• Filing case of estafa through misappropriation

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    Persida Acosta

    Dear PAO,
    My friend has a few pieces of jewelry that were given to her by her mother. Unfortunately, her mother was hospitalized. So, she had to dispose of some of her valuables, which included her pieces of jewelry. Her neighbor offered to sell them for her in exchange for a small “cut,” to which she agreed with the condition that her neighbor will give her the profit (less his supposed “cut”) three days after a sale has been made or just return the pieces of jewelry if they remain unsold after 30 days from the time my friend delivered them to him.

    My friend gave him six items last November 201, but until now he has not remitted any of the proceed. Neither has he returned any of the items. He seems to also be denying having received my friend’s items. She is very anxious right now and is seriously considering to file a case against him. She was told that she can file a case for estafa through misappropriation. Is this correct? Please advise us on this matter.
    Delia

    Dear Delia,
    Estafa or swindling is a crime of defrauding a person that may be committed in several ways or means. One manner of committing such crime, as mentioned under our criminal laws, is when it is done with unfaithfulness or abuse of confidence of a person as when a property is given or transferred to another who thereafter misappropriates it. To be certain, Article 315 (1) (b) of our Revised Penal Code provides:

    Any person who shall defraud another by any of the means mentioned herein below shall be punished by:
    1st. The penalty of prision correccional in its maximum period to prision mayor in its minimum period, if the amount of the fraud is over 12,000 pesos but does not exceed 22,000 pesos; 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 10,000 pesos; but the total penalty which may be imposed shall not exceed twenty years. x x x
    1. With unfaithfulness or abuse of confidence, namely: x x x

    (b) By 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; x x x

    As can be gleaned from this provision, it is essential for your friend to establish, if she desires to pursue the filing of a case for estafa against her neighbor, that: (1) the latter in fact received her jewelry in trust or on commission or under any other obligation where he has the duty to make delivery of, or to return, the same; (2) her neighbor has in fact misappropriated or converted her pieces of jewelry, or denies having received the same; (3) such misappropriation, conversion or denial is to your friend’s prejudice; and (4) your friend has in fact demanded from her neighbor the deliver of the proceeds of their agreement or the return her unsold pieces of jewelry but to no avail.

    We further wish to impart the ruling of our Supreme Court in Cheng vs. People(G.R. No. 174113, January 13, 2016; ponente: Associate Justice Estela Perlas-Bernabe), which reiterated the ruling in Pamintuan vs. People (G.R. No. 172820, June 23, 2010; ponente: Associate Justice Arturo Brion):

    “x x x The essence of this kind of estafa is the appropriation or conversion of money or property received to the prejudice of the entity to whom a return should be made. The words ‘convert’ and ‘misappropriate’ connote the act of using or disposing of another’s property as if it were one’s own, or of devoting it to a purpose or use different from that agreed upon. To misappropriate for one’s own use includes not only conversion to one’s personal advantage, but also every attempt to dispose of the property of another without right. In proving the element of conversion or misappropriation, a legal presumption of misappropriation arises when the accused fails to deliver the proceeds of the sale or to return the items to be sold and fails to give an account of their whereabouts. 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 dearpao@manilatimes.net.

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