• Appropriate charges to collect borrowed money

    Persida Acosta

    Persida Acosta

    Dear PAO,
    My officemate borrowed money from me last January and promised me that she will pay by the first week of February. Up to now she has not paid despite my repeated demands. Can I file a case against him? Is it possible to file a case of estafa so that he will be subjected to imprisonment?

    Dear Bernie,
    Considering that what exists between you and your officemate is a contract of loan or mutuum and that, to this day, he has not settled the amount that he owes you, you now have the right to file the appropriate civil action in court. You may file a small claims case before the Metropolitan Trial Court, Municipal Trial Court or Municipal Circuit Trial Court of the place where you reside if the amount you are claiming does not exceed One hundred Thousand Pesos (P100,000.00). Should the amount you are demanding from your officemate exceed One hundred Thousand Pesos (P100,000.00), an action for collection of sum of money must be filed before the Regional Trial Court.

    It is not advisable for you to file a criminal complaint for estafa against your officemate. Under the law, a person may only be held criminally liable for estafa if he has defrauded another with unfaithfulness or abuse of confidence, by: (a) altering the substance, quantity, or quality or anything of value which the offender shall deliver by virtue of an obligation to do so, even though such obligation be based on an immoral or illegal consideration; (b) 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; or (c) taking undue advantage of the signature of the offended party in blank, and by writing any document above such signature in blank, to the prejudice of the offended party or of any third person (Article 315 (1), Revised Penal Code (RPC).

    There may also be a crime of estafa if one defrauds another by means of any of the following false pretenses or fraudulent acts: (a) using fictitious name, or falsely pretending to possess power, influence, qualifications, property, credit, agency, business or imaginary transactions, or by means of other similar deceits; (b) altering the quality, fineness or weight of anything pertaining to his art or business; (c) pretending to have bribed any Government employee, without prejudice to the action for calumny which the offended party may deem proper to bring against the offender. In this case, the offender shall be punished by the maximum period of the penalty; (d) obtaining any food, refreshment or accommodation at a hotel, inn, restaurant, boarding house, lodging house, or apartment house and the like without paying therefor, with intent to defraud the proprietor or manager thereof, or by obtaining credit at hotel, inn, restaurant, boarding house, lodging house, or apartment house by the use of any false pretense, or by abandoning or surreptitiously removing any part of his baggage from a hotel, inn, restaurant, boarding house, lodging house or apartment house after obtaining credit, food, refreshment or accommodation therein without paying for his food, refreshment or accommodation; or through any of the following fraudulent means: (a) inducing another, by means of deceit, to sign any document; (b) resorting to some fraudulent practice to insure success in a gambling game; (c) removing, concealing or destroying, in whole or in part, any court record, office files, document or any other papers (Article 315 (2) (3), RPC).

    Lastly, there is a crime of estafa if: (a) a person makes or draws and issues any check to apply on account or for value, knowing at the time of issue he does not have sufficient funds in or credit with the drawee bank for the payment of such check in full upon its presentment, and such check is subsequently dishonored by the drawee bank for insufficiency of funds or credit or would have been dishonored for the same reason had not the drawer, without any valid reason, ordered the bank to stop payment, or (b) a person who has sufficient funds in or credit with the drawee bank when he marked or drawn and issued a check, failed to keep sufficient funds or to maintain a credit to cover the full amount of the check when presented within a period of ninety (90) days from the date appearing thereon (Section 1, Batas Pambansa Blg. 22).

    Clearly, none of the elements of the crime of estafa is present in your situation. Hence, there is no legal basis to file such complaint before the court.

    We hope that we were able to answer your queries. Please be reminded that this advice is based solely on the facts you have narrated and our appreciation of the same. Our opinion may vary when other facts are changed or elaborated.

    Editor’s note: Dear PAO is a daily column of the Public Attorney’s Office. Questions for Chief Acosta may be sent to dearpao@manilatimes.net


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