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Estafa with unfaithfulness or abuse of confidence, A315(1) Revised Penal Code

1. Concept

Swindling or estafa – refers to the crime of fraud through certain means.

a. Legal basis

Art. 315. Swindling (estafa). – Any person who shall defraud another by any of the means mentioned hereinbelow shall be punished by:
1st. The penalty of prisión correccional in its maximum period to prisión mayor in its minimum period, if the amount of the fraud is over Two million four hundred thousand pesos (P2,400,000) but does not exceed Four million four hundred thousand pesos (P4,400,000), and if such amount exceeds the latter sum, the penalty provided in this paragraph shall be imposed in its maximum period, adding one year for each additional Two million pesos (P2,000,000); but the total penalty which may be imposed shall not exceed twenty years. In such cases, and in connection with the accessory penalties which may be imposed and for the purpose of the other provisions of this Code, the penalty shall be termed prisión mayor or reclusion temporal, as the case may be.
2nd. The penalty of prisión correccional in its minimum and medium periods, if the amount of the fraud is over One million two hundred thousand pesos (P1,200,000) but does not exceed Two million four hundred thousand pesos (P2,400,000).
3rd. The penalty of arresto mayor in its maximum period to prisión correccional in its minimum period, if such amount is over Forty thousand pesos (P40,000) but does not exceed One million two hundred thousand pesos (P1,200,000).
4th. By arresto mayor in its medium and maximum periods, if such amount does not exceed Forty thousand pesos (P40,000): Provided, That in the four cases mentioned, the fraud be committed by any of the following means:
1. With unfaithfulness or abuse of confidence, namely:
(a) altering the substance, quantity, or quality of anything of value which the offender shall deliver by virtue of an obligation to do so, even though such obligation be based on an immoral or illegal consideration.
(b) By misappropriating or converting, to the prejudice of another, money, goods, or any other personal property received by the offender in trust or on commission, or for administration, or under any other obligation involving the duty to make delivery of or to return the same, even though such obligation be totally or partially guaranteed by a bond; or by denying having received such money, goods, or other property.
(c) By taking undue advantage of the signature of the offended party in blank, and by writing any document above such signature in blank, to the prejudice of the offended party or any third person. (As amended by R.A. 10951)

(Revised Penal Code)

2. Modes of committing estafa with unfaithfulness or abuse of confidence, A315(1), RPC

A315(1) estafa with unfaithfulness or abuse of confidence may be committed:

1) Article 315(1)(a): By altering the substance, quantity, or quality or anything of value which the offender shall deliver by virtue of an obligation to do so, even though such obligation be based on an immoral or illegal consideration.

2) Article 315(1)(b): By misappropriating or converting, to the prejudice of another, money, goods, or any other personal property received by the offender in trust or on commission, or for administration, or under any other obligation involving the duty to make delivery of or to return the same, even though such obligation be totally or partially guaranteed by a bond; or by denying having received such money, goods, or other property.

3) Article 315(1)(c): By taking undue advantage of the signature of the offended party in blank, and by writing any document above such signature in blank, to the prejudice of the offended party or of any third person.

a. Article 315(1)(a): Alteration

The elements of estafa through alteration under Article 315(1)(a):

1) The offender alters the substance, quantity, or quality or anything of value; and

2) The offender has an obligation to deliver such item/s. (REVISED PENAL CODE, Article 315(1)(a))

NB: The offense extends to cases even though such obligation be based on an immoral or illegal consideration. (Ibid.)

1) Element 1: Alteration

For the first element, the offender alters the substance, quantity, or quality or anything of value.

To alter means to make something different without changing altogether to something else. (See: Merriam-Webster Online Dictionary)

As to what may be considered as a thing of value, it may refer to any and all things that may be subject to the commerce of men and capable of delivery (see Element 2). Since the provision does not enlist or specify what may be something of value, neither shall we. Ubi lex non distinguit nec nos distinguere debemus.

2) Element 2: Obligation to deliver

For the second element, the offender has an obligation to deliver such item/s.

Whatever this thing of value may be, the offender has a legal obligation to deliver it. Thus, there is a vinculum juris between the offender as the deliverer and the recipient.

b. Article 315(1)(b): Misappropriation or conversion

The elements of estafa through misappropriation under Article 315(1)(b):

1) The offender’s receipt of money, goods, or other personal property in trust, or on commission, or for administration, or under any other obligation involving the duty to deliver, or to return, the same;

2) Misappropriation or conversion by the offender of the money or property received, or denial of receipt of the money or property;

3) The misappropriation, conversion or denial is to the prejudice of another; and

4) Demand by the offended party that the offender return the money or property received. (Yulo v. Gonzales, G.R. No. 239090, June 17, 2020, Per Inting, J.)

The essence of this kind of estafa is the appropriation or conversion of money or property received to the prejudice of the entity to whom a return should be made. The words convert and misappropriate connote the act of using or disposing of another’s property as if it were one’s own, or of devoting it to a purpose or use different from that agreed upon. To misappropriate for one’s own use includes not only conversion to one’s personal advantage, but also every attempt to dispose of the property of another without right. In proving the element of conversion or misappropriation, a legal presumption of misappropriation arises when the accused fails to deliver the proceeds of the sale or to return the items to be sold and fails to give an account of their whereabouts. (Gamaro v. People, G.R. No. 211917, February 27, 2017, Per Peralta, J.)

Yulo v. Gonzales, G.R. No. 239090, June 17, 2020, Per Inting, J.:

• Paragraph 1(b) provides liability for Estafa committed by misappropriating or converting, to the prejudice of another, money, goods, or any other personal property received by the offender in trust or on commission, or for administration, or under any other obligation involving the duty to make delivery of or to return the same, even though that obligation be totally or partially guaranteed by a bond; or by denying having received such money, goods, or other property.

• There is no evidence that respondent Jaye received the petitioners’ monies in trust or under any other obligation involving the duty to deliver, or to return them and that upon receiving the amounts respondent Jaye misappropriated or converted them. The pieces of evidence showed that the checks issued by the petitioners were made payable to the order of either the B.A. Securities, Inc. or DAMSI and not in respondent Jaye’s name. Also, the amounts of money delivered by the petitioners were deposited to the account of either BASI or DAMSI and never in respondent Jaye’s bank account. Thus, contrary to the findings of the DOJ Secretary, there could be no way that respondent Jaye could appropriate the amounts of money invested by the petitioners as these investments were not deposited in respondent Jaye’s account.

1) Element 1: Receipt of personal property in trust, commission, administration, etc.

For the first element, the offender receives the money, goods, or other personal property in trust, or on commission, or for administration, or under any other obligation involving the duty to deliver, or to return, the same.

Favis-Velasco v. Gonzales, G.R. No. 239090, June 17, 2020, Per Inting, J.:

• There is no evidence that respondent Jaye received the petitioners’ monies in trust or under any other obligation involving the duty to deliver, or to return them and that upon receiving the amounts respondent Jaye misappropriated or converted them. The pieces of evidence showed that the checks issued by the petitioners were made payable to the order of either the B.A. Securities, Inc. or DAMSI and not in respondent Jaye’s name. Also, the amounts of money delivered by the petitioners were deposited to the account of either BASI or DAMSI and never in respondent Jaye’s bank account. Thus, contrary to the findings of the DOJ Secretary, there could be no way that respondent Jaye could appropriate the amounts of money invested by the petitioners as these investments were not deposited in respondent Jaye’s account.

Barlin v. People, G.R. No. 207418, June 23, 2021, Per Hernando, J.:

First, there is no dispute that [the Accused] received merchandise from Gacayan as evidenced by TRAs 0081 and 0083 signed and executed by [the Accused] herself. However, contrary to the ruling of the courts below, [the Accused] could not be held liable for the other TRAs as they were not signed by [the Accused] but either by Castillo or Vargal. We are not persuaded by Taberna’s bare and uncorroborated testimony that [the Accused] authorized Castillo and Vargal to sign on her behalf.

• Aside from the testimony of Taberna, no other evidence was presented by the prosecution to prove that Castillo or Vargal were authorized by [the Accused] to sign or to receive the goods on her behalf. The evidence presented by the prosecution as to the other TRAs fell short of the standard of moral certainty.

• Hence, [the Accused] could not be made liable for the TRAs other than the ones she signed, namely, TRAs 0081 and 0083. Any doubt on [the Accused]’s guilt should be considered in her favor.

• As to TRAs 0081 and 0083, the documents clearly stated that [the Accused] received in trust the merchandise from Gacayan to: (a) hold the goods in trust; (b) dispose or sell them for cash and to receive the proceeds in trust; (c) turnover and remit the proceeds of the sale of goods on or before the due date less [the Accused]’s commission; and (d) return the goods in the event of non-sale within period specified or upon demand. Upon default or failure of [the Accused] to comply with any of the terms and conditions, Gacayan may cancel the trust receipt and take possession of the goods subject of the trust or the proceeds realized therefrom.

Second, [the Accused] failed to turn over the proceeds of the sale of the products she procured from Gacayan under TRAs 0081 and 0083 upon the latter’s demand. [The Accused] even admitted that a similar case with respect to the same transactions were the subject matter of a criminal case for violation of BP 22 before the MeTC of San Juan for an amount of P50,000.00. She apparently attempted to pay Gacayan post-dated checks worth P50,000.00 which eventually bounced for having been drawn against a closed account. This fact alone proves [the Accused]’s culpability that she misappropriated or converted the proceeds of the sale of the items she held in trust for Gacayan.

Third, [the Accused]’s misappropriation or conversion of the proceeds of the sale of Gacayan’s products caused damage to the latter in the total amount of P8,275.00.38 Gacayan is deemed to have suffered damage when she parted with her goods and did not receive the proceeds of the sale thereof or the unsold items were not returned despite demand.

• Lastly, Gacayan demanded payment from [the Accused] under TRAs 0081 and 0083 which went unheeded.

2) Element 2: Misappropriation, conversion, denial

For the second element, the offender misappropriates or converts the money or property received, or denies receipt of the money or property.

Misappropriation or conversion by the offender of the money or property received, or denial of receipt of the money or property, is the gravamen for this offense.

[Article 315(1)(b)] provides liability for Estafa committed by misappropriating or converting, to the prejudice of another, money, goods, or any other personal property received by the offender in trust or on commission, or for administration, or under any other obligation involving the duty to make delivery of or to return the same, even though that obligation be totally or partially guaranteed by a bond; or by denying having received such money, goods, or other property. (Favis-Velasco v. Gonzales, G.R. No. 239090, June 17, 2020, Per Inting, J.)

The essence of this kind of estafa is the appropriation or conversion of money or property received to the prejudice of the entity to whom a return should be made. The words convert and misappropriate connote the act of using or disposing of another’s property as if it were one’s own, or of devoting it to a purpose or use different from that agreed upon. To misappropriate for one’s own use includes not only conversion to one’s personal advantage, but also every attempt to dispose of the property of another without right. In proving the element of conversion or misappropriation, a legal presumption of misappropriation arises when the accused fails to deliver the proceeds of the sale or to return the items to be sold and fails to give an account of their whereabouts. (Gamaro v. People, G.R. No. 211917, February 27, 2017, Per Peralta, J.)

To stress, misappropriation or conversion refers to any disposition of another’s property as if it were his own or devoting it to a purpose not agreed upon. It connotes disposition of one’s property without any right. (Coson v. People, G.R. No. 218830, September 14, 2017, Per Del Castillo, J.)

Gamaro v. People, G.R. No. 211917, February 27, 2017, Per Peralta, J.:

• The Information filed sufficiently charges estafa through misappropriation or conversion. Fineza entrusted petitioner Norma Gamaro with the pieces of jewelry amounting to ₱2,292,5l 9.00 on the condition that the same will be sold for profit. Petitioner Nonna Gamaro was under obligation to turn over the proceeds of the sale to Fineza. However, instead of complying with the obligation, she pawned the pieces of jewelry to M. Lhuillier Pawnshop where petitioner Umali worked as Branch Manager and kept the proceeds thereof to the damage and prejudice of Fineza.

• [F]ineza positively and categorically testified on the transaction that transpired between her and petitioners and accused Rowena Gamaro. The failure to account upon demand, for funds or property held in trust, is circumstantial evidence of misappropriation. As mentioned, petitioner Norma Gamaro failed to account for, upon demand, the jewelry which was received by her in trust. This already constitutes circumstantial evidence of misappropriation or conversion to petitioner’s own personal use. The failure to return upon demand the properties which one has the duty to return is tantamount to appropriating the same for his own personal use.25 As in fact, in this case, Fineza, herself redeemed the pieces of jewelry using her own money.

Favis-Velasco v. Gonzales, G.R. No. 239090, June 17, 2020, Per Inting, J.:

• There is no evidence that respondent Jaye received the petitioners’ monies in trust or under any other obligation involving the duty to deliver, or to return them and that upon receiving the amounts respondent Jaye misappropriated or converted them. The pieces of evidence showed that the checks issued by the petitioners were made payable to the order of either the B.A. Securities, Inc. or DAMSI and not in respondent Jaye’s name. Also, the amounts of money delivered by the petitioners were deposited to the account of either BASI or DAMSI and never in respondent Jaye’s bank account. Thus, contrary to the findings of the DOJ Secretary, there could be no way that respondent Jaye could appropriate the amounts of money invested by the petitioners as these investments were not deposited in respondent Jaye’s account.

Tria v. People, G.R. No. 204755, September 17, 2014, Per Reyes, J.:

• [For the prosecution] Meneses is a Cash Custodian of Seven Sphere Enterprises (Seven Sphere) while [the Accused] was one of the consignees. On March 8, 2000, [the Accused] received on consignment from Seven Sphere twenty-two (22) pieces of jewelry valued at ₱47,440.00 subject to the condition that she will remit the proceeds of the sale thereof and return any unsold pieces within six (6) days. [The Accused] returned eight (8) unsold pieces of the jewelry valued at ₱16,380.00 leaving a balance of ₱31,060.00. To cover the balance, [the Accused] issued four (4) Banco Filipino post-dated checks all with the equal face value of ₱7,765.00 to wit: No. 0089027 dated March 30, 2000; No. 0089028 dated April 15, 2000; No. 0089029 dated April 30, 2000, and No. 0089030 dated May 15, 2000. When presented for payment, however, the checks were dishonored by the issuing bank for the reason: “account closed.” Upon being informed by Seven Sphere that the checks were dishonored for payment, [the Accused] returned three (3) pieces of jewelry valued at ₱7,684.50 thus leaving the unpaid balance of ₱23,375.50.6

• Seven Sphere then sent a demand letter to [the Accused] for the payment of the unpaid balance. Despite receipt of the letter, however, [the Accused] failed to pay.

• [For the defense] The defense failed to present evidence despite several opportunities given by the trial court. Hence, on April 19, 2010, [the Accused] was declared to have waived her right to present evidence and the case was submitted for decision.

• Misappropriation and conversion is again palpable from these circumstances. By selling the jewelry on credit, [the Accused] used the property for a purpose other than that agreed upon. The words “convert” and “misappropriate” connote an act of using or disposing of another’s property as if it were one’s own or devoting it to a purpose or use different from that agreed upon.

• Further, her alleged verbal agreement with Seven Sphere that she can render services in exchange for the dismissal of the case,casts no significant bearing to the herein proceedings. “Only the State may validly waive the criminal action against an accused.”8 The consequences of such agreement with Seven Sphere can affect only her civil liability to the former for the value of the misappropriated jewelry items. Such matter can be more properly threshed out during the execution stage of the civil aspect of this case before the trial court where the evidence of such verbal agreement as well as the deductions made on [the Accused]’s salary can be received.

3) Element 3: Prejudice

For the third element, the misappropriation, conversion or denial prejudices another.

The misappropriation, conversion or denial should be to the prejudice of another. Otherwise, if there is no prejudice, then there may be no estafa committed.

Barlin v. People, G.R. No. 207418, June 23, 2021, Per Hernando, J.:

• The element of damage was sufficiently established when Gacayan parted with her goods and failed to recover the proceeds of the sale thereof or the unsold items despite repeated demands. Petitioner herself admitted that she tried to turn over the proceeds of the sale under the TRAs through the issuance of post-dated checks which were however dishonored.

4) Element 4: Demand

For the fourth element, the offended party demands the offender to return the money or property received.

Gamaro v. People, G.R. No. 211917, February 27, 2017, Per Peralta, J.:

• [F]ineza positively and categorically testified on the transaction that transpired between her and petitioners and accused Rowena Gamaro. The failure to account upon demand, for funds or property held in trust, is circumstantial evidence of misappropriation. As mentioned, petitioner Norma Gamaro failed to account for, upon demand, the jewelry which was received by her in trust. This already constitutes circumstantial evidence of misappropriation or conversion to petitioner’s own personal use. The failure to return upon demand the properties which one has the duty to return is tantamount to appropriating the same for his own personal use.25 As in fact, in this case, Fineza, herself redeemed the pieces of jewelry using her own money.

c. Article 315(1)(c): Undue advantage of signature of offended party

The elements of estafa through undue advantage under Article 315(1)(c):

1) The offender takes undue advantage of the signature of the offended party in blank;

2) The offender does so by writing any document above such signature in blank; and

3) The offended party or of any third person is prejudiced. (REVISED PENAL CODE, Article 315(1)(c))

1) Element 1: Undue advantage

For the first element, the offender takes undue advantage of the signature of the offended party in blank.

The offender must have an undue advantage against the offended party. This may come in many form, such as the offender being a parent/guardian/older relative and the offended party is the child/ward/younger relative, or the offender being an employer and the offended party an employee, or the offender being a teacher and the offended party a student, and analogous thereto. It is this taking of undue advantage which makes this fall under estafa with unfaithfulness or abuse of confidence.

The signature of the offended party must be what he/she uses for purposes of signing documents, i.e., legitimate signature that produces legal effects. Otherwise, if the offended party signs using a very different signature, then such signature is not what is contemplated under this provision since it will not have any legal effect.

The offended party’s signature is on a blank. This may be on any piece of paper such as bond paper or a commercial paper such as a bank check.

2) Element 2: Writing above signature

For the second element, the offender does so by writing any document above such signature in blank.

That the offender writes any document, i.e., words/phrases/statements above such signature in blank, is the gravamen of the offense. For instance, in a blank check, the offender may have written his/her name therein as the payee and wrote an amount and date, without the knowledge or authority of the offended party who is the owner of such check.

3) Element 3: Prejudice

For the third element, the offended party or of any third person is prejudiced.

To be prejudiced, the offended party must have suffered/experienced damage.

Ang v. Lucero, G.R. No. 143169, January 21, 2005, Per Carpio, J.:

• Contrary to Ang’s claims, Lucero sufficiently established the existence of probable cause for estafa in this case.

• First, the SPA Lucero executed in Catenza’s favor is clear. Paragraph 7 of the SPA provides:

xxx

7. To make, sign, execute and deliver contracts, documents, agreements and other writings of whatever nature or kind, involving the administration of my business(es), with any and all third persons, concerns or entities, upon terms and conditions acceptable to my said attorney, including agreements, whether or not they be urgent and indispensable for the preservation of my property under his administration; Provided, however, that contracts by which ownership of any immovable owned by me is transmitted or acquired either gratuitously or for valuable consideration shall not be entered into by my said attorney-in-fact without my prior written consent.

xxx (Emphasis supplied)

• The provision clearly shows that Catenza is not allowed to enter into any contract for the transfer or acquisition of Lucero’s real property without her prior written approval. The same prohibition applies to Ang. There is no showing that Catenza validly delegated his authority under the SPA to Ang. Even assuming there was a valid delegation, Ang merely stepped into the shoes of Catenza and could not exercise more power than what Catenza had under the SPA. Thus, the prohibition on Catenza applied to Ang, assuming there was a valid delegation.

• Second, the NBI found the signature on the Authorization Letter a traced forgery.

• Third, Ang obtained a loan from Rizal Commercial Banking Corporation (“RCBC”) using the Property as collateral. There is no showing how Ang applied the loan proceeds.

• Fourth, Ang obtained an additional loan18 of ₱700,000 from RCBC with the Property as collateral after Lucero annotated an adverse claim on the Property’s certificate of title which was already in Ang’s name. The adverse claim clearly indicates Lucero’s objection to the registration of the title to Ang. However, Ang inexplicably ignored the adverse claim and proceeded with the loan.

• Fifth, Ang admitted that Lucero signed blank sheets of paper. Ang typed the Deed of Assignment in one of these sheets of paper with Lucero’s signature.19 Lucero, however, denies authorizing Ang to type any deed of assignment involving the Property over her signature. Instead, Lucero claims that Ang requested her signature to secure a permit for her bus service business.

• Lastly, Ang refused to render an accounting of his alleged transactions on Lucero’s behalf despite the latter’s repeated demands. If Ang merely performed his duties as Lucero’s agent in connection with the latter’s businesses, then there is certainly no reason to evade Lucero’s valid requests.

• Considering these circumstances, there is indeed probable cause to hold Ang liable for estafa in this case. Estafa or swindling is committed by defrauding another through any of the means enumerated in Article 315 of the Revised Penal Code.

• Under Article 315, paragraph 1(c), estafa is committed by taking undue advantage of the signature of the offended party in blank, and by writing any document above such signature in blank, to the prejudice of the offended party or any third person. In this case, Ang admitted typing the Deed of Assignment over Lucero’s signature in blank. Thereafter, Ang used the Deed of Assignment to transfer the ownership of the Property from Lucero to him. Lucero claims that she was prejudiced by virtue of the Deed of Assignment. However, whether Ang took advantage of Lucero’s signature is a question that should be presented and resolved during the trial.

3. Distinguish from other offenses

This offense is distinguished from other offenses or crimes below.

a. Estafa by misappropriation/conversion Article 315(1)(b), RPC vs Qualified theft A310, RPC

FactorsEstafa by misappropriation / conversion, A315(1)(b) RPCQualified theft, A 310 RPC
Offended PartyAny personAny person
OffenderAny personAny person
Overt actsOffender receives the property and converts it to his/her own use or benefit.   Offender’ receives money, goods, or other personal property in trust, or on commission, or for administration, or under any other obligation involving the duty to deliver, or to return, the same; thereafter, offender misappropriates or converts the money or property received, or denies receipt of the money or property, resulting in the prejudice of another; and offender fails to return such money or property received after demand by the offended party that the offender return.Offender unlawfully takes personal property belonging to another with intent to gain, and without violence against or intimidation of any person, nor force upon things, and done under any of the circumstances enumerated in Article 310 of the RPC, i.e., with grave abuse of confidence
CommentsOffender receives the thing misappropriated or converted.Generally, the thing stolen is taken – however, there may be cases were the offender may already be in possession thereof.

[T]heft is committed by any person who, with intent to gain, but without violence against, or intimidation of persons nor force upon things, shall take the personal property of another without the latter’s consent.16 If committed with grave abuse of confidence, the crime of theft becomes qualified. (Matrido v. People, G.R. No. 179061, July 13, 2009, Per Carpio Morales, J.)

The principal distinction between the two crimes is that in theft the thing is taken while in estafa the accused receives the property and converts it to his own use or benefit. However, there may be theft even if the accused has possession of the property. If he was entrusted only with the material or physical (natural) or de facto possession of the thing, his misappropriation of the same constitutes theft, but if he has the juridical possession of the thing, his conversion of the same constitutes embezzlement or estafa. (Santos v. People, G.R. No. 77429, January 29, 1990, Per Cruz, J.)

1) Kinds of possession: physical/material vs juridical

Physical/material possession refers to de facto possession or actual possession.

If there is physical/material possession and there is misappropriation, then the offense committed is theft, qualified or otherwise.

Juridical possession refers to a possession which gives the transferee a right over the thing transferred and this, he may set up even against the owner. (Reside v. People, G.R. No. 210318, July 28, 2020, Per Reyes, J. Jr., J.)

If there is juridical possession and there is misappropriation, then the offense committed is estafa by misappropriation or conversion.

2) Receipt by an employee vs an agent

There is an essential distinction between the possession by a receiving teller of funds received from third persons paid to the bank, and an agent who receives the proceeds of sales of merchandise delivered to him in agency by his principal. In the former case, payment by third persons to the teller is payment to the bank itself; the teller is a mere custodian or keeper of the funds received, and has no independent right or title to retain or possess the same as against the bank. An agent, on the other hand, can even assert, as against his own principal, an independent, autonomous, right to retain the money or goods received in consequence of the agency; as when the principal fails to reimburse him for advances he has made, and indemnify him for damages suffered without his fault[.] (Guzman v. CA, En Banc, G.R. No. L-9572, July 31, 1956, Per Reyes, J.B.L., J.)

Therefore, as it now stands, a sum of money received by an employee in behalf of an employer is considered to be only in the material possession of the employee. Notably, such material possession of an employee is adjunct, by reason of his employment, to a recognition of the juridical possession of the employer. As long as the juridical possession of the thing appropriated did not pass to the employee, the offense committed is theft, qualified or otherwise. (Guzman v. CA [1956], supra.)

The foregoing principle is illustrated in Chua-Burce v. Court of Appeals where the manager of a bank located in Calapan, Mindoro discovered a shortage in their cash-in-vault amounting to P150,000.00. After due investigation, a criminal complaint was filed against the person primarily responsible, i.e., the bank’s Cash Custodian. The RTC and the CA both found the cash custodian guilty of estafa under paragraph 1(b), Article 315 of the RPC. This Court, however, acquitted the accused ratiocinating that, being a mere cash custodian, the latter had no juridical possession over the missing funds and, thus, cannot be convicted of estafa. (Tan v. People [2020], supra., citing Chua-Burce v. Court of Appeals, G.R. No. 109595. April 27, 2000, Per Quisumbing, J.)

Matrido v. People, G.R. No. 179061, July 13, 2009, Per Carpio Morales, J.:

• [Prosecution; Information] That on or about the 10th day of June 1999, in the City of Makati, Philippines and within the jurisdiction of this Honorable Court, the above-named accused, being then a Credit and Collection Assistant employed by complainant, EMPIRE EAST LAND HOLDINGS, INC., herein represented by [L.N.] Cabuloy, and as such had access to the payments made by complainant’s clients, with grave abuse of confidence, intent of gain and without the knowledge and consent of the said complainant company, did then and there willfully, unlawfully and feloniously take, steal and carry away the amount of P18,000.00 received from [A.] Dela Torre, a buyer of a house and lot being marketed by complainant company, to the damage and prejudice of the said complainant in the aforementioned amount of P18,000.00.

• [The Accused] posits that despite her indictment for qualified theft, the prosecution was trying to prove estafa during trial, thus violating her right to be informed of the nature and cause of the accusation against her.

• As alleged in the Information, [the Accused] took, intending to gain therefrom and without the use of force upon things or violence against or intimidation of persons, a personal property consisting of money in the amount P18,000 belonging to private complainant, without its knowledge and consent, thereby gravely abusing the confidence reposed on her as credit and collection assistant who had access to payments from private complainant’s clients, specifically from one [A.] Dela Torre.

• The taking was also clearly done with grave abuse of confidence. As a credit and collection assistant of private complainant [the Company], [the Accused] made use of her position to obtain the amount due to private complainant. As gathered from the nature of her functions, her position entailed a high degree of confidence reposed by private complainant as she had been granted access to funds collectible from clients. Such relation of trust and confidence was amply established to have been gravely abused when she failed to remit the entrusted amount of collection to private complainant.

• The appellate court correctly explained that conversion of personal property in the case of an employee having material possession of the said property constitutes theft, whereas in the case of an agent to whom both material and juridical possession have been transferred, misappropriation of the same property constitutes estafa. Notably, [The Accused]’s belated argument that she was not an employee but an agent of private complainant grants her no respite in view of her stipulation during pre-trial and her admission at the witness stand of the fact of employment. [The Accused]’s reliance on estafa cases involving factual antecedents of agency transactions is thus misplaced.

That [the Accused] did not have juridical possession over the amount or, in other words, she did not have a right over the thing which she may set up even against private complainant is clear. In fact, [the Accused] never asserted any such right, hence, juridical possession was lodged with private complainant and, therefore, estafa was not committed.

• [The Accused]’s view that there could be no element of taking since private complainant had no actual possession of the money fails. The argument proceeds from the flawed premise that there could be no theft if the accused has possession of the property. The taking away of the thing physically from the offended party is not elemental, as qualified theft may be committed when the personal property is in the lawful possession of the accused prior to the commission of the alleged felony.

• A sum of money received by an employee in behalf of an employer is considered to be only in the material possession of the employee. The material possession of an employee is adjunct, by reason of his employment, to a recognition of the juridical possession of the employer. So long as the juridical possession of the thing appropriated did not pass to the employee-perpetrator, the offense committed remains to be theft, qualified or otherwise.

See related:

Qualified theft, A310 Revised Penal Code

References

Title 10 – Crimes Against Property, Book 2, Revised Penal Code

/Updated: November 10, 2023

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