THIRD DIVISION

 

 

Ferdinand A. Cruz,

                        Petitioner,

 

 

 

 

- versus -

 

 

 

 

The people of the philippines,

                        Respondent.

 

G.R. No. 176504

 

Present:

 

YNARES-SANTIAGO, J.,

       Chairperson,

AUSTRIA-MARTINEZ,

CHICO-NAZARIO,

NACHURA and

REYES, JJ.

 

Promulgated:

 

September 3, 2008

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D e C I S i o n

 

 

CHICO-NAZARIO, J.:

 

 

Before Us is a Petition for Review on Certiorari under Rule 45 of the Rules of Court which assails the Decision[1] dated 27 April 2006 of the Court of Appeals in CA-G.R. CR No. 27661 which affirmed the Decision[2] and the Order[3] 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.

 

On 10 July 1997, an Information was filed before the RTC of Makati City charging Ferdinand with Qualified Theft.  The accusatory portion of the Information reads:

 

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 P15,000.00 belonging to said Porta-Phone Rentals, Inc., to the damage and prejudice of the latter in the aforesaid amount of P15,000.00.[4]

 

 

The case was docketed as Criminal Case No. 97-945.  During the arraignment on 22 August 1997, Ferdinand, with the assistance of counsel de parte, entered a plea of not guilty.[5]  Thereafter, trial on the merits ensued.

 

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 P15,000.00 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 former’s 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 Morando’s 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-Phone’s 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 P15,000.00 as refundable deposit for the aforesaid equipment.  On 26 October 1996, Ferdinand went to Porta-Phone and returned the pad of receipts, but failed to deliver the cash he received from Hemisphere.  On 28 October 1996, the next working day, Catherine checked the booklet of official receipts and found that one of the official receipts was missing.  The green duplicate of the missing official receipt, however, showed that Ferdinand received the amount of P15,000.00 from Hemisphere.  Upon learning of Ferdinand’s 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.[6]  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.[7]  This incident came to the knowledge of Chief Executive Officer Wilson So.  Thus, on 30 October 1996, Wilson So invited Ferdinand, Juanito and Luningning to a meeting.  In the meeting, Wilson So demanded that Ferdinand return the collection.  Ferdinand refused to turn over the amount to the company.  He would return the amount only upon his receipt of his reimbursements from the company.  Since Ferdinand adamantly withheld the collected amount, Juanito issued a demand letter dated 7 November 1996, ordering the former to deliver the amount to the company.  Ferdinand answered, this time claiming that he had already remitted the amount to Luningning.  With this, Juanito issued a memorandum dated 8 November 1996, addressed to Luningning asking her to explain her side regarding the allegation of Ferdinand that she received the 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 Luningning’s 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 14 November 1996.  In that meeting Luningning again denied having received the amount.  Ferdinand did not appear in the meeting.  Later, a formal demand letter was issued to Ferdinand by Porta-Phone’s legal counsel, which letter went unheeded.  Several attempts to reach Ferdinand proved to be futile.  This prompted the company to file a criminal complaint against Ferdinand.

 

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 25 October 1996, he delivered to Hemisphere several communication gadgets and received from the same the amount of 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 company’s 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.

 

Later, on 28 October 1996, Catherine approached him and asked him to affix his signature to the triplicate copy of Official Receipt No. 2242.

 

Ferdinand admitted that he attended the meeting of 30 October 1996 with Juanito, Luningning and Wilson So.  He, however, claimed that the discussion centered on his entitlement to reimbursements from the company. Thereupon, Wilson So got angry with him and asked him to resign, owing to his persistent claim for reimbursement.  After this, the company withheld his salary, prompting him to file a labor case against the same on 4 November 1996.

 

On 30 June 2001, the RTC rendered a decision finding Ferdinand guilty beyond reasonable doubt of the crime charged.  The decretal portion of the RTC decision reads:

           

            WHEREFORE, 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 (P15,000.00) PESOS and to pay the costs.[8]

 

 

On 2 August 2001, Ferdinand filed a Motion for New Trial on two grounds: (1) absence of a preliminary investigation for the crime of qualified theft; and (2) newly discovered evidence.  Anent the first ground, it must be noted that in the beginning, Ferdinand was being indicted for Estafa/Falsification of Private Document.  The prosecutor later found that the proper charge should be for Qualified Theft.  Ferdinand argued that since his counter-affidavits were for the charge Estafa/Falsification of Private Document, he claimed that preliminary investigation for Qualified Theft was absent.  With regard to the second ground, Ferdinand argued that newly  discovered evidence, i.e., the testimony of a certain Marilen Viduya, could change the judgment on the case.  The RTC granted the motion based on the second ground, and set aside its 30 June 2001 decision.

 

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[9] dated 15 July 2003, the RTC declared that it did not find the testimony of Marilen Viduya persuasive.  It revived and reinstated its 30 June 2001 decision convicting Ferdinand of the crime charged.

 

Dissatisfied, Ferdinand appealed the judgment to the Court of Appeals.

 

The Court of Appeals, on 27 April 2006, promulgated its Decision affirming the decision of the RTC, thus:  

 

WHEREFORE, the present appeal is DENIED.  The 30 June 2001 Decision of the Regional Trial Court, Branch 140, in Makati City, is hereby AFFIRMED.[10]

 

 

Ferdinand filed a Motion for Reconsideration which was denied by the Court of Appeals in a Resolution dated 4 October 2006.

 

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.

 

          Ferdinand’s 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.[11]  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 25 October 1996 before Ferdinand was entitled to the money claim.  In other words, the crime was first committed before the accrual of the money claim.  This being the case, it is not remote that it was Ferdinand who used the labor case, which he filed before the Labor Arbiter, to have leverage against the company in the criminal case.

 

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.[12]  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 company’s client.  Although Ferdinand insists he remitted the amount personally to Luningning, this claim is self-serving.  If indeed he personally delivered the P15,000.00, 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 Ferdinand’s 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.[13]  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 30 October 1996, Ferdinand admitted having received the amount and kept it until his reimbursements from the company would be released to him.  Thus, in the initial hearing of 23 September 1997, Ferdinand’s counsel made this declaration:

 

Court: By the way pañero, 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.[14]

 

 

          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.

 

Ferdinand’s 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.[15]

 

 

          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 Juanito’s 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 defense’s 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-Phone’s CEO did not even have kind words for [Juanito] when the former testified. x x x.[16]

 

 

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 court’s findings have been affirmed by the appellate court, said findings are generally conclusive and binding upon this Court.[17]

 

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.

 

WHEREFORE, the Decision of the Court of Appeals dated 27 April 2006 in CA-G.R. CR No. 27661 finding Ferdinand A. Cruz GUILTY of the crime of Qualified Theft is hereby AFFIRMED with MODIFICATION. Ferdinand A. Cruz is hereby sentenced to suffer the indeterminate penalty of  10 years and 1 day of prision mayor, as minimum, to 16 years, 5 months and 11 days of reclusion temporal, as maximum.

 

SO ORDERED.

 

 

 

 

MINITA V. CHICO-NAZARIO

Associate Justice

 

 

 

WE CONCUR:

 

 

 

CONSUELO YNARES-SANTIAGO

Associate Justice    

Chairperson

 

 

 

 

 

   MA. ALICIA AUSTRIA-MARTINEZ   ANTONIO EDUARDO B. NACHURA

          Associate Justice                                         Associate Justice

 

 

 

RUBEN T. REYES

                                                Associate Justice

 

 

 

ATTESTATION

 

          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 Court’s Division.

 

 

 

                                                            CONSUELO YNARES-SANTIAGO

                                                                              Associate Justice

                                                                     Chairperson, Third Division

 

 

 

CERTIFICATION

 

          Pursuant to Section 13, Article VIII of the Constitution, and the Division Chairperson’s 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 Court’s Division.

 

 

 

                                                              REYNATO S. PUNO

                                                                        Chief Justice       

 



[1]               Penned by Associate Justice Rosmari D. Carandang with Associate Justices Andres B. Reyes, Jr. and Japar B. Dimaampao, concurring. Rollo, pp. 93-104.

[2]               Penned by Judge Leticia P. Morales, Records, Vol. I, pp. 284-289.

[3]               Records, pp. 62-67.

[4]               Records, Vol. I, p. 1.

[5]               Id. at 57.

[6]               TSN, 15 October 1997, p. 7.

[7]               TSN, 15 October 1997, p. 8.

[8]               Records, Vol. I, p. 289.

[9]               Records, Vol. II, pp. 62-67.

[10]             Rollo, p. 212.

[11]             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).

[12]             People v. Bago, 386 Phil. 310, 334-335 (2000).

[13]             Avecilla v. People, G.R. No. 46370, 2 June 1992, 209 SCRA 466, 474.

[14]             TSN, 23 September 1997, pp. 122-123.

[15]             TSN, 23 September 1997, pp. 74-75.

[16]             Rollo, p. 210-211.

[17]             People v. Castillo, G.R. No. 118912, 28 May 2004, 430 SCRA 40, 50.