THIRD DIVISION
|
CYNTHIA LUCES, Petitioner, - versus - 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. |
G.R. No. 150900
Present: YNARES-SANTIAGO, J., Chairperson, AUSTRIA-MARTINEZ, CHICO-NAZARIO, NACHURA, and REYES, JJ. Promulgated: March 14,
2008 |
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DECISION
NACHURA, J.:
This is a petition for review on certiorari under Rule 45 of the Rules of
Court of the Decision[1] of
the Court of Appeals (CA) dated
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,
As of September, 1993, petitioner
received from the private complainant 870 P412,305.00. 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
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 personal use 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,
On
During trial, the prosecution
established the existence of the trust receipt agreements; the receipt by
petitioner of the subject
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
On
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
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
And so, we ask the questions: Were
the
The evidence shows that petitioner sold most of the
To
repeat, the
This
notwithstanding, petitioner is not free from criminal liability. As to the 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.[25] Although there was no prohibition for
petitioner to use or for her relatives to purchase the
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
SO ORDERED.
ANTONIO
EDUARDO B. NACHURA
Associate Justice
WE CONCUR:
CONSUELO YNARES-SANTIAGO
Associate
Justice
Chairperson
|
MA. ALICIA AUSTRIA-MARTINEZ Associate
Justice |
MINITA V. CHICO-NAZARIO Associate Justice |
RUBEN T. REYES
Associate
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-SANTIAGO
Associate
Justice
Chairperson,
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. PUNO
Chief
Justice
[1] Penned by Associate Justice
Bienvenido L. Reyes, with Associate Justices Eubulo G. Verzola and Marina L.
Buzon, concurring; rollo, pp. 48-60.
[2]
[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]
[10] Embodied in an Order dated
[11] Records, p. 118.
[12] TSN,
[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]
[17]
[18] Tan
v. People, G.R. No. 153460,
[19] REVISED PENAL CODE, Art. 315 (1)(b).
[20] Asejo
v. People, G.R. No. 157433,
[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,
[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
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
[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,
[31] Pucay
v. People, id. at 424-425; Bonifacio
v. People, id. at 533.
[32] Rollo,
p. 58.