SECOND DIVISION
G.R. No. 188052, April 21, 2014
JEAN D. GAMBOA, Petitioner, v. PEOPLE OF THE PHILIPPINES, Respondent.
D E C I S I O N
PEREZ, J.:
That on or about the month of February, 1999 or prior thereto, at Makati City, Metro Manila, Philippines and within the jurisdiction of the Honorable Court, the above-named accused [Gamboa], being then employed as Liaison Officer of complainant TFS Pawnshop, Inc. represented by its Operations Manager Felicidad Samson and as such is authorized among others to secure and/or renew municipal/city licenses and permits for TFS Pawnshop branches received in trust from complainant the total amount of P78,208.95 with the obligation on the part of the accused to use the said amount for the renewal of licenses and permits for all complainant’s branches located in Manila, but [Gamboa], once in possession of the said amount, with intent to gain and abuse of confidence, did then and there willfully, unlawfully, and feloniously misappropriate, misapply and convert to her own personal use and benefit said amount of P78,208.95 as a consequence thereof[,] complainant paid the total amount of P85,187.00 for the renewal of the licenses and permits of its branches in Manila and that [Gamboa] refused and/or failed and still refuses and/or fails to account or return said amount despite demand from complainant, to the damage and prejudice of the latter in the total amount of P163,395.95.3
Anent to her defense that she merely acted as messenger upon the instruction of her supervisor Ms. Cuyno to give the amount of P45,587.65 to Lito Jacinto, thus, she should not be accountable for the same, this contention is unavailing, given the oral as well as documentary evidence of the prosecution.
For one thing, this defense appears to be contrived as it was never raised in her reply to the memorandum [of] TFS x x x asking her to liquidate her cash advances. On the contrary, she pithily claimed that all municipal licenses for all branches were completely paid as of January 20, 1999 as per schedule, thereby making it appear to her employer TFS that she has nothing to account for.
For another, this actuation is palpably contrary to logic and common sense since if she already knew that Lito Jacinto had converted to his benefit the sum of P45,587.65, then she should not have incessantly asserted that the licenses and permits of all the branches of TFS in the City of Manila had already been paid for as of 20 January 1999.
This inconsistency is also evident in the Counter-Affidavit and Supplemental Counter-Affidavit, which she submitted to the Office of the City Prosecutor of Makati City during the preliminary investigation, when she egregiously failed to aver any transaction she had with Lito Jacinto and that the latter should be solely responsible for the loss of the aforementioned amount. Verily, and as observed earlier, this defense is clearly an afterthought and does not deserve faith and credit.
Additionally, on the assumption that she indeed turned over the amount of P45,587.65 to Jacinto, she failed to establish the fact that she is authorized to do so by private complainant TFS. This notwithstanding however, insofar as the civil liability of the accused is concerned, she is only to be held accountable of P81,000.00 proven to be received by her. The amount of P74,690.00 subsequently paid by TFS to the City Government of Manila for its licenses and permits cannot be charged to the accused as she did not benefit from this and it is the obligation of TFS to pay its licenses and permits fees in order to legally operate its business.cralawred
x x x x
PREMISES CONSIDERED, judgment is rendered finding the accused GUILTY beyond reasonable doubt of the offense of Estafa under paragraph 1(b) of Article 315 of the Revised Penal Code, sentencing her to suffer the penalty of imprisonment under an indeterminate sentence of four (4) years[,] two (2) months and one (1) day of prision correccional as minimum to twelve (12) years of prision mayor as maximum with all the accessory penalties provided by law. She is further ordered to pay the private complainant TFS Pawnshop Incorporated the sum of P81,000.00 representing the amount misappropriated by her plus interest at the rate of six (6%) to be reckoned from the rendition of the judgment until fully paid (Article 2211, NCC). Costs against [Gamboa].6
It likewise bears stressing that prior to the filing of the instant estafa case, [Gamboa] was requested in several instances by TFS, oral and written, to liquidate the cash advances made by her, but, she failed to do so.
In [Gamboa’s] effort to exculpate herself from criminal liability, she belatedly claimed during her direct examination in court that she gave the amount of P45,587.65 as payment for the renewal of the business permits and licenses and P24,000.00 as mobilization fee to one Lito Jacinto, allegedly an employee of the Office of the City Mayor of Manila who was assigned at the Mayor’s Permits and License Division, in order to expedite the processing thereof. This was allegedly upon the express instruction of her superior, Estrella Cuyno, that she deal directly with Lito Jacinto, TFS’ contact person in Manila City Hall. To prove the actual receipt of the said amount by Lito Jacinto, she presented a document marked as Exhibit “6.” The said document was prepared by [Gamboa] herself, which is just a reproduction of Exhibit “5” or the Request of Payment dated January 18, 1999 in the sum of P45,587.65 signed and approved by TFS VP Tambunting, except that the signatory in Exhibit “6” was one Lito Jacinto.
We agree with the court a quo in not giving probative value to Exhibit “6” of the defense.
A perusal of Exhibit “6” shows that the same is merely a photocopy of the original. This was pointed out by private prosecutor Atty. Marcelo and was admitted by defense counsel Atty. Matula during the cross-examination of [Gamboa]. x x x.cralawred
x x x x
Notably, [Gamboa] testified that she herself prepared Exhibit “6,” which allegedly contained the signature of Lito Jacinto as having received the amount of P45,587.65. However, she lost the original copy thereof in a taxi on May 17, 2001 as evidenced by a Certification of even date issued by Chief Inspector Vicente Dizon Flores of the PNP Makati Police Station indicating therein that she left her folder containing documents vital to the instant estafa case. Such being the case, [Gamboa] failed to clearly establish as to how she got hold of the photocopy of the original thereof.
A perusal of Exhibit “6” further shows that it is a “certified xerox copy (from the original)” and the same was signed by one Othelo V. Salvacion, Administrative Officer IV of the City of Manila with O.R. No. 1101860 dated February 11, 2002. Considering that Exhibit “6” is a private document, it was not shown how the original thereof came under the custody of Mr. Salvacion. Neither was Mr. Salvacion also presented on the witness stand to testify as to his alleged signature appearing on the purportedly certified true copy of the original of Exhibit “6.”ChanRoblesVirtualawlibrary
Neither did the defense present the original or xerox copy of Exhibit “6” before the court a quo for marking during the pre-trial held on November 14, 2000. In addition, it was only during the direct examination of [Gamboa] on July 30, 2002 that she raised for the first time Exhibit “6” as a defense by passing the blame to one Lito Jacinto. She never raised the said defense at the earliest opportune time when she made a liquidation report of her cash advances. Further, she again failed to raise the said defense before the Office of the Prosecutor of Makati City during the preliminary investigation. If indeed she was innocent of the crime charged, ordinary human behavior dictates that she should have divulged the said information to her superiors or the investigating public prosecutor of such fact. Her failure to do so casts serious doubt on her credibility.
As to [Gamboa’s] administrative complaint filed before the Office of the City Mayor against Lito Jacinto, [Gamboa] did not make any follow-up on the status of the case nor take any further action in connection therewith. And, as to [Gamboa’s] criminal complaint for estafa against Lito Jacinto which was filed before the City Prosecutor of Manila, the same was dimissed upon [Gamboa’s] motion to withdraw the same without prejudice. No further action was likewise taken by [Gamboa] to pursue her claim against Lito Jacinto.
Thus, the asseveration of the OSG that [Gamboa] should be acquitted because she was able to prove the fact of receipt of the money by Lito Jacinto, must necessarily fail.cralawred
x x x x
WHEREFORE, premises considered, the instant appeal is hereby DENIED. The Decision dated May 18, 2006 of the Regional Trial Court, Branch 145, Makati City in Criminal Case No. 00-526 is AFFIRMED with modification in that [Gamboa] is sentenced to suffer imprisonment of four (4) years and two (2) months of prision correccional, as minimum, to thirteen (13) years of reclusion temporal, as maximum.7 (Emphasis supplied).
I.
THE [HONORABLE] COURT OF APPEALS SUSTAINED [GAMBOA’S] CONVICTION BY FOCUSING ON THE WEAKNESSES OF THE DEFENSE RATHER THAN BASING IT ON THE STRENGTH OF PROSECUTION EVIDENCE[.]II.
THE HONORABLE COURT OF APPEALS DELIBERATELY IGNORED THE MANIFESTATION IN LIEU OF APPELLANT’S BRIEF OF THE PEOPLE’S COUNSEL, THE OSG, WHICH PRAYED FOR [GAMOBA’S] ACQUITTAL[.]8
The critical issue in the instant case, therefore, is whether [Gamboa] misappropriated the cash she received from TFS intended for payment of the latter’s business permits.
As previously mentioned, [Gamboa] does not deny receiving such amount. She contends, however, that she delivered it to Lito Jacinto, the TFS contact person in the City Hall of Manila who absconded with the money instead of paying it in behalf of TFS.
It must be noted that delivery to a third person by an agent of the thing entrusted to her, by itself, does not constitute misappropriation. In the following case, the High Court extensively discussed the rationale behind such principle:chanRoblesvirtualLawlibraryPetitioner did not ipso facto commit the crime of estafa through conversion or misappropriation by delivering the jewelry to a sub-agent for sale on commission basis. We are unable to agree with the lower courts’ conclusion that this fact alone is sufficient ground for holding that petitioner disposed of the jewelry “as if it were hers, thereby committing conversion and clear breach of trust.”ChanRoblesVirtualawlibrary
It must be pointed out that the law on agency in our jurisdiction allows the appointment by an agent of a substitute or sub-agent in the absence of an express agreement to the contrary between the agent and the principal. In the case at bar, the appointment of Labrador as petitioner’s sub-agent was not expressly prohibited by Quilatan, as the acknowledgement receipt, Exhibit B, does not contain any such limitation. Neither does it appear that petitioner was verbally forbidden by Quilatan from passing on the jewelry to another person before the acknowledgement receipt was executed or at any other time. Thus, it cannot be said that petitioner’s act of entrusting the jewelry to Labrador is characterized by abuse of confidence because such an act was not proscribed and is, in fact, legally sanctioned.
x x x x
Thus, the next question that must be settled is whether the evidence upholds [Gamboa’s] claim of delivery by her to Lito Jacinto of the money intended to be paid to secure permits and licenses from the City of Manila, or at least create a reasonable doubt that she misappropriated the money given to her by TFS.
Notably, in the instant case, [Gamboa] is claiming that not only is she not prohibited from delivering the amount to Lito Jacinto, but under TFS practice and as well as by direct orders of her superiors, she is actually mandated to give such amount to him for the release of TFS business permits. x x x. Thus, she should not be held liable for Lito Jacinto’s failure to remit such amount to the City Government of Manila.
Apart from her testimony, [Gamboa] presented various documentary evidences. Exhibit “5” x x x, for instance, is a TFS voucher denominated as Request for Payment, dated January 18, 1999, wherein the company vice president, Ramon Louis Carlos Tambunting, signed his approval for the release of P45,587.65 to [Gamboa] for payment of business permits for TFS branches in Manila. Exhibit “5” contains detailed information as to the original assessment, the amount compromised and the resulting amount to be paid for each branch in Manila.
[Gamboa] likewise presented Exhibit “6” x x x, the same Request for Payment Form as in Exhibit “5” but without the signature of Ramon Louis Carlos Tambunting. Instead the purported signature of Lito Jacinto appears therein acknowledging the receipt of P45,526.65 [sic] to be paid for the release of business permits of TFS.
There seems to be no doubt that TFS deals with contact persons within the City Government of Manila such as Lito Jacinto to facilitate the release of its business permits for some consideration which TFS terms as “Mobilization Fee.” Exhibit “27” x x x is a request for payment form dated January 18, 1999 signed by Ramon Louis Carlos Tambunting authorizing the release to [Gamboa] of the amount of P24,000.00 or P2,000.00 per TFS branch in Manila as “Mobilization Fee.”ChanRoblesVirtualawlibrary
The prosecution never challenged the authenticity of Exhibits “5,” “6” or “27,” thereby giving plausibility to [Gamboa’s] claim that she paid such amounts to Lito Jacinto as sanctioned by TFS officials. There is no doubt that Lito Jacinto exists and that TFS has dealings with him.9
- 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;
- That there is a misappropriation or conversion of such money or property by the offender or denial on his part of such receipt;
- That such misappropriation or conversion or denial is to the prejudice of another; and
- That there is a demand made by the offended party on the offender.10
Notably, [Gamboa] testified that she herself prepared Exhibit “6[,]” which allegedly contained the signature of Lito Jacinto as having received the amount of P45,587.65. However, she lost the original copy thereof in a taxi on May 17, 2001 as evidenced by a Certification of even date issued by Chief Inspector Vicente Dizon Flores of the PNP Makati Police Station indicating therein that she left her folder containing documents vital to the instant estafa case. Such being the case, [petitioner] failed to clearly establish as to how she got hold of the photocopy of the original thereof.
A perusal of Exhibit “6” further shows that it is a “certified xerox copy (from the original)” and the same was signed by one Othelo V. Salvacion, Administrative Officer IV of the City of Manila with O.R. No. 1101860 dated February 11, 2002. Considering that Exhibit “6” is a private document, it was not shown how the original thereof came under the custody of Mr. Salvacion. Neither was Mr. Salvacion also presented on the witness stand to testify as to his alleged signature appearing on the purportedly certified true copy of the original of Exhibit “6[.]”
Neither did the defense present the original or xerox copy of Exhibit “6” before the court a quo for marking during the pre-trial held on November 14, 2000. In addition, it was only during the direct examination of [Gamboa] on July 30, 2002 that she raised for the first time Exhibit “6” as a defense by passing the blame to one Lito Jacinto. She never raised the said defense at the earliest opportune time when she made a liquidation report of her cash advances. Further, she again failed to raise the said defense before the Office of the Prosecutor of Makati City during the preliminary investigation. If indeed she was innocent of the crime charged, ordinary human behavior dictates that she should have divulged the said information to her superiors or the investigating public prosecutor of such fact. Her failure to do so casts serious doubt on her credibility.13
x x x The record shows, however, that [Gamboa] only knew of Lito Jacinto’s failure to deliver the payment sometime in March 9, 1999, while her memorandum to the TFS was given on February 27, 1999. It is also possible that [Gamboa] did not mention Lito Jacinto in her counter and supplemental affidavits because the complaint affidavit of Felicidad Samson was vague, as [Gamboa] was being made to account for various amounts of money. In fact, the investigating prosecutor initially agreed with [Gamboa] that there was no certainty as to the amount demanded from her and he even recommended the dismissal of the complaint against [Gamboa] x x x.14
It is not true that I was not able to pay for the Mayor’s permit for different branches and the documents are with me. The truth of the matter is that all payments have already been made as of January 20, 1999 and some permits are awaiting release.15
Neither did the defense present the original or xerox copy of Exhibit “6” before the court a quo for marking during the pre-trial held on November 14, 2000. In addition, it was only during the direct examination of [Gamboa] on July 30, 2002 that she raised for the first time Exhibit “6” as a defense by passing the blame to one Lito Jacinto. She never raised the said defense at the earliest opportune time when she made a liquidation report of her cash advances. Further, she again failed to raise the said defense before the Office of the Prosecutor of Makati City during the preliminary investigation. If indeed she was innocent of the crime charged, ordinary human behavior dictates that she should have divulged the said information to her superiors or the investigating public prosecutor of such fact. Her failure to do so casts serious doubt on her credibility.16
ATTY. MARCELO x x x x A. All the cash that have to be disbursed comes from me [sic]. Q. And the Petty Cash? A. All the expenses in the office like the transportation of the messenger and all the needs in the office I was the one who prepared the payments. Q. In all these works, do you use records? A. Yes, Ma’am. Q. How? A. I have my own notebook for the Petty Cash. Q. Do you know x x x Jean Gamboa? A. Yes, Ma’am. x x x x A. For every transaction that she has[,] she will consult me. x x x x A. If ever she needs money to pay the permits and licenses[,] she has to go to me to get for the cash advances. x x x x Q. I am showing to you Mrs. Witness a document entitled Request for Payment Form, will you please examine this and tell the Court what is the relation of that to the Request for Payment Form which Jean Gamboa usually handed to you when she asked for cash disbursement? A. This is a Request for Payment form. x x x x A. This refers to her cash advances intended for the permits and licenses for the Manila branches. Q. This Request for Payment Form has been approved by the authorized signatory, were you able to give that amount to her as requested? A. Yes, Ma’am. Q. What proof do you have that you were able to give Jean Gamboa this amount? A. She has a signature in my Petty Cash notebook. Q. Where is that notebook? INTERPRETER Witness is handling a notebook with a caption school notes. ATTY. MARCELO Q. You have handed to me a notebook, where in particular is this entry for P81,000.00? A. This is the one, Ma’am. INTERPRETER Witness is pointing to the entry P81,000.00 after which the name Jean Gamboa, her signature and the date January 19, 1999. ATTY. MARCELO Q. In this entry, whose handwriting is this[?] A. Jean Gamboa’s handwriting. Q. How about this signature? A. This is her signature. Q. Why do you say so? A. Because I am familiar with her handwritings and signatures. Everyday we are together in the office. x x x x Q. x x x how did you enter the transaction in this notebook? A. I entered the transaction in pencil. After receiving the amount[,] she will place her name, the date, her signature or her initial. x x x x Q. What happened to this amount of P81,000.00, was she able to liquidate? A. No, Ma’am. Q. Why did you say so? A. No, Ma’am, because when we checked at the City Treasurers Office, we were able to verify that the licenses and permits within the City of Manila were not able to pay (sic). Q. Mrs. Witness, in the answer of the accused in her Counter-Affidavit she stated that she already liquidated that. In fact, that appears also in your notebook this liquidation, what can you say about that? A. Because the receipts which she submitted according to the City Treasurers of Manila were not valid, these are assessment only.17
Under Article 315 of the RPC, the penalty for estafa is prision correccional in its maximum period to prision mayor in its minimum period, if the amount of the fraud is over P12,000.00 but does not exceed P22,000.00; 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 P10,000.00; but the total penalty which may be imposed shall not exceed twenty years. Applying the Indeterminate Sentence Law, the minimum imposable penalty should range from six (6) months and one (1) day to four (4) years and two (2) months of prision correccional in its minimum and medium periods. On the other hand, the maximum imposable penalty is the maximum range of prision correccional in its maximum period to prision mayor in its medium period, which is six (6) years, one (1) month and twenty-one (21) days to eight (8) years plus one (1) year for each additional P10,000.00, since the amount involved in the instant case is more than P22,000.00 or P81,000.00 to be exact.
Accordingly, this Court finds it proper to impose the penalty of four (4) years and two (2) months of prision correccional, as minimum, to thirteen (13) years of reclusion temporal, as maximum.
The court a quo likewise correctly awarded by way of civil indemnity the sum of P81,000.00 plus interest at the rate of six percent (6%) to be reckoned from the rendition of the judgment until fully paid in view of existing jurisprudence in that the quantification of the amount misappropriated was only reasonably ascertained during the trial of the instant case.20
Endnotes:
* Per Raffle dated 7 April 2014.
1 Penned by Presiding Judge Cesar D. Santamaria. Rollo, pp. 82-88.
2 Penned by Associate Justice Ramon R. Garcia with Associate Justices Edgardo P. Cruz and Estela M. Perlas-Bernabe (now a Member of this Court), concurring. Id. at 59-81.
3 Id. at 60.
4 Certification dated 17 March 1999 issued by the City Treasurer of Manila. Id. at 63.
5 Certification dated 17 May 2001 issued by Chief Inspector Vicente Dizon Glores of the Philippine National Police-Makati Police Station. Id. at 64.
6 Id. at 86-88.
7 Id. at 72-81.
8 Id. at 19-20.
9 Id. at 383-389.
10D’Aigle v. People, G.R. No. 174181, 27 June 2012, 675 SCRA 206, 215.
11Rollo, pp. 84-85.
12People v. Cawaling, 603 Phil. 749 (2009).
13Rollo, pp. 74-75.
14 Id. at 394.
15 Id. at 84.
16 Id. at 75.
17 Id. at 77-78.
18 Id. at 87-88.
19 Id. at 81.
20 Id. at 80-81.
21 Subject: Rate of interest in the absence of stipulation
The monetary Board, in its Resolution No. 796 dated 16 May 2013, approved the following revisions governing the rate of interest in the absence of stipulation in loan contracts, thereby amending Section 2 of Circular No. 905, Series of 1982:chanroblesvirtuallawlibrary
Section 1. The rate of interest for the loan or forbearance of any money, goods or credits and the rate allowed in judgments, in the absence of an express contract as to such rate of interest, shall be six percent (6%) per annum.
http://www.bsp.gov.ph/downloads/regulations/attachments/2013/c799.pdf last visited 21 March 2014.