G.R. No. 204025, November 26, 2014
MARIA LINA S. VELAYO, Petitioner, v. PEOPLE OF THE PHILIPPINES, Respondent.
D E C I S I O N
WHEREFORE, this Court finds Accused Lina S. Velayo guilty beyond reasonable doubt of the crime of estafa and, accordingly, sentences her to suffer an indeterminate penalty of four (4) years, one (1) month and one (1) day of prision correccional as minimum to twenty (20) years of reclusion temporal as maximum. Accused is directed to return to private complainant WJA Holdings, Inc. the amount of P3,429,225.00 with legal interest until fully paid.
That on or about the 29th day of March 2001 in Pasay City, Metro Manila, Philippines and within the jurisdiction of this Honorable Court, the above-named accused, LINA S. VELAYO, defrauded and deceived WJA Holdings, Inc. herein represented by its President, Jayne O. Abuid, in the following manner to wit: that the accused being then the President of Alorasan Realty Development Corporation entered into in its behalf a contract to purchase two parcels of land covered by TCT Nos. 142675 and 122230 for Php20,000,000.00 and Php40,000,000.00 respectively with WJA Holdings, Inc., with the understanding that the applicable withholding tax which WJA Holdings, Inc. was supposed to withhold and remit to the BIR re: the Php40,000,000.00 purchase price in the amount of Php3,000,000.00 representing the 7.5% withholding tax will not be deducted hence the total amount of Php40,000,000.00 was received by the accused under the obligation of effecting the registration and transfer of the title in the name of WJA and further accused received from the WJA the amount of Php346,670.00 representing documentary stamp tax for such transfer and the accused once in possession of the said aggregate amount of Php3,346,670.00, which amount accused misapplied, misappropriated and converted to her own personal use and benefit, and despite repeated demand made upon her, accused failed to comply, to the damage and prejudice of said complainant in the aforesaid amount of Php3,346,670.00.The above complaint arose from the sale to WJA Holdings, Inc. (WJA), owner of the Asian Institute of Maritime Studies (AIMS), of two properties owned by Alorasan Realty Development Corporation (ARDC), namely: a 2,568-square-meter lot on Robert Street, Pasay City covered by Transfer Certificate of Title (TCT) No. 122230, for P40 Million; and a 550-sq-m property along Roxas Boulevard covered by TCT No. 142675, for P20 Million. Emma Sayson (Sayson), a sales agent of ARDC, testified that she coordinated and was present in all the negotiations for the sale, which was finalized on March 29, 2001 at a meeting held at the AIMS office. At the said meeting, Velayo, ARDC Director and Corporate Secretary, represented ARDC, while Arlene Abuid-Paderanga (Paderanga), President of AIMS, and Janet Abuid (Abuid), Treasurer of WJA and Vice-President for Finance of AIMS, represented WJA.6
Contrary to law.5
Velayo maintains that an essential element of the crime of estafa is absent, since it is not shown that personal property was held by her in trust, on commission, for administration or under any other circumstance, for WJA. She insists that she had no juridical, but only physical or material, possession of the missing funds for the reason that under the Contract to Sell between ARDC and WJA, she was under no personal obligation to withhold the taxes due on the subject transaction. At best, her possession of the missing funds was in trust for ARDC which she represented, and any prejudice caused to WJA should be redressed by ARDC itself. In short, her possession gave rise only to a civil liability to ARDC.
THAT [VELAYO] HAD NO OBLIGATION TO WITHHOLD TAXES ON BEHALF OF THE BUYER WJA AND THUS DID NOT RECEIVE [T]HE SUBJECT FUNDS IN A MANNER THAT WOULD MAKE HER LIABLE FOR THE CRIME OF ESTAFA[;]
[VELAYO] DID NOT HAVE JURIDICAL POSSESSION OVER THE SUBJECT FUND[S] AND COULD NOT THEREFORE BE HELD LIABLE FOR THE CRIME OF ESTAFA[.]19
Petitioner was charged with the crime of estafa under Article 315 (1) (b) of the Revised Penal Code. In general, the elements of estafa are: (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. Deceit is not an essential requisite of estafa with abuse of confidence, since the breach of confidence takes the place of the fraud or deceit, which is a usual element in the other estafas.The petition is bereft of merit.
The elements of estafa through conversion or misappropriation under Art. 315 (1) (b) of the Revised Penal Code are:(1) that personal property is received in trust, on commission, for administration or under any other circumstance involving the duty to make delivery of or to return the same, even though the obligation is guaranteed by a bond;Have the foregoing elements been met in the case at bar? We find the first element absent. When the money, goods, or any other personal property is 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. In this case, petitioner was a cash custodian who was primarily responsible for the cash-in-vault. Her possession of the cash belonging to the bank is akin to that of a bank teller, both being mere bank employees.
(2) that there is conversion or diversion of such property by the person who has so received it or a denial on his part that he received it;
(3) that such conversion, diversion or denial is to the injury of another; and
(4) that there be demand for the return of the property.
In People v. Locson, the receiving teller of a bank misappropriated the money received by him for the bank. He was found liable for qualified theft on the theory that the possession of the teller is the possession of the bank. We explained in Locson that —“The money was in the possession of the defendant as receiving teller of the bank, and the possession of the defendant was the possession of the bank. When the defendant, with grave abuse of confidence, removed the money and appropriated it to his own use without the consent of the bank, there was the taking or apoderamiento contemplated in the definition of the crime of theft.”In the subsequent case of Guzman v. Court of Appeals, a travelling sales agent misappropriated or failed to return to his principal the proceeds of things or goods he was commissioned or authorized to sell. He was, however, found liable for estafa under Article 315 (1) (b) of the Revised Penal Code, and not qualified theft. In the Guzman case, we explained the distinction between possession of a bank teller and an agent for purposes of determining criminal liability—“The case cited by the Court of Appeals (People vs. Locson, 57 Phil. 325), in support of its theory that appellant only had the material possession of the merchandise he was selling for his principal, or their proceeds, is not in point. In said case, the receiving teller of a bank who misappropriated money received by him for the bank, was held guilty of qualified theft on the theory that the possession of the teller is the possession of the bank. There is an essential distinction between the possession by a receiving teller of funds received from third persons paid to the bank, and an agent who receives the proceeds of sales of merchandise delivered to him in agency by his principal. In the former case, payment by third persons to the teller is payment to the bank itself; the teller is a mere custodian or keeper of the funds received, and has no independent right or title to retain or possess the same as against the bank. An agent, on the other hand, can even assert, as against his own principal, an independent, autonomous, right to retain money or goods received in consequence of the agency; as when the principal fails to reimburse him for advances he has made, and indemnify him for damages suffered without his fault (Article 1915, [N]ew Civil Code; Article 1730, old).”20 (Citations omitted, underscoring ours and italics in the original)Ruling of the Court
To further induce Abuid and Paderanga to entrust to her the funds for the taxes on TCT No. 122230, Velayo claimed that she knew someone at the BIR who could help her facilitate the remittance, and even reduce the amounts due, as Abuid testified:
Q: Under this contract to sell, it is provided in No. 2 “The purchase price shall be paid by the buyer to the seller less the applicable creditable withholding tax which the buyer shall withhold and remit to BIR for the credit of the seller, upon the execution of this contract.” Can you tell the Court, Madam Witness, if the buyer who happens to be WJA Holdings and represented by Jayne Abuid withheld the creditable withholding tax? A: The creditable withholding tax was not withheld by the buyer. Q: When you are referring to the buyer, who is this? A: WJA Holdings. Q: Why is that so, Madam Witness? A: Because Mrs. Velayo presented herself that she will take charge of it because she knows somebody from the BIR. Q: Can you please explain what you mean take charge? A: If you are in-charge, it means you will be the one to pay the BIR for the payment of the withholding tax for the issuance of certificate authorizing registration. Q: It is my understanding, Madam Witness, that the buyer did not withhold the applicable withholding tax because Mrs. Velayo represented herself that she will be the one to pay the BIR directly? A: Yes, sir. x x x. x x x x Q: Now you testified about the sales transactions involving the two (2) parcels of land and the seller is Alorasan, which is a corporation. Aside from Mrs. Velayo, did you have any deal with any officers of Alorasan Corporation? A: None, sir. She was the only one. Q: Are you sure of that? A: Yes, sir.23 (Citations omitted and emphasis in the original)
That Velayo did not fully deliver as she promised despite repeated demands is established in Paderanga’s testimony, as follows:
Q: And do you know the reason why she requested that, Miss Witness? A: She requested that because she wanted, she said that (sic) she wanted to facilitate for the payment of the creditable withholding tax, the capital gains tax because she knows some [sic] from the BIR and she will be able to reduce the cost in the payment of taxes, sir.24 (Citation omitted)
Velayo was able to submit the CAR only for TCT No. 142675 but not for TCT No. 122230, and thus only TCT No. 142675 was transferred to WJA.26 Velayo’s reliance on Chua-Burce is misplaced, for unlike in Chua-Burce where the petitioner was a mere bank cash custodian, Velayo is an agent of WJA who received money on its behalf with the agreed task to remit the same to the BIR and thus facilitate the transfer of the titles to WJA. First, Velayo is not a mere bank teller or bank employee with only a material possession of the missing funds, she was a Director and Corporate Secretary of ARDC, and she exercised sole and complete control over the funds of the company; second, Velayo is not being sued by ARDC for misappropriating the missing funds, but by WJA, who entrusted the same to her in her personal capacity because of her assurance that she would remit the same to the BIR; third, in Chua-Burce, the money deposited was intended for the depository bank, which acquired juridical possession, even ownership, thereof, whereas here, although the checks for the withholding taxes were deposited in the account of ARDC, Velayo and WJA were fully aware that Velayo not only had sole material possession, but the missing funds were personally entrusted to her, not to ARDC. ARDC had no obligation to receive, keep or remit them in behalf of WJA, only Velayo.
Q: With regards to the transaction, what was the agreement or arrangement? A: The arrangement was in terms of payment and the total amount. The agreement that we come up with was we will pay her the total amount of what has been agreed and we will not anymore withhold the taxes we are supposed to withhold. She said, she will be the one to do all of these things for us for expediency reasons. Q: How much were the properties sold? How much each is the property? A: We always talk in terms of lump sum. I know that we paid P40 million and P20 million. So, we are talking of a total of P60 million for the two (2) properties. x x x x Q: Madam Witness, you mentioned that you will not anymore withhold the tax and that the accused would arrange this matter for expediency reason. What tax are you referring to, Madam Witness? A: I understand there are supposed to be capital gain tax to be paid, documentary stamp tax and creditable withholding tax to be paid. We were supposed to subtract these amounts because supposed to be, it is buyer’s responsibilities. Q: Why did you not subtract, Madam Witness, these amounts? A: Because she talked us into not doing it. Because she said she has some friends in the BIR and that she was hoping these things will go fast. Q: Madam Witness, how much was that amount which you were supposed to withhold but you did not because of her representation? A: I remember a P3 million category and the P775,000.00 plus. Q: Now, Madam Witness, the properties, which you bought, in whose name are they right now? The two (2) properties? A: The other property is already at WJA’s name. The other property is still with Alorasan’s name. Q: With Alorasan. Why is that property still with Alorasan’s name? A: She did not fulfill her promise to remit to BIR those taxes to come up with the transfer tax and certificate of title in our favor.25 (Citations omitted and emphasis in the original)
* Additional member per Raffle dated October 1, 2014 in view of the inhibition of Associate Justice Francis H. Jardeleza.
1Rollo, pp. 19-47.
2 Penned by Associate Justice Remedios A. Salazar-Fernando, with Associate Justices Ramon M. Bato, Jr. and Florito S. Macalino, concurring; id. at 52-76.
3 Issued by Presiding Judge Wilhelmina B. Jorge-Wagan; id. at 80-95.
4 Id. at 95.
5 Id. at 53-54.
6 Id. at 55, 82.
7 Id. at 55-56.
8 Id. at 56.
9 Id. at 56-57.
10 Id. at 57-58.
11 Id. at 58-59.
12 Id. at 59.
13 Id. at 59-60.
14 Id. at 80-95.
15 Id. at 96.
16 387 Phil. 15 (2000).
17Rollo, p. 70.
18Lee v. People, 495 Phil. 239, 249-250 (2005).
19Rollo, p. 33.
20Chua-Burce v. Court of Appeals, supra note 16, at 25-27.
21 In her letter to Abuid, Velayo wrote: “Please be advised that you already withheld the creditable withholding income tax on the sale of that parcel of land more particularly described in Transfer Certificate of Title No. 122230 issued by the Registry of Pasay City, pursuant to Section 3 of the Deed of Absolute Sale which we have executed last April 2001. Please be advised that the said Deed of Absolute Sale represents the entire agreement between us and supersedes any and all prior understanding and agreement between us.” Rollo, p. 67.
22 Id. at 66.
23 Id. at 63-64.
24 Id. at 64-65.
25 Id. at 65-66.
26 Id. at 69-70.
27 Id. at 73.
28 57 Phil. 325 (1932).
29Matrido v. People, 610 Phil. 203, 214 (2009), citing Chua-Burce v. Court of Appeals, supra note 16, at 26.