TONY TAN a.k.a. TONY Y. CHING, Petitioner, vs. PEOPLE OF THE PHILIPPINES, Respondent. G.R. No. 153460 January 29, 2007
RENATO C. CORONA
The elements of estafa with abuse of confidence under this provision are as follows:
1. That money, goods, or other personal property be 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;
2. That there be misappropriation or conversion of such money or property by the offender; or denial on his part of such receipt;
3. That such misappropriation or conversion or denial is to the prejudice of another; and
4. That there is a demand made by the offended party to the offender.15
Both the RTC and CA found all the elements of estafa present.
The distinction between the conversion of a check and the conversion of cash in relation to the formal allegation in the information of conversion of a specific sum of money is not material in estafa.16 “[T]he delivery by the[private complainant] of the check and its acceptance by [petitioner] signified not merely the transfer to [petitioner] of the money belonging to [private complainant, it] also marked the creation of a fiduciary relation between the parties.”17 More important, however, is the fact that the law provides only the degree of proof necessary to engender moral certainty and does not require any specific form — whether oral or documentary — to produce conviction beyond reasonable doubt.18 The essential facts establishing the elements of the crime may be proven by pure testimony.
For sure, the money was delivered to petitioner for a particular purpose, the non-fulfillment of which mandated its return.19
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.20 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 any right.21
On the element of conversion or misappropriation, the court a quo, as upheld by the CA, stated:
In the instant case, [petitioner] admittedly converted or diverted the check he received by encashing it from the drawee bank, and yet, did not pay the deficiency custom duties and taxes as agreed upon….22
As to what circumstances justify a party so receiving money to withhold the application of the same to the agreed purpose, there is no fixed rule.23 Each case should be decided based on its own particular facts. Reference must be made primarily to the good or bad faith exhibited by the accused in withholding the money from the use for which it was intended to be applied.24 In this case, petitioner never gave a good reason for not remitting the money to the BOC or for not returning it to private complainant. Petitioner only made self-serving statements to justify withholding the P150,000. The ruling in the civil case declaring that the importer, neither petitioner nor private complainant, was required by law to pay the deficiency taxes did not vindicate petitioner. The ruling of the court did not justify his withholding the amount which was entrusted to him as private complainant’s share in the tax burden; it only identified the proper taxpayer of the subject tax. Petitioner only offered to return the money after the filing of the civil case against him and after being charged before the city prosecutor for estafa.25
Indeed, the misappropriation or conversion by petitioner caused prejudice to private complainant and his wife.
Damage as an element of estafa may consist in (1) the offended party being deprived of his money or property as a result of the defraudation; (2) disturbance in property right; or (3) temporary prejudice.26
Registration of the car in the name of private complainant’s wife still had not been accomplished as of the time this petition was filed since the taxes due remained unpaid. Granting that both petitioner and private complainant were not liable therefor, the money supposedly meant for the BOC fell into the wrong hands.
Finally, even if demand is not required by law, it is necessary to prove misappropriation. Failure to account, upon demand, is circumstantial evidence of misappropriation.27
The consummation of the crime of [estafa]… does not depend on the fact that a request for the return of the money is first made and refused in order that the author of the crime should comply with the obligation to return the sum misapplied. The appropriation or conversion of money received to the prejudice of the owner thereof [is] the sole essential [fact] which constitute the crime of [estafa], and thereupon the author thereof incurs the penalty imposed by the [RPC].28
Even so, the lower courts did find that demand was duly made on petitioner. As early as August 29, 1994, private complainant and his wife filed their complaint against petitioner and his wife. They alleged, among others, the demand to return the aforesaid amount. Petitioner and his wife were served summons and a copy of the complaint on September 7, 1994. Thereafter, they adduced their evidence before the trial court. This judicial demand was equally efficacious as, if not more effective than, the letters of demand of private complainant to petitioner before the latter was charged before the city prosecutor.29 No specific type of proof is required to show that there was demand. Demand need not even be formal; it may be verbal.30 The specific word “demand” need not even be used to show that it has indeed been made upon the person charged since even a mere query as to the whereabouts of the money would be tantamount to a demand.31
As regards the appropriate penalty, the RPC provides:
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 prision correccional in its maximum period to prision mayor in its minimum period, if the amount of the fraud is over 12,000 pesos but does not exceed 22,000 pesos; 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 10,000 pesos; 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 prision mayor or reclusion temporal, as the case may be; xxx xxx xxx.
Taking into consideration the Indeterminate Sentence Law, the appellate court properly imposed a sentence of four years and two months of prision correccional, as minimum, to twenty years of reclusion temporal, as maximum. Petitioner is also directed to return the amount of P150,000 with the proper legal interest.
CARMINA G. BROKMANN,Petitioner, versus PEOPLE OF THE PHILIPPINES,Respondent. G.R. No. 199150, February 6, 2012
Except for the penalty imposed, we find no reversible error in the CAs decision.
First, the offense of estafa, in general, is committed either by (a) abuse of confidence or (b) means of deceit. The acts constituting estafa committed with abuse of confidence are enumerated in item (1) of Article 315 of the Revised Penal Code, as amended; item (2) of Article 315 enumerates estafa committed by means of deceit. Deceit is not an essential requisite of estafa by abuse of confidence; the breach of confidence takes the place of fraud or deceit, which is a usual element in the other estafas. In this case, the charge against the petitioner and her subsequent conviction was for estafa committed by abuse of confidence. Thus, it was not necessary for the prosecution to prove deceit as this was not an element of the estafa that the petitioner was charged with.
Second, the cases cited by the petitioner are inapplicable. Our pronouncements in Singson and Ojeda apply to estafa under Article 315, paragraph 2(d) where the element of deceit was necessary to be proven.
Nevertheless, we find the modification of the penalty imposed to be in order to conform to the prevailing jurisprudence. The second paragraph of Article 315 provides the appropriate penalty if the value of the thing, or the amount defrauded, exceeds P22,000.00:
1st. The penalty of prision correccional in its maximum period to prision mayor in its minimum period, if the amount of the fraud is over 12,000 pesos but does not exceed 22,000 pesos; 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 10,000 pesos; but the total penalty which may be imposed shall not exceed twenty years.
The minimum term of imprisonment imposed by the CA and the RTC does not conform with the Courts ruling in People v. Temporada, where we held that the minimum indeterminate penalty in the above provision shall be one degree lower from the prescribed penalty for estafa which is anywhere within the range of prision correccional, in its minimum and medium periods, or six (6) months and one (1) day to four (4) years and two (2) months. In this case, the minimum term imposed by the CA and the RTC of six (6) years and six (6) months of prision mayor is modified to four (4) years and two (2) months of prision correccional, consistent with the prevailing jurisprudence.
G.R. No. 145872 : February 4, 2002
GLORIA OCAMPO-PAULE, Petitioner, vs. HONORABLE COURT OF APPEALS and PEOPLE OF THE PHILIPPINES, Respondents.
There is no merit in petitioners arguments.
Art. 315, paragraph 1(b) of the Revised Penal Code provides:
Art. 315. Swindling. (estafa).any person who shall defraud another by any of the means mentioned herein below shall be punished by:
- With unfaithfulness or abuse of confidence, namely:
(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 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.
The elements of estafa with abuse of confidence under this paragraph are: (1) that money, goods or other personal property be 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; (2) that there be misappropriation or conversion of such money or property of the offender; or denial on his part of such receipt; (3) that such misappropriation or conversion or denial to the prejudice of another; and (4) that there is a demand made by the offended party to the offender.8cräläwvirtualibräry
Both the trial court and the Court of Appeals found that all the elements of estafa under Article 315, paragraph 1(b) are present in this case. In its Decision, the appellate court affirmed the finding of the trial court stating that:
These elements were amply and clearly established in this case, First, accused received the jewelry for the purpose of selling the same under an express obligation to remit to complainant the proceeds thereof or to return those she is unable to sell thereby creating a fiduciary relationship between the[m]. Second, accused misappropriated the jewelry as shown by the fact that she failed to return the same or the proceeds thereof despite demand and Third, the misappropriation prejudiced the private complainant.9cräläwvirtualibräry
The rule is that factual findings of the Court of Appeals are conclusive on the parties on and this Court, and carry even more weight when the appellate court affirms the factual findings of the trial court.10 The Court finds no reason to depart from the foregoing rule, considering that the evidence on record supports the conclusion of both the trial and the appellate courts that petitioner is liable for estafa with abuse of confidence under Article 315, paragraph 1(b) of the Revised Penal Code.
Likewise untenable is petitioners argument that there was a novation of her criminal liability when she and private complainant executed theKasunduan sa Bayaran. It is well-settled that the following requisites must be present for novation to take place: (1) a previous valid obligation; (2) agreement of all the parties to the new contract; (3) extinguishment of the old contract; and (4) validity of the new one.11cräläwvirtualibräry
Novation, in its broad concept, may either be extinctive or modificatory. It is extinctive when an old obligation is terminated by the creation of a new obligation that takes the place of the former; it is merely modificatory when the old obligation subsists to the extent it remains compatible with the amendatory agreement. xxx
Novation is never presumed, and the animus novandi, whether totally or partially, must appear by express agreement of the parties, or by their acts that are too clear and unequivocal to be mistaken.
The extinguishment of the old obligation by the new one is a necessary element of novation which may be effected either expressly or impliedly. The term expressly means that the contracting parties incontrovertibly disclose that their object in executing the new contract is to extinguish the old one. Upon the other hand, no specific form is required for an implied novation, and all that is prescribed by law would be an incompatibility between the two contracts. While there is really no hard and fast rule to determine what might constitute to be a sufficient change that can bring about novation, the touchstone for contrareity, however, would be an irreconcilable incompatibility between the old and the new obligations.
xxx The test of incompatibility is whether or not the two obligations can stand together, each one having its independent existence. If they cannot, they are incompatible and the latter obligation novates the first. Corollarily, changes that breed incompatibility must be essential in nature and not merely accidental. The incompatibility must take place in any of the essential elements of the obligation, such as its object, cause or principal conditions thereof; otherwise, the change would be merely modificatory in nature and insufficient to extinguish the original obligation.13cräläwvirtualibräry
The execution of the Kasunduan sa Bayaran does not constitute a novation of the original agreement between petitioner and private complainant. Said Kasunduan did not change the object or principal conditions of the contract between them. The change in manner of payment of petitioners obligation did not render the Kasunduanincompatible with the original agreement, and hence, did not extinguish petitioners liability to remit the proceeds of the sale of the jewelry or to return the same to private complainant. As this Court held in Velasquez vs. Court of Appeals:14cräläwvirtualibräry
An obligation to pay a sum of money is not novated, in a new instrument wherein the old is ratified, by changing only the terms of payment and adding other obligations not incompatible with the old one, or wherein the old contract is merely supplemented by the new one.15cräläwvirtualibräry
In any case, novation is not one of the grounds prescribed by the Revised Penal Code for the guishment of criminal liability.16cräläwvirtualibräry
WHEREFORE, the petition is hereby DENIED and the decision of the Court of Appeals in CA-G.R. CR No. 22437 is AFFIRMED.