Article 315, paragraph 1(b) of the Revised Penal Code, as amended, under which the petitioner was charged

and prosecuted, states:

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[.] 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[.]

The elements of estafa under this provision are: (1) the offenders receipt of money, goods, or other personal property in trust, or on commission, or for administration, or under any other obligation involving the duty to deliver, or to return, the same; (2) misappropriation or conversion by the offender of the money or property received, or denial of receipt of the money or property; (3) the misappropriation, conversion or denial is to the prejudice of another; and (4) demand by the offended party that the offender return the money or property received.[14] The essence of this kind of estafa is the appropriation or conversion of money or property received to the prejudice of the entity to whom a return should be made.[15] The words convert and misappropriate connote the act of using or disposing of anothers property as if it were ones own, or of devoting it to a

purpose or use different from that agreed upon.[16] To misappropriate for ones own use includes not only conversion to ones personal advantage, but also every attempt to dispose of the property of another without right. [17] 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
failure to account upon demand, for funds or property held in trust, is circumstantial evidence of misappropriation.16 Republic of the Philippines SUPREME COURT SECOND DIVISION G.R. No. 157781. April 11, 2005 ROBERT CRISANTO D. LEE, Petitioners, vs. PEOPLE OF THE PHILIPPINES and ATOZ TRADING CORPORATION, Respondents. DECISION CALLEJO, SR., J.: This is a petition for review under Rule 45 of the Revised Rules of Court of the Decision1 of the Court of Appeals (CA) in CA-G.R. CR No. 19947 dismissing the appeal of petitioner Robert Crisanto D. Lee and the Resolution2denying his motion for reconsideration. At the instance of Atoz Trading Corporation (ATC), 10 separate Informations were filed, on September 27, 1994, in the Regional Trial Court of Pasig City, Branch 159, against petitioner in his capacity as marketing manager of ATC. The cases were docketed as Criminal Case Nos. 107020 to 107029. Except for the dates and the amounts involved, the Informations contained common allegations for the crimes allegedly committed, as follows: 1. CRIM. CASE No. 107020: That on or about the 10th day of January, 1992, in the Municipality of San Juan, Metro Manila, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, being then the Marketing Manager of Atoz Trading Corporation represented by Johnny M. Jaotegan was authorized to [receive] payments for the company; Thus received from Ocean Feed Mills Company's Client, the amount of P47,940.00 through telegraphic transfer, with the corresponding obligation to remit/account the same to Atoz Trading Corporation; but accused, far from complying with his obligation to remit the same despite notices and demands made upon him, with intent [to] gain, unfaithfulness and grave abuse of confidence and to defraud Atoz Trading Corporation represented by Johnny M. Jaotegan once in possession of the money received from Ocean Feed Mills, did then and there willfully, unlawfully, and feloniously misapplied, misappropriated and converted to his own

personal use and benefit the amount of P47,940.00 to the damage and prejudice of the complainant in the aforementioned amount ofP47,940.00. CONTRARY TO LAW.3 Other than Criminal Case No. 107023 which was ordered dismissed on motion of the prosecution, joint trial on the merits of the remaining nine cases eventuated, following the arraignment of petitioner on February 20, 1995 during which he pleaded "Not Guilty." The proceedings before the trial court and the evidence adduced by the parties were summarized by the CA as follows: During the joint trial of the remaining cases, the prosecution presented the following witnesses: (1) Johnny Jaotegan, the President and Chief Operating Officer of Atoz Trading Corporation; (2) Jeffrey Corneby, the general teller of UCPB, Greenhills, San Juan; (3) Maria Concepcion dela Cruz, the corporate secretary of Ocean Feed Mills; and (4) Ellen Gusar, the accounting clerk-computer encoder of Atoz Trading Corporation. Their testimonies tend to establish the following factual backdrop: Atoz Trading Corporation, hereinafter referred to as Atoz, is a stock corporation engaged in the trading of animal feeds, feeds supplements, raw materials and ingredients for feed mills, with herein [petitioner] Robert Crisanto Lee as the corporations sales manager from early 90s to 1994. In the course of Lees employment therewith, he was able to bring in Ocean Feed Mills, a Bacolod-based company engaged in the manufacture of pelletized feeds for prawn and fish, as one of Atozs clients. Having "personally found" Ocean Feed Mills, [petitioner] handled said account. Transactions between the two companies were then coursed through [petitioner], so that it was upon the latters instructions that Ocean Feed Mills addressed its payments through telegraphic transfers to either "Atoz Trading and/or Robert Lee" or "Robert Lee" since [petitioner] explained that it was difficult for him to claim the check at UCPB Greenhills. When [petitioner] ceased reporting for work in 1994, Atoz audited some of the accounts handled by him. It was then that Atoz discovered Ocean Feed Mills unpaid account in the amount of P318,672.00. Atoz thus notified Ocean Feed Mills that [petitioner] was no longer connected with the corporation, and advised it to verify its accounts. Promptly preparing a certification and summary of payments, Ocean Feed Mills informed Atoz that they have already fully settled their accounts and even made overpayments. Bank documents prepared and submitted by UCPB Greenhills, San Juan, later showed that [petitioner] maintained therewith Savings Account No. 117-105532-0, to which account the payments made by Ocean Feed Mills to Atoz through telegraphic transfers, have either been credited or deposited. Jeffrey Corneby, UCPB Greenhills general teller, testified that upon receipt of telegraphic transfers coursed through UCPB, it is customary for said bank to either credit the amount to payees account if payee has an account with the bank, or just issue a managers check for the amount transmitted if the payee has no account. Meanwhile, Ellen Gusar, whose duty was to prepare statement of accounts to be sent to Atozs clients, attested that [petitioner] took the duly-prepared statement of accounts of Ocean Feed Mills and never returned the same, on the pretext that he had already sent them to the Ocean Feed Mills. She also confirmed that, as of September 30, 1992, the subsidiary ledger of Atoz showed that Ocean Feed Mills had an outstanding balance ofP318,672.00.

After the prosecution rested its case, the [petitioner] filed a Demurrer to Evidence, therein alleging that the evidence thus far presented by the prosecution in each of the cases were insufficient inasmuch as "[I]t is bereft of any evidence of formal demand upon the accused to remit the amounts allegedly misappropriated, before the filing of the subject cases." In an Order dated January 23, 1996, the trial court denied the demurrer for lack of factual and legal basis (Records, p. 200). In his defense, [petitioner] maintained that he had informed Lu Hsui Nan, the man whom he alleged to be the "real"president of Atoz, of the manner in which Ocean Feed Mills transmitted its payments and that Nan said "it is okay although unusual, as long as I [petitioner] maintain the customer and the relationships and as long as they pay us"(TSN, March 26, 1996, p. 14). He also asserted that as soon as the bank credited the remittances to his account, he would withdraw the same either in cash or in the form of managers checks and remitted the same to Beth Ligo, Atozs cashier. He insisted, however, that Beth Ligo, instead of issuing acknowledgment receipts of the aforesaid remittances, merely recorded the same and furnished copies thereof to the credit and collections and the accounting departments of Atoz. On rebuttal, the prosecution recalled Johnny Jaotegan to the witness stand, and presented additional witnesses, namely: (1) Lu Hsui Nan, whom the prosecution presented as Atozs vice president and director; and (2) Elizabeth Ligo, Atozs cashier from 1985 to 1994. Nan denied having knowledge that Ocean Feed Mills made payments through telegraphic transfers addressed to "Atoz Trading Corporation and/or Robert Lee" as payee, saying that he only learned of the same when [petitioner] ceased working for the corporation. Ligo, on the other hand, testified that she did not receive any payment from Ocean Feed Mills, hence she did not issue provisional receipts for the same. She added that it was only on April 7, 1992 when she issued Provisional Receipt No. 502 for Ocean Feed Mills payment of P25,500.00 collected by [petitioner]. Jaotegan claimed that on August 12, 1994, between 10 p.m. to 1 a.m., he went to Paraaque, accompanied by his counsel and some policemen, and tried to locate [petitioner], and that upon finding him, "we asked him [petitioner] to remit the payments made by Ocean Feed Mills to Atoz Trading Corporation." (TSN, 14 May 1996, p. 19). On sur-rebuttal, [petitioner] declared that Jaotegan did not demand the payments made by Ocean Feed Mills [Company] but only demanded from him the return of the service car and the cellular phone assigned to him.4 On July 23, 1996, the trial court rendered judgment convicting the petitioner of the crimes charged. The dispositive portion of the decision reads: WHEREFORE, in view of the foregoing, the Court finds accused ROBERT CRISANTO LEE guilty beyond reasonable doubt of nine (9) counts of the crime of Estafa, defined and penalized under Art. 315, par. 1(b) of the Revised Penal Code and there being no mitigating nor aggravating circumstances present in the commission of the crime hereby sentences said accused to suffer the following: 1) In Crim. Case No. 107020 An indeterminate penalty of two (2) years, eleven (11) months and eleven (11) days of prision correccional in its medium period as minimum to eight (8) years and one (1) day of prision mayor in its medium period as maximum and to pay Atoz Trading Corporation the amount of P47,940.00 as actual damages plus costs.

2) In Crim. Case No. 107021 An indeterminate penalty of two (2) years, eleven (11) months and eleven (11) days of prision correccional in its medium period as minimum to eight (8) years and one (1) day of prision mayor in its medium period as maximum and to pay Atoz Trading Corporation the amount of P47,940.00 as actual damages plus costs. 3) In Crim. Case No. 107022 An indeterminate penalty of two (2) years, eleven (11) months and eleven (11) days of prision correccional in its medium period as minimum to five (5) years and six (6) months of prision correccional in its maximum period as maximum and to pay Atoz Trading Corporation the amount of P17,000.00 as actual damages plus costs. 4) In Crim. Case No. 107024 An indeterminate penalty of two (2) years, eleven (11) months and eleven (11) days of prision correccional in its medium period as minimum to eight (8) years and one (1) day of prision mayor in its medium period as maximum and to pay Atoz Trading Corporation the amount of P47,000.00 as actual damages plus costs. 5) In Crim. Case No. 107025 An indeterminate penalty of three (3) years, six (6) months and twenty (20) days ofprision correccional in its medium period as minimum to nine (9) years and one (1) day of prision mayor in its medium period as maximum and to pay Atoz Trading Corporation the amount of P54,000.00 as actual damages plus costs. 6) In Crim. Case No. 107026 An indeterminate penalty of one (1) year and nine (9) months of prision correccional in its minimum period as minimum to six (6) years and one (1) day of prision mayor in its minimum period as maximum and to pay Atoz Trading Corporation the amount of P15,000.00 as actual damages plus costs. 7) In Crim. Case No. 107027 An indeterminate penalty of two (2) years, eleven (11) months and eleven (11) days of prision correccional in its medium period as minimum to eight (8) years and one (1) day of prision mayor in its medium period as maximum and to pay complainant the amount of P23,256.00 as actual damages plus costs. 8) In Crim. Case No. 107028 An indeterminate penalty of three (3) years, six (6) months and twenty (20) days ofprision correccional in its medium period as minimum to fifteen (15) years, eight (8) months and one (1) day ofreclusion temporal in its medium period as maximum and to pay private complainant the amount of P93,000.00 as actual damages plus costs. 9) In Crim. Case No. 107029 An indeterminate penalty of two (2) years, eleven (11) months and eleven (11) days of prision correccional in its medium period as minimum to eight (8) years and one (1) day of prision mayor in its medium period as maximum and to pay private complainant Atoz Trading Corporation the amount ofP44,696.00 as actual damages plus costs. SO ORDERED.5 The petitioner appealed the decision to the CA contending that: A) THE LOWER COURT GRAVELY ERRED IN FINDING THE ACCUSED GUILTY OF ESTAFA THRU CONVERSION OR MISAPPROPRIATION EVEN WITHOUT ANY EVIDENCE OF PRIOR DEMAND; AND B) THE LOWER COURT GRAVELY ERRED IN FINDING THAT THERE IS EVIDENCE OF CONVERSION OR MISAPPROPRIATION SINCE THERE IS LACK OF IT. (Appellants Brief, p. 4; Rollo, pp. 32-40, 35).6

In a Decision on September 13, 2002, the CA dismissed the appeal and affirmed the assailed decision. The appellate court, likewise, dismissed the petitioners motion for the reconsideration of its decision. Aggrieved by the aforementioned rulings, the petitioner filed the instant petition for review and raised the following: A.) WHETHER OR NOT PETITIONER CAN BE CONVICTED FOR THE CRIME OF ESTAFA THRU CONVERSION (ART. 315, PAR. 1-[b] OF THE REVISED PENAL CODE), LACKING THE ELEMENT OF FORMAL DEMAND BEFORE THE FILING OF THE CASES AGAINST HIM; AND B.) WHETHER THE QUESTIONED DECISION AND RESOLUTION WERE ISSUED WITH GRAVE ABUSE OF DISCRETION OR NOT.7 The petitioner contends that demand is a condition sine qua non to the filing of a criminal complaint for estafa. He posits that demand must be made formally. The petitioner cites the commentary of Justice Ramon C. Aquino, based on the rulings of the CA in People v. Pendon8 and People v. Bastiana.9 The petitioner, likewise, echoes the commentary of Justice Aquino that even in Tubb v. People,10 the Court ruled that there must be demand for funds or property held in trust. The petitioner asserts that the respondents failed to prove the element of demand on its evidence-in-chief and attempted to prove the same only on its rebuttal evidence. In any event, the petitioner asserts that the evidence adduced by the respondents to prove the petitioners misappropriation is doubtful. The respondents refute the contention of the petitioner, thus: The fourth element of estafa under Article 315, par. 1(b) of the Revised Penal Code, i.e., that demand was made by the offended party, was adequately and clearly proven by the prosecution. It must be stressed that prior to the filing of the subject criminal cases against petitioner, private complainants president, Johnny Jaotegan, had demanded from petitioner to turn over to him the subject sums of money. Thus, in the evening of August 12, 1994, Johnny Jaotegan, along with his counsel Atty. Fernando Flor and some Paraaque policemen, went to petitioners house in Paraaque and there he asked petitioner to remit said sums of money and to return the company car and a cellular phone (TSN, May 14, 1996, pp. 16-19). It also appears that earlier, private complainants officers had encountered difficulty in locating petitioner after his continued failure to report for work in August 1994, prompting said officers to seek the assistance of the Paraaque police for that purpose (Ibid., p. 17). Evidently, as petitioner admitted, there was a demand made on him to account for the money he had collected from private complainants customer. Contrary to petitioners proposition, prior demand need not be made formally (See People vs. Valeriano, CA, 61 O.G. 282, 284 [1965], citing Tubb vs. People, 101 Phil. 114 [1957]). This Honorable Court has suggested in theTubb case that previous demand may be made in whatever form. There, the complainant, after having failed to locate the whereabouts of the accused to whom he had entrusted P6,000.00 for the purchase of rattan and who neither delivered the rattan nor returned the money, met the accused by chance at the Manila Hotel one year later and asked him about the money. Charged with estafa, the accused claimed that no demand had been made upon him. The Honorable Court declared: "It is urged that there can be no estafa without a previous demand, which allegedly has not been made upon herein petitioner, but the aforementioned query made to him by Quasha, in the Manila Hotel, was tantamount to a demand. Besides, the 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 [may], however, be established in the case at bar." (Tubb vs. People, supra, at 119) Indeed, in Barrameda vs. Court of Appeals, 313 SCRA 477, 485 [1999], this Honorable Court, citing Tubb vs. People, supra, held that the specific word "demand" need not be used to show that demand had, indeed, been made upon the person charged with the offense. A query as to the whereabouts of the money is tantamount to a demand. Notably, in his cited book, former Chief Justice Aquino does not, in anyway, purport to subscribe to the view that a demand must be made formally. What he merely says is that while this Honorable Court ruled in Tubb that, under the law, a demand is not a condition precedent to the existence of the crime of embezzlement and that the failure to account, upon demand, for funds or property held in trust is circumstantial evidence of misappropriation, the same ruling states that there must still be some demand, regardless of its form. In the same manner, while he cited in his book the Court of Appeals ruling in People vs. Pendon (supra) and People vs. Bastiana (supra) that such demand must be made formally and before the action is filed and that in the absence of demand, an accused cannot be convicted of estafa, it is apparent therefrom that Justice Aquino made use of the citation only to set forth the diverging opinions of the Court of Appeals on the matter, namely, (1) one view holding that the demand must be made formally (People vs. Pendon, supra); (2) another one holding that such demand is not required if there is a specified time for delivery (People vs. Librea, CA, 48 O.G. 5304); and (3) still another one holding that a report to the police was considered a demand (People vs. Baquir, CA-G.R. No. 5349-R, January 26, 1951).11 We agree with the respondents. Article 315, paragraph 1(b) of the Revised Penal Code reads: ART. 315. Swindling (estafa). Any person who shall defraud another by any of the means mentioned herein below shall be punished by: 1. With unfaithfulness or abuse of confidence, namely: (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 are as follows: 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.12

The words "convert" and "misappropriate" as used in the aforequoted law connote an act of using or disposing of anothers property as if it were ones own or of devoting it to a purpose or use different from that agreed upon. To "misappropriate" a thing of value for ones own use or benefit, not only the conversion to ones personal advantage but also every attempt to dispose of the property of another without a right.13 Misappropriation or conversion may be proved by the prosecution by direct evidence or by circumstantial evidence. Demand is not an element of the felony or a condition precedent to the filing of a criminal complaint for estafa. Indeed, the accused may be convicted of the felony under Article 315, paragraph 1(b) of the Revised Penal Code if the prosecution proved misappropriation or conversion by the accused of the money or property subject of the Information.14 In a prosecution for estafa, demand is not necessary where there is evidence of misappropriation or conversion.15 However, failure to account upon demand, for funds or property held in trust, is circumstantial evidence of misappropriation.16 Demand need not be formal. It may be verbal. In Barrameda v. Court of Appeals,17 the Court ruled that even a query as to the whereabouts of the money is tantamount to a demand: It must be noted that the specific word "demand" need not be used to show that demand had, indeed, been made upon the person charged of the offense. A query as to the whereabouts of the money, such as the one proven in the case at bench, is tantamount to a demand.18 In the present case, the prosecution adduced proof upon cross-examination of the petitioner that he failed to return the funds held in trust before the complaint for estafa was filed against him: Anent the second element of Estafa under Article 315, par. 1(b), there was a strong and positive evidence that in all the criminal cases filed before this Court, the accused had, indeed, mis appropriated the amount of Two-Million Pesos (Php2,000,000.00) to his own benefit and for the damage and prejudice of private complainant. Cross-Examination of Robert Lee conducted by Atty. Flor: Q - According to you, Mr. Witness, the Ocean Feed Mills whenever they remit their payment, they do it through telegraphic transfer? A - Yes, Sir. Q - And according to you, the telegraphic transfer is paid to or the payee is Atoz Trading and/or Robert Crisanto Lee? A - Just Robert Lee only. Q - That Robert Lee refers to you? A - Yes, Sir.

In the foregoing cross-examination, accused admitted that he received the telegraphic transfers sent by Ocean Feed Mills. In the same Transcript of Stenographic Notes, pp. 34-36, accused tried to defend himself by alleging that the proceeds of the remitted amount were given to Ms. Beth Ligo, cashier of Atoz Trading Corporation. Cross-Examination conducted by Atty. Flor: Q - This Beth Ligo, Mr. Witness, according to you, she is the cashier of what company? A - Both of Atoz and Chiu-Nichi Agro Resources. Q - According to you a while ago, whenever the Ocean Feed Mills remit their payment, it goes to your account at UCPB and then you withdraw that money from UCPB, Greenhills, sometimes in cash and sometimes in the form of managers check payable to Atoz Trading. A while ago, Mr. Witness, you testified that you withdraw the cash from your bank account, is it not? A - Since it was credited in my account, I have to withdraw it from my account. Q - You withdraw the payments remitted from Bacolod to Greenhills UCPB, from your bank account? A - Because it was credited. Q - My question is, did you withdraw the remittances from your bank account? A - Yes, Sir. Q - After you withdraw that money from your bank account, you immediately go and see Miss Beth Ligo and surrender that cash to her, is that what you want to tell us? A - What do you mean by immediate. Q - According to you, a while ago, Mr. Witness, UCPB Greenhills is just in front of your office at Greenhills, is it not? A - Correct, Sir. Q - When you learned that there is a remittance from Bacolod from their payment of Atoz product, you go to your bank and withdraw that remittance in cash and immediately with this cash, you just cross the street and surrender it to the cashier Ms. Beth Ligo, is it not correct? A - If what you mean upon crediting of payment from Ocean Feed Mills to my account and I withdraw it immediately, sometimes it was credited and before I know about it a day or two after. That is the situation. Q - Yes, my question is when you learned that telegraphic transfer was made by Ocean Feed Mills to Atoz Trading and/or Robert Lee and incidentally it ended up in your account, what you normally

do is you go and withdraw that amount in cash and considering that your office is just across the street, with the cash you go and see the cashier Miss Beth Ligo and right there and then give her the cash? A - Yes, because all remittances are handed to the cashier. From the foregoing testimony of the accused, it is clear that Mr. Robert Crisanto Lee had, indeed, misappropriated or converted to his personal use the payments of Ocean Feed Mills which were remitted thru telegraphic transfers in nine (9) instances since the account of Ocean with Atoz remains outstanding up to the present (Exh. "I," "I-1" and "J") as corroborated by Ms. Beth Ligo (cashier of Atoz) where she stated on rebuttal that the accused did not remit these payments of Ocean. It is evident that the accused assumed the right to dispose of the remittances as if it were his own, thus, committing conversion with unfaithfulness and a clear breach of trust. It is quite obvious that the misappropriation or conversion committed by the accused resulted to the prejudice of both Atoz Trading Corporation and Ocean Feed Mills particularly the latter, which had a belief all along that its payments were credited to its outstanding balance. Since records reveal that up to this even date, Ocean has an outstanding balance of P318,672.00, sufficient to constitute injury within the meaning of Article 315 a(b) of the Revised Penal Code. Thus, the third element of this kind of Estafa is satisfied.19 The respondents, likewise, adduced evidence on rebuttal testimony of Johnny M. Jaotegan, the president of ATC, that he, in the company of policemen, demanded the production of the funds from the petitioner but that the latter failed to account for and return the same.20 The bare fact that the respondents adduced proof of demand only when they presented Johnny M. Jaotegan as rebuttal witness and not as a witness on their evidence-in-chief does not enfeeble the case of the respondents. It bears stressing that in resolving a case, the trial court must consider all the evidence adduced by the parties on their evidence-in-chief, rebuttal evidence and sur-rebuttal evidence. Moreover, the petitioner testified on sur-rebuttal evidence and denied the testimony of Jaotegan on rebuttal, hence, cannot feign prejudice. IN LIGHT OF ALL THE FOREGOING, the petition is DENIED for lack of merit. Costs against the petitioner. SO ORDERED.

Republic of the Philippines SUPREME COURT Manila SECOND DIVISION G.R. No. 153198 July 11, 2006

CRISANTA B. BONIFACIO, petitioner, vs. PEOPLE OF THE PHILIPPINES, respondent.

DECISION CORONA, J.: This is a petition for review on certiorari1 seeking to reverse the decision2 and the resolution3 of the Court of Appeals in CA-G.R. No. 24614 entitled People of the Philippines v. Crisanta B. Bonifacio. Private complainant Ofelia Santos was a businesswoman and a buy-and-sell agent of jewelry. Sometime in March 1996, petitioner Crisanta Bonifacio was introduced to her. She expressed interest to see the pieces of jewelry Santos was selling. On March 21, 1996, petitioner received several pieces of jewelry from Santos. She signed a document acknowledging receipt of the jewelry and agreeing to sell these items on commission basis. She also promised to remit the proceeds of the sale or return the unsold items to Santos within 15 days. Petitioner failed to turn over the proceeds of the sale within the given period. She, however, returned some of the unsold items at a later date. The value of the pieces unaccounted for amounted to P154,000. On March 28, 1996, petitioner asked Santos for new sets of jewelry to sell under the same terms and conditions. Again, on due date, petitioner failed to account. This time, the value of the unpaid and unreturned items amounted to P91,500. On April 3, 1996, petitioner once more accepted several pieces of jewelry and signed an acknowledgment receipt under the same terms and conditions. On due date, petitioner again failed to pay. The pieces of jewelry left unpaid and unreturned amounted to P38,500. In a letter dated July 25, 1996, Santos demanded from petitioner the payment of the total amount of P244,500. Petitioner gave her two checks amounting to P30,000 as partial payment. The checks, however, bounced for being drawn against insufficient funds and being drawn against a closed account, respectively. Petitioner was thereafter charged with the crime of estafa under Article 315 (1)(b)4 of the Revised Penal Code (RPC) in an Information filed before the Regional Trial Court (RTC), Branch 258, National Capital Judicial Region, Paraaque City: That on or about the 21st and 28th of March 1996, in the Municipality of Paraaque, Metro Manila, Philippines and within the jurisdiction of this Honorable Court, the above-named accused, received in trust from the complainant Ofelia Santos, sets of jewelries worth P244,000.00 for the purpose of selling the same with the express obligation to remit the proceeds thereof, if sold, and return if not sold, but the accused once in possession of said sets of jewelries, with unfaithfulness and abuse of confidence, did then and there willfully, unlawfully and feloniously misappropriate and convert the same for her own personal use and benefit and despite several demands to return and/or account for the same, she fails and refuses to the damage and prejudice of the complainant therein, in the aforesaid amount of P244,000.00. CONTRARY TO LAW.5 On arraignment, petitioner entered a plea of not guilty. Thereafter, trial on the merits ensued.

After trial, the court a quo rendered a decision, the dispositive portion of which read: WHEREFORE, finding accused CRISANTA B. BONIFACIO guilty beyond reasonable doubt of the crime of ESTAFA under Par. 1 (b), Art. 315 of the Revised Penal Code, accused CRISANTA B. BONIFACIO is hereby sentenced to suffer the penalty of twenty (20) years of RECLUSION TEMPORAL, with all the accessory penalties provided by law; to indemnify private complainant, Ofelia Santos, the amount of P284,000.00, as actual damages with interest at the legal rate from the filing of the Information until fully paid, and to pay the costs of suit. SO ORDERED.6 Dissatisfied, petitioner appealed to the Court of Appeals. The appellate court affirmed the RTC decision but modified the penalty: WHEREFORE, the appealed Decision finding the accused-appellant Crisanta B. Bonifacio guilty beyond reasonable doubt of the crime of Estafa under Article 315(1) par. b of the Revised Penal Code is herebyAFFIRMED with the modification that the accused-appellant is sentenced to suffer the penalty of four (4) years and one (1) day of prision correccional as minimum to twenty (20) years of reclusion temporal as maximum and to indemnify the private complainant, Ofelia Santos, the amount of P244,000.00 as actual damages with interest at the legal rate from the filing of the Information until fully paid, and to pay the costs of suit. SO ORDERED.7 Petitioner's motion for reconsideration was denied.8 Hence, this petition. Petitioner contends that the Court of Appeals erred in affirming the decision of the trial court finding her guilty of estafa under article 315 (1)(b), RPC. She maintains that the element9 of misappropriation or conversion was not proved, thus her liability should only be civil in nature. Petitioner likewise contends that the indeterminate sentence (four years and one day of prision correccional as minimum to 20 years of reclusion temporal as maximum) imposed on her by the appellate court was excessive. There is no merit in the petition. The essence of estafa under Article 315 (1)(b), RPC 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.10 In an agency for the sale of jewelry, it is the agent's duty to return the jewelry on demand of the owner. The demand for the return of the thing delivered in trust and the failure of the accused-agent to account for it are circumstantial evidence of misappropriation.11 Here, petitioner admitted that she received the pieces of jewelry on commission. She likewise admitted that she failed to return the items or their value on Santos' demand. On the other hand, the testimony of her lone witness, Lilia Pascual, failed to rebut the prosecution's

evidence that she misappropriated the items or their corresponding value. She also never appeared in the trial court to refute the charge against her. Hence, the trial and appellate courts' conclusion of guilt by misappropriation was a logical consequence of the established facts. Besides, evidentiary matters or matters of fact raised in the court below are not proper in petitions for certiorari.12The findings of fact of the Court of Appeals, affirming those of the trial court, are conclusive and binding on the parties and are not reviewable by the Supreme Court13 which is not a trier of facts.14 We now discuss the propriety of the indeterminate sentence imposed by the appellate court. The penalty for estafa with abuse of confidence is provided in paragraph 1, Article 315, RPC: 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. xxx Under the Indeterminate Sentence Law,15 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.16 In this case, the penalty of prision correccional in its maximum period to prision mayor in its minimum period is the imposable penalty if the amount of the fraud is over P12,000 but not over P22,000. If the amount of the fraud exceeds P22,000, the penalty provided shall be imposed in its maximum period, adding one year for each additional P10,000. The total penalty, however, shall not exceed 20 years. 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.17 Article 6518 of the same code requires the division of the time included in the prescribed penalty19 into three equal periods of time, forming one period for each of the three portions. The maximum, medium and minimum 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 years20 The amount defrauded being in excess of P22,000, the penalty imposable should be the maximum period of six years, eight months, and 21 days to eight years of prision mayor. However, Art. 315 also provides that an additional one year shall be imposed for each additional P10,000. The penalty

should be termed as prision mayoror reclusion temporal, as the case may be. Here, the total amount of the fraud is P244,000 (P244,000 P22,000 =P222,000). Hence, an additional penalty of 22 years should be imposed. However, the total penalty should not in any case exceed 20 years imprisonment. Thus, the correct imposable maximum penalty is 20 years of reclusion temporal. 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 Article 315 (1)(b), RPC for the crime committed.21 The penalty next lower toprision correccional maximum to prision mayor minimum is prision correccional minimum (six months, one day to two years, four months) to prision correccional medium (two years, four months and one day to four years and two months).22 The Court of Appeals, therefore, computed correctly the minimum and maximum period of petitioner's sentence when it fixed the minimum sentence within the range of the penalty next lower in degree, four years and one day ofprision correccional, and the maximum at 20 years of reclusion temporal. WHEREFORE, the petition is hereby DENIED. The assailed decision and resolution of the Court of Appeals areAFFIRMED. Costs against petitioner. SO ORDERED. Puno, Chairperson

Republic of the Philippines

Supreme Court
Manila
SECOND DIVISION CARMINA G. BROKMANN, Petitioner, G.R. No. 199150 Present: CARPIO, J., Chairperson, BRION, PEREZ, SERENO, and REYES, JJ.

- versus -

Promulgated: PEOPLE OF THE PHILIPPINES, Respondent. February 6, 2012

x------------------------------------------------------------------------------------x RESOLUTION BRION, J.:

We review, pursuant to Rule 45 of the Rules of Court, the decision [1] and the resolution[2] of the Court of Appeals (CA) in CA-G.R. CR No. 31887 which denied the appeal of Carmina G. Brokmann (petitioner). The CA affirmed the judgment[3] of the Regional Trial Court (RTC), Branch 132, Makati City, convicting the petitioner of the crime of estafa, defined and penalized under Article 315, paragraph 1(b) of the Revised Penal Code, as amended. As borne by the records, the criminal charge stemmed from the failure of the petitioner to return or remit the proceeds of jewelries amounting to P1,861,000.00. The prosecution anchored its case on the testimony of Anna de Dios (private complainant), and the Memorandum of Agreement (MOA) executed between the private complainant and the petitioner. The gist of the MOA provides: (1) the petitioners acknowledgment and receipt, on various dates, of jewelries from the private complainant amounting toP1,861,000.00; (2) the petitioner failed to remit the proceeds of the sale of the subject jewelries; and (3) the private complainant filed the estafa case against the petitioner for the non-remittance of the proceeds of the sale of the jewelries. The petitioner asserted in defense her lack of bad faith and intention to deceive the private complainant. She narrated that she and the private complainant had been engaged in the buy and sell of jewelries for 15 years. She admitted receiving the subject jewelries on a consignment basis but she averred that not all

the jewelries were sold. The petitioner emphasized that she made partial payments of her obligation and had no intention of absconding. With respect to the MOA, she insisted that there was no period in the agreed terms as to when the remittance of the proceeds for the sale of the jewelries or the return of the unsold jewelries should be made. The RTC found the petitioner liable for estafa, and sentenced the petitioner to imprisonment of six (6) years and six (6) months of prision mayor, as minimum, to twenty (20) years of reclusion temporal, as maximum.[4] The RTC also ordered the petitioner to restitute the private complainant P1,047,720.00 as actual damages. The petitioner appealed the judgment of the RTC to the CA which affirmed the petitioners conviction. The CA held:
As to the first element, without a doubt[,] appellant acquired material possession of the jewelry. She admitted that she received the subject pieces of jewelry from De Dios. xxxx Additionally, by the terms and conditions of the memorandum of agreement, Brokmann agreed to hold in trust the said pieces of jewelry for the purpose of selling them to the customers and with the obligation to remit the proceeds of those sold and return the items unsold. What was created was an agency for the sale of jewelry, in which Brokmann as an agent has the duty to return upon demand of its owner, herein appellee. On the second element, misappropriation was clearly evident. Appellee sent a demand letter to appellant, reminding the latter of her subsisting obligation, however, it was simply ignored. x x x. The demand for the return of the thing delivered in trust and the failure of the accused-agent to account for it are circumstantial evidence of misappropriation. x x x. xxxx The third element, it is apparent that appellee was prejudiced when appellant did not return the pieces of jewelry upon her demand. x x

x. 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. x x x. Lastly, the fourth element, it has duly been established that appellee demanded for the payment and return of the pieces of jewelry, however, the same was unheeded.[5] (Emphases supplied.)

The petitioner elevated her judgment of conviction to the Court under Rule 45 of the Rules of Court.

The Issue The petitioner raises the sole issue of whether the CA committed a reversible error in affirming the judgment of the RTC finding her guilty of estafa beyond reasonable doubt. The petitioner prays for her acquittal for the prosecutions failure to prove the element of deceit. She argues that her actions prior to, during and after the filing of the estafacase against her negated deceit, ill-motive and/or bad faith to abscond with her obligation to the private complainant. She cites the cases of People v. Singson[6] and People v. Ojeda[7] where the Court acquitted the accused for the failure of the prosecution to prove the element of deceit. The Courts Ruling Except for the penalty imposed, we find no reversible error in the CAs decision. First, the offense of estafa, in general, is committed either by (a) abuse of confidence or (b) means of deceit.[8] The acts constituting estafa committed with abuse of confidence are enumerated in item (1) of Article 315 of the Revised Penal Code, as amended; item (2) of Article 315 enumerates estafa committed by means of deceit. Deceit is not an essential requisite of estafa by abuse of confidence; the breach of confidence takes the place of fraud or deceit, which is a usual element in the other estafas.[9] In this case, the charge against the petitioner and her subsequent conviction was for estafa committed by abuse of confidence. Thus, it was not necessary for the prosecution to prove deceit as this was not an element of the estafa that the petitioner was charged with. Second, the cases cited by the petitioner are inapplicable. Our pronouncements in Singson and Ojeda apply to estafa under Article 315, paragraph 2(d) where the element of deceit was necessary to be proven. Nevertheless, we find the modification of the penalty imposed to be in order to conform to the prevailing jurisprudence. The second paragraph of Article 315

provides the appropriate penalty if the value of the thing, or the amount defrauded, exceeds P22,000.00:
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.

The minimum term of imprisonment imposed by the CA and the RTC does not conform with the Courts ruling in People v. Temporada,[10] where we held that the minimum indeterminate penalty in the above provision shall be one degree lower from the prescribed penalty for estafa which 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. In this case, the minimum term imposed by the CA and the RTC ofsix (6) years and six (6) months of prision mayor is modified to four (4) years and two (2) months of prision correccional, consistent with the prevailing jurisprudence.

ACCORDINGLY, premises considered, we AFFIRM with MODIFICATION the decision dated May 4, 2011 and the resolution dated October 26, 2011 of the Court of Appeals in CA-G.R. CR No. 31887. We find petitioner Carmina G. Brokmann GUILTY beyond reasonable doubt of estafa defined and penalized under Article 315, paragraph 1(b) of the Revised Penal Code, as amended. We MODIFY the penalty imposed and sentence her to suffer the penalty of imprisonment of four (4) years and two (2) months ofprision correccional, as minimum term, to twenty (20) years of reclusion temporal, as maximum term. SO ORDERED.