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Petitioner, - versus - PEOPLE OF THE Respondent. |
G.R. No. 167805
Present: Quisumbing,
Acting C.J., Chairperson, Carpio
Morales, Tinga, VELASCO, JR., and BRION, JJ. Promulgated: November 14, 2008 |
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QUISUMBING, Acting C.J.:
This petition for review on certiorari seeks
to reverse and set aside the Decision[1] dated
Petitioner was charged before the Regional Trial
Court, Branch 63,
x x x x
That [o]n or about and sometime during the month of
February 1988, in the Municipality of
Makati, Metro Manila, Philippines and within the jurisdiction of this Honorable
Court, the said accused, received in trust from LORENZO B. BALLECER the amount
of P100,000.00 for the purpose of opening a letter of credit for the
intended importation of jute sacks from China with the express obligation on
the part of the accused of returning the same if the transaction does not
materialize, but the accused once in possession of the said amount far from
complying with his obligation, with unfaithfulness and abuse of confidence, did
then and there willfully, unlawfully and feloniously appropriate, apply and
convert to his own personal use and benefit the said amount and despite
demands, failed and refused and still fails and refuses to return the same to
said Lorenzo B. Ballecer, to the damage and prejudice of the latter in the aforesaid
amount of P100,000.00.
CONTRARY TO LAW.
Petitioner
pleaded not guilty upon arraignment.
Thereafter, a trial on the merits ensued.
The following facts
were established.
Private complainant
Lorenzo B. Ballecer was the president of Sunrise Industries Development,
Incorporated while his friend, herein petitioner, was the president of Century
United Marketing and Trading Corporation.[5]
Sometime
in February 1988, Ballecer entered into a joint business venture with
petitioner involving importation of jute sacks from P12.25
per piece. Convinced, Ballecer ordered
through petitioner one container load of jute sacks with the total cost of P137,000.[6]
After
the order was made, petitioner told Ballecer to open the importation’s letter
of credit. Accordingly, Ballecer and
petitioner proceeded to Citytrust Bank to open said letter of credit. However, before the letter of credit could be
opened, the bank required them to submit the supporting customs documents and
to post a marginal deposit of P100,000.
Ballecer then asked petitioner to accompany him to United Coconut
Planters Bank to encash a check worth P100,000.[7]
After the encashment
of the check, the two returned to Citytrust Bank. However, they arrived after banking hours, so
the letter of credit could no longer be opened.
Petitioner then suggested that the money be deposited in his account at
Citytrust instead. Ballecer agreed.[8] By way of acknowledgment,
petitioner executed a document which reads:
x
x x x
This is to certify that I have received from
LORENZO B. BALLECER the amount of ONE HUNDRED THOUSAND PESOS ONLY (P100,000.00)
and deposited in my CITYTRUST BANK Account No. 00035016566 for use in the
opening of a Letter of Credit at said bank for the importation of 20,000 pcs.
of jute sacks from Hongkong and that the same will be returned to him if
transaction does not materialize.[9]
(Underscoring supplied.)
While preparing the supporting customs documents for the letter of
credit, Ballecer found that the cost of the jute sacks was not $0.15 but $0.62
or P16.15 per piece.[10] Realizing that his business
venture was a losing proposition, Ballecer cancelled the importation and asked
petitioner to return the P100,000.
Petitioner, however, failed to return the money despite repeated verbal
and formal demands.
In
defense, petitioner testified that he did not misappropriate the P100,000. Petitioner claimed that the said money was
spent and used for the office expenses, salaries and miscellaneous expenses of
the office which Ballecer and petitioner occupy and share together. He further testified that when the check was
given to Ballecer, they encashed it and entered into an oral agreement that
whatever profit they will realize from their joint business venture shall be
shared equally after deducting all expenses.[11]
On
Finding all the elements necessary to qualify an
act as estafa to be present, the court finds the accused ARNOLD STA. CATALINA,
“GUILTY” beyond reasonable doubt. A
judgment of conviction is rendered against him and he is to suffer the penalty
of from 2 years 11 months and 11 days of prision correc[c]ional in its minimum
and mediu[m] period, to 8 years of … prision mayor
and 1 year for each additional P10,000.00 in excess of P22,000.00
as provided for under Art. 315 par. 1.
Likewise, accused is ordered to pay civil indemnity in the amount of P100,000.00
representing the amount he received from private complainant and which he
deposited in his own account.
SO
ORDERED.[13]
Aggrieved,
petitioner appealed. He filed a motion
praying that the testimony covered by the transcript of stenographic notes
dated
On
WHEREFORE, PREMISES CONSIDERED, the Decision, dated
March 11, 1997, is hereby AFFIRMED and the sentence imposed by the Court a quo
on the accused is clarified, thus: for the accused to suffer the indeterminate
penalty of 2 years, 11 months and 11 days of prision correccional as minimum
to 15 years of reclusion temporal as maximum. The judgment of the Court a quo ordering
accused-appellant to pay private complainant the sum of P100,000.00
representing the amount misappropriated is likewise AFFIRMED.
SO ORDERED.[17]
Petitioner filed a motion for reconsideration.[18] The same was denied in a Resolution dated
I.
WHETHER OR NOT THE RESPONDENT COURT OF
APPEALS HAS DECIDED THE CASE (CA-G.R. CR NO. 21877)
II.
WHETHER THE RESPONDENT COURT OF APPEALS
HAS SO FAR DEPARTED FROM THE ACCEPTED AND [USUAL] COURSE OF JUDICIAL PROCEEDINGS,
OR SO FAR SANCTIONED SUCH DEPARTURE BY A LOWER COURT, AS TO CALL FOR AN
EXERCISE OF THE POWER OF SUPERVISION;
III.
WHETHER OR NOT THIS HONORABLE TRIBUNAL, IN
THE EXERCISE OF ITS POWER OF REVIEW, MAY REVERSE THE DECISION OF THE
In the main,
the issue is: Did the Court of Appeals
err in convicting the petitioner for the crime of estafa despite the
missing transcript of stenographic notes dated
In his petition, the
petitioner contends that he should have been acquitted of the crime
charged. He avers that when the trial
court rendered its decision, the transcript of stenographic notes taken on
For its part, the Office
of the Solicitor General (OSG) counters that nothing on the record states that
the questioned transcript was already missing when the trial court rendered its
decision. In fact, the matter of the
transcript being lost or missing surfaced only when the case was already in the
appellate stage. Also, there is no proof
that Ballecer’s testimony was not considered at all when the trial court
rendered its decision. The OSG submits
that contrary to petitioner’s claim, the decision of the trial court made
reference to the testimony of Ballecer.
Conversely, even if the
We have
carefully examined the records of the case and find no cogent reason to disturb
the findings of the appellate court.
First, all the
elements of estafa under Article 315, par. 1(b) of the Revised Penal Code are present. The elements of estafa under said
provision are: (a) that 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; (b) that there be misappropriation or
conversion of such money or property by the offender; or denial on his part of
such receipt; (c) that such misappropriation or conversion or denial is to the
prejudice of another.[22]
Here, the petitioner
received in trust from Ballecer the amount of P100,000 for the purpose of
opening a letter of credit for the importation of jute sacks with the
concurrent obligation to return the same amount in the event that the
transaction failed to materialize.
Petitioner, however, misappropriated and applied to his own use the said
amount and even admitted issuing checks to be drawn from the P100,000
for a purpose other than opening a letter of credit. Petitioner was then asked to return the P100,000. Despite repeated verbal and formal demands,
petitioner failed and refused to return said amount to the prejudice of
Ballecer. Clearly, all the elements of
the crime of estafa were proven in the instant case.[23]
Second, the appellate
court did not err in convicting petitioner despite the fact that the
Even assuming that the
transcript of
Finally, the Affidavit of
Desistance[26]
submitted by Ballecer will not justify the dismissal
of the action. By itself, an Affidavit of Desistance is not a ground for the
dismissal of an action, once the action has been instituted in court.[27] Here, Ballecer made the so-called pardon of the petitioner after
the institution of the action. He made the Affidavit of Desistance only on
WHEREFORE, the
petition is hereby DENIED. The
Decision dated
SO ORDERED.
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LEONARDO A. QUISUMBING Acting Chief 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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C E R T I F I C A T I O N
Pursuant to Section 13, Article VIII of the Constitution,
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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LEONARDO A. QUISUMBING Acting Chief Justice |
[1] CA rollo, pp. 164-175. Penned by Associate Justice Edgardo F. Sundiam, with Associate Justices Martin S. Villarama, Jr. and Japar B. Dimaampao concurring.
[2]
[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. Dated
[5] CA rollo, p. 165.
[6]
[7]
[8]
[9] Records, p. 166.
[10] CA rollo, p. 166.
[11]
[12] Records,
pp. 448-450. Penned by Judge
[13]
[14] CA rollo, p. 50.
[15] Records, pp. 504-505.
[16]
[17] CA rollo, p. 175.
[18]
[19] Rollo, p. 22.
[20]
[21]
[22] Lee v. People, G.R. No. 157781,
[23] Records,
pp. 449-450.
[24] Rules of Court, Rule 36,
SECTION 1. Rendition of judgments and final orders.–A judgment or final order determining the merits of the case shall be in writing personally and directly prepared by the judge, stating clearly and distinctly the facts and the law on which it is based, signed by him, and filed with the clerk of court.
[25] People
v. Derpo, Nos. L-41040 &
43908-10,
[26] Rollo, pp. 53-54.
[27] People v. Ramirez Jr., G.R. Nos. 150079-80,
[28] Alonte v. Savellano, Jr., G.R. No. 131652, March 9, 1998, 287 SCRA 245, 264 citing People v. Junio, G.R. No. 110990, October 28, 1994, 237 SCRA 826, 834.
[29] Victoriano v. People of the