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Evidence to establish culpability under B.P. 22 and Article 315 (2) (d), Revised Penal Code.

To establish a person’s culpability under B.P. 22 and Article 315 (2) (d), Revised Penal Code, it is indispensable that the checks he or she issued for which be was subsequently charged, be offered in evidence because the gravemen of the offense charged is the act of knowingly issuing a check with insufficient funds.’8 Under Article 315 (2) Cd) of the Revised Penal Code, to wit: (1) post dating or issuing a check in payment of an obligation contracted at the time the check was issued; (2) knowledge on the part of the offender of insufficient funds to cover the check; (3) knowledge on the part of the offender of such circumstances; and (4) damage to the complainant.’9

Effect of check intended to replace bad one.

Even if another check was intended to replace a bad one, its issuance 15 days after the drawer had been notified of the dishonor of the previous check cannot negate the presumption that the drawer knew of the insufficiency of funds to cover the amount of the previous check.2°

The case Serona vs. Court of Appeals, (392 SCRA 34)

In this case the Supreme Court enumerated the elements of estafa through misappropriation or conversion, to wit: (1) that the money, good or other personal property is received by the offender in trust or on commission, or for the administration, or under any other obligation involving the duty to make delivery of, or to return the same; (2) that there be misappropriation or conversion of such money or property by the offender or denial of such receipt; (3) that such misappropriation or conversion is to the prejudice of another; (4) that there is a demand made by the offended party on the offender. ‘Moreover, an agent does not ipso facto commit the crime of estafa through conversion or misappropriation by delivering jewelry to be sold on commission basis to a sub-agent — the law on agency in our jurisdiction allows the appointment by an agent of a substitute or sub-agent in the absence of express agreement to the contrary between the agent and the principal.” Portions of the decision follow.

Petitioner argues that the prosecution failed to establish the elements of estafa as penalized under Article 315, par. 1 (b)of the Revised Penal Code. In particular, she submits that she neither abused the confidence reposed upon her by Quilatan nor converted or misappropriated the subject jewelry; that her giving the pieces of jewelry to Labrador under the same terms upon which it was originally entrusted to her. It was established that petitioner had not derived any personal benefit from the loss of the jewelry. Consequently, it cannot be said that she misappropriated or converted the same.

We find merit in the petition.

The elements of estafa through misappropriation or conversion as defined in Article 315, par. 1 (Ii) of the Revised Penal Code are: (1) that the money, good or other personal property is received by the offender in trust, or on commission, or for administration, or under any obligation involving the duty to make delivery of, or to return, the same; (2) that there be misappropriation or conversion of such money or property by the offender or denial on his part of such receipt; (3) that such misappropriation or conversion or denial is to the prejudice of another; and (4) that there is a demand made by the offended party on the offender.2’ While the first, third and fourth elements are concededly present, we find the second element of misappropriation or conversion to be lacking in the case at bar.

Petitioner did not ipso facto commit the crime of estafa through conversion or misappropriation by delivering the jewelry to a subagent for sale on commission basis. We are unable to agree with the lower courts’ conclusion that this fact alone is sufficient ground for holding that petitioner disposed of the jewelry “as if it were hers, thereby committing conversion and a clear breach of trust.” It must be pointed out that the law on agency in our jurisdiction allows the appointment by an agent of a substitute or subagent in the absence of an express agreement to the contrary between the agent and the principal.22 In the case at bar, the appointment of Labrador as petitioner’s sub-agent was not expressly prohibited by Quilatan, as the acknowledgment receipt, Exhibit “B”, does not contain any such limitation. Neither does it appear that petitioner was verbally forbidden by Quilatan from passing on the jewelry to another person before the acknowledgment receipt was executed or at any other time. Thus, it cannot be said that petitioner’s act of entrusting the jewelry to Labrador is characterized by abuse of confidence because such an act was not prescribed and is, in fact, legally sanctioned.

The essence of estafa under Article 315, par. 1(b) is the appropriation or conversion of money or property received to the prejudice of the owner. The words “convert’ and “misappropriated” connote an act of using or disposing of another’s property as if it were one’s own, or of devoting it to a purpose or use different from that agreed upon. To misappropriate for one’s own use includes not only conversion to one’s personal advantage, but also every attempt to dispose of the property of another without right.

In the case at bar, it was established that the inability of petitioner as agent to comply with her duty to return either the pieces of jewelry or the proceeds of its sale to her principal Quilatan was due, in turn, to the failure of Labrador to abide by her agreement with petitioner. Notably Labrador testified that she obligated herself to sell the jewelry in behalf of petitioner to Labrador to achieve the very same end for which they were delivered to her in the first place. Consequently, there is no conversion since the pieces ofjewelry were not devoted to a purpose or use different from the agreed upon.

Similarly, it cannot be said that petitioner misappropriated the jewelry or delivered them to Labrador “without right.” Aside from the fact that no condition or limitation was imposed on the mode or manner by which petitioner was to effect the sale, it is also consistent with usual practice for the seller to necessarily part with the valuables in order to find a buyer and allow inspection of the items for sale.

In People v. Nepomuceno,24 the ‘accused-appellant was acquitted of estafa on facts similar to the instant case. Accused-appellant therein undertook to sell two diamond rings in behalf of the complainant on commission basis, with the obligation to return the same in a few (lays if not sold. However, by reason of the fact that the rings were delivered also for sale on commission to sub- agents who failed to account for the rings or the proceeds of its sale, accused-appellant likewise filled to make good his obligation to the complainant thereby giving rise to the charge of estafa. In absolving the accused-appellant of the crime charged, we held:

Where, as in the present case, the agents to whom personal property was entrusted for sale, conclusively proves the inability to return the same is solely due to malfeasance of a subagent to whom the first agent had actually entrusted the property in good faith, and for the same purpose for which it was received; there being no prohibition to do so and the chattel being delivered to the sub-agent before the owner demands its return or before such return becomes due, we hold that the first agent can not be held guilty of estafa by either misappropriation or conversion. The abuse of confidence that is characteristic of this offense is missing under the circumstances.

Accordingly, petitioner herein must be acquitted. The lower courts’ reliance on People v. Flores6 and U.S. v. Panes27 to justify petitioner’s conviction is misplaced, considering that the factual background of the cited cases differ from those which obtain in the case at bar. In Flores, the accused received a ring to sell under the condition that she would return it the following day if not sold and without authority to retain the ring or to give it to a sub agent. The accused in Panes, meanwhile, was obliged to return the jewelry he received upon demand, but passed on the same to a sub-agent even after demand for its return had already been made. In the foregoing cases, it was held that there was conversion or misappropriation.

Furthermore, in Lim v. Court of Appeals28 the Court, citing Nepomuceno and the case of People v. Trinidad held that: In case of estafa the profit obtain must be obtained by the accused personally, through his own acts, and his mere negligence in permitting another to take advantage or benefit from the entrusted chattel can not constitute estafa under Article 315, paragraph. 1-b, of the Revised Penal Code: unless of course the evidence should disclose that the agent acted in conspiracy or connivance with the one who carried out the actual misappropriation, then the accused would be answerable for the acts of his coconspirators. if there is no such evidence, direct or circumstantial, and if the proof is clear that the accused herself was the innocent victim of her sub-agent’s faithlessness, her acquittal is in order.3 Labrador admitted that she received the jewelry from petitioner and sold the same to a third person. She further acknowledged that she owed petitioner P441,035.00, thereby negating any criminal intent on the part of petitioner. There is no showing that petitioner derived personal benefit from or conspired with Labrador to deprive Quilatan of the jewelry or its value. Notwithstanding the above, however, petitioner is not entirely free from any liability towards Quilatan. The rule is that an accused acquitted of estafa may nevertheless be held civilly liable where the facts established by the evidence so warrant. Then too, an agent who is not prohibited from appointing a sub-agent but does so without express authority is responsible for the acts of the sub-agent.3’ Considering that the civil action for the recovery of civil liability arising from the offense is deemed instituted with the criminal action,32 petitioner is liable to pay complainant Quilatan the value of the unpaid pieces of jewelry.