Wednesday, May 23, 2012

Qualified theft; elements. - G.R. No. 193250

G.R. No. 193250

"x x x.

While discretionary authority to determine probable cause in a preliminary investigation to ascertain sufficient ground for the filing of an information rests with the executive branch,[29] such authority is far from absolute. It may be subject to review when it has been clearly used with grave abuse of discretion.[30] And indeed, grave abuse of discretion attended the decision to drop the charges against Tria as there was more than probable cause to proceed against him for qualified theft.
          It must be emphasized at the outset that what is necessary for the filing of a criminal information is not proof beyond reasonable doubt that the person accused is guilty of the acts imputed on him, but only that there is probable cause to believe that he is guilty of the crime charged.
Probable cause, for purposes of filing a criminal information, are such facts as are sufficient to engender a well-founded belief that a crime has been committed and that the accused is probably guilty thereof.[31] It is the existence of such facts and circumstances as would excite the belief in a reasonable mind, acting on the facts within the knowledge of the prosecutor, that the person charged was guilty of the crime for which he is to be prosecuted. [32]  A finding of probable cause needs only to rest on evidence showing that, more likely than not, a crime has been committed and that it was committed by the accused.[33]
The acts of Tria and the relevant circumstances that led to the encashment of the check provide more than sufficient basis for the finding of probable cause to file an information against him and John Doe/Atty. Reyes for qualified theft. In fact, it is easy to infer from the factual milieu of the instant case the existence of all the elements necessary for the prosecution of the crime of qualified theft.
As defined, 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 the personal property of another without the latter’s consent.[34] If committed with grave abuse of confidence, the crime of theft becomes qualified.[35] In prĂ©cis, qualified theft punishable under Article 310 in relation to Articles 308 and 309 of the Revised Penal Code (RPC) is committed when the following elements are present:
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; and
6.       That it be done with grave abuse of confidence.

In the instant case, the first and second elements are unquestionably present. The money involved is the personal property of Tria’s employer, PNB.  Tria’s argument that the amount does not belong to PNB even if it is the depositary bank is erroneous since it is well established that a bank acquires ownership of the money deposited by its clients.[36] 
          The third element, intent to gain or animus lucrandi, is an internal act that is presumed from the unlawful taking by the offender of the thing subject of asportation.[37] This element is immediately discernable from the circumstances narrated in the affidavits submitted by PNB’s employees. In particular, it is plain from Tria’s misrepresentation that the person he called Atty. Reyes was a valued client of PNB-MWSS who was authorized to encash the manager’s check and his act of revising his functions as stated in the Minutes of the Meeting referred to by Veniegas to make it appear that he had been tasked with “accompanying valued client/clients to QC Circle Branch for encashment of MCs merely to identify the bearer/payee and confirmation of the MC whenever we are short in cash.”
          The fifth element is undisputed, while the last element, that the taking be done with grave abuse of confidence, is sufficiently shown by the affidavits of PNB and Tria’s own admission of the position he held at the Bank. A bank’s employees are entrusted with the possession of money of the bank due to the confidence reposed in them and as such they occupy positions of confidence.[38]
It is the existence of the fourth element––the taking be done without the owner’s consent––that is the crux of contention. While the appellate court, together with the DOJ and OCP, maintains the negative and equates the cumulative acts of the other PNB employees as the consent of PNB in the issuance and encashment of the manager’s check, this Court cannot find itself to sustain such opinion.
On the contrary, the facts portray the stark absence of consent on the part of PNB for the issuance of manager’s check payable to “Atty. Rodrigo A. Reyes” and its felonious encashment by John Doe/Atty. Reyes in complicity with Tria.
Tria, it must be reiterated, was PNB’s bank manager for its MWSS branch. The check in question was a manager’s check. A manager’s check is one drawn by a bank’s manager, Tria in this case, upon the bank itself. We have held that it stands on the same footing as a certified check, which is deemed to have been accepted by the bank that certified it, as it is an order of the bank to pay, drawn upon itself, committing in effect its total resources, integrity and honor behind its issuance. By its peculiar character and general use in commerce, a manager’s check is regarded substantially to be as good as the money it represents.[39] In fact, it is obvious from the PNB affidavits that the MWSS C/A was deducted upon the issuance of the manager’s check and not upon its encashment. Indeed, as the bank’s own check, a manager’s check becomes the primary obligation of the bank and is accepted in advance by the act of its issuance.[40]
Taking this fact into consideration, it cannot be denied that the wheels of the felony started turning days before the misrepresentations made by Tria at PNB-Circle. And the encashment was a mere culmination of the crime that was commenced in PNB-MWSS.
The felony of qualified theft started with the use of the now missing falsified letter-request and supporting documents for the issuance of the manager’s check and the re-activation of the MWSS C/A. It was the pretense of an authority from MWSS that deprived PNB the liberty to either withhold or freely give its consent for the valid reactivation of the account and issuance of the check. Quoting from Black v. State,[41] this Court held in Gaviola v. People[42] that such pretense does not validate a taking:  
In all cases where one in good faith takes another’s property under claim of title in himself, he is exempt from the charge of larceny, however puerile or mistaken the claim may in fact be. And the same is true where the taking is on behalf of another, believed to be the true owner. Still, if the claim is dishonest, a mere pretense, it will not protect the taker.

In more conventional words, this Court sustained the finding of qualified theft inPeople v. Salonga,[43] where the taking was done through the issuance of a check by the very person responsible for, and in custody of, the said check, viz:

The crime charged is Qualified Theft through Falsification of Commercial Document. The information alleged that the accused took P36,480.30 with grave abuse of confidence by forging the signature of officers authorized to sign the subject check and had the check deposited in the account of Firebrake Sales and Services, a fictitious payee without any legitimate transaction with Metrobank. Theft is qualified if it is committed with grave abuse of confidence. The fact that accused-appellant as assistant cashier of Metrobank had custody of the aforesaid checks and had access not only in the preparation but also in the release of Metrobank cashier’s checks suffices to designate the crime as qualified theft as he gravely abused the confidence reposed in him by the bank as assistant cashier. x x x (Emphasis supplied.)

Similar to the bank involved in Salonga, PNB was deprived of the discretion to withhold its consent since, as the circumstances establish, the very person responsible for the custody and the issuance of the check is the one guilty for its felonious issuance and encashment, its former branch manager Tria.
Indeed, the pretense made in PNB-MWSS that led to the issuance of the Manager’s Check cannot be imputed on anyone other than Tria. His role as the branch manager of PNB-MWSS who had the responsibility over the functions of the employees of PNB-MWSS cannot be overlooked. As branch manager, Tria signs manager’s checks.  He serves as the last safeguard against any pretense resorted to for an illicit claim over the bank’s money. The acts of the other bank officials in the MWSS branch in processing the manager’s checks pass through the supervision and approval of Tria. Thus, the processing and approval of the check are the responsibility of Tria.
As such, Tria is duty-bound to verify from the bank’s client any supposed authority given for the issuance of a manager’s check. He was, therefore, duty-bound to confirm with MWSS whether the letter-authorization for the deduction of P5.2 million from the MWSS C/A is genuine, legal and binding. Tria is required to exercise the highest degree of care since the degree of diligence required of banks is more than that of a good father of a family where the fiduciary nature of their relationship with their depositors is concerned.[44] This degree of diligence was wanting in Tria’s failure to determine the veracity of said letter-authority considering that the amount to be deducted is large, with the withdrawal of almost the entire amount of the deposit leaving only less than PhP 200, more so when the account has been dormant since April 16, 2003.
 As standard banking practice intended precisely to prevent unauthorized and fraudulent withdrawals, a bank manager verifies with the client-depositor to authenticate and confirm that he/she has validly authorized such withdrawal.  Such failure of Tria as bank manager to verify the legitimacy of the requested withdrawal lends credence to the accusation that he colluded with Atty. Reyes to feloniously take money from PNB, and his complicity includes depriving the bank of its opportunity to deny and withhold the consent for the necessary issuance of Manager’s Check No. 1165848. It cannot, therefore, be gainsaid that PNB did not consent to the issuance of the check and its eventual encashment—which both constitute the taking of personal property—as respondents had made sure that the bank was rendered inutile and incapable to give its consent. The fourth element of the crime clearly exists.
Furthermore, a branch manager normally stays at his branch to perform his functions and duties in such position in said branch except on official business as prescribed by the bank.  Certainly, it is not one of the duties of a branch manager to leave his office and personally accompany a payee of a manager’s check it issued to another branch to encash said check.   It is, therefore, unusual and highly suspicious for Tria to leave his office located in Balara, Diliman, Quezon City and travel to Quezon Avenue where the PNB-Circle is located to identify a fictitious payee and ensure the encashment of the check. 
Tria could just have waited for a call from the branch manager of the PNB Quezon City Circle Branch to verify the authenticity of said check.  Such extra effort and unexplained gesture on the part of Tria to provide assistance to Atty. Reyes, a fake lawyer, to ensure the encashment of the check leaves one to believe that he is in cahoots with the impostor.
What is more, it is curious that Tria accompanied John Doe/Atty. Reyes to encash the manager’s check in another branch under the pretext that his own branch is short of cash when in fact more than PhP 8 million has just been delivered to PNB-MWSS. Such misrepresentation can only be considered as an attempt to cover the crime and pass the blame to other PNB employees, as in fact the CA ruled that Flandez is to blame. This attempt is further reinforced by the curious case of the missing fictitious letter-request and its supporting documents, which were last seen in the vault of PNB-MWSS which can be accessed by Tria. Furthermore, the allegation of Veniegas that Tria unilaterally and secretly revised the bank’s Minutes of the Meeting to reflect that he had “no approval authority” beyond opening accounts but was specifically requested by the bank to “assist valued clients” in encashing checks at the Quezon City Circle Branch shows an ingenious ploy by Tria to cover his tracks upon the eventual discovery of the theft and is in contravention of the General Banking Law of 2000.[45]
Nonetheless, nothing is more damning than the fact that Tria vouched for the identity of John Doe/Atty. Reyes, even claimed that Atty. Reyes is a valued client of PNB-MWSS, affixed his signature at the back portion of the check to guarantee that Atty. Reyes is the true and legal payee, and ultimately guaranteed that the Manager’s check is legally effective and valid and everything is aboveboard.  PNB-Circle could have verified from MWSS if the deduction is authorized especially considering that the money will be deducted from an account of a government corporation.  The identification by Tria of Atty. Reyes as payee precluded and preempted the bank officials from verifying the transaction from MWSS.  Thus, the identification made by Tria impliedly warranted to the PNB-Circle that said Manager’s check was validly issued with the consent of PNB, and that the encashment is legal and warranted.
It must also be noted that Tria likewise made representations to the PNB-Circle that the Manager’s check is legal and valid as evidenced by the annotation at the dorsal portion of the check “ok for payment per confirmation and approval of PNB MWSS.” The act of Tria in confirming and approving the encashment of the check by Reyes is the pretense of the consent given to him by PNB to authorize the issuance of the manager’s check that resulted in the taking of PhP 5.2 million from PNB. Tria must, therefore, be prosecuted and tried before the courts of justice. 

 x x x."

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