My brother’s officemate borrowed money from him amounting to P50,000. They agreed that the monthly interest will be at P500 per month and that this amount should be settled on or before January 2015. Unfortunately, until now my brother’s officemate has not paid even a single centavo. He demanded from him several times already but he kept avoiding my brother. He no longer answers my brother’s calls or text messages. Now, my brother filed a report before our Barangay and considers filing a complaint for swindling. Do you think this is the proper remedy? Please advise.
Swindling, or more commonly termed as estafa, is a criminal offense which is punishable under Article 315 of the Revised Penal Code (RPC). In order for an accused to be held responsible for the commission of this crime, it is essential to prove that damage or prejudice, which is capable of pecuniary estimation, was brought upon the private complainant. However, it is equally important to establish that the accused defrauded the private complainant, which may be committed either: (a) with unfaithfulness or abuse of confidence; (b) by means of false pretenses or fraudulent acts; or (c) through fraudulent means. (Id.)
In the situation of your brother which you have relayed to us, we cannot categorically conclude that he was particularly defrauded by his officemate as there is no clear showing that there was unfaithfulness or abuse of confidence on the part of the creditor. Neither is there any showing that false pretenses or fraudulent acts were employed to obtain the money. Rather, what is clear from the facts that you have shared is that your brother lent his officemate P50,000, with the agreement that the said amount will earn a monthly interest of P500, the settlement thereof is due on January 2015, and the same has not been completely paid up to this point.
Accordingly, we believe that filing a complaint for swindling is not the proper recourse. The elements of the crime is wanting, thus pursuing the complaint may only result in the dismissal thereof.
Nonetheless, your brother may opt to file a small claims case against his officemate. Said action must be filed before the Metropolitan Trial Court, Municipal Trial Court or Municipal Circuit Trial Court of the place where he resides. (Section 2 in relation to Section 4, Rules of Procedure for Small Claims Cases as Amended, SC En Banc Resolution dated October 27, 2009 in Administrative Matter No. 08-8-7-SC) However, if they are living within the same city or municipality, he must first bring the matter before the Barangay. This is pursuant to Section 412 of Republic Act (R.A.) No. 7610 which states: “(a) No complaint, petition, action or proceeding involving any matter within the authority of the lupon shall be filed or instituted directly in court, unless there has been a confrontation between the parties before the lupon chairman or the pangkat, and that no conciliation or settlement has been reached as certified by the lupon or pangkat secretary or unless the settlement has been repudiated by the parties thereto. x x x”
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 email@example.com