epublic of tbe flbilippine% ~upreme ~ourt

l\epublic of tbe flbilippine% ~upreme ~ourt

:fflanila

FIRST DIVISION

JANICE RESIDEy TAN, Petitioner,

- versus -

PEOPLE OF THE PHil,IPPINES, Respondent.

G.R. No. 210318

Present:

PERALTA, CJ, Chairperson, CAGUIOA, REYES, J. JR., LAZARO-JAVIER, and LOPEZ,JJ

Promulgated:

.JUL 2 8 2020 X - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -

DECISION

REYES, J. JR., J.:

The present Petition for Review on Certiorari 1 filed under Rule 45 of the Rules of Com1 assails the June 28, 2013 Decision2 and the November 26, 2013 Resolution3 of the Court of Appeals (CA) in CA-G.R. CR No. 34634, which affirmed with modification the April 8, 2011 Decision4 of the Regional Trial Court (RTC) of Las Pifias City, Branch 201 in Criminal Case No. 06-0052 convicting petitioner Janice Reside y Tan (petitioner) for the crime of estafa penalized under paragraph 1 (b ), Article 315 of the Revised Penal Code (RPC).

Rollo, pp. I 0-34. Penned by Associate Justice Jane Aurora C. Lantion, with Associate Justices Vicente S.E. Veloso and Eduardo B. Peralta, Jr., concurring; id. at 68-80. Id. at 81-82. Penned by Presiding Judge Lorna Navarro-Domingo; id. at 62-65.

Decision 2 G.R. No. 210318

The Facts

Petitioner was tried in the RTC under the following Information:

That on various dates from 2001 to 2005, in the City of Las Pifias, Philippines, and within the jurisdiction of this Honorable Court, the abovenamed accused with unfaithful and abuse of confidence did then and there willfully, unlawfully, [and] feloniously defraud complainant school TREASURY OF THE GOLDEN WORD SCHOOL, INC. herein represented by its President Carmelita C. De Dios in the amount of [P]l ,721,010.82 in the fo llowing manner, to wit: the accused then employed as a Pre-School and Grade School Principal in complainant school authorized to collect and receive tuition and other school payments of students with the express obligation to remit said collection to the school, received a total collection from tuition and other school payments of preschool and grade school students in the amount of [P]l,721,010.82 but said accused, once in possession of the amount and far from complying with her obligation, misappropriated, misapplied and converted to her own use the amount of [P]J,721,010.82 and despite repeated demands made by the complainant school accused failed and refused and still fails and refuses to return said amount to the damage and prejudice of said complainq1nt school.

CONTRARY TO LAW. 5

During her an-aignment on September 1, 2006, petitioner pleaded "not guilty" to the charge.6

The prosecution alleged that from 2001-2005, petitioner was the preschool and grade school principal of Treasury of the Golden Word School, Inc. (TGWSI). As such, she was entrusted by the President of TGWSI Carmelita C. De Dios (De Dios) to: one, collect the tuition fees from the parents and students; two, issue official receipts therefor; and three, to remit the same to the school.7 Sometime in 2005, Marie Gil Padilla (Padilla), Treasurer of TGWSI, noticed that petitioner stopped reporting for work.8

This prompted De Dios to review the books of TGWSI and she discovered the non-remittance of some tuition fees received by petitioner.9 Further investigation revealed that petitioner has been issuing temporary receipts which was against the policy of TGWSI. 10 De Dios then tried to meet with petitioner to discu1ss the matter, but to no avail. 11 Thus, De Dios sought the assistance of the barangay where petitioner resided. 12 At the barangay hall,

9

10

II

11

Dated May 8, 2006; id. at 69. Id. .

Id. at 97. Id. Id. at 98. Id. Id. Id.


petitioner admitted that De Dios' allegations were true. 13 Thereafter, the parties agreed to settle and a promissory note was signed by petitioner undertaking to pay De Dios within three months. 14 Due to petitioner's failure to pay upon maturity of the promissory note and despite demand, De Dios filed a criminal complaint for estafa. 15

In defense, petitioner averred that, aside from Padilla, she was allowed to acknowledge payments from the students for which she issued the necessary receipts. 16 She denied the allegation that she failed to remit the tuition fees and claimed that prior to the filing of the case, De Dios examined the receipts and informed her that no discrepancy was found.

17

Lastly, petitioner posited that she signed the promissory note under duress.18

In its April 8, 2011 Decision, the RTC held that (1) all the statements of account, official receipts, as well as temporary receipts contained the signature of petitioner, thus, signifying that she received ce1tain amounts of money; (2) there was misappropriation when petitioner failed to remit to the school the entire amount of tuition fees received by her as shown by the discrepancy between the official receipts issued to the students and the remittance voucher slips; and (3) as to the requirement of demand, petitioner admitted in her Counter-Affidavit that a demand letter was mailed to her on November 3, 2005. 19 The dispositive portion of which, states:

WHEREFORE, premises considered, the Court hereby finds [petitioner] GUILTY beyond reasonable doubt of the crime of estafa defined and penalized under Article 315, paragraph 1 (b) of the [RPC] and taking into consideration the Indeterminate Sentence Law, [petitioner] is sentenced to suffer an indeterminate penalty of imprisonment of EIGHT (8) YEARS of fprision mayor] in its medium period as minimum to SEVENTEEN (17) YEARS and FOUR (4) MONTHS and ONE (1) DAY of [reclusion temporal] as maximum with all the accessory penalties provided for by law and to indemnify the private complainant the sum of [P]l,721 ,010.82, and to pay ten percent (10%) attorney's fees xx x[.]

SO ORDERED.20 .

Upon appeal, the CA agreed with the RTC that petitioner was guilty of estafa. However, the CA found that, per the documentary evidence

13 Id. at 99. 14 Id. 15 Id. 16 Id. at 182 . 17 Id. 18 Id. at 83. 19 Id. at 64-65. 20 Id. at 65 .


presented, the total sum that petitioner failed to remit to the school amounts only to P134,462.90. 21 Hence, the CA modified the penalty imposed, viz.:

WHEREFORE, the Decision dated 8 April 2011 of the [RTC] of Las Pifias City, Branch 201, in Criminal Case No. 06-0052 is AFFIRMED with MODIFICATIONS. [Petitioner] is hereby sentenced to an indeterminate penalty of four (4) years and two (2) months of prision correccional, as minimum, to seventeen (17) years, four (4) months and one (1) day of reclusion temporal, as maximum. [Petitioner] is ordered to indemnify private complainant [De Dios] the sum of [P] 134,462.90, plus ten percent (10%) thereof as attorney's fees.

SO ORDERED.22

Aggrieved, petitioner moved for the CA to reconsider its Decision, but the same was denied in a Resolution23 dated November 26, 2013.

Hence, this petition.

The Court's Ruling

The Court finds that petitioner is guilty, not of estafa, but of qualified theft.

The R TC and the CA rulings are both predicated on their finding that all the elements of estafa under paragraph 1 (b ), Article 315 of the RPC have been sufficiently established by the prosecution.

We disagree.

Article 315 of the RPC punishes criminal fraud resulting to damage capable of pecuhiary estimation.24 The elements of estafa through misappropriation under pararagraph 1 (b ), Article 31525 of the RPC are:

2 1

22

23

24

25

Id. at 79-80. Id. at 80. Id. at pp. 81-82. Legaspi v. People, G.R. Nos. 225753 & 225799, October 15, 2018. Art. 3 15. Swindling (esta.fa). - Any person who shall defraud another by any means mentioned herein below x x x: I. With unfaithfu lness or abuse of confidence, namely: xx x x (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[.]


1. That money, goods or other personal properties are 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 san1e;

2. That there is a misappropnatlon or conversion of such money or property by the offender or denial on his part of the receipt thereof;

3. That the misappropriation or conversion or denial is to the prejudice of another; and

4. That there is a demand made by the offended party on the offender.26

Contrary to the identical ruling of the courts a quo, the first element of the crime charged is absent. Verily, when the money, goods, or any other personal property is received by the offender from the offended party ( 1) in trust, or (2) on commission, or (3) for administration, the offender acquires both material or physical possession and juridical possession of the thing received.27 Stated plainly, mere receipt of the money, goods, or personal property does not suffice, it is also essential that the accused acquired both material or physical possession and juridical possession of the thing received.28 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.

29

As early as 1956, the Court, in Guzman v. Court of Appeals,30 already

demarcated the line between possession by an employee who receives funds in behalf of the company and possession of an agent, thus:

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[.]

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

26

27

28

29

30

Cason v. People, 818 Phil. 271, 284(2017). D 'Aigle v. People, 689 Phil. 480, 490 (20 l2). Legaspi v. People, supra note 24. San Diego v. Court of Appeals, 757 Phil. 599(20 15). 99 Phil. 703 (1956).


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. 31

The foregoing principle is illustrated in Chua-Burce v. Court of Appeals32 where the manager of a bank located in Calapan, Mindoro discovered a shortage in their cash-in-vault amounting to Pl 50,000.00. 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.

Likewise, in Roque v. People,33 where it involved possession of money in the capacity of a bank teller, the Court said:

In People v. Lacson, xx x [we] considered deposits received by a teller in behalf of a bank as being only in the material possession of the teller. This interpretation applies with equal force to money received by a bank teller at the beginning of a business day for the purpose of servicing withdrawals. Such is only material possession. Juridical possession remains with tJhe bank. In line with x x x with People v. De Vera, if the teller appropriates the money for personal gain then the felony committed is theft and not estafa. (Citations omitted)

Similarly, in Benabaye v. People,34 a loans bookkeeper of a bank authorized to collect and/or accept loan payment from the bank's clients and issue provisional receipts therefore, and remit such payments to her supervisor was found to have no juridical possession, but only a physical or material possession of the cash payments she receives.

In the case at bench, it cannot be gainsaid that petitioner, in addition to her duties as principal, was authorized to receive or collect matriculation fees from the panents and/or students enrolled in TGWSI. Per a verbal agreement with De Dios, petitioner shall forward all payments received together with the remittance voucher slips to the school.35 As it happens, the money merely passes into petitioner' s hands and her custody thereof is only until the same is remitted to the school. Consequently, petitioner, as principal and temporary cash custodian of TGWSI, acquires only physical or

31

32

JJ

34

35

lv/atrido v. People, 6 10 Phil. 203, 2 14 (2009). 387 Phi l. 15 (2000). 486 Phil. 288, 310 (2004). 755 Phil. 144 (2015). TSN, Apri l 18, 2007, p. 20.

r


material possession over the unremitted funds. Thus, being a mere custodian of the unremitted tuition fees and not, in any manner, an agent who could have asse1ied a right against TGWSI over the same, petitioner had only acquired material and not juridical possession of such funds and consequently, cannot be convicted of the crime of estafa as charged.

Neve1iheless, a reading of the information and an appreciation of the evidence show qualified theft. Applying the variance doctrine under Section 436 in relation to Section 5,37 Rule 120 of the Revised Rules on Criminal Procedure, it is proper to hold petitioner guilty of qualified theft because the latter crime was necessarily included in the crime charged in the information.

In gist, the Information alleged that petitioner, as principal of TGWSI, authorized to collect and receive tuition and other school payments of students, misappropriated, misapplied and converted to her own use the amount she received and failed and refused to return the money to TGWSI despite repeated demands to the damage and prejudice of TGWSI.

36

37

Theft is defined under Article 308 of the RPC, viz.:

ART. 308. Who are liable for theft. - Theft is committed by any person who, with intent to gain but without violence, against, or intimidation of neither persons nor force upon things, shall take personal property of another without the latter's consent.

Theft is likewise committed by:

1. Any person who, having found lost property, shall fail to deliver the same to the local authorities or to its owner;

2. Any person who, after having maliciously damaged the property of another, shall remove or make use of th e fruits or objects of

the damage caused by him; and

3. Any person who shall enter an enclosed estate or a field where trespass is forbidden or which belongs to another and without the consent of its owner, shall hunt or fish upon the same or shall gather fruits, cereals, or other forest or farm products.

Sec. 4. Judgment in case of variance between allegation and proof - When there is variance between the offense charged in the complaint or information and that proved, and the offense as charged is included in or necessarily includes the offense proved, the accused shall be convicted of the offense proved which is included in the offense charged, or of the offense charged which is included in the offense proved. Sec. 5. When an offense includes or is included in another. - An offense charged necessarily includes the offense proved when some of the essential elements or ingred ients of the former, as alleged in the complaint or information, constitute the latter. And an offense charged is necessarily included in the offense proved, when the essential ingredients of the former continue or form part of those constituting the latter.

r


While Article 310 ofthe RPC reads:

ART. 310. Qualified Theft. -The crime of theft shall be punished by the penalties next higher by two degrees than those respectively specified in the next preceding article, if committed by a domestic servant, or with grave abuse of confidence, or if the property stolen is motor vehicle, mail matter or large cattle or consists of coconuts taken from the premises of a plantation, fish taken from a fishpond or fishery or if property is t<').ken on the occasion of fire, earthquake, typhoon, volcanic eruption, or any other calamity, vehicular accident or civil disturbance. (Emphasis supplied)

Stated otherwise, the essential elements of qualified theft are as follows: (1) there was a taking of personal property; (2) the said property belongs to another; (3) the taking was done without the consent of the owner; ( 4) the taking was done with intent to gain; (5) the taking was accomplished without violence or intimidation against person, or force upon things; and (6) t}iie taking was done under any of the circumstances enumerated in Article 310 of the RPC, i.e., with grave abuse of confidence.38

The foregoing elements are present in this case. First, the prosecution was able to establish that petitioner, as part of her duty as principal of TGWSI, received tuition fees and other school payments from students and failed to remit the same to the school. Second, the money taken by petitioner belongs to TGWSI. The Court, in Paramount Insurance Corp. v. Spouses Remondeulaz,39 clarified that 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. Thus, the 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 transfened, misappropriation of the same property constitutes estafa. Third, the absence of TGWSI's consent was shown in its attempts to account for the missing money through a review of its books and to recover it from petitioner. Fourth, intent to gain on the part of the petitioner was likewise established. Intent to gain is an internal act that is presumed from the unlawful taking by the offender of the thing subject of asportation.40 Here, petitioner admitted to the taking of the funds owing to TGWSI and even agreed to settle by signing a promissory note undertaking to pay De Dios. Fifth, no violence or intimidation against persons nor of force upon things was employed by petitioner in obtaining the funds. Sixth, the taking was clearly done with grave abuse of confidence. As principal of TGWSI, petitioner was authorized to collect school fees. Such

38

39

40

Matrido v. People, supra note 3 I, at 2 11-2 12. 699 Phil. 541 , 547 (2012). Matrido v. People, supra note 31, at 212.


position or · relation _of trust and confidence was aptly established to have been gravely ~bused when she failed to remit the entrusted amount of collection to TGWSI. ·

The circumstanees obtaining in this case are not novel.

In Ringor v. People,4! the Court affirmed the CA's Decision holding

Ringor guilty of qualified theft, contrary to the R TC' s Decision finding her guilty of estafa, the crime charged in the info1mation. We held that as Ringor merely had physical possession of the merchandise, she can only be held liable fo!' qualified theft despite proof of her misappropriation of the merchandise. Similarly, in the case of Santos v. People,42

the Court also found petitioner Santos' conviction for theft correct under an information naming the crime charged as estafa. And, in People v. Euraba,43the Court found the CA' s affirmation of the guilty verdict for qualified theft against the accused-appellant in order since the factual allegations in the information sufficiently established all the: elements of qualified theft and such elements were duly proven b:y the prosecution.

·we now discuss the penalty in light of Republic Act (R.A.) No. 44 · . · · · · ·

l 0951 , which took 6ffect on September 16, 201 7. As stated elsewhere in this Decision, Article 310 of the RPC prescribes penalties next higher by two degrees than those specified in Article 309 if the theft was committed with, among others, ·grave abuse of confidence. Article 309, as amended by R.A. No. 10951, 45 now prescribes the penalty of prision correccional in its minimum a~~ medium periods, if the value of the property stolen is rnore than ?20,000_'.0_0, _ but . does . not exceed P600,000.00. Applying A1iicle 309, as . amended, and Article 310, qualified theft involving the amount of PL34?462.90 is now punishable by prision mayor in its medium aad · maximum·· periods. After computing .. the periods · for this adjusted. penalty pet Alii.cle 6546 of the RPC and since no aggravating or mitigating circt1mstance is present, the imposable penalty is from 9 years, 4 months and l day to 10 years and 8 months. As this duration exceeds one year, the Indeterminat~ Sentence Law becomes applicable. We, thus, set the ----- ... ------·----~ 4!

42

JJ

44

45

723 Phil.. 685 (2.0 l31. 260 Phil. 5 i 9 (I ~9t.l). G .. K No. 22076?:', /'.p.rii rn, ~O ! 8 (.\1i:mte Resoiution). AN A( ' 1' _AL'JUST1N,;,; r;~F AMDUNT OR THE VALUE OF PROPERTY AND DAMAGE ON WHICH A PEN.ALTY 1S BAScD AND TEE FINSS IMPOSED UNDER Tl-!E R EVISl:.D PENAL CODE, AMENDING FOR

THE PURP'~SE Ac•; N ( •, 3/315. OTI-ii:.RWISE KNOW/, AS "THE REVISED PENAL CODE," AS AM ENDED.

Art 309. Frndtic;. ► ,by pcrsw· guilty of theft shall be punished by: I~ , )f.. X"

'J°_ Thi per;alty ·of pr,siori c:Jrre·cciow11 in its minimum and medium periods,' if the value of the prop<::r,'.y stok;, .. ·;s mvre than Twenty thousand pesos ('1'20,000.00) but does not exceed Six hundred thou~-a~,j peSG$ (¥'600,.000.G0). Art. 65. Rule i',-i cc,;es iJ;: wh:ch the penolty fr not composed of three periods.· - In. cases in which the penalty pre~~~ribed by \av.' is not: coi'i,µosed of three periods, the c0uits sliall apply the rules

··· contained in the foregoing articles, divici ing into three equal po1tions of time included in the penalty pn,~cribr;d, and form;;ig i,ne pe!·iod of each of the three portions.

'

•• /, I. '


maximum term of 9 years, 4 months and 1 day of prision mayor. The minimum term is, thus, set at 5 years, 5 months and 11 days of prision correccional, whkh is within the range of penalty next lower to that prescribed by the RPC for qualified theft.47

Lastly, legal interest at the rate of 6% per annum is also imposed on the actual damage due to private complainant TGWSI amounting to ?134,462.90 from the date of finality of this judgment until full payment, in line with current policy.

WHEREFORE, the pet1t10n is DENIED. The Decision and the Resolution dated June 28, 2013 and November 26, 2013, respectively, of the Court of Appeals in CA-G.R. CR No. 34634 are hereby AFFIRMED with MODIFICATION. Petitioner Janice Reside y Tan is sentenced to suffer the indeterminate sentence of 5 years, 5 months and 11 days of prision correccional as minimum term to 9 years, 4 months and 1 day of prision mayor as maximum term; and is ordered to pay the private complainant the sum of Pl 34,462.90 as actual damages, subject to interest at the rate of 6% per annum from the date of finality of this judgment until fully paid.

SO ORDERED.

WE CONCUR:

47 Supra not(:, 43 .

{~~/. SE C. REfES, JR. ssociate Justice

ustice Chairperson


(

S. CAGUIOA ZARO-JAVIER

CERTIFICATION

Pursuant to Seotion 13, Article VIII of the Constitution, I certify that the conclusions in the above Decision had been reached in consultation before the case was assigned to the writer of the opinion of the Court's Division.

.PERALTA Chief :Justice

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