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[ G.R. No. 143607. August 23, 2000]

LUISITO R. LOANZON vs. PEOPLE OF THE PHILS. et al.

FIRST DIVISION

Gentlemen:

Quoted hereunder, for your information, is a resolution of this Court dated AUG 23 2000.

G.R. No. 143607 (Luisito R. Loanzon vs. People of the Philippines and Lorenzo Vivar.)

Petitioner Luisito R. Loanzon raises the following issues in the instant petition for review, to wit:

1. The Honorable Court of Appeals committed grave abuse of discretion which amounts to lack of jurisdiction when it held that the business relations of petitioner and the private respondent is agency and not partnership;

2. That assuming arguendo that their relation is agency, the Honorable Court of Appeals gravely erred and abused its discretion when it held that there was no novation;

3. The Honorable Court of Appeals gravely erred in holding that petitioner is guilty of estafa, had not (sic) merely civilly liable;

4. The Honorable Court of Appeals, therefore, gravely erred in affirming the decision of the Regional Trial Court in convicting the petitioner of the crime of estafa and in not acquitting him.

It appears that sometime in 1993, petitioner and private respondent Lorenzo Vivar entered into a business venture to supply gravel and sand to ALC Industries, Inc. (ALC). It was agreed upon that Vivar would provide the capital while petitioner Loanzon would act as his agent tasked to source out the gravel and sand and to take charge of deliveries and collections.

They were able to make deliveries to ALC amounting to P42,500.00. Thereafter, Vivar learned that petitioner Loanzon had already collected the payments but failed to remit these to him. Petitioner admitted that he had spent said amount for his personal needs. When petitioner Loanzon failed to make good on a promissory note ("Kasunduan") he subsequently executed in favor of Vivar, the latter filed a case for estafa against petitioner in the RTC of Angeles Cit. After trial on the merits the trial court rendered a decision, the dispositive portion of which reads as follows:

WHEREFORE, finding the accused GUILTY beyond reasonable doubt of the crime charged, said accused LUISITO LOANZON is hereby sentenced to suffer an imprisonment ranging from five (5) years, nine (9) months and four (4) days of prision correccional as minimum to ten (10) years of prision mayor as maximum. He is also hereby ordered to indemnify the private complainant LORENZO VIVAR the sum of P42,500.00.

On appeal, the Court of Appeals affirmed the trial court's decision. Hence, this petition.

A perusal of the assailed decision will show that it is in accord with law and jurisprudence. Anent petitioner's argument that the "Kasunduan" he had executed in favor of private respondent had novated the original trust relation between the parties into a creditor-debtor relationship, hence making him only civilly and not criminally liable, the appellate court correctly ruled that even if there was (a novation), the criminal liability arising out of estafa is not affected by compromise or novation of contract for it is a public offense which must be prosecuted and punished by the government on its own motion though complete reparation should have been made of the damage suffered by the offended party.

The elements of estafa through misappropriation as defined in and penalized under Article 315, paragraph (b) of the Revised Penal Code are: (1) 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; (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 demand made by the offended party.

In the instant case, it has been indubitably established that the petitioner had collected the amount of P42,500.00 in his capacity as the agent of private respondent Vivar; that he used the same for his own personal needs; and, that he failed to remit the same to Vivar despite demand made upon him. In fine, all the elements of the crime of estafa are present in this case.

In view of the foregoing, the instant petition is hereby DENIED for failure of the petition to sufficiently show that the public respondent committed any reversible error in the challenged decision.

Very truly yours,

VIRGINIA ANCHETA-SORIANO

Clerk of Court

(Sgd.) ENRIQUETA ESGUERRA-VIDAL

Asst. Clerk of Court

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