Saturday, November 5, 2011

Qualified theft - G.R. No. 193479

G.R. No. 193479

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Article 308 of the Revised Penal Code (RPC), which defines Theft, provides:

ART. 308. Who are liable for theft.—Theft is committed by any person who, with intent to gain but without violence, against, or intimidation of persons nor force upon things, shall take personal property of another without the latter’s consent.

Theft is likewise committed by:

1. Any person who, having found lost property, shall fail to deliver the same to the local authorities or to its owner;

2. Any person who, after having maliciously damaged the property of another, shall remove or make use of the fruits or objects of the damage caused by him; and

3. Any person who shall enter an enclosed estate or a field where trespass is forbidden or which belongs to another and without the consent of its owner, shall hunt or fish upon the same or shall gather fruits, cereals, or other forest or farm products.

Thus, the elements of the crime of Theft are: (1) there was a taking of personal property; (2) the property belongs to another; (3) the taking was without the consent of the owner; (4) the taking was done with intent to gain; and (5) the taking was accomplished without violence or intimidation against the person or force upon things.[13]

Theft is qualified under Art. 310 of the RPC, when it is, among others, committed with grave abuse of confidence, thus:

ART. 310. Qualified Theft.—The crime of theft shall be punished by the penalties next higher by two degrees than those respectively specified in the next preceding article, if committed by a domestic servant, or with grave abuse of confidence, or if the property stolen is motor vehicle, mail matter or large cattle or consists of coconuts taken from the premises of a plantation, fish taken from a fishpond or fishery or if property is taken on the occasion of fire, earthquake, typhoon, volcanic eruption, or any other calamity, vehicular accident or civil disturbance. (Emphasis supplied.)

The elements of Qualified Theft committed with grave abuse of confidence are as follows:

1. Taking of personal property;

2. That the said property belongs to another;

3. That the said taking be done with intent to gain;

4. That it be done without the owner’s consent;

5. That it be accomplished without the use of violence or intimidation against persons, nor of force upon things;

6. That it be done with grave abuse of confidence.[14] (Emphasis supplied.)

All of the foregoing elements for Qualified Theft are present in this case.

First. The presence of the first and second elements is abundantly clear. There can be no quibble that the fund collections through checks payments—all issued payable to cash—are personal properties belonging to UCC. These funds through checks were paid by UCC clients for the deliveries of cement from UCC. One with the courts a quo, We will not belabor this point in the fifth argument raised by accused-appellant.

Second. The third element is likewise abundantly clear. The collected amounts subject of the instant case belonged to UCC and not to accused-appellant. When accused-appellant received them in the form of “Pay to Cash” checks from UCC customers, he was obliged to turn them over to UCC for he had no right to retain them. That he kept the checks and deposited them in his account and in the accounts of Magno Lim knowing all the while that these checks and their proceeds were not his only proves the presence of unlawful taking.

As the trial court aptly pointed out, accused-appellant’s theory that he only kept the funds in trust for UCC with the elaborate explanation that once the checks cleared in his account then he remits them to UCC is completely incredulous. For one, accused-appellant has not adduced evidence that he indeed remitted the funds once the corresponding checks were cleared. For another, accused-appellant could not explain why he deposited some of the checks he collected in the accounts of Magno Lim in MetroBank (MBTC Account No. 124-5) and Equitable PCIBank (EPCIB Account No. 71820-8). Moreover, accused-appellant’s contention of such alleged management practice[15] is unsupported by any evidence showing that prior to the events in mid-2001 there was indeed such a practice of depositing check collections and remitting the proceeds once the checks cleared.

Third. The element of intent to gain is amply established through the affidavit[16] of Wilma Invierno of Rommeleen’s Enterprises, one of UCC’s customers, who confirmed that she had been sold cement bags instead of to dealers with credit lines and she was required by accused-appellant to issue “pay to cash” checks as payment. The affidavits of Arthur Alonzo[17] of Alonzo Trucking, Robert Cokee[18] of Philippine Lumber, and Russel Morales[19] of Mapalo Trucking similarly attested to the same type of sale and payment arrangement. In so doing, accused-appellant facilitated the collection of “pay to cash” checks which he deposited in his bank account and in the bank accounts of Magno Lim. Thus, the fourth element of intent to gain is duly proved.

Fourth. Equally clear and undisputed is the presence of the fifth element. Accused-appellant admitted having received these checks and depositing them in his personal account and in the accounts of Magno Lim. Thus, the element of taking was accomplished without the use of violence or intimidation against persons, nor of force upon things.

Fifth. That UCC never consented to accused-appellant’s depositing the checks he collected in his or other accounts is demonstrated by the immediate action UCC took upon being apprised of the misappropriation and accused-appellant’s confession letter. UCC lost no time in forming a special audit group from the Group Internal Audit of Phinma Group of Companies. The special audit group conducted an internal audit from July 3 to 25, 2001 and submitted a Special Audit Report[20] dated August 8, 2001, showing that the total unremitted collections of accused-appellant from the period covering May 25, 2001 through June 23, 2001 amounted to PhP 6,572,750.

AVP Santos and UCC SVP and Head of Marketing Group Dr. Felizardo met with accused-appellant who admitted misappropriating company funds. AVP Santos testified[21] in open court on what transpired in that meeting and accused-appellant’s verbal admission/confession. And with the findings of the auditors that not only did accused-appellant unlawfully take UCC funds but he also committed the offense of violating company policies, rules, and regulations, UCC was compelled to file seven criminal complaints against accused-appellant. This swift and prompt action undertaken by UCC argues against the notion that it consented to accused-appellant’s act of depositing of check proceeds from company sales of cement products in his account or in the accounts of Magno Lim.

Sixth. That accused-appellant committed the crime with grave abuse of confidence is clear. As gathered from the nature of his position, accused-appellant was a credit and collection officer of UCC in the Cagayan-Isabela area. His position entailed a high degree of confidence, having access to funds collected from UCC clients. In People v. Sison,[22] involving a Branch Operation Officer of Philippine Commercial International Bank (PCIB), the Court upheld the appellant’s conviction of Qualified Theft, holding that “the management of the PCIB reposed its trust and confidence in the appellant as its Luneta Branch Operation Officer, and it was this trust and confidence which he exploited to enrich himself to the damage and prejudice of PCIB x x x.”[23] In People v. Mercado,[24] involving a manager of a jewelry store, the Court likewise affirmed the appellant’s conviction of Qualified Theft through grave abuse of confidence.

In the instant case, it is clear how accused-appellant, as Branch Manager of UCC who was authorized to receive payments from UCC customers, gravely abused the trust and confidence reposed upon him by the management of UCC. Precisely, by using that trust and confidence, accused-appellant was able to perpetrate the theft of UCC funds to the grave prejudice of the latter. To repeat, the resulting report of UCC’s internal audit showed that accused-appellant unlawfully took PhP 6,572,750 of UCC’s funds.

The courts a quo’s finding that accused-appellant admitted misappropriating UCC’s funds through the appropriation of the subject checks is buttressed by the testimonies of Renolo and Santos,[25] who heard and understood accused-appellant’s extrajudicial confession. True enough, they were competent to testify as to the substance of what they heard from accused-appellant—his declaration expressly acknowledging his guilt to the offense—that may be given in evidence against him.[26]

That he deposited most of the subject checks in his account was proved by accused-appellant’s statement of account with SBTC (Account No. 0301-261982-001) through the testimony of Conchito Dayrit, the Customer Service Officer and representative of SBTC-Tuguegarao City Branch.[27]

Moreover, accused-appellant issued a written certification[28] dated July 20, 2001, attesting to the fact of the ownership of the bank accounts where he deposited the checks he collected from UCC clients, which reads:


To whom it may concern:

This is to certify that to my knowledge, the owner of the following bank accounts are as follows:

Bank account Owner

SBC – TUG 0301261982001 B. G. Mirto

MBTC – TUG 124-5 Magno Lim

EPCI – TUG 71320-8 Magno Lim

This certification is issued for whatever purpose it may serve.

(Sgd.) Bernard G. Mirto 7/20/01

Signature over printed name date

Further, as can be amply gleaned from accused-appellant’s handwritten admission and duly borne out by the internal audit team’s findings, he deliberately used a scheme to perpetrate the theft. This was aptly pointed out by the CA, which We reproduce for clarity:

UCC found that accused-appellant gravely abused the trust and confidence reposed on him as Branch Manager and violated company policies, rules and regulations. He did not remit collections from customers who paid “Pay to Cash” checks. He used the credit line of accredited dealers in favor of persons who did not have credit lines or other dealers who had exhausted their credit line. He diverted cement bags from Norzagaray Plant or La Union Plant to truckers who would buy cement for profit. In these transactions, he instructed dealers that check be made in the form of “pay to cash”. He did not issue them receipts. The checks were either encashed or deposited to accused-appellant’s personal account No. 0301-261982-001 at Security Bank & Trust Co. (SBTC) Tuguegarao Branch or deposited to the accounts of a certain Mr. Magno Lim maintained at MetroBank and EquitablePCIBank, both located at TuguegaraoCity.[29] (Emphasis supplied.)

It is, thus, clear that accused-appellant committed Qualified Theft. And as duly pointed out above, even considering the absence of the handwritten extrajudicial admission of accused-appellant, there is more than sufficient evidence adduced by the prosecution to uphold his conviction. As aptly pointed out by the trial court, the prosecution has established the following:

1. That checks of various customers of UCC were written out as bearer instruments. Payments in cash were also made.

2. These were received by the accused Mirto who deposited them in his personal account as well as in the account of Mr. Magno Lim.

3. The monies represented by the checks and the case payments were consideration for bags of cement purchased from the UCC, the complainant-corporation.

4. The accused Mirto was never authorized nor was it part of his duties as branch manager to deposit these proceeds in his account or in the account of Mr. Magno Lim.[30]

Defense of Agency Unavailing

As his main defense, accused-appellant cites the testimonies of prosecution witnesses Restituto Renolo and Reynaldo Santos to impress upon the Court that he is an agent of UCC. And as an agent, so he claims, an implied trust is constituted by his juridical possession of UCC funds from the proceeds of cement sales:

ATTY. CARMELO Z. LASAM: Mr. Renolo, can you tell us the specific duties and responsibilities of your area sales managers?

RESTITUTO RENOLO: The duties and responsibilities of an area sales officer, we are in charge of the distribution of our products, cement and likewise its collection of its sales.[31]

x x x x

ATTY. RAUL ORACION: Okay, now as Assistant Vice-President for Marketing and supervisor of all area sales offices and branch managers, could you tell the duties and responsibilities of the accused Bernard Mirto at that time?

REYNALDO SANTOS: x x x, also collect sales and for the cash for the collection of our sales.[32]

To accused-appellant, he had authority to collect and accept payments from customers, and was constituted an agent of UCC. As collection agent of UCC, he asserts he can hold the collections in trust and in favor of UCC; and that he is a trustee of UCC and, therefore, has juridical possession over the collected funds. Consequently, accused-appellant maintains there was no unlawful taking, for such taking was with the knowledge and consent of UCC, thereby negating the elements of taking personal property and without the owner’s consent necessary in the crime of Qualified Theft.

This contention fails.

The duty to collect payments is imposed on accused-appellant because of his position as Branch Manager. Because of this employer-employee relationship, he cannot be considered an agent of UCC and is not covered by the Civil Code provisions on agency. Money received by an employee in behalf of his or her employer is considered to be only in the material possession of the employee.[33]

The fact that accused-appellant had authority to accept payments from customers does not give him the license to take the payments and deposit them to his own account since juridical possession is not transferred to him. On the contrary, the testimony he cites only bolsters the fact that accused-appellant is an official of UCC and had the trust and the confidence of the latter and, therefore, could readily receive payments from customers for and in behalf of said company.

Proper Penalty

The trial court, as affirmed by the appellate court, sentenced accused-appellant to restitute UCC the aggregate amount of PhP 2,279,350, representing the amount of the checks involved here. The trial court also imposed the single penalty of reclusion perpetua. Apparently, the RTC erred in imposing said single penalty, and the CA erred in affirming it, considering that accused-appellant had been convicted on four (4) counts of qualified theft under Criminal Case Nos. 9034, 9115, 9117 and 9130. Consequently, accused-appellant should have been accordingly sentenced to imprisonment on four counts of qualified theft with the appropriate penalties for each count. Criminal Case No. 9034 is for PhP 308,200, Criminal Case No. 9115 is for PhP 688,750, Criminal Case No. 9117 is for PhP 1,213,900, and Criminal Case No. 9130 is for 68,500 for the aggregate amount of PhP 2,279,350.

Now to get the proper penalty for each count, We refer to People v. Mercado,[34] where We established that the appropriate penalty for Qualified Theft is reclusion perpetua based on Art. 310 of the RPC, which provides that “[t]he crime of [qualified] theft shall be punished by thepenalties next higher by two degrees than those respectively specified in [Art. 309] x x x.” (Emphasis supplied.)

Applying the computation made in People v. Mercado to the present case to arrive at the correct penalties, We get the value of the property stolen as determined by the trial court, which are PhP 308,200, PhP 688,750, PhP 1,213,900 and PhP 68,500. Based on Art. 309[35] of the RPC, “since the value of the items exceeds P22,000.00, the basic penalty is prision mayor in its minimum and medium periods to be imposed in the maximum period, which is 8 years, 8 months and 1 day to 10 years of prision mayor.”[36]

And in order to determine the additional years of imprisonment, following People v. Mercado, We deduct PhP 22,000 from each amount and each difference should then be divided by PhP 10,000, disregarding any amount less than PhP 10,000. We now have 28 years, 66 years, 119 years and 4 years, respectively, that should be added to the basic penalty. But the imposable penalty for simple theft should not exceed a total of 20 years. Therefore, had accused-appellant committed simple theft, the penalty for each of Criminal Case Nos. 9034, 9115 and 9117 would be 20 years ofreclusion temporal; while Criminal Case No. 9130 would be from 8 years, 8 months and 1 day of prision mayor, as minimum, to 14 years of reclusion temporal, as maximum, before the application of the Indeterminate Sentence Law. However, as the penalty for Qualified Theft is two degrees higher, the correct imposable penalty is reclusion perpetua for each count.

In fine, considering that accused-appellant is convicted of four (4) counts of Qualified Theft with corresponding four penalties of reclusion perpetua, Art. 70 of the RPC on successive service of sentences shall apply. Art. 70 pertinently provides that “the maximum duration of the convict’s sentence shall not be more than threefold the length of time corresponding to the most severe of the penalties imposed upon him. No other penalty to which he may be liable shall be inflicted after the sum total of those imposed equals the said maximum period. Such maximum period shall in no case exceed forty years.” Applying said rule, despite the four penalties ofreclusion perpetua for four counts of Qualified Theft, accused-appellant shall suffer imprisonment for a period not exceeding 40 years.

WHEREFORE, the appeal is hereby DENIED. The appealed CA Decision dated August 24, 2009 in CA-G.R. CR-H.C. No. 03444 isAFFIRMED with MODIFICATION in that accused-appellant Bernard G. Mirto is convicted of four (4) counts of Qualified Theft and accordingly sentenced to serve four (4) penalties of reclusion perpetua. But with the application of Art. 70 of the RPC, accused-appellant shall suffer the penalty of imprisonment for a period not exceeding 40 years.

Costs against accused-appellant.


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