TITLE X. CRIMES AGAINST PROPERTY
B AND OF B RIGANDS Elements:
D. Swindling and other deceits
1. ESTAFA (315)
Elements of Estafa in General:
1. That the accused defrauded another (a) by abuse of confidence; or (b) by means of deceit; and 2. That damage or prejudice capable of pecuniary estimation is caused to the offended party or third person.
Ways of committing estafa:
1. With unfaithfulness or abuse of confidence 2. By means of false pretenses or fraudulent acts; or 3. Through fraudulent means.
The 3 ways of committing estafa under Art. 315 may be reduced to 2 only. The first form under subdivision 1 is known as estafa with abuse of confidence, and the second and third forms under subdivisions 2 & 3 cover estafa by means of deceit.
Deceit is not an essential element of estafa with abuse of confidence.
It is necessary that the damage or prejudice be capable of estimation, because the amount of the damage or prejudice is the basis of the penalty for estafa.
a. WITH UNFAITHFULNESS OR ABUSE OF
CONFIDENCE (315 PAR.1(A)(B)(C))
(i) ALTERING SUBSTANCE, QUANTITY OR QUALITY OF OBJECT SUBJECT OF OBLIGATION TO DELIVER (315 PAR
1(A))
Elements:
1. That the offender has an onerous obligation to deliver something of value.
2. That he alters its substance, quantity, or quality 3. That damage or prejudice is caused to another There must be an existing obligation to deliver something of value
In estafa by altering the substance, quantity or quality of anything of value which the offender delivers, the delivery of anything of value must be “by virtue of an onerous obligation to do so”. When the fraud committed consists in the
adulteration or mixing of some extraneous substance in an article of food so as to lower its quantity, it may be a violation of the Pure Food Law.
When there is no agreement as to the quality of the thing to be delivered, the delivery of the thing not acceptable to the complainant is not estafa.
Estafa may arise even if the thing to be delivered, under the obligation to deliver it, is not a subject of lawful commerce, such as opium.
(ii) MISAPPROPRIATION AND CONVERSION
(315 PAR.1(B)) Elements:
1. That money, goods, or other personal property be received by the offender in trust, or in 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 a demand made by the offended party to the offender.
The 4th element is not necessary when there us evidence of misappropriation of the goods by the defendant.
Check is included in the word “money”.
Money, goods or other personal property must be received by the offender under certain kinds of transaction transferring juridical possession to him.
When the thing received by the offender from the offended party (1) in trust, or (2) on commission, or (3) for administration, the offender acquires both material or physical possession and juridical possession of the thing received.
“Juridical possession”: means a possession which gives the transferee a right over the thing which the transferee may set up even against the owner.
When the delivery of a chattel has not the effect of transferring the juridical possession thereof, or title thereto, it is presumed that the possession of, and title to, the thing so delivered remain in the owner.
Failure to turn over to the bank the proceeds of the sale of goods covered by trust receipts is estafa.
The phrase “or under any obligation involving the duty to make delivery of, or to return the same”, includes quasi-contracts and certain contracts of bailment.
The obligation to return or deliver the thing must be contractual without transferring to the accused the ownership of the thing received.
When the ownership of the thing is transferred to the person who has received it, his failure to return it will give rise to civil liability only.
Applicable Civil Code provisions:
-Art. 1477. The ownership of the thing sold shall be transferred to the vendee upon actual or constructive delivery thereof.
-Art. 1482. Whenever earnest money is given in a contract of sale, it shall be considered as part of the
price and as proof of the perfection of the contract.
In estafa with abuse of confidence under par. (b), subdivision 1 of Art. 315, the very same thing received must be returned, if there is an obligation to return it. If there is no obligation to return the very same thing received, because ownership is transferred, there is only civil liability.
When the transaction of purchase and sale fails, there is no estafa if the accused refused to return the advance payment.
There is no estafa when the money or other personal property received by the accused is not to be used for a particular purpose or to be returned.
Amounts paid by the students to the school to answer for the value of materials broken are not mere deposits.
There is no estafa if the thing is received under a contract of sale on credit.
Novation of contract from one of agency to one of sale, or to one of loan, relieves defendant from incipient criminal liability under the first contract.
Acceptance of promissory note or extension of time for payment does not constitute novation. 3 ways of committing estafa with abuse of confidence under Art. 315 par. (b):
1. By misappropriating the thing received. 2. By converting the thing received. 3. By denying that the thing was received.
“Conversion”: presupposed that the thing has been devoted to a purpose or use different from that agreed upon.
The fact that an agent sold the thing received on commission for a lower price than the one fixed, does not constitute the crime of estafa (US v Torres).
The law does not distinguish between temporary and permanent misappropriations.
Estafa under Art. 315 par (b) is not committed when there is neither misappropriation nor conversion.
Right of agent to deduct commission from amounts collected:
-If the agent is authorized to retain his commission out of the amounts he collected, there is no estafa. Otherwise, he is guilty of estafa, because he right to commission does not make the agent a joint owner, with a right to the money collected.
There 3rd element of estafa with abuse of confidence is that the misappropriation, conversion, or denial by the offender has resulted in the prejudice of the offended party.
“To the prejudice of another”: not necessarily of the owner of the property.
Partners are not liable for estafa of money or property received for the partnership when the business commenced and profits accrued.
Failure of partner to account for partnership funds may give rise to a civil obligation only, not estafa. Exception: when offending partner
misappropriates the share of another partner in the profits, the act constitutes estafa.
A co-owner is not liable for estafa, but he is liable if, after the termination of the co-ownership, he misappropriates the thing which has become the exclusive property of the other.
But when the money or property had been received by a partner for specific purpose and he later misappropriated it, such partner is guilty of estafa.
Under the 4th element of estafa with abuse of confidence under Art. 315, demand may be required.
In estafa by means of deceit, demand is not necessary, because the offender obtains delivery of the thing wrongfully from the beginning. In estafa with abuse of confidence, the offender receives the thing from the offended party under a lawful transaction. Demand is not required by law, but it may be necessary, because failure to account, upon demand, is circumstantial evidence of misappropriation.
The mere failure to return the thing received for safekeeping, of for administration, or under any other obligation involving the duty to make delivery or return the same or deliver the value thereof to the owner could only give rise to a civil action and des not constitute the crime of estafa.
Presumption of misappropriation arises only when the explanation of the accused is absolutely devoid of merit.
There is no estafa through negligence.
The gravity of the crime of estfa is determined on the basis of the amount not returned before the institution of the criminal action.
Estafa with abuse of confidence distinguished from theft:
-A person who misappropriated the thing which he had received from the offended party may be guilty of theft, not estafa, if he had acquired only the material or physical possession of the thing.
-In theft, the offender takes the thing; in estafa, the offender receives the thing from the offended party. -If in receiving the thing from the offended party, the offender acquired also the juridical possession of the thing, and he later misappropriated it, he would be guilty of estafa. If he only acquired material and transitory possession but not the juridical possession, he is liable only for theft, not estafa.
In estafa, the offender receives the thing—he does not take the thing without the consent of the
owner.
Test to distinguish theft from estafa: In theft, upon the delivery of the thing to the offender, the owner expects an immediate return of the thing to him. (Albert)
When the owner does not expect the immediate return of the thing he delivered to the accused, the misappropriation of the same is estafa. Exception: When the offender received the thing
from the offended party, with the obligation to delver it to a third person and, instead of doing so, misappropriated it to the prejudice of the owner, the crime committed is qualified theft.
Selling the thing received to be pledged for the owner is theft, when the intent to appropriate existed at the time it was received.
Estafa with abuse of confidence distinguished from malversation:
1. In both crimes, the offenders are entrusted with funds or property.
2. Both are continuing offenses.
3. But while in estafa, the funds or property are always private; in malversation, they are usually public funds or property.
4. In estafa, the offender is a private individual or even a public officer who is not accountable for public funds or property; in malversation, the offender who is usually a public officer is accountable for public funds or property.
5. In estafa with abuse of confidence, the crime is committed by misappropriating, converting or denying having received money, goods or other personal property; in malversation, the crime is committed by appropriating, taking or misappropriating or consenting, or, through abandonment or negligence, permitting any other person to take the public funds or property.
When in the prosecution for malversation the public officer accountable for public funds is acquitted, the private individual allegedly in conspiracy with him may be held liable for estafa.
Misappropriation of firearms received by a policeman is estafa, if it is not involved in the commission of a crime; it is malversation, if it is involved in the commission of a crime.
(iii) TAKING ADVANTAGE OF SIGNATURE IN BLANK (315 PAR.1(C))
Elements:
1. That the paper with the signature of the offended party be in blank.
2. That the offended party should have delivered it to the offender.
3. That above the signature of the offended party a document is written by the offender without authority to do so.
4. That the document so written creates a liability of, or causes damage to, the offended party or any third person.
b. THROUGH FALSE PRETENSES OR FRAUDULENT
ACTS (315 PAR 2(A) TO (E))
Elements of estafa by means of deceit:
1. That there must be a false pretense, fraudulent act or fraudulent means.
2. That such false pretense, fraudulent act or fraudulent means must be made or executed prior to or simultaneously with the commission of the fraud. 3. That the offended party must have relied on the false pretense, fraudulent act, or fraudulent means, that is, he was induced to part with his money or property because of the false pretense, fraudulent act, or fraudulent means.
4. That as a result thereof, the offended party suffered damage.
There is no deceit if the complainant was aware of the fictitious nature of the pretense.
(i) USING FICTITIOUS NAME OR FALSE PRETENSES AT POWER, INFLUENCE… OR OTHER SIMILAR DECEITS (315, PAR
2(A))
Ways of committing the offense: 1. By using fictitious name;
2. By falsely pretending to possess: (a) power, (b) influence, (c) qualifications, (d) property, (e) credit, (f) agency, (g) business or imaginary transactions; or
3. By means of other similar deceits.
In the prosecution of estafa under Art. 315 par. 2(a), it is indispensable that the element of deceit, consisting in the false statement or fraudulent representation of the accused, be made prior to, or, at least simultaneously with, the delivery of the thing by the complainant, it being essential that such false statement or fraudulent representation constitutes the very cause or the only motive which induces the complainant to part with the thing. If there be no such prior or simultaneous false statement or fraudulent representation, any subsequent act of the accused, however fraudulent and suspicious it may appear, cannot serve as a basis for prosecution for the class of estafa.
A creditor who deceived his debtor is liable for estafa.
In estafa by means of deceit under Art. 315 2(a), there must be evidence that the pretense of the accused is false. In the absence of proof that the representation was actually false, criminal intent to deceive cannot be inferred.
Fraud must be proved with clear and positive evidence.
Where commission salesman took back the machines from prospective customers and misappropriated them, the crime committed is theft, not estafa.
Estafa through false pretense made in writing is only a simple crime of estafa, not a complex crime of estafa through falsification.
Manipulation of scale is punished under the Revised Administrative Code
(ii) BY ALTERING THE QUALITY, FINENESS OR WEIGHT OF ANYTHING PERTAINING TO ART OR BUSINESS (315 PAR 2(B))
(iii) BY PRETENDING TO HAVE BRIBED ANY GOVERNMENT EMPLOYEE (315 PAR.
2(C))
Committed by any person who would ask money from another for the alleged purpose of bribing a government employee, when in truth and in fact the offender intended to convert the money to his own personal use and benefit.
But if he really gives the money to the government employee, he is liable for corruption of public officer.
Estafa by means of fraudulent acts:
-The acts must be fraudulent, that is, the acts must be characterized by, or founded on, deceit, trick, or cheat.
-In false pretenses the deceit consists in the use of deceitful words, in fraudulent acts the deceit consists principally in deceitful acts.
-The fraudulent acts must be performed prior to or simultaneously with the commission of the fraud. -The offender must be able to obtain something from the offended party because of the fraudulent acts, that is, without which, the offended party would not have parted with it.
(iv) BY POSTDATING A CHECK OR ISSUING A BOUNCING CHECK (315 PAR 2(D)) Elements:
1. That the offender postdated a check, or issued a check in payment of an obligation;
2. That such postdating or issuing a check was done when the offender had no funds in the bank, or his funds deposited therein were not sufficient to cover the amount of the check.
The check must be genuine, and not falsified. The check must be postdated or issued in
payment of an obligation contracted at the time of the issuance and delivery of the check.
The rule that the issuance of a bouncing check in payment of a pre-existing obligation does not constitute estafa has not at all been altered by RA 4885.
The accused must be able to obtain something from the offended party by means of the check he issues and delivers.
Exception: When postdated checks are issued and intended by the parties only as promissory notes, there is no estafa even if there are no sufficient funds in the bank to cover the same.
When the check is issued by a guarantor, there is no estafa.
The mere fact that the drawer had insufficient or no funds in the bank to cover the check at the time he postdated or issued a check, is sufficient to make him liable for estafa.
RA 4885 eliminated the phrase “the offender knowing that at the time he had no funds in the bank”.
-Under RA 4885, the failure of the drawer of the check to deposit the amount necessary to cover his check within 3 days from receipt of notice from the bank and/or the payee or holder of that said check has been dishonored for lack or insufficiency of funds shall be prima facie evidence of deceit constituting false pretense or fraudulent act.
Good faith is a defense in a charge of estafa by postdating or issuing a check.
One who got hold of a check issued by another, knowing that the drawer had no sufficient funds in the bank, and used the same in the purchase of goods, is guilty of estafa (People v. Isleta).
The payee or person receiving the check must be defrauded.
PD 818 applies only to estafa under par 2(d) of Art. 315, and does not apply to other forms of estafa under the other paragraphs of the same article. (People v Villaraza, 81 SCRA 95). Hence, the penalty prescribed in PD 818, not the penalty provided for in Art. 315, should be imposed when the estafa committed is covered by par 2(d) of Art. 315.
Estafa by issuing a bad check is a continuing crime.
ANTI-BOUNCING CHECKS LAW (BATAS PAMBANSA BLG.