Sunday, September 30, 2007

Estafa: probable cause, deceit, swindling, appeal.

In an Estafa case that I elevated to the Dept. of Justice on appeal, I cited the case of PABLO v. PEOPLE, GR 138090, November 11, 2004, which held:

"
Deceit is defined as the false representation of a matter of fact, whether by words or conduct, by false or misleading allegations, or by concealment of that which should have been disclosed which deceives or is intended to deceive another so that he shall act upon it to his legal injury. False pretense is any deceitful practice or device by which another is led to part with the property in the thing taken. x x x. The deceit or false pretense employed by petitioners is the fact that they assured complainant that the amount of P330,000.00 delivered to them and accused Victoria by Evangeline was to pay the back taxes of a certain parcel of land so that a title may be secured and complainant will be given 2,500 square meters of the subject land.x x x.The failure of petitioners and accused Roberto in not paying the back taxes and in misappropriating the money to their own personal use, constitute the crime of Estafa. Even if the land exists, the crime of Estafa is committed when petitioners and accused Roberto convinced complainant to part with her money on the basis of their assurance that they will pay the back taxes due on the land so as to secure a title over the land and a portion thereof titled in the name of complainant.x x x."

(Excerpts from my petition for review filed with the Dept. of Justice)

I. ISSUES

WHETHER OR NOT THERE IS PROBABLE CAUSE TO CHARGE THE RESPONDENTS FOR ESTAFA.

II. DISCUSSION

The facts are clear.

On March 17, 1997 the respondents sold to the complainants, for a sum of THREE HUNDRED SEVENTY FIVE THOUSAND PESOS (P375,000.00), a 100 sq. m. part of a 262-sq. m. real property described as x x x , located at x x x Makati City.

At the time of the sale, the respondents were in the process of applying the said property for a Sales Patent through the Bureau of Lands.

It was the clear and express intent and understanding of the parties to the said sale that the respondents would EXCLUDE the 100-sq. m. part of the 262-sq. m. property from the Sales Patent application processing filed by the respondents, with the Bureau of Lands so that the said portion could be separately applied for by the complainants with the said Office.

As of March 17, 1997, which was the date of the sale, the respondents had legally conveyed/transferred to the complainants all their rights and interests therein. For such purpose, the respondents, as the sellers, had received a huge consideration/price from the complainants/sellers.

To the surprise of the complainants, they recently learned that the respondents had caused the issuance in their sole favor and names of: (a) a Sales Patent No. x x x on x x x by the Bureau of Lands and (b) an OCT No. x x x x issued on x x x by the Registry of Deeds of Makati City.

The respondents had maliciously, deceitfully and unlawfully defrauded and swindled the complainants by causing the registration of the whole area (262 sq. m.) of the property solely in their names, to the exclusion of the complainants, despite the prior execution of the aforementioned sale and despite the clear and express representations and promises of the complainants (a) that they would honor their commitment to the respondents to segregate the 100-sq. m. part of the property that the respondents had lawfully sold to the complainants from their then pending Sales Patent application with the Bureau of Lands and (b) that they would protect, respect and preserve the rights and interests of the complainants in the said 100-sq. m. part of the property.

When confronted by the complainants about the matter, the respondents denied their deceitful, unlawful, fraudulent and felonious act.

The complainants, upon an inquiry, recently learned that the property had likewise been MORTGAGED by the respondents to a third party and that the respondents had neglected to pay their obligation to such mortgagee and that the property may soon be subjected to FORECLOSURE by the mortgagee.

The complainants had brought this matter to the local Barangay for mediation last month. The respondents had denied his liability and, thus, no amicable settlement was reached.

The complainants had filed an affidavit of adverse claim with the Registry of Deeds of Makati City to protect their rights and interest in the interim and preparatory to the civil and criminal actions that would file against the respondents.

The criminal act of the respondents had caused damages to the complainants: actual damages of P375,000.00; moral and exemplary damages of at least P500,000.00; attorney’s fees and litigation expenses of at least 25 percent of the value of the recoverable damages.

Despite repeated personal demands made by the complainants and despite the mandatory barangay confrontation commenced by the complainants and completed by the parties last month, the respondents to this date continue to refuse to acknowledge their malicious, deceitful and fraudulent act and liability and to indemnify the complainants of the damages that they had caused.”

We stress the following points hereinbelow.

The sworn certification of x x x, the agent of the respondents, showed that the latter offered the 100 sq. m. portion of the subject property to the complainants for a consideration of P375,000.00 and that a deed of absolute sale had been executed by the respondents pursuant to document transaction.

The notarized deed of absolute sale and the waiver of rights signed by the respondent spouses, which formed part of the complaint, was duly executed, authenticated and entered in the notarial records of Atty. X x x (Makati City). A generic and self-serving denial is insufficient to defeat the same.

To be a referror-agent does not need a special power of attorney. To look for a buyer/client does not require one. The reason is that direct the signatories to the deed would be the parties themselves and not the agent. The agent was merely a scout/referrer for a buyer/client.

The complainants needed more time to file for a patent application for the subject portion of the land. Their delay should not be taken against them, in the first, place, even if they wanted to rush the application, the same would be useless, since the respondents had already preempted the registration thereof in their own names, contrary to the agreement with the complainants.

Assuming arguendo that the respondent husband x x x was abroad and did not sign the subject deeds, why did his co-respondent wife x x x personally receive, use, exploit, and enjoy the huge amount/consideration paid in good faith by the complainants pursuant to the said transaction (and in the process directly making the x x x conjugal family and partnership as direct beneficiaries thereof, to the grave detriment of the complainants)?

Assuming arguendo that there is no probable cause against the respondent husband x x x would the same automatically and mechanically classify his co-respondent wife x x x as pure, angelic and innocent, thus, routinely clearing her of criminal liability, in the face of the glaring evidence showing her direct and personal participation in the subject transactions, in the light of the fact that she personally received, used, exploited and enjoyed the price/consideration for the transactions paid for by the complainants in good faith, and in the light of the fact that she had

made the crucial and materially false, deceitful and malicious misrepresentations that triggered the entire transaction and upon which the complainants relied to pay the huge price involved?

The goal of preliminary investigation is to establish mere PRIMA FACIE CASE (PROBABLE CAUSE).

The complainants humbly submit that they have met and complied with the standard, at the least, as against the co-respondent wife x x x, if not as against both respondents, based on the evidence on record.

ESTAFA penalized under Article 315 of the Revised Penal Code, to wit:

ART. 315. Swindling (estafa). - Any person who shall defraud another by any of the means mentioned hereinbelow. . . committed by any of the following means:

1. With unfaithfulness or abuse of confidence, namely:

xxxx.

(b) By misappropriating or converting, to the prejudice of another, money, goods, or any other personal property received by the offended 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.

2. By means of the following false pretenses or fraudulent acts executed prior to or simultaneously with the commission of the fraud:

(a) By 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. Xxx.

In the recent case of PABLO v. PEOPLE, GR 138090, November 11, 2004. the facts were the following:

“x x x x.

The evidence is clear that accused-appellants made a false representation to private complainant that the purported transaction is the payment of back taxes and validation of a parcel of land belonging to the late Pulmano Molintas. With this representation, private complainant, was enticed by the trio to part with her money by contributing the amount of P330,000.00 and in return, she will be given a 2,500-square meter lot. Such promises and assurances of herein appellants are evident from the pertinent testimonies of private complainant. Xxx.

Receipt of the money by appellants from private complainant was evidenced by Exhibits “A”, “B”, “C”, “E” and “I” (Records, pp. 38-40 and 44). Such receipts were affirmed by all the accused upon their execution of individual promissory notes (Exhibits “F”, “G” and “H”; Records, pp. 41-43).

Appellants even misrepresented to private complainant that they already paid the back taxes in Manila.

xxx.

Though private complainant knew that the subject land was not titled, appellants made her believe that they can work for the validation of the title of the subject land thereby entitling her to a 2,500-square meter lot.

xxx.

Worse, appellants practically admitted having misappropriated the money of private complainant by dividing it among themselves for their personal use. The promissory notes, by its (sic) execution, (Exhibits “F”, “G” and “H”) are the best evidence that appellants impliedly acknowledged misuse of complainant’s money (TSN, April 5, 1994, pp. 13-15).”

In the said case the Supreme Court held, thus:

We find no cogent reason to disregard the above findings of the appellate court. Petitioners’ argument that there was no deceit or false pretenses on their part because the land subject matter of the back taxes actually exists, utterly deserves no consideration. As aptly pointed out by the OSG, the same is misplaced and misleading.

Deceit is defined as the false representation of a matter of fact, whether by words or conduct, by false or misleading allegations, or by concealment of that which should have been disclosed which deceives or is intended to deceive another so that he shall act upon it to his legal injury.[7] False pretense is any deceitful practice or device by which another is led to part with the property in the thing taken.[8]

The deceit or false pretense employed by petitioners is the fact that they assured complainant that the amount of P330,000.00 delivered to them and accused Victoria by Evangeline was to pay the back taxes of a certain parcel of land so that a title may be secured and complainant will be given 2,500 square meters of the subject land.

The failure of petitioners and accused Roberto in not paying the back taxes and in misappropriating the money to their own personal use, constitute the crime of Estafa. Even if the land exists, the crime of Estafa is committed when petitioners and accused Roberto convinced complainant to part with her money on the basis of their assurance that

they will pay the back taxes due on the land so as to secure a title over the land and a portion thereof titled in the name of complainant.

xxx.”

The petitioners have filed an independent civil action for damages (tort and fraud) against the respondents. The Regional Trial Court of Makati City has issued a writ of preliminary attachment against the respondents. X x x.



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