Cases

Republic of the PhilippinesSUPREME COURT

Manila

THIRD DIVISION

G.R. No. 174238 July 7, 2009

ANITA CHENG, Petitioner, vs.SPOUSES WILLIAM SY and TESSIE SY, Respondents.

D E C I S I O N

NACHURA, J.:

This is a petition1 for review on certiorari under Rule 45 of the Rules of Court of the Order dated January 2, 20062of the Regional Trial Court (RTC), Branch 18, Manila in Civil Case No. 05-112452 entitled Anita Cheng v. Spouses William Sy and Tessie Sy.

The antecedents are as follows—

Petitioner Anita Cheng filed two (2) estafa cases before the RTC, Branch 7, Manila against respondent spousesWilliam and Tessie Sy (Criminal Case No. 98-969952 against Tessie Sy and Criminal Case No. 98-969953 against William Sy) for issuing to her Philippine Bank of Commerce (PBC) Check Nos. 171762 and 71860 forP300,000.00 each, in payment of their loan, both of which were dishonored upon presentment for having been drawn against a closed account.

Meanwhile, based on the same facts, petitioner, on January 20, 1999, filed against respondents two (2) cases for violation of Batas Pambansa Bilang (BP Blg.) 22 before the Metropolitan Trial Court (MeTC), Branch 25, Manila (Criminal Case Nos. 341458-59).

On March 16, 2004, the RTC, Branch 7, Manila dismissed the estafa cases for failure of the prosecution to prove the elements of the crime. The Order dismissing Criminal Case No. 98-969952 contained no declaration as to thecivil liability of Tessie Sy.3 On the other hand, the Order in Criminal Case No. 98-969953 contained a statement, "Hence, if there is any liability of the accused, the same is purely ‘civil,’ not criminal in nature."4

Later, the MeTC, Branch 25, Manila, dismissed, on demurrer, the BP Blg. 22 cases in its Order5 dated February 7, 2005 on account of the failure of petitioner to identify the accused respondents in open court. The Order also did not make any pronouncement as to the civil liability of accused respondents.1avvphi1

On April 26, 2005, petitioner lodged against respondents before the RTC, Branch 18, Manila, a complaint6 for collection of a sum of money with damages (Civil Case No. 05-112452) based on the same loaned amount ofP600,000.00 covered by the two PBC checks previously subject of the estafa and BP Blg. 22 cases.

In the assailed Order7 dated January 2, 2006, the RTC, Branch 18, Manila, dismissed the complaint for lack of jurisdiction, ratiocinating that the civil action to collect the amount of P600,000.00

with damages was already impliedly instituted in the BP Blg. 22 cases in light of Section 1, paragraph (b) of Rule 111 of the Revised Rules of Court.

Petitioner filed a motion for reconsideration8 which the court denied in its Order9 dated June 5, 2006. Hence, this petition, raising the sole legal issue –

Whether or not Section 1 of Rule 111 of the 2000 Rules of Criminal Procedure and Supreme Court Circular No. 57-97 on the Rules and Guidelines in the filing and prosecution of criminal cases under BP Blg. 22 are applicable to the present case where the nature of the order dismissing the cases for bouncing checks against the respondents was [based] on the failure of the prosecution to identify both the accused (respondents herein)?10

Essentially, petitioner argues that since the BP Blg. 22 cases were filed on January 20, 1999, the 2000 Revised Rules on Criminal Procedure promulgated on December 1, 2000 should not apply, as it must be given only prospective application. She further contends that that her case falls within the following exceptions to the rule that the civil action correspondent to the criminal action is deemed instituted with the latter—

(1) additional evidence as to the identities of the accused is necessary for the resolution of the civil aspect of the case;

(2) a separate complaint would be just as efficacious as or even more expedient than a timely remand to the trial court where the criminal action was decided for further hearings on the civil aspect of the case;

(3) the trial court failed to make any pronouncement as to the civil liability of the accused amounting to a reservation of the right to have the civil liability litigated in a separate action;

(4) the trial court did not declare that the facts from which the civil liability might arise did not exist;

(5) the civil complaint is based on an obligation ex-contractu and not ex-delicto pursuant to Article 3111 of the Civil Code; and

(6) the claim for civil liability for damages may be had under Article 2912 of the Civil Code.

Petitioner also points out that she was not assisted by any private prosecutor in the BP Blg. 22 proceedings.

The rule is that upon the filing of the estafa and BP Blg. 22 cases against respondents, where the petitioner has not made any waiver, express reservation to litigate separately, or has not instituted the corresponding civil action to collect the amount of P600,000.00 and damages prior to the criminal action, the civil action is deemed instituted with the criminal cases.13

This rule applies especially with the advent of the 2000 Revised Rules on Criminal Procedure. Thus, during the pendency of both the estafa and the BP Blg. 22 cases, the action to recover the civil liability was impliedly instituted and remained pending before the respective trial courts. This is consonant with our ruling in Rodriguez v. Ponferrada14 that the possible single civil liability arising from the act of issuing a bouncing check can be the subject of both civil actions deemed instituted with the estafa case and the prosecution for violation of BP Blg. 22, simultaneously available to the complaining party, without traversing the prohibition against forum shopping.15Prior to the judgment

in either the estafa case or the BP Blg. 22 case, petitioner, as the complainant, cannot be deemed to have elected either of the civil actions both impliedly instituted in the said criminal proceedings to the exclusion of the other.16

The dismissal of the estafa cases for failure of the prosecution to prove the elements of the crime beyond reasonable doubt—where in Criminal Case No. 98-969952 there was no pronouncement as regards the civil liability of the accused and in Criminal Case No. 98-969953 where the trial court declared that the liability of the accused was only civil in nature—produced the legal effect of a reservation by the petitioner of her right to litigate separately the civil action impliedly instituted with the estafa cases, following Article 29 of the Civil Code.17

However, although this civil action could have been litigated separately on account of the dismissal of the estafa cases on reasonable doubt, the petitioner was deemed to have also elected that such civil action be prosecuted together with the BP Blg. 22 cases in light of the Rodriguez v. Ponferrada ruling.

With the dismissal of the BP Blg. 22 cases for failure to establish the identity of the accused, the question that arises is whether such dismissal would have the same legal effect as the dismissed estafa cases. Put differently, may petitioner’s action to recover respondents’ civil liability be also allowed to prosper separately after the BP Blg. 22 cases were dismissed?

Section 1 (b), Rule 111 of the 2000 Revised Rules on Criminal Procedure states –

Section 1. Institution of criminal and civil actions. –

x x x

(b) The criminal action for violation of Batas Pambansa Blg. 22 shall be deemed to include the corresponding civil action. No reservation to file such civil action separately shall be allowed.

Upon filing of the joint criminal and civil actions, the offended party shall pay in full the filing fees based on the amount of the check involved, which shall be considered as the actual damages claimed. Where the complaint or information also seeks to recover liquidated, moral, nominal, temperate or exemplary damages, the offended party shall pay the filing fees based on the amounts alleged therein. If the amounts are not so alleged but any of these damages [is] subsequently awarded by the court, the filing fees based on the amount awarded shall constitute a first lien on the judgment.

Where the civil action has been filed separately and trial thereof has not yet commenced, it may be consolidated with the criminal action upon application with the court trying the latter case. If the application is granted, the trial of both actions shall proceed in accordance with section 2 of this Rule governing consolidation of the civil and criminal actions.

Petitioner is in error when she insists that the 2000 Rules on Criminal Procedure should not apply because she filed her BP Blg. 22 complaints in 1999. It is now settled that rules of procedure apply even to cases already pending at the time of their promulgation. The fact that procedural statutes may somehow affect the litigants’ rights does not preclude their retroactive application to pending actions. It is axiomatic that the retroactive application of procedural laws does not violate any right of a person who may feel that he is adversely affected, nor is it constitutionally objectionable. The reason for this is that, as a general rule, no vested right may attach to, nor arise from, procedural laws.18

Indeed, under the present revised Rules, the criminal action for violation of BP Blg. 22 includes the corresponding civil action to recover the amount of the checks. It should be stressed, this policy is intended to discourage the separate filing of the civil action. In fact, the Rules even prohibits the reservation of a separate civil action, i.e., one can no longer file a separate civil case after the criminal complaint is filed in court. The only instance when separate proceedings are allowed is when the civil action is filed ahead of the criminal case. Even then, the Rules encourages the consolidation of the civil and criminal cases. Thus, where petitioner’s rights may be fully adjudicated in the proceedings before the court trying the BP Blg. 22 cases, resort to a separate action to recover civil liability is clearly unwarranted on account of res judicata, for failure of petitioner to appeal the civil aspect of the cases. In view of this special rule governing actions for violation of BP Blg. 22, Article 31 of the Civil Code is not applicable.19

Be it remembered that rules governing procedure before the courts, while not cast in stone, are for the speedy, efficient, and orderly dispensation of justice and should therefore be adhered to in order to attain this objective.20

However, in applying the procedure discussed above, it appears that petitioner would be left without a remedy to recover from respondents the P600,000.00 allegedly loaned from her. This could prejudice even the petitioner’s Notice of Claim involving the same amount filed in Special Proceedings No. 98-88390 (Petition for Voluntary Insolvency by Kolin Enterprises, William Sy and Tessie Sy), which case was reportedly archived for failure to prosecute the petition for an unreasonable length of time.21 Expectedly, respondents would raise the same defense that petitioner had already elected to litigate the civil action to recover the amount of the checks along with the BP Blg. 22 cases.

It is in this light that we find petitioner’s contention that she was not assisted by a private prosecutor during the BP Blg. 22 proceedings critical. Petitioner indirectly protests that the public prosecutor failed to protect and prosecute her cause when he failed to have her establish the identities of the accused during the trial and when he failed to appeal the civil action deemed impliedly instituted with the BP Blg. 22 cases. On this ground, we agree with petitioner.

Faced with the dismissal of the BP Blg. 22 cases, petitioner’s recourse pursuant to the prevailing rules of procedure would have been to appeal the civil action to recover the amount loaned to respondents corresponding to the bounced checks. Hence, the said civil action may proceed requiring only a preponderance of evidence on the part of petitioner. Her failure to appeal within the reglementary period was tantamount to a waiver altogether of the remedy to recover the civil liability of respondents. However, due to the gross mistake of the prosecutor in the BP Blg. 22 cases, we are constrained to digress from this rule.

It is true that clients are bound by the mistakes, negligence and omission of their counsel.22 But this rule admits of exceptions – (1) where the counsel’s mistake is so great and serious that the client is prejudiced and denied his day in court, or (2) where the counsel is guilty of gross negligence resulting in the client’s deprivation of liberty or property without due process of law.23 Tested against these guidelines, we hold that petitioner’s lot falls within the exceptions.

It is an oft-repeated exhortation to counsels to be well-informed of existing laws and rules and to keep abreast with legal developments, recent enactments and jurisprudence. Unless they faithfully comply with such duty, they may not be able to discharge competently and diligently their obligations as members of the Bar.24 Further, lawyers in the government service are expected to be more conscientious in the performance of their duties as they are subject to public scrutiny. They are not only members of the Bar but are also public servants who owe utmost fidelity to public service.25 Apparently, the public prosecutor neglected to equip himself with the knowledge of the

proper procedure for BP Blg. 22 cases under the 2000 Rules on Criminal Procedure such that he failed to appeal the civil action impliedly instituted with the BP Blg. 22 cases, the only remaining remedy available to petitioner to be able to recover the money she loaned to respondents, upon the dismissal of the criminal cases on demurrer. By this failure, petitioner was denied her day in court to prosecute the respondents for their obligation to pay their loan.

Moreover, we take into consideration the trial court’s observation when it dismissed the estafa charge in Criminal Case No. 98-969953 that if there was any liability on the part of respondents, it was civil in nature. Hence, if the loan be proven true, the inability of petitioner to recover the loaned amount would be tantamount to unjust enrichment of respondents, as they may now conveniently evade payment of their obligation merely on account of a technicality applied against petitioner.

There is unjust enrichment when (1) a person is unjustly benefited, and (2) such benefit is derived at the expense of or with damages to another. This doctrine simply means that a person shall not be allowed to profit or enrich himself inequitably at another’s expense. One condition for invoking this principle of unjust enrichment is that the aggrieved party has no other recourse based on contract, quasi-contract, crime, quasi-delict or any other provision of law.26

Court litigations are primarily designed to search for the truth, and a liberal interpretation and application of the rules which will give the parties the fullest opportunity to adduce proof is the best way to ferret out the truth. The dispensation of justice and vindication of legitimate grievances should not be barred by technicalities.27 For reasons of substantial justice and equity, as the complement of the legal jurisdiction that seeks to dispense justice where courts of law, through the inflexibility of their rules and want of power to adapt their judgments to the special circumstances of cases, are incompetent to do so,28 we thus rule, pro hac vice, in favor of petitioner.

WHEREFORE, the petition is GRANTED. Civil Case No. 05-112452 entitled Anita Cheng v. Spouses William Sy and Tessie Sy is hereby ordered REINSTATED. No pronouncement as to costs.

SO ORDERED.

ANTONIO EDUARDO B. NACHURAAssociate Justice

WE CONCUR:

CONSUELO YNARES-SANTIAGOAssociate Justice

Chairperson

MINITA V. CHICO-NAZARIOAssociate Justice

PRESBITERO J. VELASCO, JR.Associate Justice

DIOSDADO M. PERALTAAssociate Justice

A T T E S T A T I O N

I attest that the conclusions in the above Decision were reached in consultation before the case was assigned to the writer of the opinion of the Court’s Division.

CONSUELO YNARES-SANTIAGOAssociate JusticeChairperson, Third Division

C E R T I F I C A T I O N

Pursuant to Section 13, Article VIII of the Constitution and the Division Chairperson's Attestation, 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.

REYNATO S. PUNOChief Justice

Footnotes

1 Rollo, pp. 3-19.

2 Id. at 22-27.

3 Id. at 45-47.

4 Id. at 48-50.

5 Id. at 42-44.

6 Id. at 51-53.

7 Supra note 2.

8 Rollo, pp. 28-38.

9 Id. at 41.

10 Id. at 6.

11 Art. 31. When the civil action is based on an obligation not arising from the act or omission complained of as a felony, such civil action may proceed independently of the criminal proceedings and regardless of the result of the latter.

12 Art. 29. When the accused in a criminal prosecution is acquitted on the ground that his guilt has not been proved beyond reasonable doubt, a civil action for damages for the same act or omission may be instituted. Such action requires only a preponderance of evidence. Upon motion of the defendant, the court may require the plaintiff to file a bond to answer for damages in case the complaint should be found to be malicious.

13 Section 1. Institution of criminal and civil actions. – When a criminal action is instituted, the civil action for the recovery of civil liability is impliedly instituted with the criminal action,

unless the offended party waives the civil action, reserves his right to institute it separately, or institutes the civil action prior to the criminal action.

Such civil action includes recovery of indemnity under the Revised Penal Code, and damages under Articles 32, 33, 34 and 2176 of the Civil Code of the Philippines arising from the same act or omission of the accused.

A waiver of any of the civil actions extinguishes the others. The institution of, or the reservation of the right to file, any of said civil actions separately waives the others.

The reservation of the right to institute the separate civil actions shall be made before the prosecution starts to present its evidence and under circumstances affording the offended party a reasonable opportunity to make such reservation.

In no case may the offended party recover damages twice for the same act or omission of the accused.

When the offended party seeks to enforce civil liability against the accused by way of moral, nominal, temperate or exemplary damages, the filing fees for such civil action as provided in these Rules shall constitute a first lien on the judgment except in an award for actual damages.

In cases wherein the amount of damages, other than actual, is alleged in the complaint or information, the corresponding filing fees shall be paid by the offended party upon the filing thereof in court for trial. (Rule 111, 1988 Rules on Criminal Procedure)

14 G.R. Nos. 155531-34, July 29, 2005, 465 SCRA 338.

15 Rodriguez v. Ponferrada, id. at 350.

16 Ibid.

17 Jarantilla v. Court of Appeals, 253 Phil. 425, 433 (1989), citing Bernaldes, Jr. v. Bohol Land Transportation, Inc., 117 Phil. 288, 291-292 (1963) and Bachrach Motors Co. v. Gamboa, 101 Phil. 1219 (1957).

18 Tan, Jr. v. Court of Appeals, 424 Phil. 556, 559 (2002).

19 Hyatt Industrial Manufacturing Corp. v. Asia Dynamic Electrix Corp., G.R. No. 163597, July 29, 2005, 465 SCRA 454, 461-462.

20 Id.

21 Rollo, p. 23.

22 Lynx Industries Contractor, Inc. v. Tala, G.R. No. 164333, August 24, 2007, 531 SCRA 169, 176.

23 Ceniza-Manantan v. People, G.R. No. 156248, August 28, 2007, 531 SCRA 364, 380.

24 Santiago v. Atty. Rafanan, 483 Phil. 94, 105 (2004).

25 Ramos v. Imbang, A.C. No. 6788, August 23, 2007, 530 SCRA 759, 768.

26 Chieng v. Santos, G.R. No. 169647, August 31, 2007, 531 SCRA 730, 747-748.

27 LCK Industries, Inc. v. Planters Development Bank, G.R. No. 170606, November 23, 2007, 538 SCRA 634, 653.

28 Id. at 652.


Manila

THIRD DIVISION

G.R. No. 150900 March 14, 2008

CYNTHIA LUCES, Petitioner, vs.CHERRY DAMOLE, HON. RAMON G. CODILLA, JR., Presiding Judge, Regional Trial Court, Branch 19, Cebu City; and COURT OF APPEALS, FIFTH DIVISION, METRO MANILA, Respondents.

D E C I S I O N

NACHURA, J.:

This is a petition for review on certiorari under Rule 45 of the Rules of Court of the Decision1 of the Court ofAppeals (CA) dated August 30, 2001 and its Resolution2 dated November 20, 2001, in CA-G.R. CR No. 23412.

In July 1993, petitioner Cynthia Luces approached private complainant Cherry Damole at the latter’s place of work at the Robinson’s Department Store, located along Fuente Osmeña, Cebu City, and asked for Purchase Order(PO) Cards to be sold by her on commission basis. They agreed3 that petitioner would sell the PO cards to her customers and that she would get her commission therefrom in the form of marked up prices.4 Petitioner further agreed that she would hold the PO cards as trustee of the private complainant with the obligation to remit theproceeds of the sale thereof less the commission, and before such remittance, to hold the same in trust for the latter.5 Lastly, petitioner undertook to return the unsold PO cards.6

As of September, 1993, petitioner received from the private complainant 870 PO cards with a total face value ofP412,305.00. Initially, petitioner complied with her obligations, but later she defaulted in remitting the proceeds. Hence, the demand made by the private complainant, through her lawyer, on the petitioner, but the same was unheeded.

Private complainant thereafter instituted a civil case for collection of sum of money.7 She, likewise, filed a separate criminal complaint. Petitioner was thus charged with Estafa in an Information dated March 3, 1995, the accusatory portion of which reads:

That sometime in the month of July, 1993, and for sometime subsequent thereto, in the City of Cebu, Philippines, and within the jurisdiction of this Honorable Court, the said accused, having received Purchase Order (PO) slips worth P412,305.00 from Cherry Damole, with the agreement that she should sell out the said PO slips for and in behalf of Cherry Damole, with the obligation on her part to immediately account for and turn over the proceeds of the sale, if said PO slips are sold, or to return the same to Cherry Damole, if she would not be able to dispose any or all of them within the agreed date, the said accused, once in possession of said PO slips, far from complying with her obligation, with deliberate intent, with intent of gain, with unfaithfulness and grave abuse of confidence and of defrauding Cherry Damole, did then and there misappropriate, misapply and convert into her own personaluse and benefit the said PO slips, or the amount of P412,305.00, which is the equivalent value thereof, and in spite of repeated demands made upon her by Cherry Damole to let her comply with her obligation, she has failed and refused and up to the present time still fails and refuses to do so, to the damage and prejudice of Cherry Damole in the amount of P412,305.00, Philippine Currency.

CONTRARY TO LAW.8

The Information was filed with the Regional Trial Court (RTC) and was raffled to Branch 19, Cebu City. It was docketed as Criminal Case No. CBU-38420.

On April 27, 1995, petitioner moved for the dismissal of the criminal case and/or suspension of the proceedings in view of the pendency of the civil case for collection filed earlier by the private complainant.9 She contended that the resolution of the civil case is determinative of her culpability in the criminal case. The RTC initially suspended the case10 but on motion for reconsideration, the court reversed itself and held that the outcome of the civil case would not, in any way, affect the criminal action.11 The court, thus, set the case for arraignment where the petitioner pleaded "not guilty."

During trial, the prosecution established the existence of the trust receipt agreements; the receipt by petitioner of the subject PO cards; and her failure to comply with her obligation to remit the proceeds of the sale and to return the unsold cards to the private complainant. The prosecution likewise proved that petitioner converted the PO cards to her personal use by using such cards herself and by letting the members of her family use them, contrary to their agreement.12 By reason of such conversion and misappropriation, private complainant suffered damage.

In defense, petitioner claimed that her liability to private complainant is purely civil, considering that the trust receipt agreements were in fact contracts of sale which transferred to petitioner the ownership of the questioned PO cards, and that, therefore, there was no misappropriation to speak of. Petitioner, likewise, testified that she was authorized to sell the PO cards on installment which she did by selling them to a certain Evelyn Tamara who, however, failed to pay. Petitioner further claimed that no damage was ever caused to the private complainant as she continuously paid monthly amortizations. She also insisted that the civil case filed against her by the same complainant is a prejudicial question; hence, the criminal case should have been dismissed.13

On August 25, 1997, the RTC rendered a Decision convicting petitioner of the crime of estafa.14 On appeal, the CA affirmed petitioner’s conviction, but modified the penalty imposed by the lower court. The appellate court found that all the elements of estafa, with abuse of confidence through misappropriation, were established, and stressed that the civil case for collection of sum of money would not, in any way, be determinative of the guilt or innocence of petitioner.15 The CA, however, imposed the indeterminate penalty of four (4) years and two (2) months of prision correccional, as minimum, to twenty (20) years of reclusion temporal, as maximum, instead of that imposed by the RTC.16

Hence, the instant petition raising the following issues:

I.

RESPONDENT COURT OF APPEALS DECIDED A QUESTION OF SUBSTANCE NOT HERETOFORE DETERMINED BY THIS HONORABLE SUPREME COURT, OR HAS DECIDED IT IN A WAY PROBABLY NOT IN ACCORD WITH LAW OR WITH THE APPLICABLE DECISIONS OF THIS HONORABLE SUPREME COURT AND THE CONCLUSIONS ARE FOUNDED ON MERE SPECULATION, SURMISE AND CONJECTURE.

II.

RESPONDENT COURT OF APPEALS GRAVELY ERRED IN AFFIRMING WITH MODIFICATION THE DECISION OF THE HONORABLE REGIONAL TRIAL COURT AND DENYING DUE COURSE THE PETITIONER’S MOTION FOR RECONSIDERATION OF THE JUDGMENT.

III.

RESPONDENT COURT OF APPEALS GRAVELY ERRED IN NOT GIVING WEIGHT THE ISSUE OF PREJUDICIAL QUESTION RAISED BY PETITIONER.

IV.

RESPONDENT COURT OF APPEALS GRAVELY ERRED IN NOT GIVING WEIGHT THE POSITIVE ASSERTION OF THE PETITIONER THAT SHE IS NOT CRIMINALLY LIABLE BUT ONLY CIVIL.17

The petition lacks merit.

Also known as "swindling," estafa is committed by any person who shall defraud another by any of the means mentioned in the Revised Penal Code (RPC).18 Petitioner was tried and convicted for violation of Article 315(1)(b) which states that, among others, fraud may be committed with unfaithfulness or abuse of confidence in the following manner:

(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.19

Specifically, the elements of estafa through misappropriation or conversion are: 1) that the money, goods or other personal property is received by the offender in trust, or on commission, or for administration, or under any other obligation involving the duty to deliver or 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 on the offender.20

In the instant case, it was established that petitioner received from the private complainant the subject PO cards to be sold by the former on commission, as evidenced by their Trust

Receipt Agreements (TRAs).21The Agreements contain identical terms and conditions as follows:

2. That the TRUSTEE intends to give P.O. to different cardholders and received (sic) commission in a form of mark-up price but TRUSTEE assumes the responsibility of paying the amount due including penalty, if any, on due dates;

3. That the TRUSTEE holds P.O. in storage as the property of TRUSTOR, with the right to sell the same for each for TRUSTOR’S account and to hand the proceeds thereof to the trustor less the commission mentioned above;

4. That TRUSTEE agrees that before remittance to TRUSTOR, she/he shall hold the sum in trust for the TRUSTOR;

5. That the TRUSTEE is aware that her failure to remit the proceeds or return the P.O. when demanded by the TRUSTOR give rise to CRIMINAL LIABILITY and CIVIL LIABILITY.22

By such terms and conditions, petitioner agreed to hold in trust the following: the PO cards, for the purpose of selling them to different cardholders and returning to private complainant the cards unsold; and the proceeds of the sale, if any, for remittance to the private complainant.

And so, we ask the questions: Were the PO cards disposed of in accordance with their agreements? If so, did petitioner remit the proceeds to the private complainant?

The evidence shows that petitioner sold most of the PO cards to Ms. Tamara. The transaction was testified to by petitioner; confirmed by Ms. Tamara; and was, in fact, admitted by the private complainant during cross-examination.23 Private complainant clearly stated in open court that she was aware of the sale of the PO cards to Ms. Tamara, and that she personally received payment made by the latter through the petitioner.24

To repeat, the PO cards were entrusted to petitioner for the purpose of selling them to cardholders. Petitioner was at liberty to sell them either in cash or on installment. In fact, the private complainant agreed that the proceeds of the sale may be turned over to her in four installments. When she sold the cards to Ms. Tamara, petitioner did so pursuant to their TRA. It appears, however, that the proceeds of that sale could not be turned over to the private complainant, because Ms. Tamara failed to pay the purchase price of the subject PO cards. Technically, then, there was no conversion since the PO cards sold to Ms. Tamara were not devoted to a purpose or use different from that agreed upon.1avvphi1

This notwithstanding, petitioner is not free from criminal liability. As to the PO cards covered by Trust Receipt No. 4103 with a face value of P33,600.00, the prosecution sufficiently established that they were used by petitioner herself and her relatives as evidenced by the copies of the PO cards they actually used bearing their names.25Although there was no prohibition for petitioner to use or for her relatives to purchase the PO cards, they should have paid the corresponding price, and petitioner should have remitted the proceeds to the private complainant. There being no adequate explanation why she personally used and allowed her relatives to use the cards, there is ample circumstantial evidence of estafa. Using the PO cards as owner is conversion. Accordingly, we agree with the CA’s ratiocination in this wise:

Thus, using or disposing by LUCES for her and her relatives’ own personal purpose and benefit of the said P.O. cards, constitutes breach of trust, unfaithfulness and abuse of confidence. The failure

of LUCES to account for them establishes the felony of estafa through abuse of confidence by misappropriation or conversion.26

The essence of estafa under Article 315, par. 1(b) is the appropriation or conversion of money or property received, to the prejudice of the owner. The words "convert" and "misappropriate" connote an 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 a right.27

The prosecution further showed that the misappropriation or conversion by petitioner caused prejudice to private complainant. 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.28 Under the given circumstances, it is beyond cavil that private complainant was deprived of her right to enjoy the proceeds of the sale as a result of petitioner’s unauthorized use of the PO cards.

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.

Under the Indeterminate Sentence Law,29 the maximum term of the penalty shall be "that which in view of the attending circumstances, could be properly imposed" under the RPC and the minimum shall be "within the range of the penalty next lower to that prescribed" for the offense.30

The range of the penalty provided for in Article 315 is composed of only two periods; thus, to get the maximum period of the indeterminate sentence, the total number of years included in the two periods should be divided into three. Article 65 of the RPC requires the division of the time included in the prescribed penalty into three equal periods of time, forming one period for each of the three portions. The minimum, medium and maximum periods of the prescribed penalty are therefore:

Minimum period – 4 years, 2 months and 1 day to 5 years, 5 months and 10 days

Medium period – 5 years, 5 months and 11 days to 6 years, 8 months and 20 days

Maximum period – 6 years, 8 months and 21 days to 8 years.31

The amount defrauded is in excess of P22,000.00; the penalty imposable should be the maximum period of six (6) years, eight (8) months and twenty-one (21) days to eight (8) years of prision mayor. However, Article 315 also provides that an additional one year shall be imposed for each additional P10,000.00. Here, the total amount of the fraud is P33,600.00 (P33,600.00-P22,000.00 = P11,600.00). Thus, while we are disposed to impose six (6) years, eight (8) months and twenty-

one (21) days of the maximum period provided by the RPC, an additional penalty of one year should likewise be imposed. Accordingly, we hold that the maximum term of the indeterminate sentence shall be seven (7) years, eight (8) months and twenty-one (21) days of prision mayor.

The minimum period of the indeterminate sentence, on the other hand, should be within the range of the penalty next lower to that prescribed by the RPC for the crime committed. The penalty next lower than prision correccional maximum to prision mayor minimum is prision correccional in its minimum and medium periods. Thus, the minimum term of the indeterminate sentence shall be two (2) years, eleven (11) months and eleven (11) days.

Lastly, as to whether the civil case filed by the private complainant is a prejudicial question, we note with approval the appellate court’s conclusion, thus:

It is clear from the questioned civil case that the civil liability of LUCES to DAMOLE was founded on the former’s failure or refusal to remit to the latter the proceeds arising from the sales of P.O. cards. In contrast, in the instant criminal case, the court a quo was tasked to determine whether or not the non-remittance of the proceeds of the sale of P.O. cards or the return thereof by LUCES to DAMOLE, was due to misappropriation or conversion. Stated simply, the issue in the civil (MAN-2031) is DAMOLE’s right to recover from LUCES the amount representing the value of the P.O. cards allegedly embezzled by the latter. While the issue in the criminal case is whether LUCES’ failure to account for the proceeds of the sale of P.O. cards and/or to return the unsold P.O. cards as DAMOLE’s trustee constitutes estafa under Article 315 par. 1 (b) of the Revised Penal Code. A finding in the civil case for or against the appellant is not juris et de jure determinative of her innocence or guilt in the estafa case.32

WHEREFORE, premises considered, the petition is hereby DENIED. The Decision of the Court of Appeals, dated August 30, 2001, and its Resolution dated November 20, 2001, in CA-G.R. CR No. 23412, are AFFIRMED with MODIFICATION. Petitioner Cynthia Luces is sentenced to suffer the indeterminate penalty of two (2) years, eleven (11) months and eleven (11) days of prision correccional, as minimum, to seven (7) years, eight (8) months and twenty-one (21) days of prision mayor, as maximum.

SO ORDERED.


WE CONCUR:

CONSUELO YNARES-SANTIAGOAssociate Justice

Chairperson

MA. ALICIA AUSTRIA-MARTINEZAssociate Justice

MINITA V. CHICO-NAZARIOAssociate Justice

RUBEN T. REYESAssociate Justice


I attest that the conclusions in the above Decision were reached in consultation before the case was assigned to the writer of the opinion of the Court’s Division.

CONSUELO YNARES-SANTIAGOAssociate JusticeChairperson, Third Division


Pursuant to Section 13, Article VIII of the Constitution and the Division Chairperson's Attestation, 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.


Footnotes

1 Penned by Associate Justice Bienvenido L. Reyes, with Associate Justices Eubulo G. Verzola and Marina L. Buzon, concurring; rollo, pp. 48-60.

2 Id. at 62-63.

3 Petitioner’s and private complainant’s agreements were embodied in an instrument denominated as Trust Receipt Agreement; records, pp. 11-17.

4 Rollo, p. 50.

5 Records, pp. 11-17.

6 Rollo, p. 50.

7 The case was docketed as Civil Case No. MAN-2031; records, pp. 302-305.

8 Records, pp. 1-2.

9 Id. at 70-72.

10 Embodied in an Order dated April 28, 1995; id. at 80.

11 Records, p. 118.

12 TSN, September 5, 1996, pp. 5-9.

13 Rollo, p. 51.

14 The dispositive portion of the RTC decision reads:

WHEREFORE, foregoing premises considered, the court finds the accused guilty beyond reasonable doubt of the crime of estafa as defined and penalized under Article 515, paragraph 1, and hereby sentences the accused to suffer an imprisonment of 5 years, 4 months and 21 days of prision correccional, maximum, as minimum, to 12 years of prision mayor, as maximum, applying the Indeterminate Sentence Law. With all the accessory penalties provided by law.

SO ORDERED. (Records, p. 280.)

15 Rollo, p. 58.

16 Id. at 59.

17 Id. at 15.

18 Tan v. People, G.R. No. 153460, January 29, 2007, 513 SCRA 194, 202.

19 REVISED PENAL CODE, Art. 315 (1)(b).

20 Asejo v. People, G.R. No. 157433, July 24, 2007, 528 SCRA 114, 120-121; Isip v. People, G.R. No. 170298, June 26, 2007, 525 SCRA 735, 757-758; Tan v. People, supra note 18, at 202-203; Serona v. Court of Appeals, 440 Phil. 508, 517 (2002).

21 Exhs. "A," "B," "C," "D," "E," "F," "G," "H," "I," "J," "K," "L," "M," "N,"; records, pp. 11-20.

22 TRA Nos. 4111, 4103, 4131, 4128, 4161, 4144, 4180, 4177, 4188, 4182, 4956, 4952, 4963 and 4969; id. at 11-26.

23 TSN, July 22, 1996, pp. 3-5.

24 The testimony of the private complainant reads:

ATTY. NODADO

And because of her failure to remit some amount that she collected from her customer, you filed a case for collection of sum of money before the court in Mandaue City, Branch 28, am I correct?

WITNESS

Yes, sir.

ATTY. NODADO

And in that case the defendant also failed (sic) a third party complaint against a certain Evelyn Tabara (sic), are you aware of that?

WITNESS

Yes, I am aware of that.

ATTY. NODADO

And in fact after she filed a case for collection of sum of money from third party defendant Tabara (sic) in the sum of P1,600.00 on July 1993, am I right?

WITNESS

Yes, I was able to collect from Tamara but through Cynthia Luces. (TSN, July 22, 1996, pp. 3-5.)

25 Specifically, the PO cards bore the names of petitioner Cynthia Luces, Geraldine Rosel, and Cristituto Rosel.

26 Rollo, p. 56.

27 Tan v. People, supra note 18, at 204; Lee v. People, G.R. No. 157781, April 11, 2005, 455 SCRA 256, 267; Serona v. Court of Appeals, supra note 20, at 42.

28 Tan v. People, supra note 18, at 205.

29 Act No. 4103 as amended by Act No. 4225.

30 Pucay v. People, G.R. No. 167084, October 31, 2006, 506 SCRA 411, 424; Bonifacio v. People, G.R. No. 153198, July 11, 2006, 494 SCRA 527, 532-533.

31 Pucay v. People, id. at 424-425; Bonifacio v. People, id. at 533.

32 Rollo, p. 58.


Manila

THIRD DIVISION

G.R. No. 181021 December 10, 2012

BURGUNDY REALTY CORPORATION, Petitioner, vs.JOSEFA "JING" C. REYES and SECRETARY RAUL GONZALEZ of the DEPARTMENT OF JUSTICE,Respondents.

D E C I S I O N

PERALTA, J.:

For resolution of this Court is the Petition for Review on Certiorari, dated February 13, 2008, of petitionerBurgundy Realty Corporation, seeking to annul and set aside the Decision 1 and Resolution of the Court ofAppeals (CA), dated September 14, 2007 and December 20, 2007, respectively.

The facts follow.

Private respondent Josefa "Jing" C. Reyes (Reyes), sometime in 1996, offered her services to petitioner as the latter's real estate agent in buying parcels of land in Calamba, Laguna, which are to be developed into a golf course. She informed petitioner that more or less ten (10) lot owners are her clients who were willing to sell their properties. Convinced of her representations, petitioner released the amount of P23,423,327.50 in her favor to be used in buying those parcels of land. Reyes, instead of buying those parcels of land, converted and misappropriated the money given by petitioner to her personal use and benefit. Petitioner sent a formal demand for Reyes to return the amount of P23,423,327.50, to no avail despite her receipt of the said demand. As such, petitioner filed a complaint for the crime of Estafa against Reyes before the Assistant City Prosecutor's Office ofMakati City.

Reyes, while admitting that she acted as a real estate agent for petitioner, denied having converted or misappropriated the involved amount of money. She claimed that the said amount was used solely for the intended purpose and that it was petitioner who requested her services in procuring the lots. According to her, it was upon the petitioner's prodding that she was constrained to contact her friends who were also into the real estate business, including one named Mateo Elejorde. She alleged that prior to the venture, Mateo Elejorde submitted to her copies of certificates of title, vicinity plans, cadastral maps and other identifying marks covering the properties being offered for sale and that after validating and confirming the prices as well as the terms and conditions attendant to the projected sale, petitioner instructed her to proceed with the release of the funds. Thus, she paid down payments to the landowners during the months of February, March, July, August, September and October of 1996. Reyes also insisted that petitioner knew that the initial or down payment for each lot represented only 50% of the purchase price such that the remaining balance had to be paid within a period of thirty (30) days from the date of receipt of the initial payment. She added that she reminded petitioner, after several months, about the matter of unpaid balances still owing to the lot owners, but due to lack of funds and non-infusion of additional capital from other investors, petitioner failed to pay the landowners of their remaining unpaid balances. Meanwhile, Reyes received information that her sub-broker Mateo Elejorde had been depositing the involved money entrusted to him under his personal account. On March 28, 2000, through a board resolution, petitioner allegedly authorized Reyes to institute, proceed, pursue and continue with whatever criminal or civil action against Mateo Elejorde, or such person to whom she may have delivered or entrusted the money she had received in trust from the firm, for the purpose of recovering such money. Thus, Reyes filed a complaint for the crime of estafa against Mateo Elejorde before the City Prosecutor's Office of Makati City docketed as I.S. No. 98-B-5916-22, and on March 30, 2001, Mateo Elejorde was indicted for estafa.

After a preliminary investigation was conducted against Reyes, the Assistant Prosecutor of Makati City issued a Resolution2 dated April 27, 2005, the dispositive portion of which reads:

In view thereof, it is most respectfully recommended that respondent be indicted of the crime of Estafa defined and penalized under the Revised Penal Code. It could not be said that she has violated the provision of PD 1689 for it was not shown that the money allegedly given to her were funds solicited from the public. Let the attached information be approved for filing in court. Bail recommendation at Php40,000.00.3

Thereafter, an Information for the crime of Estafa under Article 315, par. 1 (b) of the Revised Penal Code (RPC) was filed against Reyes and raffled before the RTC, Branch 149, Makati City.

Undeterred, Reyes filed a petition for review before the Department of Justice (DOJ), but it was dismissed by the Secretary of Justice through State Prosecutor Jovencito Zuño on June 1, 2006.

Aggrieved, Reyes filed a motion for reconsideration, and in a Resolution4 dated July 20, 2006, the said motion was granted. The decretal text of the resolution reads:

Finding the grounds relied upon in the motion to be meritorious and in the interest of justice, our Resolution of June 1, 2006 is hereby RECONSIDERED and SET ASIDE. Accordingly, the petition for review filed by respondent-appellant Josefa Reyes is hereby given due course and will be reviewed on the merits and the corresponding resolution will be issued in due time.

SO ORDERED.

On September 22, 2006, Secretary of Justice Raul Gonzalez issued a Resolution5 granting the petition for review of Reyes, the fallo of which reads:

WHEREFORE, the assailed resolution is hereby REVERSED and SET ASIDE. The City Prosecutor of Makati City is directed to cause the withdrawal of the information for estafa filed in court against respondent Josefa "Jing" C. Reyes and to report the action taken within five (5) days from receipt hereof.

SO ORDERED.6

Petitioner filed a motion for reconsideration, but was denied by the Secretary of Justice in a Resolution dated December 14, 2006. Eventually, petitioner filed a petition for certiorari under Rule 65 of the Rules of Court with the CA. The latter, however, affirmed the questioned Resolutions of the Secretary of Justice. The dispositive portion of the Decision dated September 14, 2007 reads:

WHEREFORE, premises considered, the assailed Resolutions, dated 22 September 2006 and 14 December 2006[,] both rendered by public respondent Secretary of Justice, are hereby AFFIRMED in toto.

SO ORDERED.7

Its motion for reconsideration having been denied by the CA in a Resolution dated December 20, 2007, petitioner filed the present petition and the following are the assigned errors:

I

THE COURT OF APPEALS SERIOUSLY ERRED IN NOT FINDING THAT THE DOJ SECRETARY, RAULGONZALEZ, CAPRICIOUSLY, ARBITRARILY AND WHIMSICALLY DISREGARDED THE EVIDENCE ON RECORD SHOWING THE [EXISTENCE] OF PROBABLE CAUSE AGAINST PRIVATE RESPONDENT FOR ESTAFA UNDER ARTICLE 315 1(b) OF THE REVISED PENAL CODE.

II

THE COURT OF APPEALS GRIEVOUSLY ERRED IN NOT FINDING BUT INSTEAD CONCURRED IN WITH THE DOJ SECRETARY, RAUL GONZALEZ, WHO BY GRAVE ABUSE OF DISCRETION AMOUNTING TO LACK OR EXCESS OF JURISDICTION HELD THAT NOT ALL OF THE ELEMENTS OF ESTAFA UNDER ARTICLE 315 1 (b), PARTICULARLY THE ELEMENT OF MISAPPROPRIATION, WERE NOT SUFFICIENTLY ESTABLISHED IN THIS CASE.

III

THE COURT OF APPEALS SERIOUSLY ERRED IN NOT FINDING THAT THE DOJ SECRETARY, RAUL GONZALEZ, ACTED WITH GRAVE ABUSE OF DISCRETION IN ACCEPTING AS TRUTH WHAT WERE MATTERS OF DEFENSE BY PRIVATE RESPONDENT IN HER COUNTER-AFFIDAVIT WHICH SHOULD HAVE BEEN PROVEN AT THE TRIAL ON THE MERITS.8

The petition is meritorious.

It is not disputed that decisions or resolutions of prosecutors are subject to appeal to the Secretary of Justice who, under the Revised Administrative Code,9 exercises the power of direct control and supervision over said prosecutors; and who may thus affirm, nullify, reverse or modify their rulings. Review as an act of supervision and control by the justice secretary over the fiscals and prosecutors finds basis in the doctrine of exhaustion of administrative remedies which holds that mistakes, abuses or negligence committed in the initial steps of an administrative activity or by an administrative agency should be corrected by higher administrative authorities, and not directly by courts.10

In the present case, after review and reconsideration, the Secretary of Justice reversed the investigating prosecutor's finding of probable cause that all the elements of the crime of estafa are present. Estafa, under Article 315 (1) (b) of the Revised Penal Code, is committed by –

ART. 315. Swindling (estafa). – Any person who shall defraud another by any of the means mentioned hereinbelow:

x x x x

1. With unfaithfulness or abuse of confidence, namely:

(a) x x x

(b) By misappropriating or converting, to the prejudice of another, money, goods, or any other personalproperty 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; x x x

The elements 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 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 demand made by the offended party on the offender.11

The essence of estafa under Article 315, par. 1 (b) is the appropriation or conversion of money or property received to the prejudice of the owner. The words "convert" and "misappropriate" connote an 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.12

In reversing the finding of probable cause that the crime of estafa has been committed, the Secretary of Justice reasoned out that, [the] theory of conversion or misappropriation is difficult to sustain and that under the crime of estafa with grave abuse of confidence, the presumption is that the thing has been devoted to a purpose or is different from that for which it was intended but did not take place in this case.1âwphi1 The CA, in sustaining the questioned resolutions of the Secretary of Justice, ruled that the element of misappropriation or conversion is wanting. It further ratiocinated that the demand for the return of the thing delivered in trust and the failure of the accused to account for it, are circumstantial evidence of misappropriation, however, the said presumption is rebuttable and if the accused is able to satisfactorily explain his failure to produce the thing delivered in trust, he may not be held liable for estafa.1âwphi1

It must be remembered that the finding of probable cause was made after conducting a preliminary investigation. A preliminary investigation constitutes a realistic judicial appraisal of the merits of a case.13 Its purpose is to determine whether (a) a crime has been committed; and (b) whether there is a probable cause to believe that the accused is guilty thereof.14

This Court need not overemphasize that in a preliminary investigation, the public prosecutor merely determines whether there is probable cause or sufficient ground to engender a well-founded belief that a crime has been committed, and that the respondent is probably guilty thereof and should be held for trial. It does not call for the application of rules and standards of proof that a judgment of conviction requires after trial on the merits.15 The complainant need not present at this stage proof beyond reasonable doubt.16 A preliminary investigation does not require a full and exhaustive presentation of the parties' evidence.17 Precisely, there is a trial to allow the reception of evidence for both parties to substantiate their respective claims.18

A review of the records would show that the investigating prosecutor was correct in finding the existence of all the elements of the crime of estafa. Reyes did not dispute that she received in trust the amount of P23,423,327.50 from petitioner as proven by the checks and vouchers to be used in purchasing the parcels of land. Petitioner wrote a demand letter for Reyes to return the same amount but was not heeded. Hence, the failure of Reyes to deliver the titles or to return the entrusted money, despite demand and the duty to do so, constituted prima facieevidence of misappropriation. 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.19To 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.20 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.21 Thus, the mere presumption of misappropriation or conversion is enough to conclude that a probable cause exists for the indictment of Reyes for Estafa. As to whether the presumption can be rebutted by Reyes is already a matter of defense that can be best presented or offered during a full-blown trial.

To reiterate, probable cause has been defined as the existence of such facts and circumstances as would excite the belief in a reasonable mind, acting on the facts within the knowledge of the prosecutor, that the person charged was guilty of the crime for which he was prosecuted.22 Probable

cause is a reasonable ground of presumption that a matter is, or may be, well founded on such a state of facts in the mind of the prosecutor as would lead a person of ordinary caution and prudence to believe, or entertain an honest or strong suspicion, that a thing is so.23 The term does not mean "actual or positive cause" nor does it import absolute certainty.24It is merely based on opinion and reasonable belief.25 Thus, a finding of probable cause does not require an inquiry into whether there is sufficient evidence to procure a conviction.26 It is enough that it is believed that the act or omission complained of constitutes the offense charged.27

WHEREFORE, premises considered, the present Petition is hereby GRANTED and, accordingly, the Decision and Resolution of the Court of Appeals, dated September 14, 2007 and December 20, 2007, respectively, are herebyREVERSED and SET ASIDE. Consequently, the Regional Trial Court, Branch 149, Makati City, where the Information was filed against private respondent Josefa "Jing" C. Reyes, is hereby DIRECTED to proceed with her arraignment.

SO ORDERED.


WE CONCUR:

ARTURO D. BRION*

Associate Justice

ROBERTO A. ABADAssociate Justice

JOSE CATRAL MENDOZAAssociate Justice

MARVIC MARION VICTOR F. LEONEN


I attest 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.

DIOSDADO M. PERALTA**

Associate JusticeActing Chairperson, Third Division


Pursuant to Section 13, Article VIII of the Constitution and the Division Acting Chairperson's Attestation, 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.

MARIA LOURDES P. A. SERENOChief Justice

Footnotes

* Designated Acting Member, in lieu of Associate Justice Presbitero J. Velasco; Jr., per Special Order No. 1395 dated December 6, 2012.

** Per Special Order No. 1394 dated December 6, 2012.

1 Penned by Associate Justice Bienvenido L. Reyes (now a member of the Supreme Court), with Associate Justices Aurora Santiago Lagman and Apo1inario D. Bruse1as, Jr., concurring; rolla, pp. 72-81.

2 Rollo, pp. 58-59.

3 Id. at 59.

4 Id. at 63.

5 Id. at 65-69.

6 Id. at 69.

7 Id. at 80.

8 Id. at 19-20.

9 The 1987 Revised Administrative Code, Executive Order No. 292.

10

Solar Team Entertainment, Inc. v. Hon. Rolando How, G.R. No. 140863, August 22, 2000, 338 SCRA 511, 517; 393 Phil. 172, 179-180 (2000). (Citation omitted)

11 Reyes, Revised Penal Code of the Philippines, p. 716; Manahan, Jr. v. Court of Appeals, G.R. No. 111656, March 20, 1996, 255 SCRA 202, 213; 325 Phil. 484, 492-493 (1996).

12 Amorsolo v. People, G.R. No. L-76647, September 30, 1987, 154 SCRA 556, 563; 238 Phil. 557, 564 (1987); citing U.S. v. Ramirez, 9 Phil. 67 (1907) and U.S. v. Panes, 37 Phil. 118 (1917).

13 Villanueva v. Ople, G.R. No. 165125, November 18, 2005, 475 SCRA 539, 553; 512 Phil. 187, 204 (2005).

14 Gonzalez v. Hongkong & Shanghai Banking Corporation, G.R. No. 164904, October 19, 2007, 537 SCRA 255, 269.

15 Metropolitan Bank & Trust Company v. Gonzalez, G.R. No. 180165, April 7, 2009, 584 SCRA 631, 642.

16 Id.

17 Ang v. Lucero, G.R. No. 143169, January 21, 2005, 449 SCRA 157, 169; 490 Phil. 60, 71 (2005).

18 Metropolitan Bank & Trust Company v. Gonzalez, supra note 15.

19 Serona v. Court of Appeals, 440 Phil. 508, 518 (2000).

20 Id.

21 U.S. v. Rosario de Guzman, 1 Phil. 138, 139 (1902).

22 Metropolitan Bank & Trust Company v. Gonzales, supra note 15, at 640.

23 Id., citing Yu v. Sandiganbayan, 410 Phil. 619, 627 (2001).

24 Id. at 640-641.

25 Id. at 641.

26 Id.

27 Id.


Manila

FIRST DIVISION

G.R. No. 185129 June 17, 2013

ABELARDO JANDUSAY, Petitioner, vs.PEOPLE OF THE PHILIPPINES, Respondent.

R E S O L U T I O N

REYES, J.:

Before the Court is a petition for review on certiorari1 under Rule 45 of the Rules of Court, assailing the Decision2dated March 4, 2008 and Resolution3 dated October 23, 2008 of the Court of Appeals (CA) in CA G.R. CR No. 29850 which affirmed the Decision4 dated August 12, 2005 of the Regional Trial Court (RTC) of Valenzuela City, Branch 172 in Criminal Case No. 278-V-02 convicting Abelardo Jandusay (petitioner) for estafa.

The courts a quo arrived at similar factual findings, viz:

In the year 1999, petitioner was elected as the treasurer of Canumay, Lawang Bato, Punturin, Paso de Blas Tricycle Operators and Driver’s Association, Inc. (CALAPUPATODA), herein referred as "association", a duly registered non-stock association of tricycle operators and drivers in Valenzuela City. He was re-elected to the same position in the year 2000.

According to the association’s by-laws, the petitioner’s position as treasurer entailed being "in charge of the funds, moneys, valuables, receipts and disbursements of the association, ‘the books of accounts’, ‘an account of financial condition’, and of all transactions made by him as treasurer."5 Relative thereto, he maintained a "blue book" which reflected the association’s income derived from membership dues, motor and driver’s fees and the butaw, an amount collected from members on a daily basis. It also indicates the expenses of the association.

Consequent to the election of the new set of officers for the year 2001, a turnover meeting was held between the outgoing and incoming officers on April 3, 2001. During the meeting, the petitioner turned over to the incoming officers the so-called "blue book" which contained entries of the income and expenses of the association for the year 2000. Based thereon, the net remaining funds of the association for the year 2000 is P661,015.00 which, the petitioner, however failed to turn-over despite written and verbal demands.

On March 4, 2002, the petitioner was formally charged with estafa or violation of paragraph 1(b), Article 315 of the Revised Penal Code (RPC) before the RTC.

During trial, the prosecution presented a copy of the minutes of the April 3, 2001 meeting which contained an undertaking signed by the petitioner that he will return the P661,015.00 by the end of September 2001.

The petitioner denied signing the undertaking and claimed that the same was merely inserted on top of hissignature when he was asked to sign the minutes. He averred that finances of the association were never subjected to audit. He also endeavored to establish that it was the association’s President, Dionisio Delina (Delina) and not him who handled the funds of the association for the year 2000 as shown by the Memorandum issued by Delina himself in January 2000. Apparently, Delina assumed such responsibility because the petitioner then had a pending criminal case for estafa in relation to the association’s funds in 1999.

The RTC accorded merit to the minutes presented by the prosecution, and together with the other evidence proffered, found the petitioner guilty of misappropriating the association’s funds. The RTC rejected the petitioner’s contentions and held that an examination of the minutes show that there is no indication that the undertaking reflected therein was merely inserted after the petitioner signed the same. There is no logical explanation for the petitioner to sign at least ten (10) line spaces below the last entry. Anent the memorandum allegedly issued by Delina, the RTC found the same to be of dubious origin and at best only self-serving. Thus, in its Decision6 dated August 12, 2005, the RTC disposed as follows:

WHEREFORE, judgment is hereby rendered finding accused ABELARDO JANDUSAY guilty beyond reasonable doubt and as principal of the crime of estafa as defined in and penalized under Article 315, par. 1(b), of the Revised Penal Code without any attending mitigating or aggravating circumstance and, applying the Indeterminate Sentence Law, hereby sentences him to suffer the indeterminate penalty of EIGHT (8) YEARS and ONE (1) DAY of prision mayor as minimum to FOURTEEN (14) YEARS, EIGHT (8) MONTHS and ONE (1) DAY of reclusion temporal as maximum. Further, the accused is sentenced to pay the CALAPUPATODA the amount ofP661,015.00 without subsidiary imprisonment in case of insolvency. Finally, the accused is sentenced to pay the costs of suit.

SO ORDERED.7

The CA affirmed the petitioner’s conviction, but modified the penalty imposed by the lower court. In its Decision8dated March 4, 2008, the CA thus held:

WHEREFORE, premises considered, the Decision of the RTC of Valenzuela City, Branch 172, dated August 12, 2005, in Criminal Case No. 278-V-02, is hereby AFFIRMED with MODIFICATION. Accused-appellant ABELARDO JANDUSAY is hereby sentenced to an indeterminate penalty of 2 years and 11 months of prision correccional as minimum, to 8 years of prision mayor as maximum, plus 1 year for every P10,000.00 in excess of P22,000.00 but not to exceed 20 years, or the maximum of 20 years. The rest of the Decision stands.

SO ORDERED.9

The appellate court agreed with the RTC that the elements of the crime of estafa were adequately established by the prosecution. In an attempt to overturn the decision of the CA, petitioner filed a Motion for Reconsideration on April 14, 2008 and a Motion for New Trial on May 18, 2008. The CA denied both motions in a Resolution dated October 23, 2008.

The Issue

The petitioner raises the issue of whether the CA committed a reversible error in affirming the judgment of the RTC finding him guilty of estafa beyond reasonable doubt.

The Court’s Ruling

The petition is devoid of merit.

The petitioner argues that the prosecution failed to sufficiently prove the first element of estafa – that he received the money or funds of the association for the year 2000.

We disagree. The petitioner’s allegations are nothing but feeble reiteration of the arguments unsuccessfully raised before the RTC and CA. It must be emphasized that the grounds raised by the petitioner involve factual issues already passed upon by the abovementioned courts, and are inappropriate in a petition for review on certiorariunder Rule 45. The Court accords respect to the finding of the RTC that the bare denial of the petitioner cannot prevail over the evidence of the prosecution consisting not only of testimonies of witnesses but also documents establishing the guilt of the petitioner beyond reasonable doubt. It is a well-entrenched rule that the findings of facts of the CA affirming those of the trial court are binding on the Court.10

At any rate, the Court concurs with the remark of the RTC that the memorandum whereby Delina admitted to have handled the association’s funds for the year 2000 is highly specious as to its authenticity in reflecting the actual dynamics between the petitioner and Delina as officers of the association.

The courts a quo were correct in convicting the petitioner of estafa. 1âwphi1 Under Article 315, paragraph 1(b) of the RPC, the elements of estafa with abuse of confidence are as follows: (1) that the money, goods or other personal property is 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 demand by the offended party to the offender.11 As correctly found by the CA:

In the case at bar, the aforementioned elements have been sufficiently established by the prosecution. It cannot be denied that accused-appellant, as Treasurer of CALAPUPATODA, received and held money for administration and in trust for the association. He was thus under an obligation to turnover the same upon conclusion of his term as Treasurer. Instead, however, he misappropriated the same to the prejudice of the association and, despite demand, failed to account for or return them. Such failure to account, upon demand, of funds or property held in trust is circumstantial evidence of misappropriation.12 (Citation omitted)

In addition, misappropriation or conversion may be proved by the prosecution by direct evidence or by circumstantial evidence. The "failure to account upon demand, for funds or property held in trust, is circumstantial evidence of misappropriation."13 As mentioned, the petitioner failed to account for, upon demand, the funds of the association of the year 2000 which were received by him in trust. This already constitutes circumstantial evidence of misappropriation or conversion of said properties to petitioner’s own personal use.

The penalty imposed by the CA ought to be modified to conform to prevailing jurisprudence. The maximum indeterminate penalty when the amount defrauded exceeds P22,000.00 is pegged at prision mayor in its minimum period or anywhere within the range of six (6) years and one (1) day to eight (8) years, plus one year for every P10,000.00 in excess of P22,000.00 of the amount defrauded but not to exceed twenty (20) years. In turn, the minimum indeterminate penalty shall be one degree lower from the prescribed penalty for estafa, which in this case 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.14 While the minimum indeterminate penalty meted out by the CA is within this range, recent jurisprudence of similar factual backdrop are uniform in imposing four (4) years and two (2) months as the minimum indeterminate penalty.15 Likewise, the maximum indeterminate penalty must be spelled out to mean twenty (20) years of reclusion temporal.

WHEREFORE, premises considered, the petition is hereby DENIED. The Decision dated March 4, 2008 and Resolution dated October 23, 2008 of the Court of Appeals in CA-G.R. CR No. 29850 are AFFIRMED except as to the indeterminate sentence imposed upon Abelardo Jandusay which is hereby MODIFIED to four (4) years and two (2) months of prision correccional as minimum to twenty (20) years of reclusion temporal as maximum.

SO ORDERED.

BIENVENIDO L. REYESAssociate Justice

WE CONCUR:

MARIA LOURDES P. A. SERENOChief JusticeChairperson

TERESITA J. LEONARDO-DE CASTROAssociate Justice

MARTIN S. VILLARAMA, JR.Associate Justice

JOSE PORTUGAL

PEREZ*

Associate Justice


Pursuant to Section 13, At1icle VIII of the Constitution, I cet1ity that the conclusions in the above Resolution had been reached in consultation before the case was assigned to the writer of the opinion of the Court's Division.

MARIA LOURDES P. A. SERENOChief Justice

Footnotes

* Additional member per Raffle dated October II, 2012 vice Associate Justice Lucas P. Bersamin.

1 Rollo, pp. 19-54.

2 Penned by Associate Justice Estela M. Perlas-Bernabe (now a member of this CoUI1), with Associate Justices Portia Alifio-Hormachuelos (now retired) and Lucas P. Bersamin (now a member of this Court), concurring; id. at 60-66.

3 ld.at71-72.

4 Id. at 80-85.

5 Id. at 74-75.

6 Id. at 80-85.

7 See CA Decision dated March 4, 2008; id. at 60-61.

8 Id. at 60-66.

9 Id. at 65-66.

10 Bank of Commerce v. Manalo, 517 Phil. 328, 345 (2006).

11 Asejo v. People, 555 Phil. 106, 112-113 (2007).

12 Rollo, p. 64.

13 D’Aigle v. People, G.R. No. 174181, June 26, 2012, 675 SCRA 206, 217, citing Lee v. People, 495 Phil. 239, 250 (2005).

14 Magtira v. People, G.R. No. 170964, March 7, 2012, 667 SCRA 607, 620.

15 Id. at 612-613, 621; D’Aigle v. People, supra note 13, at 219-220; Brokmann v. People, G.R. No. 199150, February 6, 2012, 665 SCRA 83, 88.


Baguio City

THIRD DIVISION

G.R. No. 183879 April 14, 2010

ROSITA SY, Petitioner, vs.PEOPLE OF THE PHILIPPINES, Respondent.

R E S O L U T I O N

NACHURA, J.:

Before the Court is a petition for review on certiorari under Rule 45 of the Rules of Court, assailing the Decision1dated July 22, 2008 of the Court of Appeals (CA) in CA-G.R. CR No. 30628.

Rosita Sy (Sy) was charged with one count of illegal recruitment in Criminal Case No. 02-0537 and one count of estafa in Criminal Case No. 02-0536. In a joint decision of the Regional Trial Court (RTC), Sy was exonerated of the illegal recruitment charge. However, she was convicted of the crime of estafa. Thus, the instant appeal involves only Criminal Case No. 02-0536 for the crime of estafa.

The Information2 for estafa reads:

That sometime in the month of March 1997, in the City of Las Piñas, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, did, then and there willfully, unlawfully and feloniously defraud Felicidad Mendoza-Navarro y Landicho in the following manner, to wit: the said accused by means of false pretenses and fraudulent representation which she made to the said complainant that she can deploy her for employment in Taiwan, and complainant convinced by said representations, gave the amount of P120,000.00 to the said accused for processing of her papers, the latter well knowing that all her representations and manifestations were false and were only made for the purpose of obtaining the said amount, but once in her possession[,] she misappropriated, misapplied and converted the same to her own personal use and benefit, to the damage and prejudice of Felicidad Mendoza-Navarro y Landicho in the aforementioned amount ofP120,000.00.

CONTRARY TO LAW.3

On May 27, 2007, Sy was arraigned and pleaded not guilty to the crimes charged. Joint trial ensued thereafter.

As summarized by the CA, the facts of the case are as follows:

Version of the Prosecution

Sometime in March 1997, appellant, accompanied by Corazon Miranda (or "Corazon"), went to the house of Corazon’s sister, Felicidad Navarro (or "Felicidad"), in Talisay, Batangas to convince her (Felicidad) to work abroad. Appellant assured Felicidad of a good salary and entitlement to a yearly vacation if she decides to take a job in Taiwan. On top of these perks, she shall receive compensation in the amount of Php120,000.00. Appellant promised Felicidad that she will take care of the processing of the necessary documents, including her passport and visa. Felicidad told appellant that she will think about the job offer.

Two days later, Felicidad succumbed to appellant’s overseas job solicitation. With Corazon in tow, the sisters proceeded to appellant’s residence in Better Homes, Moonwalk, Las Piñas City. Thereat, Felicidad handed to appellant the amount of Php60,000.00. In the third week of March 1997, Felicidad returned to appellant’s abode and paid to the latter another Php60,000.00. The latter told her to come back the following day. In both instances, no receipt was issued by appellant to acknowledge receipt of the total amount of Php120,000.00 paid by Felicidad.

On Felicidad’s third trip to appellant’s house, the latter brought her to Uniwide in Sta. Cruz, Manila, where a male person showed to them the birth certificate that Felicidad would use in applying for a Taiwanese passport. The birth certificate was that of a certain Armida Lim, born to Margarita Galvez and Lim Leng on 02 June 1952. Felicidad was instructed on how to write Armida Lim’s Chinese name.

Subsequently, appellant contacted Felicidad and thereafter met her at the Bureau of Immigration office. Thereat, Felicidad, posing and affixing her signature as Armida G. Lim, filled out the application forms for the issuance of Alien Certificate of Registration (ACR) and Immigrant Certificate of Registration (ICR). She attached to the application forms her own photo. Felicidad agreed to use the name of Armida Lim as her own because she already paid to appellant the amount of Php120,000.00.

In December 1999, appellant sent to Felicidad the birth certificate of Armida Lim, the Marriage Contract of Armida Lim’s parents, ACR No. E128390, and ICR No. 317614. These documents were submitted to and eventually rejected by the Taiwanese authorities, triggering the filing of illegal recruitment and estafa cases against appellant.

Version of the Defense

Appellant denied offering a job to Felicidad or receiving any money from her. She asserted that when she first spoke to Felicidad at the latter’s house, she mentioned that her husband and children freely entered Taiwan because she was a holder of a Chinese passport. Felicidad commented that many Filipino workers in Taiwan were holding Chinese passports.

Three weeks later, Felicidad and Corazon came to her house in Las Piñas and asked her if she knew somebody who could help Felicidad get a Chinese ACR and ICR for a fee.

Appellant introduced a certain Amelia Lim, who, in consideration of the amount of Php120,000.00, offered to Felicidad the use of the name of her mentally deficient sister, Armida Lim. Felicidad agreed. On their second meeting at appellant’s house, Felicidad paid Php60,000.00 to Amelia Lim and they agreed to see each other at Uniwide the following day. That was the last time appellant saw Felicidad and Amelia Lim.4

On January 8, 2007, the RTC rendered a decision,5 the dispositive portion of which reads:

WHEREFORE, premises considered the court finds the accused Rosita Sy NOT GUILTY of the crime of Illegal Recruitment and she is hereby ACQUITTED of the said offense. As regards the charge of Estafa, the court finds the accused GUILTY thereof and hereby sentences her to an indeterminate penalty of four (4) years of prision correctional as minimum to 11 years of prision mayor, as maximum. The accused is ordered to reimburse the amount of sixty-thousand (Php60,000.00) to the private complainant.

SO ORDERED.6

Aggrieved, Sy filed an appeal for her conviction of estafa. On July 22, 2008, the CA rendered a Decision,7affirming with modification the conviction of Sy, viz.:

WHEREFORE, with the MODIFICATION sentencing accused-appellant to suffer the indeterminate penalty of four (4) years and two (2) months of prision correccional, as minimum, to seventeen (17) years of reclusion temporal, as maximum, the appealed decision is AFFIRMED in all other respects.

SO ORDERED.8

Hence, this petition.

The sole issue for resolution is whether Sy should be held liable for estafa, penalized under Article 315, paragraph 2(a) of the Revised Penal Code (RPC).9

Swindling or estafa is punishable under Article 315 of the RPC. There are three ways of committing estafa, viz.: (1) with unfaithfulness or abuse of confidence; (2) by means of false pretenses or fraudulent acts; or (3) through fraudulent means. The three ways of committing estafa may be reduced to two, i.e., (1) by means of abuse of confidence; or (2) by means of deceit.

The elements of estafa in general are the following: (a) that an accused defrauded another by abuse of confidence, or by means of deceit; and (b) that damage and prejudice capable of pecuniary estimation is caused the offended party or third person.

The act complained of in the instant case is penalized under Article 315, paragraph 2(a) of the RPC, wherein estafa is committed by any person who shall defraud another by false pretenses or fraudulent acts executed prior to or simultaneously with the commission of the fraud. It is committed by using fictitious name, or by pretending to possess power, influence, qualifications, property, credit, agency, business or imaginary transactions, or by means of other similar deceits.

The elements of estafa by means of deceit are the following, viz.: (a) that there must be a false pretense or fraudulent representation as to his power, influence, qualifications, property, credit, agency, business or imaginary transactions; (b) that such false pretense or fraudulent representation was made or executed prior to or simultaneously with the commission of the fraud; (c) that the offended party relied on the false pretense, fraudulent act, or fraudulent means and was induced to part with his money or property; and (d) that, as a result thereof, the offended party suffered damage.10

In the instant case, all the foregoing elements are present. It was proven beyond reasonable doubt, as found by the RTC and affirmed by the CA, that Sy misrepresented and falsely pretended that she had the capacity todeploy Felicidad Navarro (Felicidad) for employment in Taiwan. The

misrepresentation was made prior to Felicidad’s payment to Sy of One Hundred Twenty Thousand Pesos (P120,000.00). It was Sy’s misrepresentation and false pretenses that induced Felicidad to part with her money. As a result of Sy’s false pretenses and misrepresentations, Felicidad suffered damages as the promised employment abroad never materialized and the money she paid was never recovered.

The fact that Felicidad actively participated in the processing of the illegal travel documents will not exculpate Sy from liability. Felicidad was a hapless victim of circumstances and of fraud committed by Sy. She was forced to take part in the processing of the falsified travel documents because she had already paid P120,000.00. Sy committed deceit by representing that she could secure Felicidad with employment in Taiwan, the primary consideration that induced the latter to part with her money. Felicidad was led to believe by Sy that she possessed the power and qualifications to provide Felicidad with employment abroad, when, in fact, she was not licensed or authorized to do so. Deceived, Felicidad parted with her money and delivered the same to petitioner. Plainly, Sy is guilty of estafa.

Illegal recruitment and estafa cases may be filed simultaneously or separately. The filing of charges for illegal recruitment does not bar the filing of estafa, and vice versa. Sy’s acquittal in the illegal recruitment case does not prove that she is not guilty of estafa. Illegal recruitment and estafa are entirely different offenses and neither one necessarily includes or is necessarily included in the other. A person who is convicted of illegal recruitment may, in addition, be convicted of estafa under Article 315, paragraph 2(a) of the RPC.11 In the same manner, a person acquitted of illegal recruitment may be held liable for estafa. Double jeopardy will not set in because illegal recruitment is malum prohibitum, in which there is no necessity to prove criminal intent, whereas estafa is malum in se, in the prosecution of which, proof of criminal intent is necessary.12

The penalty prescribed for estafa under Article 315 of the RPC is prision correccional in its maximum period to prision mayor in its minimum period, if the amount defrauded is over Twelve Thousand Pesos (P12,000.00) but does not exceed Twenty-two Thousand Pesos (P22,000.00), and if such amount exceeds the latter sum, the penalty shall be imposed in its maximum period, adding one year for each additional Ten Thousand Pesos (P10,000.00); but the total penalty that may be imposed shall not exceed twenty years. In such cases, and in connection with the accessory penalties that may be imposed under the provisions of this Code, the penalty shall be termed prision mayor or reclusion temporal, as the case may be.

The addition of one year imprisonment for each additional P10,000.00, in excess of P22,000.00, is the incremental penalty. The incremental penalty rule is a mathematical formula for computing the penalty to be actually imposed using the prescribed penalty as the starting point. This special rule is applicable in estafa and in theft.13

1avvphi1

In estafa, the incremental penalty is added to the maximum period of the penalty prescribed, at the discretion of the court, in order to arrive at the penalty to be actually imposed, which is the maximum term within the context of the Indeterminate Sentence Law (ISL).14 Under the ISL, attending circumstances in a case are applied in conjunction with certain rules of the Code in order to determine the penalty to be actually imposed based on the penalty prescribed by the Code for the offense. The circumstance is that the amount defrauded exceedsP22,000.00, and the incremental penalty rule is utilized to fix the penalty actually imposed.15

To compute the incremental penalty, the amount defrauded shall be subtracted by P22,000.00, and the difference shall be divided by P10,000.00, and any fraction of P10,000.00 shall be discarded.16

In the instant case, prision correccional in its maximum period to prision mayor in its minimum period is the imposable penalty. The duration of prision correccional in its maximum period is from four (4) years, two (2) months and one (1) day to six (6) years; while prision mayor in its minimum period is from six (6) years and one (1) day to eight (8) years. The incremental penalty for the amount defrauded would be an additional nine years imprisonment, to be added to the maximum imposable penalty of eight years. Thus, the CA committed no reversible error in sentencing Sy to an indeterminate penalty of four (4) years and two (2) months of prision correccional, as minimum, to seventeen (17) years of reclusion temporal, as maximum.

As to the amount that should be returned or restituted by Sy, the sum that Felicidad gave to Sy, i.e., P120,000.00, should be returned in full. The fact that Felicidad was not able to produce receipts is not fatal to the case of the prosecution since she was able to prove by her positive testimony that Sy was the one who received the money ostensibly in consideration of an overseas employment in Taiwan.17

WHEREFORE, in view of the foregoing, the Decision of the Court of Appeals dated July 22, 2008 in CA-G.R. CR No. 30628, sentencing petitioner Rosita Sy to an indeterminate penalty of four (4) years and two (2) months of prision correccional, as minimum, to seventeen (17) years of reclusion temporal, as maximum, is hereby AFFIRMED. We, however, MODIFY the CA Decision as to the amount of civil indemnity, in that Sy is ordered to reimburse the amount of One Hundred Twenty Thousand Pesos (P120,000.00) to private complainant Felicidad Navarro.

SO ORDERED.


WE CONCUR:

RENATO C. CORONAAssociate Justice

Chairperson

PRESBITERO J. VELASCO, JR.Associate Justice


JOSE CATRAL MENDOZAAssociate Justice


I attest that the conclusions in the above Resolution had been reached in consultation before the case was assigned to the writer of the opinion of the Court’s Division.

RENATO C. CORONAAssociate JusticeChairperson, Third Division


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


Footnotes

1 Penned by Associate Justice Rebecca de Guia-Salvador, with Associate Justices Vicente S.E. Veloso and Ricardo R. Rosario, concurring; rollo, pp. 21-37.

2 Rollo, p. 48.

3 Id.

4 Id. at 22-25.

5 Penned by Judge Erlinda Nicolas-Alvaro, RTC, Branch 198, Las Piñas City; id. at 39-44.

6 Id. at 44.

7 Supra note 1.

8 Id. at 36.

9 Petitioner assigned the following errors in the CA Decision:

I

THE COURT OF APPEALS COMMITTED REVERSIBLE ERROR IN HOLDING THAT PETITIONER OFFERED OVERSEAS JOB TO PRIVATE RESPONDENT.

II

THE COURT OF APPEALS COMMITTED REVERSIBLE ERROR IN HOLDING THAT PETITIONER MISREPRESENTED AND FALSELY PRETENDED TO RESPONDENT THAT SHE HAD THE POWER AND CAPACITY TO DEPLOY HER FOR A WORK IN TAIWAN.

III

THE COURT OF APPEALS COMMITTED REVERSIBLE ERROR IN HOLDING THAT PETITIONER’S MISREPRESENTATION AND FALSE PRETENSES WAS WHAT INDUCED RESPONDENT TO PART WITH HER MONEY. (Rollo, p. 13).

10 R.R. Paredes v. Calilung, G.R. No. 156055, March 5, 2007, 517 SCRA 369; Cosme, Jr. v. People, G.R. No. 149753, November 27, 2006, 508 SCRA 190; Jan-Dec Construction Corporation v. CA, G.R. No. 146818, February 6, 2006, 481 SCRA 556.

11 People v. Billaber, 465 Phil. 726 (2004).

12 Id.

13 People v. Temporada, G.R. No. 173473, December 17, 2008, 574 SCRA 258.

14 Under the ISL, in imposing a prison sentence for an offense punished by the Revised Penal Code, or its amendments, the court shall sentence an accused to an indeterminate sentence the maximum term of which shall be that which, in view of the attending circumstances, could be properly imposed under the rules of the said Code, and the minimum which shall be within the range of the penalty next lower to that prescribed by the Code for the offense; and if the offense is punished by any other law, the court shall sentence the accused to an indeterminate sentence, the maximum term of which shall not exceed the maximum fixed by said law and the minimum shall not be less than the minimum term prescribed by the same.

15 People v. Temporada, supra note 13, at 263-264.

16 Id. at 260.

17 People v. Gonzales-Flores, 408 Phil. 855 (2001); People v. Mercado, 364 Phil. 148 (1999).

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