Republic of the Philippines

~anbiganbapanQuezon City

FOURTH DIVISION

PEOPLE OF THE PHILIPPINES,Plaintiff-Appellee,

SB-12-AIR-0007Crim. Case No. SJC 280 (2002)

- versus-

For: Estafa under Article 315,Paragraph 1(b) of the RevisedPenal Code.

RAMON B. PEREZ,Accused-Appellant.

Present:

Quiroz, J., ChairpersonCruz, J.,Jacinto, J.

Promulgated on:

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DECISION

JACINTO, J:

This is an appeal from the Decision' dated 8 June 2012 of theRegional Trial Court of San Jose City (Branch 38) in Crim. Case No. SJC-280 (2002) entitled "People of the Philippines, Plaintiff versus Ramon B.Perez, Accused," finding accused-appellant Ramon B. Perez (appellant)guilty of the crime of Estafa as defined in Article 315( 1)(b) of the RevisedPenal Code (RPC).

The Informatiorr' charging appellant, alleges:

That on or about March 16, 2002, or sometime prior or subsequentthereto, in San Jose City, Nueva Ecija, Philippines and within thejurisdiction of this Honorable Court, the above named accused Ramon B.Perez, a public officer, being then the Secretary to the Office of the Mayorof San Jose City, Nueva Ecija, committing the crime herein charged inrelation to his office and while in the performance thereof, with

~I Records, Vol. I, pp. 279-286.2 Id., pp. 1-2.

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unfaithfulness and abuse of confidence did then and there, willfully,unlawfully and feloniously receive, misappropriate and convert to his ownpersonal use and benefit the amount of Four Hundred Thousand Pesos,which was given to him by one, Rosana H. Cocjin on the condition thatthe latter will eventually, be awarded a concession to operate a "Baratillo"during the April 2002 Fiesta and with the obligation to return the same ifand when the condition fails to materialize, and the condition having failedto materialize, the accused despite repeated demands, fail (sic) to returnthe said amount to the damage and prejudice of Rosana H. Cocjin in theaforestated amount ofP400,000.00.

Antecedents

The prosecution initially presented private complainant Rosana Cocjinas its first witness. Her direct testimony was concluded on 28 October 2004,3but she was not subjected to cross-examination due to the absence ofappellant's counsel, which opportunity was forever lost when she met heruntimely death." However, no order expunging her testimony from the recordwas issued by the court a quo.

During the hearing held on 11 February 2008, the court a quoconsidered the prosecution to have waived further presentation of itsevidence in view of the absence of the private prosecutor and grantedappellant's verbal motion for leave to file a demurrer to evidence.'Consequently, appellant filed his Demurrer to Evidence: on 4 March 2008.However, in an Order dated 31 March 2008,1 the Court a quo, upon motionof the prosecution.f set-aside its 11 February 2008 Order.

Thereafter, the prosecution presented the testimonies of two otherwitnesses: (1) private complainant's husband, Pablo Cocjin;? and (2)Angelito L. Yamar.!"

The prosecution's evidence, which is based only on the testimonies ofits witnesses since it failed to file its Formal Offer of Evidence, 11 was aptlysummarized by the court a quo as follows:

3 Rosana Cocjin also testified on direct examination on the following dates: 2 March 2004 and 20 May2004. ri4 See Order dated 15 March 2005, supra at note 1, p. 115. .\.)5 See Order dated 11 February 2008, id., p. 189.6 Id., pp. 190-195.7 Id., p. 202.8 Motionfor Reconsideration dated 27 February 2008, id., pp. 196-198.9 TSN dated 23 June 2005.10 TSN dated 20 August 2008.11 See Order dated 12 August 2010, supra at note I, p. 250.

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On March 11, 2002, the private complainant Rosanna (sic) Cocjinand her husband, Pablo Cocjin, met with the accused in front of the CityHall of San Jose City. They talked about the former's desire to beawarded the concession for the operation of the baratillo which was to beconducted in connection with the city's then forthcoming annual fiestacelebration. Towards such end, the accused undertook to process thingswith the Office of the City Mayor but asked for P400,000.00.

Rosanna (sic) and her husband were unable to immediately deliverthe amount demanded. It was only on March 16, 2002, when they met theaccused for the second time at his office at the City Hall of San Jose City,that they were able to give him P300,000.00. The accused issued a receiptfor the money, and handed an authorization, signed by him in his capacityas Secretary to the Mayor, granting to one Danilo Baldedara and Rosanna(sic) the right to invite participants to the baratillo. The authorization wasintended as an assurance that the baratillo concession would be awarded toRosanna (sic). On March 18, 2002, the latter and her brother-in-lawAngelito Yamar delivered to the accused an additional P 100,000.00.

The permit to operate the baratillo was, however, subsequentlyawarded by the City Mayor not to Rosanna (sic), but to another person.Learning of such fact, Rosanna (sic), accompanied by her husband andAngelito, met with the accused and demanded the return of theP400,000.00. The accused was unable to do so, claiming that he hadalready distributed the money to several individuals. He, however,promised to use his influence so that Rosanna (sic) could get the operationof the baratillo. When the accused failed in his promise, Rosanna (sic)again asked for the return of the money. Up to now, the accused has notdone so.12

Appellant's evidence, on the other hand, is based solely on his owntestimony, which was summarized by the court a quo as follows: 13

At the time of the subject incident, the accused was the Secretaryto the Mayor of San Jose City.

Sometime in the first week of March, 2002, one Danilo Baldaderawent to the accused's office at the city hall of San Jose City inquiringabout the baratillo. When the accused told Danilo that he did not knowanything about it, Danilo, promising to return later, asked that the accusedmake inquiries as to when and where the baratillo would be conducted.Danilo then left.

Danilo returned after about a week with Rosanna (sic) Cocjinwhom he introduced as his business partner. Danilo reiterated his earnestdesire to operate the baratillo and asked the accused to help them, givenhis connection to the Mayor. When the accused told them that he did nothave that much influence, Danilo insisted that the accused just try. The

12 Decision, p. 2, Records, Vol. I, p. 280.13 TSN dated 8 November 201 I.

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latter acceded, but pointed out that the operation of a baratillo would entailmany expenses, such as for permit, electrification and installation of watersystem. Danilo and Rosanna (sic) told the accused not to worry about themoney because the vendors in the baratillo would shoulder the same. Atfirst, the latter hesitated, but at Danilo's insistence, he eventually acceptedthe money. The accused issued a receipt. At the urging of Danilo andRosanna (sic), who emphasized that they needed an authorization to beable to solicit vendors for the baratillo, the accused also issued suchauthorization.

The City Mayor, however, subsequently awarded the concession tothe baratillo to another person. Apprised of such development, Daniloapparently resigned to his fate, merely demanded for the return of themoney. The accused complied. Several days later, Rosanna (sic) alsoapproached the accused and made a similar demand. When told that theP300,000.00 was already given to Danilo, Rosanna (sic) just left. Theaccused no longer saw either Danilo or Rosanna (sic) thereafter, and didnot also receive any demand letter from either of them.l"

On 8 June 2012, the court a quo rendered the assailed Decision,finding appellant guilty of Estafa under Art. 315( 1)(b) of the RPC, but onlyinvolving the amount of P300,000.00 as it found no evidence to support theprosecution's claim that private complainant Cocjin gave an additionalP100,000.00 in cash. The dispositive portion of the Decision reads:

WHEREFORE, premises considered, the accused Ramon B. Perezis hereby found guilty beyond reasonable doubt of the crime of estafadefined and penalized under Article 315, paragraph 1 (b) of the RevisedPenal Code and is accordingly sentenced to suffer an indeterminatepenalty of four (4) years and two (2) months of prision coreccional in itsminimum and medium periods, as minimum, to twenty (20) years ofreclusion temporal, as maximum, and such accessory penalties providedfor by law.

Said accused is likewise directed to pay the private complainantRosana Cocjin the amount of Php300,000.00, with interest at the legal ratefrom September 17,2002 until fully paid.

SO ORDERED

Appellant filed a Motion for Reconsideration on 15 June 2012,15 butthe same was denied in a Resolution dated 31 August 2012.16

Hence, this appeal on the following assignment of errors: 17

14 Decision, pp. 2-3, Records, Vol. I, pp. 280-281. ~15 Id, pp. 288-292.16 Id., p. 297.17 Brief for the Appellant dated 15February 2017,Rollo, pp. 67-77.

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A) THE LOWER COURT A QUO ERRED IN DECLARING THATTHE ACCUSED RECEIVED MONEY FOR TRUST,COMMISSION, FOR ADMINISTRATION OR UNDER ANYOBLIGATION TO MAKE DELIVERY OR RETURN;

B) THE TRIAL COURT ERRED IN DECLARING THERE WASTRANSFER OF JURIDICAL POSSESSION;

C) THE TRIAL COURT ERRED IN FINDING THAT THERE WASMISAPPROPRIATION OF THE AMOUNT RECEIVED;

D) THE TRIAL COURT ERRED IN FINDING THAT THE ACCUSEDFAILED TO ACCOUNT FOR THE MONEY UPON DEMAND;

E) THE TRIAL COURT ERRED IN FINDING THE CRIME OFEST AFA AGAINST THE ACCUSED;

Appellant presently argues that there is no proof that he received theP300,000.00 from the private complainant "for trust, commission, foradministration or under any obligation to make delivery or return thereof."The prosecution's evidence only shows that money was in payment for the"award of baratillo" and that he was not obligated to return the same andthat only the physical possession of the money was transferred to him, butnot the "juridical possession" thereof. Appellant adds that there is noevidence to prove that he misappropriated private complainant's money, asin fact, he was able to return the same to Danilo Baldedara. Finally, appellantsubmits that instead of estafa, what was proven before the court a quo wasthe crime of Direct Bribery.

In its Appellee's Brief 18 dated 29 March 2017, the People argues thatthe prosecution was able to prove all the elements of estafa and that the courta quo correctly found appellant guilty thereof. In this connection, it adds thatthe findings of fact of the trial court should be accorded great weight andrespect. Finally, it adds that in addition to estafa, appellant should also beconvicted of Direct Bribery.

RULING OF THE COURT

Article 315, paragraph 1 (b) of the Revised Penal Code provides:

18 Rollo, pp. 93-103.

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Art. 315. Swindling (estafa). - Any person who shall defraudanother by any of the means mentioned hereinbelow shall be punished by:

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1. With unfaithfulness or abuse of confidence, namely:

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(b) By misappropriating or converting, to the prejudiceof another, money, goods, or any other personalproperty received by the offender in trust or oncommission, or for administration, or under anyother obligation involving the duty to make deliveryof or to return the same, even though suchobligation be totally or partially guaranteed by abond; or by denying having received such money,goods, or other property.

The essential elements" of the said felony are as follows:

(1) that money, goods or other personal property is receivedby the offender in trust or on commission, or foradministration, or under any other obligation involving theduty to make delivery of or to return the same;

(2) that there be misappropriation or conversion of suchmoney or property by the offender, or denial on his part ofsuch receipt;

(3) that such misappropriation or conversion or denial is to theprejudice of another; and

(4) there is demand by the offended party to the offender.

All these elements were duly proven by the prosecution during trial.

First Element

There is no dispute as to the first element since appellant admits thathe received the P300,OOO.OOexcept that he denies that he had any obligation ~

19 Dionisio Aw a.k.a. Tony Go vs People, G.R. No. 182276,20 March 2010.

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to account for or return the same. He cites excerpts from the testimonies ofPablo Cocjin and Angelito Yamar, to wit:

Atty. Martinez : And for what purpose is the amount ofPhp400,OOO.OO?

So that he can award the "Baratillo" to ussir.20

Pablo Cocjin :

xxxxx xxxxx

Atty. Martinez :

Angelito Yamar:

For what purpose is this Php400,OOO.OO?

That was the alleged price of the supposed"Baratillo" sir.2J

Appellant's claim however, does not hold water. As found by thecourt a quo and by appellant's own admission, he received the money for theexpenses to be incurred in acquiring the baratillo. He testified as follows:

Q What happened next, after you told them that you will tryto help them secure the baratillo and they told you that theyhave confidence in you?

A I told them that in putting up a baratillo requires too muchexpense, including permit, electrification and installation ofwater system, sir.

Q And what was their reaction, if any, when you told themthat putting up a baratillo will entail big expenses?

A They told me that there would be no problem because thevendors that they could get could chip-in for the possibleexpenses in putting up the baratillo.

Q What did you do if any, when they told you that thevendors in the baratillo would contribute money for theexpenses?

A I told them, "that being the case let us try."

Q And what was their reaction, if any, when you said you cantry?

A Considering that they have confidence in me they handedto me three hundred thousand (Php300,OOO.OO)pesos, sir.22r{xxxxx xxxxx xxxxx

20 TSN, 23 June 2005, p. 5.21 TSN, 28 August 2008, p. 5.22 TSN, 8 November 2011, p. 7.

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Q Did you accept the money?

A At first I was apprehensive in accepting the money beinghanded by Mr. Danilo Baldedara but considering theinsistence of the latter, I accept it.

Q An what was the money for?

A This amount will cover the expenses in securing permitsand other miscellaneous expenses, sir.23

It is clear from appellant's own testimony that the P300,OOO.OOhereceived from private complainant and her companion was for the expensesto be incurred in holding the baratillo, which would include, as he hadearlier mentioned, the expenses for permit, electrification, and installation ofa water system - which he undertook to secure for them, rather than aspersonal fees for services. Thus, the appellant acquired not only physicalpossession, but also juridical possession of the money entrusted to him.

Chua-Burce v. Court of Appeals,24 instructs that when money is receivedfor the purpose of trust, commission, or administration, the offender acquiresboth material and juridical possession over the same:

When the money, goods or any other personal property is received by theoffender from the offended party (1) in trust or (2) on commission or (3)for administration, the offender acquires both material or physical possessionandjuridical possession of the thing received. Juridical possession .means apossession which gives the transferee a right over the thing which the transfereemay set up even against the owner. xxxx

Second, Third and FourthElements

There is no doubt as to the presence of the rest of the elements of thefelony. After the private complainant failed to get the permit to operate thebaratillo, verbal demands were made on appellant to return the amount ofP400,OOO.OO. Appellant, however, insisted that he only receivedP300,OOO.OOand that he already returned the said amount to privatecomplainant's companion, Danilo Baldadera.

We are not impressed by appellant's reasoning and quote withapproval the court a quo's discussion on the matter, to wit:

t(23 Id., p. 824 G.R. No. 109595,27 April 2000.

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xxxxx xxxxx xxxxx xxxxx

Although the accused claimed that the money came from oneDanilo Baldadera, such claim is negated by the receipt he admittedlyissued which indicated that the giver was Rosanna (sic) Cocjin. Whilethere is failure to submit the original of such a receipt because of theprosecution's inability to make a formal offer of exhibits, the fact ofissuance thereof was, however, not denied, and in fact was categoricallyadmitted by the defense.

In receiving the money, the accused evidently did so under theobligation to return the same if the purpose for which it was given failed tomaterialize. Uniformly, prosecution witnesses Pablo and Angelitotestified that the money was for the baratillo concession. Specifically,Pablo declared that the purpose of the money was to ensure that theconcession for the baratillo would be awarded to them (T.S.N., June 23,2005, pp. 5), while Angelito said that it was intended to cover the price forthe baratillo (T.S.N. August 20, 2008, pp. 5). With such purpose, theobligation to return the money in case of non-fulfillment thereof isapparent. Verily, the accused himself gave an indication of suchobligation when he testified that he actually returned the P300,000.00 toDanilo upon demand xxxx.

xxxxx xxxxx xxxxx xxxxx

Had the accused without obligation to return the money under anyand all circumstances, he could not have done so, and with such alacrity.In fact, as he wanted to convey with his aforequoted declarations, theaccused, immediately and without hesitation, gave back the money at theearliest opportunity upon demand.

The accused's misappropriation or conversion of the money islikewise sufficiently established. Both Pablo and Angelito stated that theaccused, on the pretext that he had already distributed the money tovarious individuals, failed to return the same despite demand after thebaratillo concession was not awarded to Rosanna (sic). Such failureamounts to conversion or misappropriation. "The words "convert" and"misappropriate" connote the act of using or disposing of another'sproperty as if it were one's own or devoting it to a purpose or use differentfrom that agreed upon. To misappropriate for one's own use includes, notonly conversion to one's personal advantage but also every attempt todispose of the property of another without right" (Tan vs. People, G.R.No. 153460, January 29, 2007). Failure to account, upon demand, forfunds or property held in trust is circumstantial evidence ofmisappropriation (People vs. Sullano, O.R. No. L-18209, June 30, 1966).

While the accused claimed that he actually returned the money toDanilo, he failed to provide substantiation there for. Aside from his ownself-serving assertion, the accused did not adduce any other evidence tobuoy his claim. Standing alone, his declaration failed to convince the c{

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court. With his admission that when he received the Php300,000.00,the accused issued an acknowledgement receipt, the court cannotfathom why, when he already gave back the same money, he did notask for the return of the said receipt, or even an acknowledgementfrom Danilo that the money was returned to him. Prudence and normalhuman conduct dictate the later course, especially on the part of theaccused who, at the time, was occupying a sensitive public position wherethe danger of retribution on even a minute infraction of professionalconduct constantly lurked. Had the receipt not been available, theaccused, as earlier said, could have requested for the preparation ofanother receipt to evidence the return of the money, or could haverequired the presence of other persons to witness such a return. As itis, however, only the accused, merely by word at that, advancerestitution. Danilo, to whom the money allegedly was returned, didnot even come forward to give support. (emphasis and underscoringsupplied)

Ultimately, the act of the accused, who failed to make restitutiondespite demand, unquestionably prejudiced the private complainant whowas deprived of her money. "No specific type of proof is required toshow that there was demand. Demand need not even be formal; it may beverbal. The specific word "demand" need not even be used to show that ithas indeed been made upon the person charged since even a mere query asto the whereabouts of the money would be tantamount to a demand" (Tanvs. People, G.R. No. 153460, January 29, 2007) As the accused himselfdeclared, Rosanna (sic) verbally asked for the return of the money afterthe baratillo concession was awarded to another person.

To emphasize, while appellant claims that he had no duty to accountfor or return the amount to the private complainant, he also claims that healready returned the same to private complainant's companion, DaniloBaldadera. Both claims are inconsistent with each other. As correctlypointed out by the court a quo, appellant's claims are not worthy of belief.

As for the variance between the amount alleged to have been received byappellant from private complainant Cocjin, suffice it to state that as noted by thetrial court, the prosecution was only able to prove the receipt of P300,000.00.There is no evidence to support the prosecution's claim of the alleged additionalPI00,000.00 given to appellant on 18 March 2002, especially considering that intheir previous transaction the private complainant required appellant to issue areceipt acknowledging the receipt ofP300,000.00.

Appellant Cannot beConvicted of Direct Bribery

Contrary to the prosecution's claim, appellant could not be held liablefor Direct Bribery since what was proven by the prosecution was that the

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money he received from the private complainant was to answer for theexpenses to be incurred in setting up the baratillo. Otherwise stated, animportant element of Direct Bribery is missing since appellant did notreceive the P300,OOO.OO in consideration of any official act that he wasexpected to perform as he had no authority to grant the desired permit infavor of the private complainant.

In fine, after due consideration of the issues raised by both parties, theCourt finds no cogent reason to disturb the findings of the trial court.

WHEREFORE, in view of the foregoing, the appealed Decisiondated 8 June 2012 of the Regional Trial Court, Branch 38, San Jose City isAFFIRMED en toto.

SO ORDERED.

BAYA JACINTOAss ciate Justice

WE CONCUR:

tUw~zAssociate Justice

Chairperson

..•.~~,~.LJD P. CRUZAssociate Justice

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ATTESTATION

I attest that the conclusions in the above Decision had been reached inconsultation with the Justices of the Court's Division.

~~ozAssociate Justice

Chairperson, Fourth Divisi n

CERTIFICATION

Pursuant to Section 13, Article VIII of the Constitution, and theDivision Chairperson's Attestation, I certify that the conclusions in the aboveDecision had been reached in consultation before the case was assigned tothe writer of the opinion of the Court's Division.