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Estafa and the
Bouncing Checks, Law and Jurisprudence
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OTHER INTERESTING ARTICLES |
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Evidence to establish
culpability under B.P. 22 and Article 315 (2) (d),
Revised Penal Code.
To establish a person’s culpability under
B.P. 22 and Article 315 (2) (d), Revised Penal Code,
it is indispensable that the checks he or she issued
for which be was subsequently charged, be offered in
evidence because the gravemen of the offense charged
is the act of knowingly issuing a check with
insufficient funds.’8 Under Article 315 (2) Cd) of
the Revised Penal Code, to wit: (1) post dating or
issuing a check in payment of an obligation
contracted at the time the check was issued; (2)
knowledge on the part of the offender of
insufficient funds to cover the check; (3) knowledge
on the part of the offender of such circumstances;
and (4) damage to the complainant.’9
Effect of check intended to
replace bad one.
Even if another check was intended to replace a bad
one, its issuance 15 days after the drawer had been
notified of the dishonor of the previous check
cannot negate the presumption that the drawer knew
of the insufficiency of funds to cover the amount of
the previous check.2°
The case Serona vs. Court of Appeals, (392 SCRA 34)
In this case the Supreme Court enumerated the
elements of estafa through misappropriation or
conversion, to wit: (1) that the money, good or
other personal property is received by the offender
in trust or on commission, or for the
administration, or under any other obligation
involving the duty to make delivery of, or to return
the same; (2) that there be misappropriation or
conversion of such money or property by the offender
or denial of such receipt; (3) that such
misappropriation or conversion is to the prejudice
of another; (4) that there is a demand made by the
offended party on the offender. ‘Moreover, an agent
does not ipso facto commit the crime of estafa
through conversion or misappropriation by delivering
jewelry to be sold on commission basis to a
sub-agent — the law on agency in our jurisdiction
allows the appointment by an agent of a substitute
or sub-agent in the absence of express agreement to
the contrary between the agent and the principal.”
Portions of the decision follow.
Petitioner argues that the prosecution failed to
establish the elements of estafa as penalized under
Article 315, par. 1 (b)of the Revised Penal Code. In
particular, she submits that she neither abused the
confidence reposed upon her by Quilatan nor
converted or misappropriated the subject jewelry;
that her giving the pieces of jewelry to Labrador
under the same terms upon which it was originally
entrusted to her. It was established that petitioner
had not derived any personal benefit from the loss
of the jewelry. Consequently, it cannot be said that
she misappropriated or converted the same.
We find merit in the petition.
The elements of estafa through misappropriation or
conversion as defined in Article 315, par. 1 (Ii) of
the Revised Penal Code are: (1) that the money, good
or other personal property is received by the
offender in trust, or on commission, or for
administration, or under any obligation involving
the duty to make delivery of, or to return, the
same; (2) that there be misappropriation or
conversion of such money or property by the offender
or denial on his part of such receipt; (3) that such
misappropriation or conversion or denial is to the
prejudice of another; and (4) that there is a demand
made by the offended party on the offender.2’ While
the first, third and fourth elements are concededly
present, we find the second element of
misappropriation or conversion to be lacking in the
case at bar.
Petitioner did not ipso facto commit the crime of
estafa through conversion or misappropriation by
delivering the jewelry to a subagent for sale on
commission basis. We are unable to agree with the
lower courts’ conclusion that this fact alone is
sufficient ground for holding that petitioner
disposed of the jewelry “as if it were hers, thereby
committing conversion and a clear breach of trust.”
It must be pointed out that the law on agency in our
jurisdiction allows the appointment by an agent of a
substitute or subagent in the absence of an express
agreement to the contrary between the agent and the
principal.22 In the case at bar, the appointment of
Labrador as petitioner’s sub-agent was not expressly
prohibited by Quilatan, as the acknowledgment
receipt, Exhibit “B”, does not contain any such
limitation. Neither does it appear that petitioner
was verbally forbidden by Quilatan from passing on
the jewelry to another person before the
acknowledgment receipt was executed or at any other
time. Thus, it cannot be said that petitioner’s act
of entrusting the jewelry to Labrador is
characterized by abuse of confidence because such an
act was not prescribed and is, in fact, legally
sanctioned.
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 “misappropriated” 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 right.
In the case at bar, it was established that the
inability of petitioner as agent to comply with her
duty to return either the pieces of jewelry or the
proceeds of its sale to her principal Quilatan was
due, in turn, to the failure of Labrador to abide by
her agreement with petitioner. Notably Labrador
testified that she obligated herself to sell the
jewelry in behalf of petitioner to Labrador to
achieve the very same end for which they were
delivered to her in the first place. Consequently,
there is no conversion since the pieces ofjewelry
were not devoted to a purpose or use different from
the agreed upon.
Similarly, it cannot be said that petitioner
misappropriated the jewelry or delivered them to
Labrador “without right.” Aside from the fact that
no condition or limitation was imposed on the mode
or manner by which petitioner was to effect the
sale, it is also consistent with usual practice for
the seller to necessarily part with the valuables in
order to find a buyer and allow inspection of the
items for sale.
In People v. Nepomuceno,24 the ‘accused-appellant
was acquitted of estafa on facts similar to the
instant case. Accused-appellant therein undertook to
sell two diamond rings in behalf of the complainant
on commission basis, with the obligation to return
the same in a few (lays if not sold. However, by
reason of the fact that the rings were delivered
also for sale on commission to sub- agents who
failed to account for the rings or the proceeds of
its sale, accused-appellant likewise filled to make
good his obligation to the complainant thereby
giving rise to the charge of estafa. In absolving
the accused-appellant of the crime charged, we held:
Where, as in the present case, the agents to whom
personal property was entrusted for sale,
conclusively proves the inability to return the same
is solely due to malfeasance of a subagent to whom
the first agent had actually entrusted the property
in good faith, and for the same purpose for which it
was received; there being no prohibition to do so
and the chattel being delivered to the sub-agent
before the owner demands its return or before such
return becomes due, we hold that the first agent can
not be held guilty of estafa by either
misappropriation or conversion. The abuse of
confidence that is characteristic of this offense is
missing under the circumstances.
Accordingly,
petitioner herein must be acquitted. The lower
courts’ reliance on People v. Flores6 and U.S. v.
Panes27 to justify petitioner’s conviction is
misplaced, considering that the factual background
of the cited cases differ from those which obtain in
the case at bar. In Flores, the accused received a
ring to sell under the condition that she would
return it the following day if not sold and without
authority to retain the ring or to give it to a sub
agent. The accused in Panes, meanwhile, was obliged
to return the jewelry he received upon demand, but
passed on the same to a sub-agent even after demand
for its return had already been made. In the
foregoing cases, it was held that there was
conversion or misappropriation.
Furthermore, in Lim v. Court of Appeals28 the Court,
citing Nepomuceno and the case of People v. Trinidad
held that:
In case of estafa the profit obtain must be obtained
by the accused personally, through his own acts, and
his mere negligence in permitting another to take
advantage or benefit from the entrusted chattel can
not constitute estafa under Article 315, paragraph.
1-b, of the Revised Penal Code: unless of course the
evidence should disclose that the agent acted in
conspiracy or connivance with the one who carried
out the actual misappropriation, then the accused
would be answerable for the acts of his
coconspirators. if there is no such evidence, direct
or circumstantial, and if the proof is clear that
the accused herself was the innocent victim of her
sub-agent’s faithlessness, her acquittal is in
order.3°
Labrador admitted that she received the jewelry from
petitioner and sold the same to a third person. She
further acknowledged that she owed petitioner
P441,035.00, thereby negating any criminal intent on
the part of petitioner. There is no showing that
petitioner derived personal benefit from or
conspired with Labrador to deprive Quilatan of the
jewelry or its value.
Notwithstanding the above, however, petitioner is
not entirely free from any liability towards
Quilatan. The rule is that an accused acquitted of
estafa may nevertheless be held civilly liable where
the facts established by the evidence so warrant.
Then too, an agent who is not prohibited from
appointing a sub-agent but does so without express
authority is responsible for the acts of the
sub-agent.3’ Considering that the civil action for
the recovery of civil liability arising from the
offense is deemed instituted with the criminal
action,32 petitioner is liable to pay complainant
Quilatan the value of the unpaid pieces of jewelry.
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