidence relative to a That in or about or sometime during the period
Security Bank account, and denied reconsideration. comprised (sic) between January 1988 [and] October
1989, inclusive, in the City of Manila, Philippines, the
The basic antecedents are no longer disputed. said accused did then and there willfully, unlawfully
and feloniously with intent [to] gain and without the
Petitioner, the BSB Group, Inc., is a duly organized knowledge and consent of the owner thereof, take,
domestic corporation presided by its herein steal and carry away cash money in the total amount
of ₱1,534,135.50 belonging to BSB GROUP OF Account No. 01-14-006, allegedly deposited the
COMPANIES represented by RICARDO BANGAYAN, to proceeds of the supposed checks. Interestingly, while
the damage and prejudice of said owner in the respondent characterized the Metrobank account as
aforesaid amount of ₱1,534,135.50, Philippine irrelevant to the case, she, in the same motion,
currency. nevertheless waived her objection to the irrelevancy of
the Security Bank account mentioned in the same
That in the commission of the said offense, said complaint-affidavit, inasmuch as she was admittedly
accused acted with grave abuse of confidence, being willing to address the allegations with respect
then employed as cashier by said complainant at the thereto.13
time of the commission of the said offense and as such
she was entrusted with the said amount of money. Petitioner, opposing respondent’s move, argued for
the relevancy of the Metrobank account on the ground
Contrary to law.9 that the complaint-affidavit showed that there were
two checks which respondent allegedly deposited in an
Respondent entered a negative plea when account with the said bank.14 To this, respondent filed
arraigned.10 The trial ensued. On the premise that a supplemental motion to quash, invoking the
respondent had allegedly encashed the subject checks absolutely confidential nature of the Metrobank
and deposited the corresponding amounts thereof to account under the provisions of Republic Act (R.A.)
her personal banking account, the prosecution moved No. 1405.15 The trial court did not sustain respondent;
for the issuance of subpoena duces tecum /ad hence, it denied the motion to quash for lack of
testificandum against the respective managers or merit.16
records custodians of Security Bank’s Divisoria Branch,
as well as of the Asian Savings Bank (now Meanwhile, the prosecution was able to present in
Metropolitan Bank & Trust Co. [Metrobank]), in Jose court the testimony of Elenita Marasigan (Marasigan),
Abad Santos, Tondo, Manila Branch.11 The trial court the representative of Security Bank. In a nutshell,
granted the motion and issued the corresponding Marasigan’s testimony sought to prove that between
subpoena.12 1988 and 1989, respondent, while engaged as cashier
at the BSB Group, Inc., was able to run away with the
Respondent filed a motion to quash the subpoena checks issued to the company by its customers,
dated November 4, 2003, addressed to Metrobank, endorse the same, and credit the corresponding
noting to the court that in the complaint-affidavit filed amounts to her personal deposit account with Security
with the prosecutor, there was no mention made of Bank. In the course of the testimony, the subject
the said bank account, to which respondent, in checks were presented to Marasigan for identification
addition to the Security Bank account identified as and marking as the same checks received by
respondent, endorsed, and then deposited in her With the denial of its motion for
personal account with Security Bank.17 But before the reconsideration,23 petitioner is now before the Court
testimony could be completed, respondent filed a pleading the same issues as those raised before the
Motion to Suppress,18 seeking the exclusion of lower courts.
Marasigan’s testimony and accompanying documents
thus far received, bearing on the subject Security In this Petition24 under Rule 45, petitioner averred in
Bank account. This time respondent invokes, in the main that the Court of Appeals had seriously erred
addition to irrelevancy, the privilege of confidentiality in reversing the assailed orders of the trial court, and
under R.A. No. 1405. in effect striking out Marasigan’s testimony dealing
with respondent’s deposit account with Security
The trial court, nevertheless, denied the motion in its Bank.25 It asserted that apart from the fact that the
September 13, 2004 Order.19 A motion for said evidence had a direct relation to the subject
reconsideration was subsequently filed, but it was also matter of the case for qualified theft and, hence,
denied in the Order dated November 5, 2004.20 These brings the case under one of the exceptions to the
two orders are the subject of the instant case. coverage of confidentiality under R.A.
1405.26 Petitioner believed that what constituted the
Aggrieved, and believing that the trial court gravely subject matter in litigation was to be determined by
abused its discretion in acting the way it did, the allegations in the information and, in this respect,
respondent elevated the matter to the Court of it alluded to the assailed November 5, 2004 Order of
Appeals via a petition for certiorari under Rule 65. the trial court, which declared to be erroneous the
Finding merit in the petition, the Court of Appeals limitation of the present inquiry merely to what was
reversed and set aside the assailed orders of the trial contained in the information.27
court in its April 20, 2005 Decision.21The decision
reads: For her part, respondent claimed that the money
represented by the Security Bank account was neither
WHEREFORE, the petition is hereby GRANTED. The relevant nor material to the case, because nothing in
assailed orders dated September 13, 2004 and the criminal information suggested that the money
November 5, 2004 are REVERSED and SET ASIDE. The therein deposited was the subject matter of the case.
testimony of the SBTC representative is ordered She invited particular attention to that portion of the
stricken from the records. criminal Information which averred that she has stolen
and carried away cash money in the total amount of
SO ORDERED.22 ₱1,534,135.50. She advanced the notion that the term
"cash money" stated in the Information was not
synonymous with the checks she was purported to
have stolen from petitioner and deposited in her And the Court, after deliberative estimation, finds the
personal banking account. Thus, the checks which the subject evidence to be indeed inadmissible.
prosecution had Marasigan identify, as well as the
testimony itself of Marasigan, should be suppressed by Prefatorily, fundamental is the precept in all criminal
the trial court at least for violating respondent’s right prosecutions, that the constitutive acts of the offense
to due process.28 More in point, respondent opined must be established with unwavering exactitude and
that admitting the testimony of Marasigan, as well as moral certainty because this is the critical and only
the evidence pertaining to the Security Bank account, requisite to a finding of guilt. 31 Theft is present when
would violate the secrecy rule under R.A. No. 1405.29 a person, with intent to gain but without violence
against or intimidation of persons or force upon things,
In its reply, petitioner asserted the sufficiency of the takes the personal property of another without the
allegations in the criminal Information for qualified latter’s consent. It is qualified when, among others,
theft, as the same has sufficiently alleged the and as alleged in the instant case, it is committed with
elements of the offense charged. It posits that through abuse of confidence.32 The prosecution of this offense
Marasigan’s testimony, the Court would be able to necessarily focuses on the existence of the following
establish that the checks involved, copies of which elements: (a) there was taking of personal property
were attached to the complaint-affidavit filed with the belonging to another; (b) the taking was done with
prosecutor, had indeed been received by respondent intent to gain; (c) the taking was done without the
as cashier, but were, thereafter, deposited by the consent of the owner; (d) the taking was done without
latter to her personal account with Security Bank. violence against or intimidation of persons or force
Petitioner held that the checks represented the cash upon things; and (e) it was done with abuse of
money stolen by respondent and, hence, the subject confidence.33 In turn, whether these elements concur
matter in this case is not only the cash amount in a way that overcomes the presumption of
represented by the checks supposedly stolen by guiltlessness, is a question that must pass the test of
respondent, but also the checks themselves.30 relevancy and competency in accordance with Section
334 Rule 128 of the Rules of Court.
We derive from the conflicting advocacies of the
parties that the issue for resolution is whether the Thus, whether these pieces of evidence sought to be
testimony of Marasigan and the accompanying suppressed in this case the testimony of Marasigan,
documents are irrelevant to the case, and whether as well as the checks purported to have been stolen
they are also violative of the absolutely confidential and deposited in respondent’s Security Bank account
nature of bank deposits and, hence, excluded by are relevant, is to be addressed by considering
operation of R.A. No. 1405. The question of whether they have such direct relation to the fact in
admissibility of the evidence thus comes to the fore. issue as to induce belief in its existence or non-
existence; or whether they relate collaterally to a fact instant review, and the allegation of theft in the
from which, by process of logic, an inference may be Information by claiming that respondent had
made as to the existence or non-existence of the fact fraudulently deposited the checks in her own name.
in issue.35 But this line of argument works more prejudice than
favor, because it in effect, seeks to establish the
The fact in issue appears to be that respondent has commission, not of theft, but rather of some other
taken away cash in the amount of ₱1,534,135.50 from crime probably estafa.
the coffers of petitioner. In support of this allegation,
petitioner seeks to establish the existence of the Moreover, that there is no difference between cash
elemental act of taking by adducing evidence that and check is true in other instances. In estafa by
respondent, at several times between 1988 and 1989, conversion, for instance, whether the thing converted
deposited some of its checks to her personal account is cash or check, is immaterial in relation to the formal
with Security Bank. Petitioner addresses the allegation in an information for that offense; a check,
incongruence between the allegation of theft of cash in after all, while not regarded as legal tender, is
the Information, on the one hand, and the evidence normally accepted under commercial usage as a
that respondent had first stolen the checks and substitute for cash, and the credit it represents in
deposited the same in her banking account, on the stated monetary value is properly capable of
other hand, by impressing upon the Court that there appropriation. And it is in this respect that what the
obtains no difference between cash and check for offender does with the check subsequent to the act of
purposes of prosecuting respondent for theft of cash. unlawfully taking it becomes material inasmuch as this
Petitioner is mistaken. offense is a continuing one.37 In other words, in
pursuing a case for this offense, the prosecution may
In theft, the act of unlawful taking connotes establish its cause by the presentation of the checks
deprivation of personal property of one by another involved. These checks would then constitute the best
with intent to gain, and it is immaterial that the evidence to establish their contents and to prove the
offender is able or unable to freely dispose of the elemental act of conversion in support of the
property stolen because the deprivation relative to the proposition that the offender has indeed indorsed the
offended party has already ensued from such act of same in his own name.38
execution.36 The allegation of theft of money, hence,
necessitates that evidence presented must have a Theft, however, is not of such character. Thus, for our
tendency to prove that the offender has unlawfully purposes, as the Information in this case accuses
taken money belonging to another. Interestingly, respondent of having stolen cash, proof tending to
petitioner has taken pains in attempting to draw a establish that respondent has actualized her criminal
connection between the evidence subject of the intent by indorsing the checks and depositing the
proceeds thereof in her personal account, becomes not Section 2. All deposits of whatever nature with banks
only irrelevant but also immaterial and, on that score, or banking institutions in the Philippines including
inadmissible in evidence. investments in bonds issued by the Government of the
Philippines, its political subdivisions and its
We now address the issue of whether the admission of instrumentalities, are hereby considered as of an
Marasigan’s testimony on the particulars of absolutely confidential nature and may not be
respondent’s account with Security Bank, as well as of examined, inquired or looked into by any person,
the corresponding evidence of the checks allegedly government official, bureau or office, except upon
deposited in said account, constitutes an unallowable written permission of the depositor, or in cases of
inquiry under R.A. 1405. impeachment, or upon order of a competent court in
cases of bribery or dereliction of duty of public
It is conceded that while the fundamental law has not officials, or in cases where the money deposited or
bothered with the triviality of specifically addressing invested is the subject matter of the
privacy rights relative to banking accounts, there, litigation.1avvphi1
nevertheless, exists in our jurisdiction a legitimate
expectation of privacy governing such accounts. The Subsequent statutory enactments43 have expanded
source of this right of expectation is statutory, and it is the list of exceptions to this policy yet the secrecy of
found in R.A. No. 1405,39otherwise known as the Bank bank deposits still lies as the general rule, falling as it
Secrecy Act of 1955. 40 does within the legally recognized zones of
privacy.44 There is, in fact, much disfavor to construing
R.A. No. 1405 has two allied purposes. It hopes to these primary and supplemental exceptions in a
discourage private hoarding and at the same time manner that would authorize unbridled discretion,
encourage the people to deposit their money in whether governmental or otherwise, in utilizing these
banking institutions, so that it may be utilized by way exceptions as authority for unwarranted inquiry into
of authorized loans and thereby assist in economic bank accounts. It is then perceivable that the present
development.41 Owing to this piece of legislation, the legal order is obliged to conserve the absolutely
confidentiality of bank deposits remains to be a basic confidential nature of bank deposits.45
state policy in the Philippines.42 Section 2 of the law
institutionalized this policy by characterizing as The measure of protection afforded by the law has
absolutely confidential in general all deposits of been explained in China Banking Corporation v.
whatever nature with banks and other financial Ortega.46 That case principally addressed the issue of
institutions in the country. It declares: whether the prohibition against an examination of
bank deposits precludes garnishment in satisfaction of
a judgment. Ruling on that issue in the negative, the
Court found guidance in the relevant portions of the Mr. Ramos: The attachment will only apply after the
legislative deliberations on Senate Bill No. 351 and court has pronounced sentence declaring the liability
House Bill No. 3977, which later became the Bank of such person. But where the primary aim is to
Secrecy Act, and it held that the absolute determine whether he has a bank deposit in order to
confidentiality rule in R.A. No. 1405 actually aims at bring about a proper assessment by the [BIR], such
protection from unwarranted inquiry or investigation if inquiry is not allowed by this proposed law.
the purpose of such inquiry or investigation is merely
to determine the existence and nature, as well as the Mr. Marcos: But under our rules of procedure and
amount of the deposit in any given bank account. under the Civil Code, the attachment or garnishment
Thus, of money deposited is allowed. Let us assume for
instance that there is a preliminary attachment which
x x x The lower court did not order an examination of is for garnishment or for holding liable all moneys
or inquiry into the deposit of B&B Forest Development deposited belonging to a certain individual, but such
Corporation, as contemplated in the law. It merely attachment or garnishment will bring out into the open
required Tan Kim Liong to inform the court whether or the value of such deposit. Is that prohibited by... the
not the defendant B&B Forest Development law?
Corporation had a deposit in the China Banking
Corporation only for purposes of the garnishment Mr. Ramos: It is only prohibited to the extent that the
issued by it, so that the bank would hold the same inquiry... is made only for the purpose of satisfying a
intact and not allow any withdrawal until further order. tax liability already declared for the protection of the
It will be noted from the discussion of the conference right in favor of the government; but when the object
committee report on Senate Bill No. 351 and House is merely to inquire whether he has a deposit or not
Bill No. 3977which later became Republic Act No. for purposes of taxation, then this is fully covered by
1405, that it was not the intention of the lawmakers to the law. x x x
place banks deposits beyond the reach of execution to
satisfy a final judgmentThus: Mr. Marcos: The law prohibits a mere investigation
into the existence and the amount of the deposit.
x x x Mr. Marcos: Now, for purposes of the record, I
should like the Chairman of the Committee on Ways Mr. Ramos: Into the very nature of such deposit. x x
and Means to clarify this further. Suppose an x47
individual has a tax case. He is being held liable by the
Bureau of Internal Revenue [(BIR)] or, say, ₱1,000.00 In taking exclusion from the coverage of the
worth of tax liability, and because of this the deposit confidentiality rule, petitioner in the instant case posits
of this individual [has been] attached by the [BIR]. that the account maintained by respondent with
Security Bank contains the proceeds of the checks that in plain language, is charged with qualified theft by
she has fraudulently appropriated to herself and, thus, abusing petitioner’s trust and confidence and stealing
falls under one of the exceptions in Section 2 of R.A. cash in the amount of ₱1,534,135.50. The said
No. 1405 that the money kept in said account is the Information makes no factual allegation that in some
subject matter in litigation. To highlight this thesis, material way involves the checks subject of the
petitioner avers, citing Mathay v. Consolidated Bank testimonial and documentary evidence sought to be
and Trust Co.,48 that the subject matter of the action suppressed. Neither do the allegations in said
refers to the physical facts; the things real or Information make mention of the supposed bank
personal; the money, lands, chattels and the like, in account in which the funds represented by the checks
relation to which the suit is prosecuted, which in the have allegedly been kept.
instant case should refer to the money deposited in
the Security Bank account.49 On the surface, however, In other words, it can hardly be inferred from the
it seems that petitioner’s theory is valid to a point, yet indictment itself that the Security Bank account is the
a deeper treatment tends to show that it has argued ostensible subject of the prosecution’s inquiry. Without
quite off-tangentially. This, because, while Mathay did needlessly expanding the scope of what is plainly
explain what the subject matter of an action is, it alleged in the Information, the subject matter of the
nevertheless did so only to determine whether the action in this case is the money amounting to
class suit in that case was properly brought to the ₱1,534,135.50 alleged to have been stolen by
court. respondent, and not the money equivalent of the
checks which are sought to be admitted in evidence.
What indeed constitutes the subject matter in litigation Thus, it is that, which the prosecution is bound to
in relation to Section 2 of R.A. No. 1405 has been prove with its evidence, and no other.
pointedly and amply addressed in Union Bank of the
Philippines v. Court of Appeals,50 in which the Court It comes clear that the admission of testimonial and
noted that the inquiry into bank deposits allowable documentary evidence relative to respondent’s
under R.A. No. 1405 must be premised on the fact Security Bank account serves no other purpose than to
that the money deposited in the account is itself the establish the existence of such account, its nature and
subject of the action.51 Given this perspective, we the amount kept in it. It constitutes an attempt by the
deduce that the subject matter of the action in the prosecution at an impermissible inquiry into a bank
case at bar is to be determined from the indictment deposit account the privacy and confidentiality of
that charges respondent with the offense, and not which is protected by law. On this score alone, the
from the evidence sought by the prosecution to be objection posed by respondent in her motion to
admitted into the records. In the criminal Information suppress should have indeed put an end to the
filed with the trial court, respondent, unqualifiedly and
controversy at the very first instance it was raised of Manila, Branch 36 in Criminal Case No. 02-202158,
before the trial court. is AFFIRMED.

In sum, we hold that the testimony of Marasigan on SO ORDERED.

the particulars of respondent’s supposed bank account
with Security Bank and the documentary evidence
represented by the checks adduced in support thereof,
are not only incompetent for being excluded by
operation of R.A. No. 1405. They are likewise
irrelevant to the case, inasmuch as they do not appear
to have any logical and reasonable connection to the
prosecution of respondent for qualified theft. We find
full merit in and affirm respondent’s objection to the
evidence of the prosecution. The Court of Appeals was,
therefore, correct in reversing the assailed orders of
the trial court.

A final note. In any given jurisdiction where the right

of privacy extends its scope to include an individual’s
financial privacy rights and personal financial matters,
there is an intermediate or heightened scrutiny given
by courts and legislators to laws infringing such
rights.52 Should there be doubts in upholding the
absolutely confidential nature of bank deposits against
affirming the authority to inquire into such accounts,
then such doubts must be resolved in favor of the
former. This attitude persists unless congress lifts its
finger to reverse the general state policy respecting
the absolutely confidential nature of bank deposits.53

WHEREFORE, the petition is DENIED. The Decision of

the Court of Appeals in CA-G.R. SP No. 87600 dated
April 20, 2005, reversing the September 13, 2004 and
November 5, 2004 Orders of the Regional Trial Court