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ANTONIO
NEPOMUCENO, Petitioner, - versus - PEOPLE OF THE Respondent. |
G.R. No. 166246
Present: Quisumbing, J., Chairperson, Carpio Morales, Tinga, VELASCO, JR., and BRION, JJ. Promulgated: April 30, 2008 |
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QUISUMBING, J.:
Before us is a petition for review filed by Antonio Nepomuceno, seeking to reverse
and set aside the Decision[1] dated
Nepomuceno
was charged with estafa in an
Information dated
x x x x
That on or about the 22nd day of October,
1994 at Lipa City, Philippines and within the jurisdiction of this Honorable
Court, the above-named accused, being [then] employed as manager of Lipa
Lending Investor, Inc. and as such has the duty to manage and administer the
funds of the said corporation, with grave abuse of confidence reposed upon him
by the officers of the aforesaid corporation, did then and there wilfully,
unlawfully and feloniously misapply, misappropriate and convert to his own
personal use and benefit the amount of One Hundred Eighty Thousand (P180,000.00)
Pesos belonging to Lipa Lending Investor, Inc. by making it appear that the
said amount was part of the change or overpayment due to a certain Rommel
Villanueva, a borrower of Lipa Lending Investor, Inc., when in truth and in
fact as he very well knew he was not authorized to receive the same and despite
demands to return the said amount accused failed and refused to do so, to the
damage and prejudice of Lipa Lending Investor, Inc. in the aforesaid amount of P180,000.00,
Philippine currency.
Contrary
to law.[4]
During arraignment on
Based on the evidence, and as undisputed by both
the prosecution and defense, Lipa Lending Investor, Inc. (Lipa Lending)
employed petitioner Nepomuceno as manager.
Lipa Lending, thru Nepomuceno, granted a certain Rommel Villanueva a
loan in the amount of P1,167,953 on P1,100,000
to Lipa Lending on P520,308.08,
P180,000.00 and P10,000.00 respectively.[8]
For
his defense, Nepomuceno claimed that Villanueva was a customer of good standing
of Lipa Lending. Villanueva
borrowed P1,167,953 as a short-term loan, payable in installments,
commencing on P1,100,000 to Lipa
Lending. Of the amount stated in
the check, P245,000.00 was his partial payment for the loan of P1,167,953.00
while another portion in the sum of P144,691.92 was to be deducted from
the purchase price of the repossessed jeepney of a certain Nicodemo Lebosada
which the corporation had taken.
The check issued by Villanueva was cleared the next day, resulting in
his request for the balance in the sum of P710,308.08. Lipa Lending prepared a cash voucher for
the release of said amount as “change or overpayment for short term
loan.” Nepomuceno argued that
this term refers only to the first installment due and not the entire
loan. Villanueva requested for a
division of the P710,308.08 into three checks. The first check was for him in the sum
of P520,308.08; the second was for Nepomuceno in the amount of P180,000.00;
and the third was for Magaling in the amount of P10,000.00. Nepomuceno then explained that
Villanueva gave the check in the sum of P180,000 to him.[9]
The RTC found Nepomuceno guilty beyond reasonable doubt of the crime of estafa in its Decision dated
WHEREFORE, the Court finds the accused Antonio Nepomuceno
guilty beyond reasonable doubt of Estafa defined and penalized under Article
315, paragraph 1(b) of the Revised Penal Code, and hereby sentences him to
suffer the indeterminate penalty of imprisonment ranging from Six (6) years and
One (1) day of prision mayor as minimum to Twelve (12) years and One (1) day of
reclusion temporal as maximum.
Furthermore, accused is ordered to restitute to Lipa Lending Investor,
Inc. the amount of P180,000.00 with legal rate of interest computed from the
date of institution of this case until the same is paid in full. Costs de officio.
SO ORDERED.[10]
The Court of Appeals affirmed with modification the abovementioned ruling
in a Decision promulgated on
WHEREFORE, the Decision of the trial court convicting
accused-appellant Antonio Nepomuceno for estafa under Article 315, paragraph
1(b) of the Revised Penal Code is AFFIRMED with the modification that the
sentence he shall suffer is an indeterminate penalty of four (4) years and two
(2) months of prision correccional to twenty (20) years of reclusion
temporal.
SO ORDERED.[11]
Thus, this petition.
Nepomuceno raises the following issues for our resolution:
I.
[WHETHER OR NOT] THE COURT A QUO
ERRED IN CONVICTING PETITIONER OF THE OFFENSE OF ESTAFA DESPITE THE FACT THAT
THE AMOUNT OF P180,000.00 NO LONGER BELONGED TO LIPA LENDING INVESTOR, INC. BUT
TO ROMMEL VILLANUEVA. THERE WAS
THEREFORE NO DAMAGE CAUSED TO THE PRIVATE COMPLAINANT, WHICH IS ONE OF THE
ESSENTIAL ELEMENTS OF THE OFFENSE.
II.
[WHETHER OR NOT] THE COURT A QUO ERRED IN NOT HOLDING THAT DEMAND
IS AN ESSENTIAL ELEMENT OF THE OFFENSE OF ESTAFA COMMITTED THROUGH ABUSE OF
CONFIDENCE; AND THAT THERE WAS NO SUCH DEMAND MADE IN THE INSTANT CASE.
III.
[WHETHER OR NOT] THE COURT A QUO
ERRED IN NOT APPRECIATING THE CIRCUMSTANCES PROVING THE INNOCENCE OF THE
PETITIONER.[12]
Simply, the issues are: (1)
Was petitioner guilty of estafa? and (2) Is demand necessary to convict
for estafa?
Petitioner, in his Memorandum[13] filed on P180,000 did not belong to
Lipa Lending but to Rommel Villanueva, and there was therefore no harm done to
Lipa Lending when Villanueva gave the amount of P180,000 to him. Accordingly, he did not receive the
amount of P180,000 in trust, on commission, for administration or any
other circumstance involving the duty to make delivery of or return the same to
Lipa Lending.[14] Petitioner also argues that the element
of demand in estafa was not present
since the prosecution did not present evidence that demand was made to him to
account for the amount of P180,000.[15]
On the other hand, respondent, thru the Office of the
Solicitor General, in its Memorandum[16] filed on
May 11, 2006, contends that the issues raised by petitioner are factual issues
which are not proper in a petition for review on certiorari under Rule 45 of
the 1997 Rules of Civil Procedure;[17] that
contrary to petitioner’s contention, the amount of P180,000
belonged to Lipa Lending and not to Rommel Villanueva since the amount was
directly received by petitioner from Lipa Lending by way of a company check
payable to petitioner himself;[18] and that
the absence of demand does not bar petitioner’s conviction for estafa as held in the case of Salazar v. People.[19]
The elements of estafa under Article 315 1(b) of the Revised Penal Code are as
follows: (1) that money, goods, or
other personal properties are received by the offender in trust, or on
commission, or for administration, or under any other obligation involving the
duty to make delivery of, or to return, the same; (2) that there is a
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]
Is the element of damage or prejudice present in this case? There is no denying that Nepomuceno
received P1,100,000 from Villanueva. He claims, however, that there is no due
date for Villanueva’s loan and that the latter only allotted P245,000
as payment, with the rest of the amount to be distributed among Villanueva,
Magaling, and the petitioner himself.
We cannot give credence to Nepomuceno’s
claims. As manager of Lipa Lending,
it was his duty to see to it that the latter’s clients pay their loans. There was no justification for the
petitioner to cause the preparation of three checks because the Statement of
Account[21]
of Villanueva shows Villanueva had an outstanding obligation to Lipa Lending as
of P938,526, thereby negating the contention of the petitioner
that Villanueva had a claim against the corporation due to overpayment. The petitioner, during
cross-examination, admitted he appropriated the P180,000 for his own use[22]
and claimed that the P180,000 given to him was his commission from
Villanueva.[23] Moreover, the promissory note executed
between Lipa Lending and Villanueva did not intend a loan payable in
installments. For while said
document is a standard form with blanks for the provisions of installment of the
loan, the parties only wrote down the amount of the loan and the due date of
its payment. If their intention was
really to settle the loan on installment, they would have clearly provided the
terms thereof. Thus, there is no
basis to believe otherwise that the entire amount of the loan became due and
demandable on the date agreed upon, which is
Given the circumstances on record, we find
Nepomuceno’s acts inexcusable and his testimony unconvincing. His grounds involve factual issues
already passed upon twice below and are inappropriate in a petition for review
on certiorari under Rule 45, which allows only questions of law to be raised.
Factual findings and conclusions of the trial court and
the Court of Appeals are entitled to great weight and respect, and will not be
disturbed on review by us, in the absence of any clear showing that the lower
courts overlooked certain facts or circumstances which would substantially
affect the disposition of the case.
The jurisdiction of this Court over cases elevated from the Court of
Appeals is limited to reviewing errors of law ascribed to the Court of
Appeals. The factual findings of
the appellate court generally are conclusive, and carry even more weight when
said court affirms the findings of the trial court, absent any showing that the
findings are totally devoid of support in the record or that they are so
glaringly erroneous as to constitute grave abuse of discretion.[25]
As for the element of demand, the law does not require demand as a
condition precedent to the crime of embezzlement.[26] The consummation of the crime of estafa does not depend on the fact that
a request for a return of the money is first made and refused in order that the
author of the crime should comply with the obligation to return the sum
misapplied.[27]
As for the
penalty, under Article 315 of the Revised Penal Code, if the amount exceeds P22,000,
the penalty shall be as follows:
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.…
x x x x
In this case, the
amount misappropriated is P180,000.
In People v.
Gabres,[28] the Court explained the imposition of
the minimum penalty, as follows:
Under the Indeterminate Sentence Law, the maximum term of the penalty shall
be “that which, in view of the attending circumstances, could be properly
imposed” under the Revised Penal Code, and the minimum shall be
“within the range of the penalty next lower to that prescribed” for
the offense. The penalty next lower
should be based on the penalty prescribed by the Code for the offense, without
first considering any modifying circumstance attendant to the commission of the
crime. The determination of the
minimum penalty is left by law to the sound discretion of the court and it can
be anywhere within the range of the penalty next lower without any reference to
the periods into which it might be subdivided. The modifying circumstances are
considered only in the imposition of the maximum term of the indeterminate
sentence.
The fact that the amounts involved in the instant case exceed P22,000.00
should not be considered in the initial determination of the indeterminate
penalty; instead, the matter should be so taken as analogous to modifying
circumstances in the imposition of the maximum term of the full indeterminate
sentence. This interpretation of
the law accords with the rule that penal laws should be construed in favor of
the accused. Since the penalty
prescribed by law for the estafa charge against accused-appellant is prision correccional maximum to prision mayor minimum, the penalty next
lower would then be prision correccional minimum
to medium. Thus, the minimum term
of the indeterminate sentence should be anywhere within six (6) months and one
(1) day to four (4) years and two (2) months while the maximum term of the
indeterminate sentence should at least be six (6) years and one (1) day because
the amounts involved exceeded P22,000.00, plus an additional one (1) year for
each additional P10,000.00.[29]
Hence, the minimum term of the
indeterminate penalty should be anywhere within six (6) months and one (1) day
to four (4) years and two (2) months.
The Court
explained further the imposition of the maximum penalty in People v. Saley.[30] Thus:
[I]n fixing the maximum term, the prescribed penalty of prision correccional maximum period to prision mayor minimum period should be
divided into “three equal portions of time,” each of which portion
shall be deemed to form one period; hence –
|
Minimum Period |
Medium Period |
Maximum Period |
|
From 4 years, 2 months and 1 day to 5 years, 5 months and 10 days |
From 5 years, 5 months and 11 days to 6 years, 8 months and 20 days |
From 6 years, 8 months and 21 days to 8 years |
in consonance with Article 65, in relation to Article 64, of the Revised
Penal Code.
When the amount involved in the offense exceeds P22,000.00, the
penalty prescribed in Article 315 of the Code “shall be imposed in its
maximum period,” adding one year for each additional P10,000.00
although the total penalty which may be imposed shall not exceed 20 years. The maximum penalty should then be
termed as prision mayor or reclusion temporal as the case may
be. In fine, the one year period, whenever applicable, shall be added to
the maximum period of the principal penalty of anywhere from 6 years, 8 months
and 21 days to 8 years.[31]
Accordingly, the
maximum penalty should be within six (6) years, eight (8) months and twenty-one
(21) days to eight (8) years, plus one (1) year for each additional P10,000.[32] With fifteen (15) years in excess of the
maximum of eight (8) years, Nepomuceno’s maximum penalty stands at
twenty-three (23) years.
Nevertheless, the penalty cannot exceed twenty (20) years.
Thus, the Court of Appeals correctly imposed on Nepomuceno the penalty of imprisonment ranging from four (4) years and two (2) months of prision correccional to twenty (20) years of reclusion temporal.
WHEREFORE, the
Decision of the Court of Appeals in CA-G.R. CR No. 26671 promulgated on
No
pronouncement as to costs.
SO ORDERED.
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LEONARDO A. QUISUMBING Associate Justice |
WE CONCUR:
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CONCHITA CARPIO MORALES Associate Justice |
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DANTE O. TINGA Associate Justice |
PRESBITERO J. VELASCO, JR. Associate Justice |
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ARTURO D. BRION Associate Justice |
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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.
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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.
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REYNATO S. PUNO Chief Justice |
[1] Rollo, pp. 31-41. Penned by Associate Justice Mariano C.
Del Castillo, with Associate Justices Romeo A. Brawner and Magdangal M. De
[2] Records, pp. 239-246. Penned by Judge Avelino G. Demetria.
[3] Art. 315. Swindling (estafa).–Any person who
shall defraud another by any of the means mentioned hereinbelow shall be
punished by:
x x x x
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;
x x x x
[4] Records, pp. 1-2.
[5]
[6]
[7]
[8]
[9] Rollo, pp. 33-34.
[10] Records, p. 246.
[11] Rollo, p. 40.
[12]
[13]
[14]
[15]
[16]
[17]
[18]
[19] G.R. No. 149472,
[20] Libuit v. People, G.R. No. 154363,
[21] Records, p. 44.
[22] TSN,
[23]
[24] Rollo, pp. 37-38.
[25] Libuit v. People, supra note 20, at 618.
[26] Tubb v. People and Court of Appeals, 101 Phil. 114, 119 (1957).
[27] Salazar v. People, supra note 19, at 174, citing United States v. Ramirez, 9 Phil. 67, 70 (1907).
[28] G.R. Nos. 118950-54,
[29]
[30] 353 Phil. 897 (1998).
[31]
[32] Perez v. People, G.R. No. 150443,