Republic of the
SUPREME COURT
SECOND DIVISION
ERLINDA ASEJO, G.R. No. 157433
Petitioner,
Present:
QUISUMBING,
J., Chairperson,
- versus - CARPIO,
CARPIO MORALES,
TINGA,
and
VELASCO,
JR., JJ.
PEOPLE OF THE
Respondent.
July 24, 2007
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D E C I S I
O N
VELASCO, JR., J.:
The present petition[1] seeks to reverse and set aside the
November 27, 2002 Decision[2] and February 28, 2003 Resolution[3] of the Court of Appeals (CA), which
affirmed with modification the February 27, 2001 Decision[4] of the Quezon City Regional Trial
Court, Branch 104, convicting petitioner of estafa as defined in Article 315
1(b) of the Revised Penal Code.
The Facts
Petitioner and her husband, Eliseo
Asejo, were charged with estafa on
That on or about the 6th day of May 1998, in Quezon City, Philippines, the said accused, conspiring together, confederating with and mutually helping each other, with unfaithfulness or abuse of confidence, did then and there willfully, unlawfully, and feloniously defrauded Vilma F. Castro in the manner as follows: on the date and place aforementioned, said accused received the amount of P100,000.00, Philippine Currency, from complainant as they will deposit the said amount in a bank for two months to serve as “show money” to the concerned people that they are liquid in their business and return said amount on or before July 18, 1998, but said accused, once in possession of said amount, far from complying with their aforesaid obligation, misapplied, misappropriated and converted the same to their own personal use and benefit, and despite repeated demands made upon them by said complainant to return the amount of P100,000.00, they failed and refused and still fails (sic) and refuses (sic) to do so, to the damage and prejudice of said offended party in the amount aforementioned.
CONTRARY TO LAW.[5]
During the arraignment on
For and in consideration of the trust conveyed upon us, the undersigned hereby acknowledged the receipt of the amount of ONE HUNDRED THOUSAND (P100,000.00) PESOS, Philippine currency, from MRS. VILMA F. CASTRO said amount being extended and received by us not as loan or credit and without interest, nevertheless, we hereby undertake and commit to return the same amount to said MRS. VILMA F. CASTRO on or before July 18, 1998 without need of prior demand.
In view of the foregoing, and as a token
of gratitude for the trust and confidence reposed upon us, we, the undersigned,
solidarily promise and warrant faithful compliance of the terms and conditions
herein-above committed.[7]
When the obligation became due,
Castro went to the spouses to demand payment but Castro failed to collect the
money.[8]
A corroborating witness, Alberto
Bato, testified that he saw the petitioner on
Petitioner admitted that she received
PhP 100,000 but claimed that the amount was Castro’s down payment for
petitioner’s lot. She testified that in
April 1998, she offered her lot for sale to Castro because she needed money to
pay a loan with the bank. They allegedly
agreed to the price of PhP 250,000 with a down payment of PhP 100,000 and the
balance payable upon the return of Castro’s husband from abroad. Castro, however, decided to withdraw from the
sale and demanded the return of the PhP 100,000. Petitioner was able to return only PhP 15,000
and six (6) pigs allegedly valued at PhP 17,498. In 1999, petitioner claims that she was
called to the house of Castro's in-laws and was harassed to sign an antedated
document entitled “Trust Undertaking” by Alberto Bato, a policeman.[10] She further alleged that since she could not
return the PhP 100,000, she was compelled by Castro to push through with the
sale at the lower amount of PhP 150,000.
The agreement, however, did not
materialize due to the foreclosure of the property. Petitioner claims that Castro filed the
complaint for estafa for petitioner’s failure to return the full amount she
received as down payment.[11]
On
WHEREFORE, the Court finds accused Erlinda Asejo guilty beyond reasonable doubt as principal of the crime of ESTAFA defined and penalized in Article 315, subdivision no. 1, paragraph b, of the Revised Penal Code, and sentences her to an indeterminate penalty of four years and two months of prision correccional as minimum to nine years and six months of prision mayor as maximum, as well as orders her to pay to complainant the amount of P100,000.00 representing the amount of the fraud.
SO ORDERED.[12]
The Ruling of the Court of Appeals
On appeal, the CA affirmed the
petitioner’s conviction but modified the penalty:
WHEREFORE, the decision appealed from is AFFIRMED with the modification that accused-appellant is sentenced to suffer an indeterminate penalty of four (4) years and two (2) months of prision correccional as MINIMUM, to thirteen (13) years and one (1) day of reclusion temporal as MAXIMUM.
SO ORDERED.[13]
Hence, petitioner is asking this
Court to reverse the judgment of conviction in view of the prosecution’s
alleged failure to present a formal demand letter as a requisite for a
conviction of estafa. Petitioner further
asserts that the transaction was actually a loan because the Trust Undertaking
did not specifically enjoin her to return the very same thing that she
received, but merely the same amount.[14]
The Issues
Whether formal demand is required to hold
petitioner liable for estafa UNDER ART. 315 1(B)
Whether the amount RECEIVED WAS PURSUANT TO a
loan and not a trust agreement
The Court’s Ruling
The petition has no merit.
The appellate and trial courts found
the version of the prosecution consistent with the evidence. According to the trial court:
First, the money,
which she received from complainant on May 6, 1998, could not have been given
as down payment for the property, which was mortgaged with the bank and sold at
public auction on May 8, 1998. Second,
the trust undertaking could not have been signed in 1999 because it was already
attached to the affidavit-complaint dated
The foregoing findings clearly
support private complainant's claim regarding the purpose of the money, that
is, that petitioner received the money in trust to be used as proof of her
financial liquidity. The Trust
Undertaking, which was regularly executed, shows that the agreement was not a
loan. This places the transaction within
the purview of Art. 315, the relevant paragraphs of which read:
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 prisiόn correccional in its maximum period to prisiόn 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 prisiόn mayor or reclusiόn temporal, as the case may be;
x x x provided that in the x x x cases mentioned, the fraud be committed by any of the following means:
1. With unfaithfulness or abuse of confidence, namely:
x x x x
(b) By misappropriating or converting, to the prejudice of another, money, goods or any other personal property received by the offender in trust, or on commission, or for administration, or under any other obligation involving the duty to make delivery of, or to return the same, even though such obligation be totally or partially guaranteed by a bond; or by denying having received such money, goods, or other property
The elements of estafa with abuse of
confidence under Art. 315 1(b) are:
1. That
the money, goods or other personal property be received by the offender in
trust, or on commission, or for administration, or under any other obligation
involving the duty to make delivery of, or to return, the same;
2. That
there be misappropriation or conversion of such money or property by the
offender, or denial on his part of such receipt;
3. That
such misappropriation or conversion or denial is to the prejudice of another;
and
4. That
there is a demand made by the offended party to the offender.
All these elements are present in the
case at bar. Petitioner admitted having
received in trust the amount of PhP 100,000 from Castro; the amount was
misappropriated or converted; such misappropriation or conversion was to the
prejudice of Castro; and Castro demanded payment from petitioner.
Petitioner asserts that upon receipt
of the amount, it was transferred to her and she was not prohibited to use or
spend the same.[16] The very same money cannot be returned but
only the same amount. This makes the
transaction a loan and not a trust agreement; thus, her liability is merely
civil and not criminal.
Petitioner’s arguments are not
meritorious. Art. 315 1(b) explicitly
includes money in its scope. The nature
of money, that is, the exact bills and coins received in trust cannot be returned,
was already considered by the law. As
long as the money was received in trust, on commission, for administration, or
under an obligation to return, failure to account for it upon demand is
punishable under Art. 315 1(b). The
Solicitor General added:
In a trust agreement, the transfer of the
property to the trustee is mere physical
possession and not juridical possession.
Unlike in a contract of loan where the debtor acquires juridical
possession and is technically the owner of the amount, in a trust, the
obligation of the trustee is fiduciary
in nature, i.e. to take care of the thing strictly for the benefit of the
trustee in accordance with the purpose of the express trust.[17]
In the case at bar, the amount was
received by the petitioner for the sole purpose of using it as “show money” to
the bank. The money was entrusted to her
for a particular purpose. Hence, she did
not acquire the right to dispose or spend the amount as she sees fit; she had
the obligation to account for said amount.
Furthermore, the Trust Undertaking
expressly states that the amount was received by the petitioner not as a loan
or credit. Under the parol evidence
rule,[18]
petitioner cannot vary the terms of the written agreement by claiming that the
amount was received pursuant to a contract of sale of their lot.
With regard to the necessity of
demand, we agree with the CA that demand under this kind of estafa need not be
formal or written. The appellate court
observed that the law is silent with regard to the form of demand in estafa
under Art. 315 1(b), thus:
When the law does not qualify, We should not qualify. Should a written demand be necessary, the law would have stated so. Otherwise, the word “demand” should be interpreted in its general meaning as to include both written and oral demand. Thus, the failure of the prosecution to present a written demand as evidence is not fatal.[19]
In Tubb v. People, where the
complainant merely verbally inquired about the money entrusted to the accused,
we held that the query was tantamount to a demand, thus:
[T]he law does not require a demand as a condition precedent to the existence of the crime of embezzlement. It so happens only that failure to account, upon demand for funds or property held in trust, is circumstantial evidence of misappropriation. The same way, however, be established by other proof, such as that introduced in the case at bar.[20]
Similarly in this case, there was a
demand for petitioner to pay private complainant. This was admitted by petitioner and the
private complainant in their testimonies.
Castro stated that she went to the house of petitioner in Pangasinan to
demand the return of the money, while petitioner stated that Castro demanded
the return of the “down payment” because allegedly, the sale did not
materialize. In both versions, the fact
remains that demand was made upon petitioner.
WHEREFORE, the November 27, 2002 Decision of
the CA in CA-G.R. CR No. 25128 is AFFIRMED. Petitioner Erlinda Asejo is found GUILTY
of the crime of estafa under Article 315 1(b) of the Revised Penal Code. She is sentenced to suffer an
indeterminate penalty of imprisonment from four (4) years and two (2) months of
prisiόn correccional as MINIMUM to thirteen (13) years and one (1)
day of reclusiόn temporal as MAXIMUM. She is ordered to pay complainant PhP 100,000
representing the amount of the fraud.
SO ORDERED.
PRESBITERO
J. VELASCO, JR.
Associate
Justice
WE CONCUR:
LEONARDO A. QUISUMBING
Associate Justice
Chairperson
ANTONIO T.
CARPIO CONCHITA
CARPIO MORALES
Associate Justice Associate Justice
DANTE O. TINGA
Associate Justice
A T T E S T A T I O N
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.
LEONARDO A. QUISUMBING
Associate Justice
Chairperson
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. PUNO
Chief
Justice