In the case of ROSITA SY vs. PEOPLE OF THE PHILIPPINES, G.R. No.

183879,
April 14, 2010 discussed the ways of committing the felony of estafa, thus:

"X x x.

The sole issue for resolution is whether Sy should be held liable for estafa,
penalized under Article 315, paragraph 2(a) of the Revised Penal Code (RPC).

Swindling or estafa is punishable under Article 315 of the RPC. There are
three ways of committing estafa, viz.: (1) with unfaithfulness or abuse of
confidence; (2) by means of false pretenses or fraudulent acts; or (3) through
fraudulent means. The three ways of committing estafa may be reduced to
two, i.e., (1) by means of abuse of confidence; or (2) by means of deceit.

The elements of estafa in general are the following: (a) that an accused
defrauded another by abuse of confidence, or by means of deceit; and (b) that
damage and prejudice capable of pecuniary estimation is caused the offended
party or third person.

The act complained of in the instant case is penalized under Article 315,
paragraph 2(a) of the RPC, wherein estafa is committed by any person who
shall defraud another by false pretenses or fraudulent acts executed prior to
or simultaneously with the commission of the fraud. It is committed by using
fictitious name, or by pretending to possess power, influence, qualifications,
property, credit, agency, business or imaginary transactions, or by means of
other similar deceits.

The elements of estafa by means of deceit are the following, viz.: (a) that there
must be a false pretense or fraudulent representation as to his power,
influence, qualifications, property, credit, agency, business or imaginary
transactions; (b) that such false pretense or fraudulent representation was
made or executed prior to or simultaneously with the commission of the
fraud; (c) that the offended party relied on the false pretense, fraudulent act,
or fraudulent means and was induced to part with his money or property; and
(d) that, as a result thereof, the offended party suffered damage.

1. With unfaithfulness or abuse of confidence, namely: xxx

“(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. xxx” (Emphases supplied)

The Supreme Court, through Chief Justice Diosdado Peralta, in the case of
Norma C. Gamaro and Josephine G. Umali vs People of the Philippines (GR
211917, Feb. 27, 2017), discussed thoroughly the elements of estafa through
misappropriation, viz:

“The elements of estafa under Article 315, paragraph 1 (b) are as follows: (1)
that money, goods, or other personal properties are 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 is a misappropriation or conversion of such money or property by
the offender or a denial of the receipt thereof; (3) that the 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. xxx

“The failure to return upon demand the properties which one has the duty to
return is tantamount to appropriating the same for his own personal use. xxx

“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.” (Emphases supplied)

You entrusted several pieces of jewelry for sale and had an agreement with
your officemate to remit the proceeds of the sale and return the unsold pieces
to you, which your officemate did not fulfil. Clearly, you can file a case against
your officemate under Article 315, paragraph 1 (b) of the Revised Penal Code.
The wilful actions of your officemate consummated estafa through
misappropriation.

Swindling or Estafa

The penalty for Estafa is basically dependent on the value of the damage or
prejudice caused by the perpetrator. RA 10951 increased the amount of fraud
which is the basis of penalty and the fine imposed for the crime of
Estafa under Article 315 of the RPC. Under this law, swindling or Estafa shall
be punished as follows:

If the amount of the fraud does not exceed Forty thousand pesos (₱40,000),
the penalty of arresto mayor in its medium and maximum periods shall be
imposed. (2 months and 1 day to 6 months)

If the amount of the fraud is over Forty thousand pesos (₱40,000) but does
not exceed One million two hundred thousand pesos (₱1,200,000), the
penalty of arresto mayor in its maximum period to prisión correccional in its
minimum period shall be imposed. (4 months and 1 day to 2 years and 4
months)

If the amount of the fraud is over One million two hundred thousand pesos
(₱1,200,000) but does not exceed Two million four hundred thousand pesos
(₱2,400,000), the penalty of prisión correccional in its minimum and medium
periods shall be imposed. (6 months and 1 day to 4 years and 2 months)

If the amount of the fraud is over Two million four hundred thousand pesos
(₱2,400,000) but does not exceed Four million four hundred thousand pesos
(₱4,400,000), the penalty of prisión correccional in its maximum period to
prisión mayor in its minimum period shall be imposed. (4 years, 2 months,
and 1 day to 8 years)

If the amount of the fraud exceeds Four million four hundred thousand pesos
(₱4,400,000), the penalty of prisión mayor in its minimum period shall be
imposed, adding one year for each additional Two million pesos (₱2,000,000);
but the total penalty which may be imposed shall not exceed twenty years. (6
years and 1 day to 8 years)
However, any person who shall defraud another by means of false pretenses
or fraudulent acts as defined under Article 315 paragraph 2(d) of the RPC, to
wit:

“d) By postdating a check, or issuing a check in payment of an obligation when

the offender had no funds in the bank, or his funds deposited therein were not
sufficient to cover the amount of the check.”

This type of Estafa shall be punished by:

If the amount of the fraud does not exceed Forty thousand pesos (₱40,000),
the penalty of prisión mayor in its minimum period shall be imposed. (6 years
and 1 day to 8 years)

If the amount of the fraud is over Forty thousand pesos (₱40,000) but does
not exceed One million two hundred thousand pesos (₱1,200,000), the
penalty of prisión mayor in its medium period shall be imposed. (8 years and
1 day to 10 years)

If the amount of the fraud is over One million two hundred thousand pesos
(₱1,200,000) but does not exceed Two million four hundred thousand pesos
(₱2,400,000), the penalty of prisión mayor in its maximum period shall be
imposed. (10 years and 1 day to 12 years)

If the amount of the fraud is over Two million four hundred thousand pesos
(₱2,400,000) but does not exceed Four million four hundred thousand pesos
(₱4,400,000), the penalty of reclusion temporal in its minimum and medium
periods shall be imposed. (12 years and 1 day to 17 years and 4 months)

If the amount of fraud is over Four million four hundred thousand pesos
(₱4,400,000) but does not exceed Eight million eight hundred thousand pesos
(₱8,800,000), the penalty of reclusion temporal in its maximum period shall
be imposed. (17 years and 4 months and 1 day to 20 years)

If the amount exceeds Eight million eight hundred thousand pesos

(₱8,800,000), the penalty shall be reclusion perpetua.

The crime of Other Deceits under Article 318

The penalty of arresto mayor (1 month and 1 day to 6 months) and a fine of
not less than the amount of the damage caused and not more than twice such
amount shall be imposed upon any person who shall defraud or damage
another by any other deceit not mentioned under Article 315-317.

Moreover, any person who, for profit or gain, shall interpret dreams, make
forecasts, tell fortunes, or take advantage of the credulity of the public in any
other similar manner, shall suffer the penalty of arresto mayor (1 month and 1
day to 6 months) or a fine not exceeding Forty thousand pesos (₱40,000).

QUALIFIED THEFT VS. ESTAFA (WITH ABUSE OF CONFIDENCE)

There is confusion in charging the proper offense because of the similarities in

the elements of both offenses. However, the following principles distinguish one
from the other:

The conversion of personal property in the case of an employee having

material possession of the said property constitutes theft, whereas in the case
of an agent to whom both material and juridical possession have been
transferred, misappropriation of the same property constitutes estafa.
A sum of money received by an employee in behalf of an employer is
considered to be only in the material possession of the employee. The
material possession of an employee is adjunct, by reason of his employment,
to a recognition of the juridical possession of the employer. So long as the
juridical possession of the thing appropriated did not pass to the employee-
perpetrator, the offense committed remains to be theft, qualified or otherwise.

Juridical possession means a possession which gives the transferee a right

over the thing which the transferee may set up even against the owner. It
bears to stress that a sum of money received by an employee on behalf of an
employer is considered to be only in the material possession of the employee.

Robbery vs. Theft

On the second and third issues, Article 293 of the RPC defines robbery as a
crime committed by “any person who, with intent to gain, shall take any
personal property belonging to another, by means of violence against or
intimidation of any person, or using force upon anything.” Robbery with
homicide occurs when, by reason or on occasion of the robbery, the crime of
homicide shall have been committed⁠5. In Article 249 of the RPC, any person
who shall kill another shall be deemed guilty of homicide. Homicide, as used in
robbery with homicide, is to be understood in its generic sense to include
parricide and murder.⁠6 The penalty for the crime of robbery with homicide is
reclusion perpetua to death.⁠7

Theft, on the other hand, is committed by any person who, with intent to gain
but without violence against or intimidation of persons nor force upon things,
shall take the personal property of another without the latter’s consent⁠. The
penalty of prision correccional in its minimum and medium periods is
imposed upon persons guilty of theft, if the value of the thing stolen is more
than P200 but does not exceed P6,000.

By definition in the RPC, robbery can be committed in three ways, by using:

(a) violence against any person; (b) intimidation of any person; and/or (c)
force upon anything. Robbery by use of force upon things is provided under
Articles 299 to 305 of the RPC.

The main issue is whether the snatching of the shoulder bag in this case is
robbery or theft. Did Concepcion employ violence or intimidation upon
persons, or force upon things, when he snatched Acampado’s shoulder bag?

In People v. Dela Cruz,⁠ this Court found the accused guilty of theft for
snatching a basket containing jewelry, money and clothing, and taking off with
it, while the owners had their backs turned.

In People v. Tapang,⁠ this Court affirmed the conviction of the accused for
frustrated theft because he stole a white gold ring with diamond stones from
the victim’s pocket, which ring was immediately or subsequently recovered
from the accused at or about the same time it was stolen.

In People v. Omambong, the Court distinguished robbery from theft. The

Court held:

Had the appellant then run away, he would undoubtedly have been guilty of
theft only, because the asportation was not effected against the owner’s will,
but only without his consent; although, of course, there was some sort of force
used by the appellant in taking the money away from the owner.

xxxx

What the record does show is that when the offended party made an attempt
to regain his money, the appellant’s companions used violence to prevent his
succeeding.

xxxx

The crime committed is therefore robbery and not theft, because personal
violence was brought to bear upon the offended party before he was definitely
deprived of his money.⁠12

The prosecution failed to establish that Concepcion used violence,

intimidation or force in snatching Acampado’s shoulder bag. Acampado
herself merely testified that Concepcion snatched her shoulder bag which was
hanging on her left shoulder. Acampado did not say that Concepcion used
violence, intimidation or force in snatching her shoulder bag. Given the facts,
Concepcion’s snatching of Acampado’s shoulder bag constitutes the crime of
theft, not robbery.

Concepcion’s crime of theft was aggravated by his use of a motorcycle in

committing the crime. Under Article 14(20) of the RPC, the use of a motor
vehicle as a means of committing a crime is a generic aggravating
circumstance. Thus, the maximum period of the penalty for the crime of theft
shall be imposed upon Concepcion due to the presence of a generic
aggravating circumstance and the absence of any mitigating circumstance.

Based on the RTC Decision’s statement of facts which was affirmed by the CA,
Concepcion’s co-conspirator, Rosendo Ogardo, Jr. y Villegas (Ogardo), who
was driving the motorcycle, died because he lost control of the motorcycle and
crashed in front of de Felipe’s taxi. Since Concepcion, as passenger in the
motorcycle, did not perform or execute any act that caused the death of
Ogardo, Concepcion cannot be held liable for homicide.

Art. 310. Qualified theft. — The crime of theft shall be punished by the
penalties next higher by two degrees than those respectively specified in the
next preceding article, if committed by a domestic servant, or with grave
abuse of confidence, or if the property stolen is motor vehicle, mail matter or
large cattle or consists of coconuts taken from the premises of the plantation
or fish taken from a fishpond or fishery, or if property is taken on the occasion
of fire, earthquake, typhoon, volcanic eruption, or any other calamity,
vehicular accident or civil disturbance.”

Qualified theft

The following elements must be present in order for qualified theft to exist:

“The elements of qualified theft, punishable under Article 310, in relation to

Articles 308 and 309, of the Revised Penal Code (RPC), are as follows: (a) the
taking of personal property; (b) the said property belongs to another; (c) the
said taking be done with intent to gain; (d) it be done without the owner’s
consent; (e) it be accomplished without the use of violence or intimidation
against persons, nor of force upon things; and (j) it be done under any of the
circumstances enumerated in Article 310 of the RPC, i.e., with grave abuse of
confidence” (People of the Philippines vs. Delos Santos, GR 220685, Nov. 29,
2017, Ponente: Associate Justice Estela Perlas-Bernabe).

In the situation which you have presented, it appears that there was “taking of
personal property that belongs to another.” However, it cannot be said that
such act of “taking” can be equated to the crime of qualified theft as the
elements of “taking be done with intent to gain,” “it be done without the
owner’s consent” and “grave abuse of confidence” are not present given that
your friend sought for and was given approval by the owner of the house to
utilize the electricity and water supply for the time being. Our Supreme Court
elucidated:

“It has been held that in cases where one, in good faith, “takes another’s
property under claim of title in himself, he is exempt from the charge of
larceny, however puerile or mistaken the claim may in fact be. And the same is
true where the taking is on behalf of another, believed to be the true owner.
The gist of the offense is the intent to deprive another of his property in a
chattel, either for gain or out of wantonness or malice to deprive another of
his right in the thing taken. This cannot be where the taker honestly believes
the property is his own or that of another, and that he has a right to take
possession of it for himself or for another,” as in this case.

x x x As correctly reasoned by the CA, “(e)ven assuming arguendo that Virgilio

was not duly authorized by the Board of Trustees of UM to give its consent to
[respondent] and the latter erred when he solely relied on his father’s consent
without further securing the authority of the [BOT] of UM, his bona fide belief
that he had authority from the real owner of the electricity and water supply
will not make him culpable of the crime of qualified theft because he was
acting with a color of authority or a semblance of right to do such act.” (People
of the Philippines vs. Delos Santos, Id., Emphasis supplied)

The Revised Penal Code (“RPC”) has recently undergone a much-needed

facelift since its passage almost 8 decades ago, thanks to Republic Act 10951
(“R.A. 10951”). This law addresses the problem of unjust and
disproportionate penalties by adjusting the fines imposed, and the values of
properties and damages on which penalties are based, in order to reflect
current monetary and property values, and account for inflation since the
1930s.

The implications of the amendments introduced in R.A. 10951 are better

understood by discussing the same in relation to a particular crime. Here, R.A.
10951 will be discussed in relation to one of the most common crimes against
property – qualified theft.

Qualified theft is committed when a domestic servant or a person who abuses

the confidence entrusted to him/her commits theft. The crime is also
committed when property stolen is a motor vehicle, mail matter, large cattle,
or consists of coconuts from the plantation, or fish from a fishpond or fishery,
or when the taking of property is done on the occasion of a calamity, vehicular
accident or civil disturbance.

The penalty for qualified theft is two degrees higher than that specified for
simple theft, and this remains unchanged despite the passage of R.A. 10951.
However, given the amendments to the value of property stolen, upon which
the penalty for simple theft is based, the degree of penalty or duration of
imprisonment imposed for qualified theft necessarily changed, as well.

To better illustrate this, let us say that John Doe was found guilty of qualified
theft for stealing money amounting to Php300,000.00.

Prior to R.A. 10951, the threshold amount corresponding to the basic penalty
of prision mayor in its minimum and medium periods is Php22,000.00. If the
property stolen exceeds the said amount, the basic penalty shall be imposed in
its maximum period. An additional year of imprisonment shall further be
imposed for every additional Php10,000.00 in excess of Php22,000.00. The
total imposable penalty, however, shall not exceed 20 years of reclusion
temporal. Following these rules, John Doe will be punished with reclusion
perpetua, the penalty two degrees higher than reclusion temporal.
Consequently, if the evidence of guilt is strong, John Doe, shall not be entitled
to bail.

Of course, the value of money or property in the 1930s is a far cry from the
value of money or property today. Punishing qualified theft of Php300,000.00
with reclusion perpetua, or 20 years and 1 day to 40 years of imprisonment, is
a little too severe and unnecessary for such amount in this day and age.

Under the present law, if the value of the property stolen is more than
Php20,000.00 but not exceeding Php600,000.00, the penalty shall only be
prision correccional in its minimum and medium periods. John Doe would
thus be meted the penalty of reclusion temporal, which is two degrees higher
than prision correccional in its minimum and medium periods. As such, he
shall be entitled to bail as a matter of right.

Given the obvious and undeniable leniency accorded by R.A. 10951 in favor of
the accused, it may be given retroactive application. This means that accused
persons, who are preventively detained pending trial or appeal can apply for
bail or be released on recognizance if they already served the minimum
sentence as adjusted. Those charged with non-bailable cases or cannot put up
bail under the previous schedule of penalties, on the other hand, can apply for
bail reflecting the adjusted values. Even convicts serving their sentences can
file an action to have their cases reopened, despite the finality thereof, in
order to have their penalty modified.
 Entire Minimum Medium Maximum Accessory
Name Type
length length length length penalties

Perpetual absolute
disqualification and
that of civil
Death Capital Not applied; commuted to reclusion perpetua.
interdiction during
thirty years following
the date of sentence

Reclusión
20 years and 1 day to 40 years[7]
perpetua
Civil interdiction for
life or during the
14 years period of the
12
12 years and 8 sentence as the case
years 17 years
and one months may be, and
Reclusión and and 4
day to 14 to 17 perpetual absolute
temporal one day months to
years and years disqualification
to 20 20 years
8 months and 4
years
Afflictive months

 If disqualification
is imposed, 12
years and 1 day
6 years  Temporary
8 years
and 6 years 10 years absolute
Prisión and 1
one day and 1 day and 1 day disqualification
mayor day to 10
to 12 to 8 years to 12 years and that of
years perpetual special
years
disqualification
from the right
of suffrage
2 years, Suspension from
6 public office, from the
6 months 4 months
months 4 years, 2 right to follow a
and 1 day and 1
Prisión and months profession or calling,
Correctional to 2 years day to 4
correccional one day and 1 day and that of perpetual
and 4 years
to 6 to 6 years special
months and 2
years disqualification from
months
the right of suffrage,
 if the duration of said
imprisonment shall
exceed eighteen
months.

If suspension is
Suspension
imposed, 6 years

Any person
sentenced to
destierro shall not be
permitted to enter the
place or places
designated in the
Destierro sentence, nor within
the radius therein
specified, which shall
be not more than 250
and not less than 25
kilometers from the
place designated.

1
2 months 4 months
month
Arresto 1 month to and 1 and 1 day
and 1 Suspension of the
mayor 2 months day to 4 to 6
day to 6 right to hold office
months months
months and the right of
suffrage during the
11 days term of the sentence
Arresto 1 day to 1 day to 21 days to
Light to 20
menor 30 days 10 days 30 days
days