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WHEREFORE, the petition is GRANTED. The decision of the Court of Appeals in CA-G,.R. CR No. 17222 dated April 30, 1997 and its resolution dated August 28, 1997 are REVERSED and SET ASIDE. Petitioner Virgie Serona is ACQUITTED of the crime charged, but is held civilly liable in the amount of P424,750.00 as actual damages, plus legal interest, without subsidiary imprisonment in case of insolvency.

SO ORDERED.

ART. 316. Other forms of swindling. —

The penalty of arresto mayor in its minimum and medium periods and a fine of not less than the value of the damage caused and not more than three times such value, shall be imposed upon: 1. Any person who, pretending to be the owner of any real property, shall convey, sell, encumber or mortgage the same. 2. Any person who, knowing that real property is encumbered, shall dispose of the same, although such encumbrance be not recorded. 3. The owner of any personal property who shall wrongfully take it from its lawful possessor, to the prejudice of the latter or any third person. 4. Any person who, to the prejudice of another, shall execute any fictitious contract. 5. Any person who shall accept any compensation given him under the belief that it was in payment of services rendered or labor performed by him, when in fact he did not actually perform such services or labor. 6. Any person who, while being a surety in a bond given in a criminal or civil action, without express authority from the court or before the cancellation of his bond or before being relieved from the obligation contracted by him, shall sell, mortgage, or in any other manner, encumber the real property or properties with which he guaranteed the fulfillment of such obligation.

Swindle and Swindler defined.

Swindle means to cheat a person out of property. A swindler is a person who willfully defrauds or cheats another.33 A swindler is one guilty of defrauding another person34Aside from those mentioned in Article 315 of the Revised Penal Code, other forms of swindling are punishable under Article 316 thereof.

ART. 317. Swindling a minor.—

Any person who, taking advantage of the inexperience or emotions or feelings of a minor, to his detriment, shall induce him to assume any obligation or to give any release or execute a transfer of any property right in consideration of some loan of money, credit or other personal property, whether the loan clearly appears in the document or is shown in any other form, shall suffer the penalty of’ arresto mayor and a fine of a sum ranging from 10 to 50 per cent of the value of the obligation contracted by the minor.

Minor defined.

A minor is a person who has not reached legal age, a child or juveni1e,3 not emancipated or who is under parental control. Emancipation takes place by the attainment of majority. Unless otherwise provided, majority commences at the age of eighteen years.

ART. 318. Other deceits.—

The penalty of arresto mayor and a fine of not less than the amount of the damage caused and not more than twice such amount shall be imposed upon any person who shall defraud or damage another by any other deceit not mentioned in the preceding articles of this chapter. Any person who, for profit or gain, shall interpret dreams, make forecasts, tell fortunes, or take advantage of the credulity of the public in any other similar manner, shall suffer the penalty of arresto minor or a fine not exceeding 200 pesos.

Other punishable deceits.

Aside from the offense of swindling specifically defined and punishable under Article 315, 316, and 317 of the Revised Penal Code, there are “other deceits” punishable under Article 318 thereof. All kinds of swindling or deceits which causes damage to another, therefore, is punishable under the Revised Penal Code, as amended.

The case People vs. Dinglasan, (387 SCRA 71).

In this case, the Supreme Court held that: “Section 11, RULE 110 of the 2000 Revised Rules on Criminal Procedure lays down two rules with respect to the averment of the date the offense was committed in the complaint or information: (1) where the time is not a material ingredient of the offense, it is sufficient that the information alleges that the act constitutive of the offense was committed at a time as near as to the actual date when the same was carried out, but (2) where time is a material ingredient of the offense, it must be correctly alleged in the information. Moreover, “failure of the drawer of the check to deposit an amount sufficient to cover the check within three days from receipt of notice from the bank and/or payee or holder that said check has been dishonored for lack or insufficiency of funds shall be prima facie evidence of deceit constituting the false pretense or fraudulent act. Portions of the decision follow.

For resolution, the issues are: (1) whether appellant’s guilt has been proven with moral certainty; and (2) whether the penalty imposed is proper.

Appellant does not deny issuing the dishonored checks. Nonetheless, he insists that he did not employ any deceit or fraud against private complainant. Appellant contends that his failure to make good on the checks was due to the losses sustained by Sia. Appellant, in praying for acquittal, relies heavily on our rifling in People vs. Singson where we held that: Although in the case of bouncing check under B.P. Bldg. 22, failure of the drawer to deposit the amount necessary to cover his checks within three clays from notice of dishonor shall be prima facie evidence of fraud or deceit, under Article 315 of the Revised Penal Code, mere failure to make such deposit cannot be the basis for conviction if the surrounding circumstances tend to show the absence of bad faith or deceit. In the present case, we find the evidence not sufficient to establish the existence of fraud or deceit on the part of the accused.39 For the State, the Office of the Solicitor General (OSG) counters that deceit and fraud were present when appellant issued the checks in question. The OSG stresses that were it not for the subject checks, complainant would not have sold appellant the tires. The OSG further points out that appellant failed to rebut the prima facie presumption of fraud and deceit due to his failure to make the necessary deposit to cover the checks he issued. Finally, the OSG submits that appellant’s reliance on People vs. Singson is misplaced, as the facts in said case are not on all fours with the factual circumstances in the present case.

At the outset, we find that two of the dates alleged in the information during which appellant supposedly committed estafa are at variance materially with the prosecution’s evidence: (1) With respect to Check No. 029014, the date of transaction was alleged in the information as July 30, 1994. Yet, the prosecution’s evidence shows that it was issued for the purchase of six sets of tires on July 1994. (2) Check No. 029020 was issued for the purchase of July 1994, and not July 24, 1994, as alleged in the charge sheet. In these two instances, the checks were postdated September 30, 1994 and September 24, 1994. Obviously, the change in regard to these two checks is fatally flawed, for the alleged dates of the corresponding transactions in the charge are false, or better said inexistent, as hereafter discussed. It is only with respect to Check No. 029021, postdated September 25, 1994, which was issued in payment of the purchase made on July 25, 1994 that the correct date of the corresponding transaction is alleged in the information and supported by the prosecution’s evidence.

Section 11, Rule 110 of the 2000 Revised Rules of Criminal Procedure lays clown two rules with respect to the averment of the date of offense was committed in the complaint or information: (1) where time is not a material ingredient of the offense, it is sufficient that the information alleges that the act constitutive of the offense was committed at a time as near to the actual date when the same was carried out4° but (2) where time is a material ingredient of the offense, it must be correctly alleged in the information. 4t Appellant was charged and convicted of estafa under Article 315 (2) (d) of the Revised Penal Code.42 The elements of the offense are: (1) postdating or issuing a check in payment of an obligation contracted at the time the check was issued; (2) lack of insufficient funds to cover the check; (3) knowledge on the part of the offender of such circumstances; and (4) damage to the complainant. The first element of the offense requires that the dishonored check must have been postdated or issued at the time the obligation was contracted.