Ferdinand A. Cruz,
- versus -
The people of
G.R. No. 176504
September 3, 2008
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Before Us is a Petition for Review on Certiorari under Rule 45 of the Rules of Court which assails the Decision dated 27 April 2006 of the Court of Appeals in CA-G.R. CR No. 27661 which affirmed the Decision and the Order of the Regional Trial Court (RTC) of Makati City, Branch 140, finding petitioner Ferdinand A. Cruz (Ferdinand) guilty beyond reasonable doubt of the crime of Qualified Theft.
That on or about the 25th day of October
1996, in the City of Makati, Metro Manila, Philippines, a place within the
jurisdiction of this Honorable Court, the above-named accused, being then
employed as Marketing Manager of Porta-Phone Rentals, Inc. with office address
located at 3/F ENZO Bldg., Sen. Gil Puyat Avenue, Makati City, herein
represented by Juanito M. Tan, Jr. and had access to the funds of the said
corporation, with intent to gain and without the knowledge and consent of said
corporation, with grave abuse of confidence, did then and there willfully,
unlawfully and feloniously take, steal and carry away the amount of
belonging to said Porta-Phone Rentals, Inc., to the damage and prejudice of the
latter in the aforesaid amount of P15,000.00.
The case was docketed as Criminal Case
No. 97-945. During the arraignment on
At the trial, the prosecution presented
the following witnesses: (1) Juanito M. Tan, Jr., the General Manager of
Porta-Phone Rentals, Inc. (Porta Phone) when the incident in question took
place. He testified that Ferdinand
appropriated for himself the amount of
P15,000.00, an amount which
should have been remitted to the company; (2) Catherine Villamar (Catherine), the
Credit and Collection Officer of Porta-Phone, who discovered that Ferdinand
issued a receipt for P15,000.00 from Hemisphere-Leo Burnett
(Hemisphere), and who also testified that Ferdinand misappropriated the amount
for his own benefit and, when she confronted him, said he had unpaid
reimbursements from the company; (3) Luningning Morando, the accounting
supervisor of Porta-Phone, corroborated the alleged fact that Ferdinand received
the amount and did not turn over the same to the company; and (4) Wilson J. So,
Chief Executive Officer of Porta-Phone, who testified that meetings were held
to demand from Ferdinand the subject sum of money.
As documentary evidence, the
prosecution offered the following: Exhibit A Official Receipt No. 2242, the
receipt in which Ferdinand acknowledged that he received the amount of
from Hemisphere; Exhibit B the Minutes of the Meeting held on 30 October
1996 attended by Wilson So, Juanito Tan, Luningning Morando and Ferdinand,
wherein Wilson So asked Ferdinand the reason for the formers refusal to remit
the P15,000.00 to the company, and Ferdinand answered that there was no
need to turn over the said amount because he had outstanding reimbursements
from the company in the amount of P8,518.08; Exhibit C the Resignation
Letter of Ferdinand; Exhibit D - the Inter-Office
Demand Letter dated 7 November 1996, addressed to Ferdinand from Juanito M. Tan,
Jr. requiring the former to return the amount of P15,000.00; Exhibit E - the Handwritten Explanation of
Ferdinand dated 8 December 1996, that he remitted the amount to Luningning
Morando; Exhibit F- Inter-Office Memorandum dated 8 November 1996, issued by
Juanito Tan and addressed to Luningning
Morando to explain her side regarding the allegation of Ferdinand that she
received the P15,000.00; Exhibit G- Inter-Office Memorandum prepared
by Luningning Morando dated 9 November 1996, denying the allegation that she
received the amount of P15,000.00 from Ferdinand; Exhibit H- Inter-Office
Memorandum dated 11 November 1996, issued by Juanito Tan for Ferdinand to further
explain his side in light of Luningning Morandos denial that she received the
amount. It also advised Ferdinand to
wait for the verification and computation of his claim for reimbursements;
Exhibit I- Formal Demand Letter dated 25 November 1996, addressed to
Ferdinand and issued by the legal counsel of Porta-Phone Rentals, Inc., asking
the former to return to the company the subject amount; Exhibit J- the
Affidavit of Complaint executed by Juanito Tan against Ferdinand; Exhibit
K- the Collection List dated 30
October 1996, showing that Ferdinand received from Hemisphere the amount of P15,000.00,
and the same was not turned over to Catherine; Exhibit L- Reply-Affidavit
dated 5 February 1997, executed by Juanito M. Tan, Jr.; Exhibit M- the
Sur-Rejoinder Affidavit of Juanito M. Tan, Jr. dated 21 February 1997.
The collective evidence adduced by
the prosecution shows that at around 5:30 p.m. of 25 October 1996, in the City
of Makati, Ferdinand, who is a Marketing Manager of Porta-Phone, a domestic
corporation engaged in the lease of cellular phones and other communication
equipment, went to the office of Porta-Phone located on the third floor of Enzo
Building, Senator Gil Puyat Avenue, and took hold of a pad of official receipts
from the desk of Catherine, Porta-Phones collection officer. With the pad of official receipts in his hands,
Ferdinand proceeded to his client, Hemisphere, and delivered articles of
communication equipment. Although he was
not an authorized person to receive cash and issue receipts for Porta-Phone,
Ferdinand received from Hemisphere the amount of
refundable deposit for the aforesaid equipment. On P15,000.00
from Hemisphere. Upon learning of
Ferdinands receipt of the said amount, Catherine confronted Ferdinand, who
answered that he deposited the amount to his personal bank account. Catherine then instructed Ferdinand to remit
the amount the next day. Catherine reported the incident to the
accounting supervisor, Luningning Morando, who, in turn, reported the same to
the General Manager, Junito Tan. The
following day, Ferdinand went to the office but did not deliver the amount to
Catherine, reasoning that Porta-Phone still owed him unpaid reimbursements. This incident came to the knowledge of Chief
Executive Officer Wilson So. Thus, on P15,000.00. Luningning completely denied having received
the amount from Ferdinand. Juanito then
issued another letter to Ferdinand to further explain his side in view of
Luningnings denial that she received the amount. In the letter, Juanito also advised Ferdinand
to wait for the verification and computation of his claim for reimbursements. With the conflicting claims of Luningning and
Ferdinand, another meeting was set on
The defense alleged that the amount involved was already turned over to the company through Luningning. To substantiate this, the defense presented Ferdinand as its only witness.
Ferdinand testified that on
P15,000.00 as refundable deposit (the amount required
by Porta-Phone from its lessor-client to answer for the damage that may befall
the items leased) for the delivered
items. Since he did not bring with him
the official receipt of Porta-Phone, he merely acknowledged having received the
amount in an Acknowledgement Receipt issued by Hemisphere. Considering that it was already late in the
afternoon when he delivered the communication items, Ferdinand brought the said
amount home. The following day, he went
to the companys accounting supervisor, Luningning, to turn over to her the
amount. Luningning received the money and instructed Ferdinand to fill up the
details of the transaction in Official Receipt No. 2242. When Ferdinand asked Luningning to affix her
signature to the official receipt to acknowledge that she received the amount,
the latter declined and instead asked the former to affix his signature, since
it was he who closed the deal.
Ferdinand admitted that he attended
the meeting of
finding the accused FERDINAND A. CRUZ, GUILTY beyond reasonable doubt for the
crime of QUALIFIED THEFT, he is hereby sentenced to suffer imprisonment of TEN
(10) YEARS and ONE (1) DAY of prision mayor as minimum to FOURTEEN (14) YEARS,
EIGHT (8) MONTHS and ONE (1) DAY of reclusion temporal, as maximum; to
indemnify the offended party in the amount of FIFTEEN THOUSAND (
PESOS and to pay the costs.
Marilen Viduya, a former employee of
Hemisphere, testified that she asked Ferdinand to affix his signature to an
acknowledgement receipt for the amount of
P15,000.00, which was the
refundable deposit of Hemisphere for the equipment delivered, because Ferdinand
did not bring with him the official receipt of Porta-Phone. She also averred that Luningning went to
Hemisphere and conducted an inventory of the delivered communication items. Luningning admitted to her that the P15,000.00
was already remitted to Porta-Phone.
In an Order
Dissatisfied, Ferdinand appealed the judgment to the Court of Appeals.
The Court of Appeals, on
WHEREFORE, the present appeal is DENIED. The
Ferdinand filed a Motion for Reconsideration
which was denied by the Court of Appeals in a Resolution dated
Hence, the instant petition.
Ferdinand contends that he was denied due process as his trial was pursued without prior clearance from the Department of Labor pursuant to Department of Justice (DOJ) Circular No. 16 which allegedly states that clearance must be sought from the Ministry of Labor and /or the Office of the President before taking cognizance of complaints for preliminary investigation and the filing in court of the corresponding information of cases arising out of, or related to, a labor dispute. He avers that this circular is designed to avoid undue harassment that the employer may use to cow employees from pursuing money claims against the former.
He also argues that due process was not accorded since he was indicted for qualified theft, even as he was initially investigated for estafa/falsification of private documents. It must be noted that the original indictment was for estafa/falsification of private documents but later the prosecutor found it proper to charge him with qualified theft. According to him although he was given the chance to file counter-affidavits on the charge of estafa/falsification of private documents, he was not given the opportunity to answer during the preliminary investigation of the crime of qualified theft.
Finally, Ferdinand maintains that his guilt was not established beyond reasonable doubt, absent evidence of the presence of the elements of the crime charged and given the weakness of the evidence proffered by the prosecution.
Ferdinands arguments are not meritorious.
The settled rule is that when an accused pleads to the charge, he is deemed to have waived the right to preliminary investigation and the right to question any irregularity that surrounds it. In the instant case, Ferdinand did not present evidence that arraignment was forced upon him. On the contrary, he voluntarily pleaded to the charge and actively participated in the trial of the case.
Besides, the prior clearance
requirement before taking cognizance of complaints under the cited DOJ circular
is not applicable to the case of Ferdinand.
The RTC found that the money claim which the Labor Arbiter awarded to
Ferdinand covered only his salary during the month of November 1996. It must be noted that the crime attributed to Ferdinand
was committed on
It is not correct for Ferdinand to claim that preliminary investigation on the charge of qualified theft was not accorded him. The truth is, Ferdinand was able to answer the initial charge of estafa/falsification of private documents through his counter-affidavits. Based on the same complaint affidavit and the same sets of evidence presented by the complainant, the prosecutor deemed it proper to charge Ferdinand with qualified theft. Since the same allegations and evidence were proffered by the complainant in the qualified theft, there is no need for Ferdinand to be given the opportunity to submit counter-affidavits anew, as he had already answered said allegations when he submitted counter-affidavits for the original indictment of estafa/falsification of private documents.
The RTC correctly convicted Ferdinand of the crime of qualified theft.
The elements of the crime of theft are the following: (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. Under Article 310 of the Revised Penal Code, theft is qualified when it is, among others, committed with grave abuse of confidence, to wit:
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 x x x with grave abuse of confidence x x x.
The prosecution established, beyond
the shadow of doubt that Ferdinand took and kept the fifteen thousand
peso-collection from the companys client. Although Ferdinand insists he remitted the
amount personally to Luningning, this claim is self-serving. If indeed he personally delivered the
he would have at least required Luningning to acknowledge the receipt thereof
before he parted with the same. The
Court of Appeals incisively pointed out that it was implausible for Ferdinand to
have acceded to executing an acknowledgment receipt in favor of Hemisphere so
as to give the latter protection from his company, and yet he did not ask for
some kind of receipt when he allegedly turned over the money to
Luningning. Quite specious is
Ferdinands argument that he would not have had in his possession a copy of
Official Receipt No. 2242, had he not delivered the amount to Luningning. Ferdinand acquired the receipt, not because he
remitted the amount, but because he took a sheet from a booklet of receipts containing
Official Receipt number 2242 and issued the same to Hemisphere despite his lack
of authority to do so, to maliciously induce the client into believing that he
would remit the amount to Porta-Phone.
The collected amount belonged to Porta-Phone and not to Ferdinand. When he received the same, he was obliged to turn it over to the company since he had no right to retain it or to use it for his own benefit, because the amount was a refundable deposit for the communication items leased out by Porta-Phone to Hemisphere. As he had kept it for himself while knowing that the amount was not his, the presence of the element of unlawful taking is settled.
Intent to gain (animus lucrandi) is presumed to be alleged in an information, in which
it is charged that there was unlawful taking (apoderamiento) and appropriation by the offender of the things
subject of asportation. In this case, it was apparent that the reason
why Ferdinand took the money was that he intended to gain by it. In the meeting held on
Court: By the way paero, what is the defense of the accused?
x x x x
Atty. Dizon: Denial your honor. Denial. While it is
true that he did not return that
P15,000.00 pesos, it is because the
company owes the accused more than P20,000.00.
In the course of his testimony, Ferdinand claimed that he had remitted the amount to Luningning. This insistent claim for reimbursements by Ferdinand would in fact show that he had the intention to take the subject money; hence, intent to gain is made more manifest.
Ferdinands lack of authority to receive the amount is apparent, because he is not one of the collection officers authorized to collect and receive payment, thus:
Atty. Salvador: You made mention of collectibles, who is authorized by the company to collect the collectibles?
Witness: My accounting group is the only group authorized to make collections for and on behalf of the company.
Atty. Salvador: Can you give the names of this accounting group that you have mentioned?
Witness: Yes sir, the group is composed of : Cathy Villamar; Dull Abular; and Evic Besa.
Atty. Salvador: Is the accused part of the group?
Witness: No sir.
The lack of consent by the owner of the asported money is manifested by the fact that Porta-Phone consistently sought the return of the same from Ferdinand in the meetings held for this purpose and in the various letters issued by the company.
As a marketing manager of Porta-Phone, Ferdinand made use of his position to obtain the refundable deposit due to Porta-Phone and appropriate it for himself. He could not have taken the amount had he not been an officer of the said company. Clearly, the taking was done with grave abuse of confidence.
Ferdinand likewise assails the testimony of prosecution witness Juanito, who retracted his affidavit of desistance in favor of the former and explained on the witness stand that he had agreed to execute the same due to personal favors bestowed on him by Ferdinand. Ferdinand asserts that Juanitos retraction should not be given credence. This contention is unconvincing. As aptly discussed by the Court of Appeals:
[W]hile his desistance may cast doubt on his subsequent testimony, We are not unmindful that he was in fact grilled by the defense regarding his motives in revoking his earlier desistance and he remained steadfast in his testimony that [Ferdinand] was never authorized by Porta-Phone to collect payments and that during the meeting of 30 October 1996, [Ferdinand] refused to return the money. Rather than destroy his credibility, the defenses grilling regarding the reasons for his filing his earlier desistance even strengthened the value of his testimony for he only executed the same because of some personal favors from [Ferdinand]. And while [Ferdinand] suggests that subsequent revocation of his desistance in open court may be due this time to favors extended by Porta-Phone cannot be sustained when taken together with the fact that [Juanito] was long been separted from Porta-Phone when he testified. In fact Porta-Phones CEO did not even have kind words for [Juanito] when the former testified. x x x.
In sum, this Court, yields to the factual findings of the trial court which were affirmed by the Court of Appeals, there being no compelling reason to veer away from the same. This is in line with the precept stating that when the trial courts findings have been affirmed by the appellate court, said findings are generally conclusive and binding upon this Court.
The RTC imposed on petitioner the
indeterminate penalty of
Ten (10) Years and One
(1) Day of prision mayor as minimum
to Fourteen (14) Years, Eight (8) Months and One
(1) Day of reclusion temporal, as maximum. Under Article 310 of the Revised Penal Code,
the penalty for Qualified Theft is two degrees higher than that specified in
Article 309. Paragraph 1 of Article 309 provides that if the value of the thing
stolen is more than
P12,000.00 but does not exceed P22,000.00, the penalty shall be prision mayor in its minimum and medium periods. In this case, the amount stolen was P15,000.00.
Two degrees higher than prision mayor minimum and medium is reclusion temporal in its medium and
maximum periods. Applying the
Indeterminate Sentence Law, the minimum shall be prision mayor in its maximum period to reclusion temporal in its minimum period or within the range of 10
years and 1 day to 14 years and 8 months. There being neither aggravating nor
mitigating circumstance in the commission of the offense, the maximum period of
the indeterminate sentence shall be within the range of 16 years, 5 months and
11 days to 18 years, 2 months and 20 days.
The minimum penalty imposed by the RTC is correct. However, the maximum period imposed by RTC
should be increased to 16 years, 5 months and 11 days.
Decision of the Court of Appeals dated
MINITA V. CHICO-NAZARIO
Associate Justice Associate Justice
RUBEN T. REYES
I attest that the conclusions in the above Decision were reached in consultation before the case was assigned to the writer of the opinion of the Courts Division.
Chairperson, Third Division
Pursuant to Section 13, Article VIII of the Constitution, and the Division Chairpersons Attestation, it is hereby certified that the conclusions in the above Decision were reached in consultation before the case was assigned to the writer of the opinion of the Courts Division.
REYNATO S. PUNO
 Penned by Associate Justice Rosmari D. Carandang with Associate Justices Andres B. Reyes, Jr. and Japar B. Dimaampao, concurring. Rollo, pp. 93-104.
 Penned by Judge Leticia P. Morales, Records, Vol. I, pp. 284-289.
 Records, pp. 62-67.
 Records, Vol. I, p. 1.
 Records, Vol. I, p. 289.
 Records, Vol. II, pp. 62-67.
 Rollo, p. 212.
 Kuizon v. Desierto, 406 Phil. 611, 630 (2001); Gonzales v. Court of Appeals, 343 Phil. 297, 304 (1997); People v. Baluran, 143 Phil. 36, 44 (1970).
 People v. Bago, 386 Phil. 310, 334-335 (2000).
v. People, G.R. No. 46370,
 Rollo, p. 210-211.
v. Castillo, G.R. No. 118912,