G.R. No. 179061, July 13, 2009.
CARPIO MORALES, J.:
Petitioner Sheala Matrido is a credit and collection assistant of Empire East Land Holdings, Inc. (private complainant), petitioner was tasked to collect payments from buyers of its real estate properties
Petitioner received payment from Amante dela Torre in the amount of P22,470.66 as evidenced by the owner’s copy of Official Receipt No. 36547, but petitioner remitted only P4,470.66 to private complainant as reflected in the treasury department’s copy of Official Receipt No. 36547 submitted to private complainant, both copies of which bear the signature of petitioner and reflect a difference of P18,000.
Private complainant then filed an estafa complaint against Petitioner before the Makati Prosecutor's Office. The Makati PO dismissed the case for estafa for insufficiency of evidence but found probable cause to indict petitioner for qualified theft under an Information which reads:
That on or about the 10th day of June 1999, in the City of Makati, Philippines and within the jurisdiction of this Honorable Court, the above-named accused, being then a Credit and Collection Assistant employed by complainant, EMPIRE EAST LAND HOLDINGS, INC., herein represented by Leilani N. Cabuloy, and as such had access to the payments made by complainant’s clients, with grave abuse of confidence, intent of gain and without the knowledge and consent of the said complainant company, did then and there willfully, unlawfully and feloniously take, steal and carry away the amount of P18,000.00 received from Amante Dela Torre, a buyer of a house and lot being marketed by complainant company, to the damage and prejudice of the said complainant in the aforementioned amount of P18,000.00.
The Makati RTC subsequently found the petiitoner guilty for qualified theft.
Issue: W/N the conviction for qualified theft is valid despite the fact that the prosecution tried to prove during the trial the crime of estafa thus denying the petitioner the right to be informed of the nature and cause of accusation against petitioner.
It is the allegations in the Information that determine the nature of the offense, not the technical name given by the public prosecutor in the preamble of the Information.
As alleged in the Information, petitioner took, intending to gain therefrom and without the use of force upon things or violence against or intimidation of persons, a personal property consisting of money in the amount P18,000 belonging to private complainant, without its knowledge and consent, thereby gravely abusing the confidence reposed on her as credit and collection assistant who had access to payments from private complainant’s clients.
Theft 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. If committed with grave abuse of confidence, the crime of theft becomes qualified.
The elements of qualified theft are as follows:
- There was a taking of personal property.
- The said property belongs to another.
- The taking was done without the consent of the owner.
- The taking was done with intent to gain.
- The taking was accomplished without violence or intimidation against person, or force upon things.
- The taking was done under any of the circumstances enumerated in Article 310 of the RPC, i.e., with grave abuse of confidence.
Intent to gain or animus lucrandi is an internal act that is presumed from the unlawful taking by the offender of the thing subject of asportation. Actual gain is irrelevant as the important consideration is the intent to gain.
The taking was also clearly done with grave abuse of confidence. As a credit and collection assistant of private complainant, petitioner made use of her position to obtain the amount due to private complainant. Her position entailed a high degree of confidence reposed by private complainant as she had been granted access to funds collectible from clients, which trust was abused when she failed to remit the entrusted amount.
The Court finds no rhyme or reason in petitioner’s contention that what the prosecution tried to prove during trial was estafa through misappropriation under Article 315(1)(b) of the RPC.
The principal distinction between the two crimes is that in theft the thing is taken while in estafa the accused receives the property and converts it to his own use or benefit. If he was entrusted only with the material or physical (natural) or de facto possession of the thing, his misappropriation of the same constitutes theft, but if he has the juridical possession of the thing, his conversion of the same constitutes embezzlement or estafa.
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.
That petitioner did not have juridical possession over the amount or, in other words, she did not have a right over the thing which she may set up even against private complainant is clear.
Petitioner’s view that there could be no element of taking since private complainant had no actual possession of the money fails. The argument proceeds from the flawed premise that there could be no theft if the accused has possession of the property.
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.