“Prefatorily, fundamental is the precept in all criminal prosecutions, that the constitutive acts of the offense must be established with unwavering exactitude and moral certainty because this is the critical and only requisite to a finding of guilt.
Theft is present when a person, with intent to gain but without violence against or intimidation of persons or force upon things, takes the personal property of another without the latter’s consent. It is qualified when, among others, and as alleged in the instant case, it is committed with abuse of confidence.
The prosecution of this offense necessarily focuses on the existence of the following elements:
(a) there was taking of personal property belonging to another;
(b) the taking was done with intent to gain;
(c) the taking was done without the consent of the owner; (d) the taking was done without violence against or intimidation of persons or force upon things; and
(e) it was done with abuse of confidence.
In turn, whether these elements concur in a way that overcomes the presumption of guiltlessness, is a question that must pass the test of relevancy and competency in accordance with Section 3 Rule 128 of the Rules of Court.
x x x."
G.R. No. 168644, February 16, 2010, BSB GROUP, INC., REPRESENTED BY ITS PRESIDENT, MR. RICARDO BANGAYAN, PETITIONER, VS. SALLY GO A.K.A. SALLY GO-BANGAYAN, RESPONDENT.