Philippine Supreme Court Jurisprudence > Year 2016 > January 2016 Decisions > G.R. No. 174113, January 13, 2016 - PAZ CHENG Y CHU, Petitioner, v. PEOPLE OF PHILIPPINES, THE Respondent.:

Assailed in this petition for review on certiorari¹ are the Decision² dated March 28, 2006 and the Resolution³ dated June 26, 2006 of the Court of Appeals (CA) in CA-G.R. CR No. 24871, which affirmed the conviction of petitioner Paz Cheng y Chu (Cheng) for three (3) counts of the crime of Estafa defined and penalized under Article 315 (1) (b) of the Revised Penal Code (RPC).chanRoblesvirtualLawlibrary

The Facts

The instant case arose from the filing of three (3) separate Informations⁴ charging Cheng of the crime of Estafa defined and penalized under Article 315 (1) (b) of the RPC before the Regional Trial Court of Quezon City, Branch 226 (RTC), docketed as Criminal Case Nos. Q-98-75440, Q-98-75441, and Q-98-75442. According to the prosecution, private complainant Rowena Rodriguez (Rodriguez) and Cheng entered into an agreement whereby Rodriguez shall deliver pieces of jewelry to Cheng for the latter to sell on commission basis. After one month, Cheng is obliged to either: (a) remit the proceeds of the sold jewelry; or (b) return the unsold jewelry to the former. On different dates (i.e., July 12, 1997, July 16, 1997, and August 12, 1997), Rodriguez delivered various sets of jewelry to Cheng in the respective amounts of P18,000.00, P36,000.00, and P257,950.00. Upon delivery of the last batch of jewelry, Cheng issued a check worth P120,000.00 as foil security for the first two (2) deliveries and as partial security for the last. When Cheng failed to remit the proceeds or to return the unsold jewelry on due date, Rodriguez presented the check to the bank for encashment, but was dishonored due to insufficient funds. Upon assurance of Cheng, Rodriguez re-deposited the check, but again, the same was dishonored because the drawee account had been closed. Rodriguez then decided to confront Cheng, who then uttered "Akala mo, babayaran pa kita?" Thus, Rodriguez was constrained to file the instant charges.⁵chanroblesvirtuallawlibrary

In defense, Cheng denied receiving any jewelry from Rodriguez or signing any document purporting to be contracts of sale of jewelry, asserting that Rodriguez is a usurious moneylender. She then admitted having an unpaid loan with Rodriguez and that she issued a check to serve as security for the same, but was nevertheless surprised of her arrest due to the latter's filing of Estafa charges against her.⁶chanRoblesvirtualLawlibrary

The RTC Ruling

In a Decision⁷ dated December 7, 2000, the RTC found Cheng guilty beyond reasonable doubt of three (3) counts of Estafa and, accordingly, sentenced her as follows: (a) for the first count, Cheng is sentenced to an indeterminate penalty ranging from four (4) years, two (2) months, and one (1) day to six (6) years, eight (8) months, and twenty-one (21) days to eight (8) years of prision correccional in its maximum period to prision mayor in its minimum period (maximum); (b) for the second count, Cheng is sentenced to an indeterminate penalty ranging from six (6) months and one (1) day to one (1) year, eight (8) months, and twenty (20) days of prision correccional in its minimum and medium periods to six (6) years, eight (8) months, and twenty-one (21) days to eight (8) years of prision correctional in its maximum period to prision mayor in its minimum period (maximum); and (c) for the third count, Cheng is sentenced to an indeterminate penalty ranging from six (6) months and one (1) day to one (1) year, eight (8) months, and twenty (20) days of prision correctional in its minimum and medium periods to four (4) years, two (2) months, and one (1) day to five (5) years, five (5) months, and ten (10) days of prision correctional in its maximum period to prision mayor in its minimum period (minimum).⁸chanroblesvirtuallawlibrary

The RTC found that the prosecution has sufficiently proven through documentary and testimonial evidence that: (a) Rodriguez indeed gave Cheng several pieces of jewelry for the latter to either sell and remit the proceeds or to return said jewelry if unsold to the former; and (b) Cheng neither returned the jewelry nor remitted their proceeds to Rodriguez within the specified period despite the latter's demands. In contrast, Cheng failed to substantiate her claims through the documentary evidence she presented while her testimony was deemed to be incredible and not worthy of belief.⁹chanroblesvirtuallawlibrary

Aggrieved, Cheng appealed¹⁰ to the CA.chanRoblesvirtualLawlibrary

The CA Ruling

In a Decision¹¹ dated March 28, 2006, the CA affirmed Cheng's conviction for three (3) counts of Estafa, with modification as to the penalties, as follows: (a) for the first count of Estafa where the amount misappropriated is P257,950.00, Cheng is sentenced to suffer the penalty of imprisonment for an indeterminate period of four (4) years and two (2) months of prision correctional, as minimum, to twenty (20) years of reclusion temporal, as maximum; (b) for the second count of Estafa where the amount misappropriated is P36,000.00, Cheng is sentenced to suffer the penalty of imprisonment for an indeterminate period of four (4) years and two (2) months of prision correctional, as minimum, to nine (9) years of prision mayor, as maximum; and (c) for the third count of Estafa where the amount misappropriated is P18,000.00, Cheng is sentenced to suffer the penalty of imprisonment for an indeterminate period of four (4) years and two (2) months of prision correctional, as minimum, to six (6) years, eight (8) months, and twenty (20) days of prision mayor, as maximum.¹²chanroblesvirtuallawlibrary

The CA agreed with the RTC's findings that the prosecution had sufficiently established Cheng's guilt beyond reasonable doubt, pointing out that Rodriguez's testimony was '"more candid, credible and straightforward' and that 'her demeanor in the witness stand is worthy of belief" as opposed to that of Cheng which is highly self-serving and uncorroborated.¹³ Further, the CA found that a modification of Cheng's penalties is in order to conform with prevailing law and jurisprudence on the matter.¹⁴chanroblesvirtuallawlibrary

Undaunted, Cheng moved for reconsideration¹⁵ but was denied in a Resolution¹⁶ dated June 26, 2006; hence, this petition.chanRoblesvirtualLawlibrary

The Issue Before the Court
The core issue for the Court's resolution is whether or not the CA correctly affirmed Cheng's conviction for three counts of Estafa defined and penalized under Article 315 (1) (b) of the RPC.chanRoblesvirtualLawlibrary

The Court's Ruling
The petition is without merit.

Article 315 (1) (b) of the RPC 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;

x x x x

The elements of Estafa under this provision are as follows: (1) the offender's 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.¹⁷ In the case of Pamintuan v. People,¹⁸ the Court had the opportunity to elucidate further on the essence of the aforesaid crime, as well as the proof needed to sustain a conviction for the same, to wit:

The essence of this kind of [E]stafa is the appropriation or conversion of money or property received to the prejudice of the entity to whom a return should be made. The words "convert" and "misappropriate" connote the 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 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.¹⁹ (Emphases and underscoring supplied)

In this case, a judicious review of the case records reveals that the elements of Estafa, as defined and penalized by the afore-cited provision, are present, considering that: (a) Rodriguez delivered the jewelry to Cheng for the purpose of selling them on commission basis; (b) Cheng was required to either remit the proceeds of the sale or to return the jewelry after one month from delivery; (c) Cheng failed to do what was required of her despite the lapse of the aforesaid period; (d) Rodriguez attempted to encash the check given by Cheng as security, but such check was dishonored twice for being drawn against insufficient funds and against a closed account; (e) Rodriguez demanded that Cheng comply with her undertaking, but the latter disregarded such demand; (f) Cheng's acts clearly prejudiced Rodriguez who lost the jewelry and/or its value.

In a desperate attempt to absolve herself from liability, Cheng insists that Rodriguez admitted in her own testimony that the transaction between them is not an agency on commission basis, but a plain sale of jewelry with Rodriguez as the seller and Cheng as the buyer. As such, Cheng's non�payment of the purchase price of the jewelry would only give rise to civil liability and not criminal liability.²⁰ The pertinent portion of Rodriguez's testimony is as follows:

Q. After the delivery of these several items totaling P257,950.00, what happened next?

A. She issued a check worth P120,000.00.

Q. What check is that?

A. PDCP Bank, sir.

Q. What is this check for, Ms. Witness?

A. As payment for the first and second transactions, sir, for P18,000.00 and P36,000.00 and the excess amount is applied for the third transaction.

x x x x

Q. So, all in all, you have sixty (60) days period with respect to this item, and the first delivery expired I am referring to July 12, 1997 worth P18,000.00 which will mature on September 11, so, from September 11, what happened?

A. These were considered paid because she issued me a check for the period of August 13, so I was expecting that.²¹ (Emphases and underscoring supplied)

Essentially, Cheng posits that since Rodriguez "admitted" in her testimony that the check issued by the former in the amount of P120,000.00 constituted full payment for the first and second batch of jewelry and partial payment for the last batch, the transactions entered into by the parties should be deemed in the nature of a sale.

Cheng is sadly mistaken.

The foregoing "admission" on the part of Rodriguez did not change the fact that her transactions with Cheng should be properly deemed as an agency on a commission basis whereby Rodriguez, as the owner of the jewelry, is the principal, while Cheng is the agent who is tasked to sell the same on commission. In the eyes of the Court, Rodriguez merely accepted the check as full security for the first and second batches of jewelry and as partial security for the last batch. It was only when Cheng defaulted in her undertaking pursuant to their agreement that Rodriguez was constrained to treat the check as the former's remittance of the proceeds of the sale of jewelry - albeit deficient - by presenting it for encashment on October 20, 1997, or more than two (2) months after the delivery of the last batch of jewelry.²² However, the check was dishonored for being drawn against insufficient funds.²³ This notwithstanding and with the assurance from Cheng that the check will be cleared, Rodriguez presented such check for the second time on November 4, 1997; but it was again dishonored - this time for being drawn against a closed account.²⁴ As such, the fact that Rodriguez loosely used the words "payment" and "paid" should not be taken against her and should not in any way change the nature of her transactions with Rodriguez from an agency on a commission basis to a full-fledged sale. Moreover, even Cheng does not consider such check as payment for the jewelry, but rather, as security for the loan she allegedly obtained from Rodriguez.

Indisputably, there is no reason to deviate from the findings of the RTC and the CA as they have fully considered the evidence presented by the prosecution and the defense, and they have adequately explained the legal and evidentiary reasons in concluding that Cheng is indeed guilty beyond reasonable doubt of three (3) counts of Estafa by misappropriation defined and penalized under Article 315 (1) (b) of the RPC. It is settled that factual findings of the RTC, when affirmed by the CA, are entitled to great weight and respect by this Court and are deemed final and conclusive when supported by the evidence on record,²⁵ as in this case.

WHEREFORE, the petition is DENIED. The Decision dated March 28, 2006 and the Resolution dated June 26, 2006 of the Court of Appeals in CA-G.R. CR No. 24871 are hereby AFFIRMED.

Accordingly, petitioner Paz Cheng y Chu is found GUILTY beyond reasonable doubt of Estafa defined and penalized under Article 315 (1) (b) of the Revised Penal Code, and is SENTENCED as follows: (a) for the first count of Estafa where the amount misappropriated is P257,950.00, Cheng is sentenced to suffer the penalty of imprisonment for an indeterminate period of four (4) years and two (2) months of prision correccional, as minimum, to twenty (20) years of reclusion temporal, as maximum; (b) for the second count of Estafa where the amount misappropriated is P36,000.00, Cheng is sentenced to suffer the penalty of imprisonment for an indeterminate period of four (4) years and two (2) months of prision correccional, as minimum, to nine (9) years of prision mayor, as maximum; and (c) for the third count of Estafa where the amount misappropriated is P18,000.00, Cheng is sentenced to suffer the penalty of imprisonment for an indeterminate period of four (4) years and two (2) months of prision correccional, as minimum, to six (6) years, eight (8) months, and twenty (20) days of prision mayor, as maximum.

SO ORDERED.cralawlawlibrary

Sereno, C.J., (Chairperson), Leonardo-De Castro, and Perez, JJ., concur.
Bersamin, J., I dissent.

Endnotes:

---

¹Rollo, pp. 13-29.

² Id. at 86-97. Penned by Associate Justice Noel G. Tijam with Associate Justices Elvi John. S. Asuncion and Mariflor P. Punzalan Castillo concurring.

³ Id. at 107-108.

⁴ Records, pp. 2-3, 8-9 and 14-15.

⁵ See rollo. pp. at 88-89.

⁶ See id. at 89-90.

⁷ Id. at 31-46. Penned by Judge Leah S. Domingo-Regala.

⁸ Id. at 45.

⁹ See id. at 40-45.

¹⁰ See Brief for the Accused-Appellant dated June 28, 2001; id. at 47-59.

¹¹ Id. at 86-97.

¹² See id. at 95-97.

¹³ See id. at 91-95.

¹⁴ See id. at 95-96.

¹⁵ See Motion for Reconsideration dated April 17, 2006; id at 98-101.

¹⁶ Id. at 107-108.

¹⁷Pamintuan v. People, 635 Phil. 514 527 (2010)

¹⁸ Id.

¹⁹ Id.

²⁰ See rollo, pp. 22-27.

²¹ See id. at 36-37 and 111-112.

²² See PDCP Check amounting to P120,000.00 payable to Rowena R. Rodriguez; records, p. 62.

²³ See id., including dorsal portion.

²⁴ See id.

²⁵Guevarra v. People, G.R. No. 170462, February 5, 2014. 715 SCRA 384, 394-395.

---

chanRoblesvirtualLawlibrary

D I S S E N T I N G O P I N I O N

BERSAMIN, J.:

I dissent. The State did not establish beyond reasonable doubt the culpability of the accused for the crimes charged.

Based on the assailed decision of the CA, the following were the factual and procedural antecedents, viz.:

Accused-Appellant was charged with 3 counts of Estafa under Article 31 5. par. l(b) of the Revised Penal Code. Similarly worded except as to the date of the commission of each estafa, the number of pieces of jewelry, and the amount involved, the 3 Informations charged as follows:

That on or about the___ day of___ , 1997 in Quezon City, Philippines, the said accused, did then and there willfully, unlawfully and feloniously defraud ROWENA RODRIGUEZ in the following manner, to wit: the said accused received in trust from said complainant _____ pieces of Jewelry worth P____ , Philippine Currency, for the purpose of selling the same on commission basis, under the express obligation on the part of said accused of turning over the proceeds of the sale to said complainant if sold, or of returning the same if unsold to said complainant, but the said accused, once in possession of the said items, far from complying with her obligation as aforesaid, with intent to defraud, unfaithfulness and grave abuse of confidence, failed and refused and still fails and refuses to fulfill his aforesaid obligation despite repeated demands made upon her to do so and instead misapplied, misappropriated and converted the same or the value thereof, to her own personal use and benefit, to the damage and prejudice of said ROWENA RODRIGUEZ in the aforesaid amount of _____ Philippine Currency.

CONTRARY TO LAW.

Private Complainant testified as follows:

Private Complainant and Accused-Appellant entered into various and numerous transactions. At times, Accused-Appellant acquired loans from Private Complainant or acted as the latter's sales agent.

On July 12, 1997, Private Complainant delivered 2 pieces of jewelry amounting to P18,000.00 for Accused-Appellant to sell on commission basis. Both agreed that Accused-Appellant shall remit to Private Complainant the proceeds of the sale, or return the jewelry if unsold alter 1 month. The parties entered into a similar transaction on July 16, 1997, but this time involving 3 pieces of jewelry valued at P36,000.00. The agreement on these transactions were written in one document.

On August 12, 1997, Private Complainant delivered another set of jewelry amounting to P257,950.00 reflected in a written agreement executed between the parties. Accused-Appellant likewise issued a check worth P120,000.00 as security for the first two deliveries and as partial payment for the last delivery.

When Accused-Appellant failed to return the unsold jewelries (sic) on due date, Private Complainant presented the check for encashment. However, the check was dishonored due to insufficiency of funds. Consequently, Accused-Appellant promised to pay Private Complainant on the first week of November.

However, when Private Complainant re-deposited the check on November 4, 1997, the check was again dishonored because the account was closed. When confronted, Accused-appellant refused to pay Private Complainant and instead uttered: "AKALA MO, BABAYARAN PA KITA?"

Private Complainant filed criminal charges for estafa against the Accused-Appellant.

The Defense presented Accused-Appellant and Virginia Araneta, who testified as follows:

Accused-Appellant denied receiving any jewelry from Private Complainant or entering into any agreement for her to sell said jewelry on commission basis. Accused-Appellant denied signing the 2 written agreements presented by Private Complainant purporting to be contracts for the sale of jewelries. (Sic)

Accused-Appellant claimed that Private Complainant is a usurious money lender engaged in what is otherwise known as "5-6." It was Private Complainant who loaned her part of the capital for her vegetable business.

On one occasion, Virginia Araneta accompanied Accused-Appellant to borrow money from Private Complainant. Accused-Appellant pledged some pieces of jewelry as collateral for the loan and signed a written contract. Unfortunately, Accused-Appellant failed to ask a copy of the written contract from Private Complainant. Private Complainant also requested Accused-Appellant to issue a check to serve as a security for said loan but promised not to deposit the same on due date.

Accused-Appellant admitted that her loan with Private Complainant remained unpaid but she, nevertheless, was surprised of her arrest. It was only when she was at the Quezon City Jail that she was informed by Private Complainant that Estafa cases were filed against her.

The Regional Trial Court (RTC), Branch 226, in Quezon City found and declared the petitioner guilty of three counts of estafa in Criminal Case No. Q-98-75440, Cnminal Case No. Q-98-75441 and Criminal Case No. Q-98-75442, all entitled People of the Philippines v. Paz Cheng y Chu, through the judgment rendered on December 7, 2000,¹ decreeing thusly:

In view of all the foregoing, this Court finds the accused guilty beyond reasonable doubt of 3 counts of estafa, defined and penalized under Art. 315, 1 (b) of the Revised Penal Code.

On the first count, accused is sentenced to an indeterminate penalty ranging from 4 years 2 months and 1 day to 6 years 8 months and 21 days to 8 years of prision correccional in its maximum period to prision mayor in its minimum period (maximum).

On the second count, accused is sentenced to an indeterminate penalty ranging from 6 months and 1 day to 1 year 8 months and 20 days of prison correccional in its minimum and medium periods to 6 years 8 months and 21 days to 8 years of prision correccional in its maximum period to prision mayor in its minimum period (Maximum).

On the third count, accused is sentenced to an indeterminate penalty ranging from 6 months 1 day to 1 year 8 months and 20 days of prision correccional in its minimum and medium periods to 4 years 2 months and 1 day to 5 years 5 months and 10 days of prision correccional in its maximum period to prision mayor in its minimum period (minimum).

The sentence shall be served successively; and the accused is ordered to indemnify the private complainant Rowena Rodriguez in the amount of P257,950.00, P36,000.00 and P18,000.00 and to pay the costs of the suit.

SO ORDERED.²chanrobleslaw

On appeal, the petitioner submitted that:

I

THE COURT A QUO GRAVELY ERRED IN GIVING WEIGHT AND CREDENCE TO THE TESTIMONY OF THE PRIVATE COMPLAINANT AND IN TOTALLY DISREGARDING THE VERSION OF THE DEFENSE.chanRoblesvirtualLawlibrary

II

THE COURT A QUO GRAVELY ERRED IN FINDING THE ACCUSED-APPELLANT GUILTY BEYOND REASONABLE DOUBT OF THE THREE (3) COUNTS OF ESTAFA.³chanrobleslaw

Nonetheless, the CA affirmed the conviction of the petitioner with modification of the penalties,⁴ to wit:

WHEREFORE, the instant Appeal is DISMISSED. The assailed Decision, dated December 7, 2000, of the Regional Trial Court of Quezon City, Branch 226, in Criminal Case No. Q98-75440-2, is hereby AFFIRMED with the following MODIFICATIONS:

1. On the first count, Accused-Appellant shall suffer the indeterminate penalty of 4 years and 2 months of Prision Correccional, as MINIMUM, to 20 years as MAXIMUM;
   
   
2. On the second count, Accused-Appellant shall suffer the indeterminate penalty of 4 years and 2 months of Prision Correccional, as MINIMUM, to 9 years as MAXIMUM;
   
   
3. On the third count, Accused-Appellant shall suffer the indeterminate penalty of 4 years and 2 months of Prision Correccional, as MINIMUM, to 6 years, 8 months and 20 days, as MAXIMUM.
   

SO ORDERED.

The CA later denied the petitioner's motion for reconsideration on June 26, 2006.⁵chanroblesvirtuallawlibrary

In her present appeal, the petitioner urges the Court to consider and resolve the following issues, namely:

I

WHETHER THE PETITIONER COMMITTED THE CRIME OF ESTAFA UNDER ARTICLE 315, PARAGRAPH 1(B) OF THE REVISED PENAL CODE.

II

WHETHER THE COURT OF APPEALS COMMITTED A GRAVE ERROR IN GIVING WEIGHT TO THE EVIDENCE OF THE PROSECUTION AND FAILED TO CONSIDER THE MERITS OF THE PETITIONER'S DEFENSE.⁶chanrobleslaw

In its comment,⁷ the Office of the Solicitor General (OSG) counters that the petitioner hereby seeks the review of the facts and the evidence; that the appeal should be rejected because it urges a departure from the general rule that the CA's findings of fact, which have affirmed the factual findings of the trial court, should be accorded great respect, even finality; that this case did not constitute an exception to warrant the re-evaluation of the unanimous findings of fact of the lower courts; that the Prosecution established the guilt of the petitioner by sufficiently showing the concurrence of all the essential elements of the offense charged; and that her bare denial, being negative in nature, did not prevail over the positive evidence presented against her.chanRoblesvirtualLawlibrary

Submission

I vote to acquit the petitioner on the ground that the State did not establish her guilt for estafa through misappropriation beyond reasonable doubt. I insist that in every criminal prosecution, the State must discharge the duty to establish the guilt of the accused by proof beyond reasonable doubt. Otherwise, the accused is entitled to acquittal.

The felony of estafa through misappropriation is defined and penalized in Article 315, 1(b) of the Revised Penal Code, viz:

Article 315. Swindling (estafa). � Any person who shall defraud another by any of the means mentioned herein below shall be punished by:

1st. The penalty of prision correctional 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 under the provisions of this Code, the penalty shall be termed prision mayor or reclusion temporal, as the case may be.

2nd. The penalty of prision correccional in its minimum and medium periods, if the amount of the fraud is over 6,000 pesos but does not exceed 12,000 pesos;

3rd. The penalty of arresto mayor in its maximum period to prision correccional in its minimum period if such amount is over 200 pesos but does not exceed 6,000 pesos; and

4th. By arresto mayor in its maximum period, if such amount does not exceed 200 pesos, provided that in the four cases mentioned, the fraud be committed by any of the following means:

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. (bold Emphasis supplied)

x x x x

The elements of estafa through misappropriation are: (a) that personal property is received in trust, on commission, for administration or under any other circumstances involving the duty to make delivery of or to return the same, even though the obligation is guaranteed by a bond; (b) that there is conversion or diversion of such property by the person who has so received it or a denial on her part that she received it; (c) that such conversion, diversion or denial is to the injury of another; and (d) that there be demand for the return of the property.⁸chanroblesvirtuallawlibrary

According to the CA, the Prosecution established the petitioner's commission of estafa through misappropriation, to wit:

All these elements were duly proven by the Prosecution.

The 2 written agreements stipulated that the pieces of jewelry were delivered to Accused-Appellant to be sold on commission basis or to be returned if unsold within 1 month. Clearly, the jewelry delivered to Accused-Appellant was for a specific purpose, that is, for Accused-Appellant to sell them, and in the event that it cannot be sold, to return the same to Private Complainant.

Accused-appellant, however, insisted that the Prosecution "failed to prove the existence of misappropriation" as there was no proof that the accused-appellant kept the proceeds of the sale."

We disagree.

The words '"convert" and "misappropriate" as used in Article 315 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" a thing of value for one's own use or benefit, not only the conversion to one's personal advantage but also every attempt to dispose of the property of another without a right. Misappropriation or conversion may be proved by the prosecution by direct evidence or by circumstantial evidence. Failure to account, upon demand, for funds or property held in trust, is circumstantial evidence of misappropriation.

Demand need not be formal. It may be verbal. A query as to the whereabouts of the money, such as the one proven in the case at bench, is tantamount to a demand. In this case, despite repeated demands from Private Complainant, Accused-Appellant still failed to return the jewelry or to remit the proceeds of the sale to the prejudice of Private Complainant. Accused-Appellant's failure to account for the jewelry entrusted to her by Private Complainant constitutes misappropriation. Accused-Appellant is, thus, liable for conversion under Art. 315, par. 1 (b) of the Revised Penal Code.

x x x x⁹chanrobleslaw

The Majority concur with the CA.

However, I cannot join my distinguished Brethren in the conclusion that the CA correctly affirmed the conviction of the petitioner. My assiduous and thorough review of the records of the trial convinces me that the real agreement between the parties was a sale of the items of jewelry, not the supposed agency to sell such items on commission basis as the RTC and the CA concluded.

It is conceded that the text of Exhibits A, Exhibit A-l and Exhibit A-2 - the documents evidencing the transactions - seemed to allude to the petitioner's obligation as one of agency to sell the items of jewelry on commission basis. Under ordinary circumstances, the literal terms of such documents would control and be regarded as the manifestation of the true intention of the parties. But to give outright credence to the interpretation of the evidence as the CA did would be to ignore and disregard what complainant Rowena Rodriguez had herself declared to be the true nature of the transactions with the petitioner.

Rodriguez testified as follows:

Q.	After the delivery of these several items totaling P257,950.00, what happened next?
A.	She issued a check worth P120,000.00.
Q.	What check is that?
A.	PDCP Bank, sir.
Q.	What is this check for, Ms. Witness?
A.	As payment for the first and second transactions, sir, for P18,000.00 and P36,000.00 and the excess amount is applied for the third transaction.<SUP STYLE="COLOR: RGB(255, 0, 0);">[10]</SUP>
	x x x x
Q.	So, all in all, you have sixty (60) days period with respect to this item, and the first delivery expired. I am referring to July 12, 1997 worth P18,000.00 which will mature on September 11, so, from September 11, what happened?
A.	These were considered paid because she issued me a check for the period of August 13, so I was expecting that.<SUP STYLE="COLOR: RGB(255, 0, 0);">[11]</SUP>
	x x x x

By stating that the check issued by the petitioner was "payment for the first and second transactions, sir, for P18,000.00 and P36,000.00 and the excess amount is applied for the third transaction," Rodriguez revealed that she had sold the pieces of jewelry to the latter. Thus, the petitioner was the buyer of Rodriguez, not an agent on commission basis.

The right to a commission only establishes the relation of principal and agent, with the agent coming under the obligation to turn over to the principal the amount collected minus such commission. If the agent should retain more than the commission, she would be guilty of estafa through misappropriation.¹² Yet, because the transaction between Rodriguez and the petitioner was a sale, the former effectively transferred to the latter the possession and the ownership of the items of jewelry.¹³ Once the ownership of the jewelry became vested in the latter,¹⁴ she could not misappropriate the items of jewelry.

The foregoing excerpts of testimony further showed Rodriguez to have "considered [the items of jewelry] paid" by the petitioner. We should consider and regard such express declaration as a confirmation of the true nature of her agreement with the petitioner as a sale of the jewelry. The CA erroneously ignored the testimony despite its being a forthright judicial admission in the context of Section 4, Rule 129 of the Rules of Court.¹⁵chanroblesvirtuallawlibrary

Although Rodriguez had described the petitioner's PDCP Check No. 003626 for PI 20,000.00 (Exhibit B) as the security for the items of jewelry listed under Exhibits A and Exhibit A-l, and as the partial payment for the last delivery listed under Exhibits A-2, her presenting the check to the drawee bank for payment or collection of the entire amount of the check indicated that the check was always intended as payment. This finding is still consistent with holding the transactions as sales of the items of jewelry. Indeed, the presentment of the check to the drawee bank as the person primarily liable was antithetical to the notion of having the check serve as mere security.

Clearly, the CA had no basis to hold the written text of Exhibits A, Exhibit A-l and Exhibit A-2 as controlling. In contracts the intent of the parties always prevails over the written form.

Did the dishonor of PDCP Check No. 003626 affect the character of the transactions between the petitioner and Rodriguez as sales of the items of jewelry?

I submit that the dishonor did not alter the character of the transactions as sales but only rendered Rodriguez an unpaid seller. The relationship between them resulting from the dishonor was that of a creditor-and-debtor. In a purely debtor-and-creditor relationship, the debtor who merely refuses to pay or denies the indebtedness cannot be held liable for estafa by misappropriation. The reason is readily apparent. To convict a person of estafa under Article 315, par 1(b) of the Revised Penal Code, the State must prove that she has the obligation to deliver or return the same money, goods or personal property received.¹⁶ Considering that the petitioner already became the owner of the pieces of jewelry, she could dispose of the same, and her disposal of them would not amount to the misappropriation thereof.¹⁷ In short, the petitioner did not thereby violate any trust or other obligation to account for the items of jewelry that she already owned.

Considering that the Prosecution did not establish the petitioner's guilt for the crimes of estafa through misappropriation beyond reasonable doubt, she was entitled to acquittal,18 for it is always indispensable for the valid conviction of the accused that the State shall prove the existence of all the essential elements of the offense charged beyond reasonable doubt. With less than all the elements of the offense charged having been established, it is unwarranted and unjust to still find her criminally liable.

Endnotes:

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¹Rollo, pp. 3 1-45; penned by Presiding Judge Leah S. Domingo-Regala.

² Id. at 87-90.

³ Id. at 49.

⁴ Id. at 86-97, penned by Associate Justice Noel G. Tijam, with the concurrence of Associate Justice Elvi John S. Asuncion and Associate Justice Mariflor P. Punzalan Castillo.

⁵ Id. at 107-108.

⁶ Id. at 21.

⁷ Id. at 130-147.

⁸Manahan, Jr. v. Court of Appeals., G.R. No. 111656. March 20, 1996, 255 SCRA 202, 213; Saddul, Jr. v. Court of Appeals, G.R. No. 91041, December 10, 1990, 192 SCRA 277, 286.

⁹ Rollo, pp. 94-95.

¹⁰ TSN, October 21,1998, p. 16.

¹¹ Id. at 19.

¹² Guevara, Commentaries on the Revised Penal Code, Fourth Ed., Revised and Enlarged, Filipino Book Dealers' Association, Manila, 1946, p. 646; 649-651.

¹⁴ According to Article 1458, Civil Code, by the contract of sale, one of the contracting parties obligates herself to transfer the ownership of and to deliver a determinate thing, and the other to pay therefor a price certain in money or its equivalent.

¹⁵ Section 4 Judicial admissions. - An admission, verbal or written, made by a party in the course of the proceedings in the same case, does not require proof. The admission may be contradicted only by showing that it was made through palpable mistake or that no such admission was made.

¹⁶Tanzo v. Drilon, G.R. No. 106671, March 30, 2000, 329 SCRA 147, 155.

¹⁷Yam v. Malik, L-50550-52, October 31, 1979, 94 SCRA 30, 35.

¹⁸ Section 2, Rule 133 of the Rules of Court states:

Section 2. Proof beyond reasonable doubt. - In a criminal case, the accused is entitled to an acquittal, unless his guilt is shown beyond reasonable doubt. Proof beyond reasonable doubt does not mean such a degree of proof as, excluding possibility of error, produces absolute certainty. Moral certainty only is required, or that degree of proof which produces conviction in an unprejudiced mind. (2 a)