607 Phil. 4293
PERALTA, J.:
That on or about and during the month of January 1992, in the Municipality of Pasig, Metro Manila, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, conspiring and confederating together and mutually helping and aiding each other, received in trust from one Dennis Espiritu assorted jewelries (sic) amounting to P509,940.00 under the express obligation on the part of the accused to sell the same and thereafter to remit the proceeds of the sale and/or return said jewelries (sic) if not sold to said complainant, but the accused once in possession of said jewelries (sic), far from complying with their aforesaid obligation, with unfaithfulness and abuse of confidence, did then and there willfully, unlawfully and feloniously misapply, misappropriate, and convert to their own personal use and benefit and despite demands to pay the proceeds of the sale and/or to return the said jewelries (sic) in the amount of P509,940.00, they failed and refused, to the damage and prejudice of the complainant in the aforementioned amount of P509,940.00.When arraigned, petitioner pleaded "not guilty." Co-accused Melandia Olandia (Olandia) was dropped from the Information upon the request[6] of complainant Dennis Espiritu (Dennis).[7] Thereafter, trial ensued.
CONTRARY TO LAW.[5]
On or about and during the month of February 1992, in the Municipality of Pasig, Metro Manila, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, conspiring and confederating together, and mutually helping and aiding each other, received in trust from one Victoria Espiritu assorted jewelries (sic) amounting to P155,252.50 under the express obligation on the part of the accused to sell the same and thereafter to remit the proceeds of the sale and/or return said jewelries (sic) if not sold to said complainant, but the accused once in possession of said jewelries (sic), far from complying with their aforesaid obligation, with unfaithfulness and abuse of confidence, did then and there willfully, unlawfully and feloniously misapply, misappropriate, and convert to their own personal use and benefit and despite demands to pay the proceeds of the sale and/or to return the said jewelries (sic) in the amount of P155,252.50, they failed and refused, to the damage and prejudice of the complainant in the aforementioned amount of P155,252.50.The defense presented two witnesses, namely: petitioner Tabaniag and Juan Tapang III (Tapang).
CONTRARY TO LAW.[12]
WHEREFORE, premises considered, the Court finds the accused WILMA TABANIAG guilty beyond reasonable doubt of the crime of Estafa as defined and penalized under Article 315 of the Revised Penal Code and hereby sentences her to suffer the penalty of imprisonment from ten (10) years and one (1) day of Prision Mayor in its maximum period to fourteen (14) years and eight (8) months of Reclusion Temporal in its minimum period and to indemnify the offended party in the amount of Sixty-Two Thousand Nine Hundred (P62,900.00). With costs.The facts of the case as gleaned from the records are as follows:
SO ORDERED.[13]
WHEREFORE, the Decision finding accused-appellant Wilma Tabaniag guilty beyond reasonable doubt of the crime of estafa is AFFIRMED with the indeterminate penalty modified to four (4) years and two (2) months of prision correccional, as minimum, to twelve (12) years of prision mayor, as the maximum, and with the award of indemnity in the amount of Php62,900.00, deleted.The pertinent portions of the CA decision are hereunder reproduced, to wit:
SO ORDERED.[23]
Tabaniag entered into an agreement with Victoria Espiritu for the sale of jewelry. She obligated herself, among others, to deliver and account for the proceeds of all jewelry sold and to return all other items she could not sell. The jewelry could not be sold on installment. She abused the confidence reposed upon her by misrepresenting herself to have sold the jewelry to a certain Bisquera and failing to remit the profit after demand to do so by Espiritu. Due to her failure to forward the returns from the sale of the jewelry, Espiritu suffered loss of income and profit.On March 26, 2004, petitioner filed a Motion for Reconsideration[25] assailing the CA decision.
The receipts issued to and signed by Tabaniag corroborate the prosecution's testimonial proof that she personally received the jewelry. Tabaniag's uncorroborated claim that Victoria Espiritu directly transferred the jewelry to a certain Jane Bisquera cannot stand along against this factual finding. The checks issued by Bisquera do not conclusively prove a direct transaction between her and Espiritu. x x x[24]
The petition is impressed with merit.First Assignment of Error
THE HONORABLE COURT OF APPEALS SERIOUSLY ERRED IN CONCLUDING THAT THERE WAS ABUSE OF CONFIDENCE ON THE PART OF ACCUSED/PETITIONER TABANIAG IN ENTRUSTING THE SUBJECT JEWELRIES (SIC) TO BISQUERA FOR SALE ON COMMISSION TO PROSPECTIVE BUYERS.Second Assignment of Error
THE HONORABLE COURT OF APPEALS SERIOUSLY ERRED IN RULING ON THE VALIDITY OF THE AMENDMENT OF INFORMATION DESPITE ITS VIOLATION OF SUBSTANTIAL RIGHT OF ACCUSED TABANIAG.Third Assignment of Error
THE HONORABLE COURT OF APPEALS SERIOUSLY ABUSED ITS DISCRETION IN RULING THAT THE LETTER COMPLAINT SENT TO THE BGY. CAPTAIN OF BGY. KAPITOLYO WHICH WAS NEVER RECEIVED BY ACCUSED A DEMAND IN CONTEMPLATION OF SECTION 1(b) OF ARTICLE 315 OF THE REVISED PENAL CODE.Fourth Assignment of Error
THE RESPONDENT COURT OF APPEALS SERIOUSLY ERRED WHEN IT RULED THAT THE MOTION TO DISMISS/AFFIDAVIT OF DESISTANCE OF ESPIRITU WILL NOT EXONERATE ACCUSED TABANIAG DESPITE IT BEING THE SAME PERSON WHO EXECUTED THE SAME AFFIDAVIT TO DISMISS CASE VERSUS ACCUSED MELANIA OLANDIA.Fifth Assignment of Error
THE RESPONDENT COURT OF APPEALS SERIOUSLY ERRED WHEN IT FAILED TO RENDER A JUDGMENT OF ACQUITTAL OF THE ACCUSED ON GROUND OF REASONABLE DOUBT.[29]
x x x in good condition, to be sold in CASH ONLY within _____, days from date of signing this receipt. If I could not sell, I shall return all the jewelry within the period mentioned above. If I would be able to sell, I shall immediately deliver and account the whole proceeds of the sale thereof to the owner of the jewelries (sic) at his/her residence: my compensation or commission shall be the over-price on the value of each jewelry quoted above. I am prohibited to sell any jewelry on credits or by installment, deposit, give for safekeeping, lend pledge or give as security or guarantee under any circumstances or manner, any jewelry to other person or persons, and that I received the above jewelry in the capacity of agent.[37]Contrary to the claim of the Solicitor General, the aforementioned conditions do not, in any way, categorically state that petitioner cannot employ a sub-agent. A plain reading of the conditions clearly shows that the restrictions only pertain to the manner in which petitioner may dispose of the property: (1) to sell the jewelry on credit; (2) to sell the jewelry by installment; (3) to give the jewelry for safekeeping; (4) to lend the jewelry; (5) to pledge the jewelry; (6) to give the jewelry as security; and (7) to give the jewelry as guarantee. To this Court's mind, to maintain the position that the said conditions also prohibit the employment of a sub-agent would be stretching the plain meaning of the words too thinly.
Petitioner 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. x x xPetitioner thus cannot be criminally held liable for estafa. Although it cannot be denied that she received the pieces of jewelry from complainants, evidence is wanting in proving that she misappropriated or converted the amount of the pieces of jewelry for her own personal use. Likewise, the prosecution failed to present evidence to show that petitioner had conspired or connived with Bisquera. The mere fact that petitioner failed to return the pieces of jewelry upon demand is not proof of conspiracy, nor is it proof of misappropriation or conversion.
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 acknowledgment 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 acknowledgment 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
In the case at bar, it was established that the inability of petitioner as agent to comply with her duty to return either the pieces of jewelry or the proceeds of its sale to her principal Quilatan was due, in turn, to the failure of Labrador to abide by her agreement with petitioner. Notably, Labrador testified that she obligated herself to sell the jewelry in behalf of petitioner also on commission basis or to return the same if not sold. In other words, the pieces of jewelry were given by petitioner to Labrador to achieve the very same end for which they were delivered to her in the first place. Consequently, there is no conversion since the pieces of jewelry were not devoted to a purpose or use different from that agreed upon.
Similarly, it cannot be said that petitioner misappropriated the jewelry or delivered them to Labrador "without right." Aside from the fact that no condition or limitation was imposed on the mode or manner by which petitioner was to effect the sale, it is also consistent with usual practice for the seller to necessarily part with the valuables in order to find a buyer and allow inspection of the items for sale.
In People v. Nepomuceno, the accused-appellant was acquitted of estafa on facts similar to the instant case. Accused-appellant therein undertook to sell two diamond rings in behalf of the complainant on commission basis, with the obligation to return the same in a few days if not sold. However, by reason of the fact that the rings were delivered also for sale on commission to sub-agents who failed to account for the rings or the proceeds of its sale, accused-appellant likewise failed to make good his obligation to the complainant thereby giving rise to the charge of estafa. In absolving the accused-appellant of the crime charged, we held:Where, as in the present case, the agents to whom personal property was entrusted for sale, conclusively proves the inability to return the same is solely due to malfeasance of a sub-agent to whom the first agent had actually entrusted the property in good faith, and for the same purpose for which it was received; there being no prohibition to do so and the chattel being delivered to the sub-agent before the owner demands its return or before such return becomes due, we hold that the first agent cannot be held guilty of estafa by either misappropriation or conversion. The abuse of confidence that is characteristic of this offense is missing under the circumstances.Furthermore, in Lim v. Court of Appeals, the Court, citing Nepomuceno and the case of People v. Trinidad, held that:In cases of estafa, the profit or gain must be obtained by the accused personally, through his own acts, and his mere negligence in permitting another to take advantage or benefit from the entrusted chattel cannot constitute estafa under Article 315, paragraph 1-b, of the Revised Penal Code; unless of course the evidence should disclose that the agent acted in conspiracy or connivance with the one who carried out the actual misappropriation, then the accused would be answerable for the acts of his co-conspirators. If there is no such evidence, direct or circumstantial, and if the proof is clear that the accused herself was the innocent victim of her sub-agent's faithlessness, her acquittal is in order.[38]
x x x xBased on the foregoing, it is clear that petitioner had in fact transferred the pieces of jewelry to Bisquera. Thus, contrary to the finding of the CA, petitioner could not have converted the same for her own benefit, especially since the pieces of jewelry were not with her, and there was no evidence of conspiracy or connivance between petitioner and Bisquera.
Jane Bisquera cannot interpose the defense that she is not privy to the transaction. Her admission that she has indeed received the pieces of jewelry which is the subject matter of the controversy and her offer to extinguish the obligation by payment or dacion en pago is contradictory to her defense. Therefore, she is estopped from interposing such a defense.
Furthermore, earlier in her transaction with Wilma Tabaniag, the principals, Sps. Espiritu, were not alien to her but were in fact disclosed to her, hence, she has knowledge that the spouses are the principals of Tabaniag.
Bisquera, being a sub-agent to Tabaniag, is in fact privy to the agreement. x x x[39]
Lastly, although petitioner may have admitted that the cases she filed against Bisquera do not involve the same checks, which are the subject matter of the case at bar, the same does not necessarily manifest a criminal intent on her part. On the contrary, what it shows is that petitioner too may be an unwilling victim of this day-to-day malady of bouncing checks, common in our business field. Certainly, petitioner may have been negligent in entrusting the pieces of jewelry to Bisquera, but in no way can such constitute estafa as defined in the RPC.
Q. Now, madam witness, there is a (sic) mentioned here an amount of P300,000.00 regarding the violation of bouncing check, am I correct? A. Yes, sir. Q. And according to you, these were payments made by Wilma Tabaniag, am I correct? A. Yes, sir. Q. Who is the drawer of these checks with a P300,000.00 that you mentioned in this particular document, not less than P300,000.00? A. The total check P300,000.00 was under my name. Q. No, I mean, who is the drawer? A. Mrs. Tabaniag issued and the other pieces of jewelry were issued by a certain Jane Bisquera. Q. No, not jewelries, checks. A. I'm sorry, checks. Q. How much was issued by Jane Bisquera? A. The total is P320,872.00 Q. That was by Jane Bisquera alone? A. Yes, sir.[40]