SECOND DIVISION

ELVIRA LATEO y ELEAZAR, G.R. No. 161651

FRANCISCO ELCA y ARCAS, and
BARTOLOME Present:
BALDEMOR yMADRIGAL,
Petitioners, CARPIO, J.,
Chairperson,
NACHURA,
BERSAMIN,
- versus - ABAD, and
DEL CASTILLO, JJ.

Promulgated:
PEOPLE OF THE PHILIPPINES,
Respondent. June 8, 2011

x------------------------------------------------------------------------------------x

DECISION

NACHURA, J.:

On appeal is the August 7, 2003 Decision[1] of the Court of Appeals (CA) in

CA-G.R. CR No. 23240, which affirmed with modification the March 17, 1998
decision[2] of the Regional Trial Court (RTC) of Pasay City, Branch 109,
convicting Elvira Lateo (Lateo), Francisco Elca (Elca), and Bartolome Baldemor
(Baldemor) of attempted estafa.
On April 28, 1995, Lateo, Elca, and Baldemor (petitioners), along with
Orlando Lalota (Lalota) and Nolasco de Guzman (De Guzman), were charged
with estafa in an information, which reads:

That on or about April 27, 1995, in Pasay City, Metro Manila and within
the jurisdiction of this Honorable Court, accused ELVIRA LATEO y
ELEAZAR, conspiring and confederating with FRANCISCO ELCA y
ARCAS, BARTOLOME BALDEMOR y MADRIGAL, ORLANDO
 LALOTA and NOLASCO DE GUZMAN, and mutually helping one
another, acting in common accord, by means of deceit, that is, by falsely
representing themselves to be the true and [lawful] owner of a piece of
land located in the province of Cavite, and possessing power, influence,
qualification, property, credit, agency, business, or imaginary
transactions and by means of other similar deceits, did then and there,
willfully, unlawfully and feloniously induce ELEONOR LUCERO to
part with her money in the amount of TWO MILLION (P2,000,000.00)
PESOS, Philippine Currency, as indeed she parted only with the amount
of Two Hundred Thousand (P200,000.00) PESOS, Philippine Currency,
which said accused actually received in marked Philippine Currency, to
the damage and prejudice of said ELEONOR LUCERO in the
aforestated amount of Two Hundred Thousand Pesos (P200,000.00)
PESOS Philippine Currency.

CONTRARY TO LAW.[3]

When arraigned on May 31, 1995, petitioners, with the assistance of their
counsel, entered their respective pleas of not guilty. Accused Lalota and De
Guzman remained at large.

Trial on the merits then ensued. The prosecutions version of the facts is
summarized by the CA in this wise:

Sometime in 1994, [petitioners] Lateo and Elca proposed that

[Lucero] finance the titling of the 122 hectares of land located in
Muntinlupa allegedly owned by [petitioner] Elca as the sole heir of
Gregorio Elca. Title to the property had not been transferred to
[petitioner] Elcas name because of a certain discrepancy between the
Deed of Sale and TCT No. 77730. [Petitioner] Elca offered to assign to
[Lucero] 70 hectares of said land. She was then introduced to [petitioner]
Baldemor, Orlando Lalota and Nolasco de Guzman.

[Lucero] released to [petitioners] about P4.7 million in staggered

amounts. [Petitioner] Elca told [Lucero] that certain portions of the
property will first be put in the name of [petitioner] Lateo and would
later be assigned to her. [Lucero] was given a Deed of Sale dated March
27, 1987. [Petitioner] Elca likewise executed an irrevocable Special
Power of Attorney in favor of [Lucero]. Later, she was presented
certified true copies of three (3) titles, TCT Nos. 195550, 195551 and
 195552 issued by the Register of Deeds of Makati City in the name of
[petitioner] Lateo covering approximately twenty-seven (27) hectares of
Plan A-7 of the Mutinlupa Estate, situated in Barrio Magdaong,
Poblacion, Muntinlupa. However, [in] December 1994, when [Lucero]
verified with the Registry of Deeds of Makati, she discovered that the
aforesaid titles of the property were actually registered in the names of
Marc Oliver R. Singson, Mary Jeanne S. Go and Feliza C. Torrigoza.

[Lucero] confronted [petitioners] and demanded from them [the] return

of the money. She was told that they did not have any money to
return. They instead offered a five (5) hectare property identified as Lot
10140 of Plan Sgs 04213-000441 located at Bacoor, Cavite allegedly
owned by [petitioner] Elca. [Petitioner] Elca, however, demanded an
additional P2 million for the transfer of title.

When [Lucero] verified with the Land Management Bureau (LMB), she
discovered that [petitioner] Elca only had a pending application for the
sales patent over a four (4)[-hectare] area of the subject land. These
misrepresentations prompted her to file a complaint with the Task Force
Kamagong, PACC, Manila.

On April 26, 1995, the task force conducted an entrapment at Furosato

Restaurant. [Petitioners] were apprehended in possession of marked 100-
peso bills amounting to P100,000.00, supposedly in exchange for the
Deed of Assignment prepared by [Lucero] for their transaction.[4]

Petitioners version, on the other hand, is summed up as follows:

Sometime in 1994, [Lucero], [petitioner] Lateo, Oscar Lalota met with

[petitioner] Elca in Muntinlupa to discuss the proposal of [Lucero] to
finance the titling of [petitioner] Elcas land.

On June 28, 1994, in a meeting called by [Lucero], she laid down the
terms and conditions regarding her plans to finance the titling of
[petitioner] Elcas land. She proposed that 22 out of the 122 hectares of
the land would be given to the old tenants of the property, the 30
hectares would be titled in the name of [petitioner] Elca as his retained
share and the other 70 hectares would be her profit as financier of the
transaction. [Lucero] would also pay P10.00 for every square meter of
the 70 hectares or a total amount of P7 million. All the expenses for the
titling and management of the land would be deducted from P7
million. The remaining balance would then be given to [petitioners].

[Lucero] assigned Oscar Lalota to work for the titling of the land and to
prepare all documents necessary thereto. [Petitioner] Baldemor would
act as overseer of the transaction as [Luceros] attorney-in-
fact. [Petitioner] Lateo would serve as secretary and assistant of
[Lucero]. [Petitioner] Elca would guard the property to keep off
squatters. He and his wife were instructed to sign all documents prepared
by Oscar Lalota.

In December 1994, [Lucero] told [petitioner] Elca that upon verification

from the Registry of Deeds of Makati City, she found out that all the
documents submitted by Oscar Lalota pertaining to their transaction
were falsified. Oscar Lalota disappeared after getting the money.

In order to recover her losses from the anomalous transaction, [Lucero]

offered to purchase [petitioner] Elcas property in Cavite. [Petitioner]
Elca agreed to sell 2 hectares of his property at a price of P100.00 per
square meter. [Petitioner] Elca informed [Lucero] that the land was not
yet titled although the documents had already been completed. [Lucero]
agreed to pay in advance the amount of P200,000.00 for the immediate
titling of the land.

On December 21, 1994, however, [Lucero] gave no advance

payment. [Petitioner] Elca was made to return [in] January 1995. On that
date still [Lucero] made no payment.

On [April] 25, 1995, [Lucero] promised to give the P200,000.00 advance

payment at Furosato Restaurant [on] Roxas Boulevard, Pasay
City. Having failed to contact his lawyer, on [April] 26, 1995,
[petitioner] Elca went alone to Furosato Restaurant. Because of the
absence of [petitioner] Lateo, [Lucero] postponed their meeting to
[April] 27, 1995.

When [petitioner] Elca arrived at Furosato Restaurant on [April] 27,

1995, [Lucero] and her lawyer Atty. Velasquez, [petitioners] Lateo and
Baldemor and Atty. Ambrosio were already there. Atty. Velasquez, upon
the order of [Lucero], produced a document entitled Contract to Sell
outlining their agreement over the 2 hectares of land in
Bacoor, Cavite. Atty. Ambrosio examined the contract to find out if it
 contains the terms and conditions agreed upon. Attys. Velasquez and
Ambrosio made their own handwritten corrections in the contract
including the change of the title from Contract to Sell to Deed of
Assignment, after which, both of them signed the document. [Petitioner]
Elca and [Lucero] signed the document as parties while [petitioners]
Lateo and Baldemor signed as witnesses.

After the signing of the Deed of Assignment, [Lucero] brought out

the P200,000.00 as the promised payment for the land. While [petitioner]
Baldemor was counting the money, Atty. Velasquez and [Lucero] went
to the comfort room. Thereafter, several agents of the PACC approached
them. They were arrested and brought to the NBI Headquarters.[5]

After trial, the RTC rendered a decision[6] dated March 17, 1998, viz.:

It should be noted that the transaction over the Cavite property was a
continuation of and is somehow related to their first transaction. The
same was offered to [Lucero] in lieu of the Muntinlupa property with
Francisco Elca telling [Lucero] just to add another two million
(P2,000,000.00) pesos plus expenses for titling and the property can be
transferred to her.

The second transaction which covers the Bacoor property was again an
attempt to defraud [Lucero] when Francisco Elca again represented
himself as the owner of the said property when in truth and in fact his
right was merely derived from his application to purchase Friar Lands
dated June 25, 1992 which at the time of the transaction was still being
protested as shown by the Investigation Report of Rogelio N. Bruno,
Special Investigator II, DENR, Land Management Bureau (Exhibit
LLLL) hence accused has no right and/or authority to deliver or transfer
the ownership over said parcel of land to [Lucero].

In the case of Celino vs. CA 163 SCRA 97, it was held that Estafa under
Art. 315 (2) (a) of the Revised Penal Code is committed by means of
using fictitious name or falsely pretending to possess power, influence,
qualifications, property, credit, agency, business or imaginary
transaction or by means of other similar deceits. Further, in the case of
Villaflor vs. CA 192 SCRA 680, the Supreme Court held: what is
material is the fact that appellant was guilty of fraudulent
misrepresentation when knowing that the car was then owned by the
Northern Motors, Inc., still he told the private complainant that the car
was actually owned by him for purposes of and at the time he obtained
the loan from the latter. Indubitably, the accused was in bad faith in
obtaining the loan under such circumstance.

The attempt to defraud the complainant did not materialize due to the
timely intervention of the Task Force Kamagong operatives.

Art. 6, par. 3 of the Revised Penal Code provides that there is an attempt
when the offender convinces (sic) the commission of a felony directly by
overt acts and does not perform all the acts of execution which should
produce the felony by reason of some cause or accident other than his
own spontaneous desistance. The entrapment thus prevented the
consummation of the transaction over the Cavite property.
 x x x [I]n the case of Koh Tieck Heng vs. People 192 SCRA 533,
the Court held [that] although one of the essential elements of Estafa is
damage or prejudice to the offended party, in the absence of proof
thereof, the offender would x x x be guilty of attempted estafa. Appellant
commenced the commission of the crime of estafa but he failed to
perform all the acts of execution which would produce the crime not by
reason of [their] spontaneous desistance but because of his apprehension
of the authorities before they could obtain the amount. Since only the
intent to cause damage and not the damage itself has been shown
respondent court correctly convicted appellant of attempted estafa.

The culpability of x x x the accused is strengthened by the transfer

of his rights over the same subject land in Cavite in favor of Leticia
Ramirez (Exhibit NNNN) thus clearly influencing his intention to
defraud herein complainant as the same shows his lack of intent to
transfer his rights and/or ownership to complainant.

The representations made by Francisco Elca that he owns the

property in Bacoor, Cavite, his having offered the same again to the
complainant in lieu of the aborted deal in the Muntinlupa property their
constant follow-up of complainants decision over the matter convincing
the complainant to accept the offer and their persona[l] presence at the
place of entrapment and their receipt of the P100,000.00 marked money
which they even counted one after the other, thus making all of them
positive of the presence of fluorescent powder. Those among others
indicate strongly that all three accused Francisco Elca, Elvira Lateo and
Bartolome Baldemor attempted to deceive and defraud complainant
Eleanor Lucero.[7]

The RTC decreed that:

IN VIEW OF ALL THE FOREGOING, the Court finds all

accused Francisco Elca, Elvira Lateo and Bartolome Baldemor guilty
beyond reasonable doubt of attempted Estafa and is hereby sentenced to
imprisonment of Ten (10) years and One (1) Day to Twelve (12) Years.

SO ORDERED.[8]

Petitioners filed a motion for reconsideration,[9] but the RTC denied it on

December 28, 1998.[10]
 Petitioners appealed to the CA, assigning in their brief the following errors
allegedly committed by the trial court:

I. That with due respect to the Honorable Court, it is respectfully

submitted that it erred in finding that THEY ARE GUILTY OF
THE CRIME OF ATTEMPTED ESTAFA UNDER ARTICLE
315 PAR. 2(a) OF THE REVISED PENAL CODE.

II. That the basis of the findings of the Honorable Court that they (three
accused) are guilty of attempted estafa is not in accordance with
the evidence on record.

III. That the Honorable Court erred in the imposition of the appropriate
penalty based on its findings assuming without admitting that
they (three accused) are guilty of attempted estafa.[11]

The CA was not at all persuaded by petitioners arguments and sustained

petitioners conviction, although with modification as to the penalty imposed. The
decretal portion of the CA Decision reads:

WHEREFORE, premises considered, the assailed decision is

hereby AFFIRMED with MODIFICATION as to the penalty
imposed. [Petitioners] Elvira E. Lateo, Francisco A. Elca and Bartolome
M. Baldemor are hereby sentenced to suffer an indeterminate penalty of
six (6) months of arresto mayor as minimum, to four (4) years and two
(2) months of prision correccional, as maximum.

Cost against [petitioners].

SO ORDERED.[12]

Petitioners filed a motion for reconsideration,[13] but their motion also

suffered the same fate, as the CA denied it on January 12, 2004.[14]

Before us, petitioners insist that their conviction lacked factual and legal
basis. They assail the RTC finding, which was sustained by the CA, that the
transaction involving the Bacoor property was again an attempt to defraud Eleonor
Lucero (Lucero). Petitioners deny that they deceived Lucero. They claim that
Lucero was aware that the Bacoor property is not yet titled in the name of Elca;
and that they went to Furosato restaurant upon Luceros invitation and on Luceros
representation that she would hand to them the P200,000.00 needed to facilitate the
issuance of title in Elcas name. Petitioners, therefore, plead for an
acquittal. Finally, petitioners assail the penalty imposed by the CA for being
erroneous.

The Office of the Solicitor General (OSG), on the other hand, asserts that the
CA correctly sustained petitioners conviction for attempted estafa. However, it
recommends for further modification of the penalty to six (6) months of arresto
mayor.

Inarguably, the resolution of the issues raised by petitioners requires us to

inquire into the sufficiency of the evidence presented, including the credibility of
the witnesses, a course of action which this Court will not do, consistent with our
repeated holding that this Court is not a trier of facts. Basic is the rule that factual
findings of trial courts, including their assessment of the witnesses credibility, are
entitled to great weight and respect by this Court, particularly when the CA affirms
the findings.[15]

It is true that the rule admits of several exceptions,[16] but none of the
recognized exceptions is present in the case at bar.

Article 315(2)(a) of the Revised Penal Code lists the ways by

which estafa may be committed, which includes:

Art. 315. Swindling (estafa). x x x.

xxxx

2. By means of any of the following false pretenses or fraudulent

acts executed prior to or simultaneously with the commission of the
fraud:

(a) By using fictitious name, or falsely pretending to possess

power, influence, qualifications, property, credit, agency, business
or imaginary transactions; or by means of other similar deceits.
The elements of the felony are as follows:

1. That there must be a false pretense, fraudulent act or fraudulent

means.

2. That such false pretense, fraudulent act or fraudulent means must be

made or executed prior to or simultaneously with the commission of
the fraud.

3. That the offended party must have relied on the false pretense,
fraudulent act, or fraudulent means, that is, he was induced to part
with his money or property because of the false pretense, fraudulent
act, or fraudulent means.

4. That as a result thereof, the offended party suffered damage.[17]

We agree with the finding of the trial court that the transaction involving the
Bacoor property was a continuation of the transaction involving parcels of land in
Muntinlupa, Metro Manila. When Lucero discovered that Elcas certificates of title
over the Muntinlupa property were fake, Elca offered, as substitute, the 5-hectare
portion of his purported 14-hectare lot in Bacoor, Cavite, but asked for an
additionalP2,000,000.00, in this wise:

Dear Ms. Lucero:

This is with reference to the advances we had obtained from you in the
total amount of P4.7 million, more or less. It was agreed that the said
advances shall be due and demandable upon the release of titles over my
parcels of land situated in Muntinlupa, Metro Manila of which we are
presently working out with appropriate government agencies. Your
current demand fro[m] us to pay the aforesaid amount plus your
unilaterally imposed interests is therefore premature and baseless.

However, with regards to your alternative demand that you be given a

total of 5 hectares (2 has. upon signing of an agreement assigning my
rights and additional 3 has. upon complete release of the remaining 14
hectares) please be informed that I am now amenable, provided that an
additional P2.0 million will be paid to me to take care of my other
personal commitments. These 5 hectares are situated in Malipay,
 Bacoor, Cavite with a portion of Lot 10140 of Plan Sgs-04213-000441-
D.I am expecting the title of said property early next year. The current
market [valuation] of real estate properties in that area is P450.00 per
square meter and hence, the property will be more [than] sufficient to
cover our obligates (sic).

Please be guided accordingly.

Very truly yours,

(Signed)
Francisco N. Elca
Bo. Katihan, Poblacion
Muntinlupa, Metro Manila[18]

As it turned out, Elca did not own 14 hectares in Bacoor, Cavite. He merely
had an inchoate right over the Bacoor property, derived from his Application to
Purchase Friar Lands, which covered only 7 hectares.[19] Elcas application was later
amended to cover only 4 hectares, in view of the protest by Alfredo Salenga
(Salenga).[20] Clearly, Elca was in no position to transfer ownership of the 5-
hectare Bacoor property at the time petitioners offered it to Lucero.

In Alcantara v. Court of Appeals,[21] this Court, citing People v.

Balasa,[22] explained the meaning of fraud and deceit, viz.:

[F]raud in its general sense is deemed to comprise anything calculated to

deceive, including all acts, omissions, and concealment involving a
breach of legal or equitable duty, trust, or confidence justly reposed,
resulting in damage to another, or by which an undue and
unconscientious advantage is taken of another. It is a generic term
embracing all multifarious means which human ingenuity can device,
and which are resorted to by one individual to secure an advantage over
another by false suggestions or by suppression of truth and includes all
surprise, trick, cunning, dissembling and any unfair way by which
another is cheated. And deceit is the false representation of a matter of
fact whether by words or conduct, by false or misleading allegations, or
by concealment of that which should have been disclosed which
deceives or is intended to deceive another so that he shall act upon it to
his legal injury.
 Indubitably, petitioners parody that Elca owned 14 hectares in Bacoor,
Cavite, and was offering a 5-hectare portion of it, in substitution of the Muntinlupa
property, and demanding an additionalP2,000,000.00 from Lucero, constituted
fraud and deceit.

To reiterate, it is an oft-repeated principle that the factual findings of the trial

courts, including their assessment of the witness credibility, are entitled to great
weight and respect by this Court, particularly when the CA affirms the
findings.[23] Considering that there is nothing in the records that shows that the
factual findings of the trial court and the appellate court were erroneous, we affirm
their conclusion that petitioners attempted to defraud Lucero again.

Undoubtedly, petitioners commenced the commission of the crime

of estafa but they failed to perform all the acts of execution which would produce
the crime, not by reason of their own spontaneous desistance but because of their
apprehension by the authorities before they could obtain the amount. Since only
the intent to cause damage and not the damage itself had been shown,[24] the RTC
and the CA correctly convicted petitioners of attempted estafa.

On the penalty. The RTC sentenced petitioners to an imprisonment term of

ten (10) years and one (1) day to twelve years. The CA modified it to six (6)
months of arresto mayor, as minimum, to four (4) years and two (2) months
of prision correccional, as maximum.

Petitioners and the OSG both argue that the penalty imposed by the CA was
wrong, and plead for its modification.

The penalty for estafa depends on the amount defrauded. Thus, if the crime
of estafa had been consummated, Lucero would have been defrauded in the
amount of P100,000.00.[25] Hence, the applicable penalty under Article 315 of the
Revised Penal Code (RPC) would have been prision correccional in its maximum
period to prision mayor in its minimum period, with an additional one (1) year for
everyP10,000.00 in excess of the first P22,000.00; provided, that the total penalty
should not exceed twenty years.
 Since what was established was only attempted estafa, then the applicable
penalty would be that which is two degrees lower than that prescribed by law for
the consummated felony pursuant to Article 51,[26] in relation to Article 61(5),[27] of
the RPC. Accordingly, the imposable penalty would be arresto mayor in its
medium period to arresto mayor in its maximum period,[28] or an imprisonment
term ranging from two (2) months and one (1) day to six (6) months. And because
the amount involved exceeded P22,000.00, one (1) year imprisonment for
every P10,000.00 should be added, bringing the total to seven (7) years.

However, we agree with the OSG that it would be inequitable to impose the
additional incremental penalty of 7 years to the maximum period of penalty,
considering that petitioners were charged and convicted merely of attempted and
not consummated estafa. We, therefore, modify the penalty and sentence
petitioners to imprisonment of four (4) months of arresto mayor.

WHEREFORE, the petition is DENIED. The assailed Decision and Resolution of

the Court of Appeals in CA-G.R. CR No. 23240 are AFFIRMED. Petitioners
Elvira Lateo, Francisco Elca, and Bartolome Baldemor are found guilty beyond
reasonable doubt of attempted estafa, and are hereby sentenced to suffer the
penalty of four (4) months of arresto mayor.

SO ORDERED.
 FIRST DIVISION

LYZAH SY FRANCO, G.R. No. 171328

Petitioner,

- versus -

PEOPLE OF THE PHILIPPINES,

Respondent.
x- - - - - - - - - - - - - - - - - - - - - - - - - x

STEVE BESARIO, G.R. No. 171335

Petitioner,

Present:

CORONA, C. J., Chairperson,

- versus - VELASCO, JR.,
LEONARDO-DE CASTRO,
DEL CASTILLO, and
PEREZ, JJ.

PEOPLE OF THE PHILIPPINES, Promulgated:

Respondent. February 16, 2011
x--------------------------------------------------------x

DECISION

DEL CASTILLO, J.:

In the prosecution for the crime of estafa committed under Article 315, paragraph
2(a) of the Revised Penal Code, there must be evidence of false representation or false
pretense on the part of the accused to prove reasonable doubt. In this case, the employees
act of soliciting a client despite previous knowledge of several complaints against his or
her employer for failure to deliver the motor vehicle that was the subject of the
agreement, is tantamount to misrepresentation.
Factual Antecedents

These petitions for review on certiorari impugn the Decision[1] of the Court of Appeals
(CA) in CA-G.R. CR No. 27414 which affirmed with modifications the Decision[2] of the
Regional Trial Court of Manila, Branch 52, in Criminal Case No. 99-173688, convicting
petitioners Lyzah Sy Franco (Franco) and Steve Besario (Besario) of the crime of
Estafa. The Information filed against petitioners and their co-accused, Antonio Rule, Jr.
(Rule) and George Torres (Torres), contained the following accusatory allegations:

That on or about the first week of June 1998, in the City of Manila, Philippines,
the said accused, conspiring and confederating together and helping one another, did then
and there willfully, unlawfully and feloniously defraud MA. LOURDES G. ANTONIO,
in the following manner, to wit: the said accused by means of false manifestations and
fraudulent representations which they made to said Ma. Lourdes G. Antonio, to the effect
that they are employees of FINAL ACCESS MARKETING, a business entity engaged
in the sale and financing of used or repossessed cars, and as such could process and
facilitate the sale of a Mazda car 323 bearing plate number PVB-999 worth P130,000.00
provided they be given the amount of P80,000.00 as down payment and by means of
other deceits of similar import, induced and succeeded in inducing the said Ma. Lourdes
G. Antonio to give and deliver as in fact she gave and delivered to herein accused the said
amount of P80,000.00, and accused knowing fully well that their manifestations and
representations were false and untrue and were made only to obtain the said amount
of P80,000.00 which amount once in their possession, did then and there willfully,
unlawfully and feloniously misapply, misappropriate and convert the said amount
of P80,000.00 to their own personal use and benefit, to the damage and prejudice of said
MA. LOURDES G. ANTONIO in the aforesaid amount of P80,000.00 in its equivalent
amount to the Philippine Currency.

Contrary to law.[3]

During arraignment, petitioners entered separate pleas of not guilty. Rule and
Torres failed to appear and, to date, remain at large. After the termination of the pre-trial
conference, trial ensued.

The Version of the Prosecution

Ma. Lourdes G. Antonio (Lourdes) testified that petitioners swindled her. She claimed
that Franco was a friend of her niece and that she has known her for almost a year. In the
first week of June 1998, Franco came to her house and offered to assist her in purchasing
a used car. Franco introduced herself as Assistant Administrative Coordinator of Final
Access Marketing which was engaged in the sale and financing of second-hand and
repossessed vehicles. Franco gave her calling card after their conversation.

Lourdes was interested in the offer of Franco since she and her husband were actually
looking for a used car for their taxicab operation. She therefore contacted Franco to take
up her offer.

On June 26, 1998, Franco and Lourdes went to a showroom on Houston Street, San Juan,
Metro Manila, where Lourdes immediately chose a blue Mazda 323 car with Plate No.
PVB No. 999 from those that were on display.

At around 7 oclock in the evening of July 2, 1998, Franco went to the house
of Lourdes and presented a sales proposal. She was with Besario and Rule, whom she
introduced as her superiors. Rule then made a presentation on the Mazda 323 car
informing Lourdes that she can buy it for P130,000.00 with a downpayment
of P80,000.00 and the balance to be paid in 12 equal monthly installments. Rule also
told Lourdes that the car would be delivered within three days from receipt of her money.

Lourdes agreed to pay the downpayment the following day. Before the petitioners
departed, Rule ordered Franco to sign the sales proposal as sales executive. Lourdes also
signed the document. Rule then issued a receipt dated July 3, 1998 and instructed Franco
and Besario to give it to Lourdes after receiving her downpayment upon their return on
the next day.
The following day, July 3, 1998, Franco and Besario returned to the house of Lourdes to
collect the downpayment of P80,000.00. Besario received and counted the money and
handed it to Franco. After counting the money, Franco returned the same to Besario, who
put it inside the bag he was carrying. They gave to Lourdes the receipt dated July 3, 1998
that was signed by Rule. At the same time, they assured her that the car would be
delivered in three days.

The car, however, was not delivered as promised. Lourdes called up Final Access
Marketings office and was able to talk to the owner/manager, Torres, who assured her
that her downpayment would be refunded or that they would look for a replacement.

Meanwhile, Lourdes and her husband returned to the showroom on Houston Street, San
Juan, where they saw the Mazda car already clean. The security guard told them it was
ready for release in the afternoon.
When the car was still undelivered, Lourdes sought the aid of Hoy Gising, a television
show that broadcasts grievances of people against fraudulent schemes. During a visit to
the shows office, Lourdes learned that 12 other persons were victimized by the group of
petitioners.

Lourdes also met with Atty. Renz Jaime, legal counsel of Final Access Marketing, who
assured her that Final Access Marketing would return her money by August. When he
reneged on his promise, formal demand was made on him to settle the obligation of said
business enterprise.

Erlinda Acosta (Erlinda) was one of the alleged victims of petitioners whom Lourdes met
while airing her complaint in the television program Hoy Gising. Erlinda testified that she
was referred to Besario when she was looking for a second-hand vehicle. She went to the
office of Final Access Marketing in Timog Avenue, Quezon City, and was shown by
Besario several pictures of vehicles from which she chose a Mitsubishi Pajero.

On April 7, 1998, Erlinda and her son met Besario, Rule and their other companions in a
restaurant. They brought the vehicle Erlinda wanted to purchase and her son drove it for a
road test. Thereafter, she agreed to buy the vehicle for P600,000.00. She signed a Vehicle
Sales Proposal and handed to Rule a downpayment of US$3,000.00.

On April 20, 1998, Erlinda delivered to Besario and Rule a managers check in the
amount of P245,000.00 as payment for the entire balance. She was then assured that the
vehicle will be delivered a week later. However, Besario and Rule reneged on their
promise. Erlinda went to the office of Final Access Marketing and complained to Franco
but to no avail. Her motor vehicle was never delivered. Thus, she went to Hoy Gising.

Juanito Antonio corroborated the testimony of his wife, Lourdes. He was present when
petitioners Franco and Besario, together with Rule, went to their house in the evening of
July 2, 1998 with a written proposal for the sale of a vehicle. After his wife signed the
document, she gave a downpayment of P80,000.00. When the car was not delivered on
the date agreed upon, he and his wife went to the office of Final Access Marketing. Upon
their inquiries, the security guard on duty said that the car they purchased already had a
gate pass and would be delivered in the afternoon. However, the said vehicle was never
delivered to them.

The Version of the Petitioners

 Franco denied involvement in the alleged conspiracy to commit estafa
against Lourdes. She alleged that it was Torres, the owner of Final Access Marketing,
who was the swindler. And like Lourdes, she was a victim in this case.
Franco claimed that petitioner Besario hired her as a clerk-typist. She was
promoted to the position of Assistant Administrative Coordinator and was authorized to
solicit clients for Final Access Marketing.

Franco learned from her sister that Lourdes wanted to purchase a second-hand
car. She went to see Lourdes and presented to the latter a list of repossessed vehicles. She
gave her calling card to Lourdes before they parted. Later on, Lourdes called and visited
the office of Final Access Marketing, where Franco introduced Lourdes to Besario and
Rule.

Franco accompanied Lourdes to showrooms where the latter chose a blue Mazda
car with Plate No. PVB 999. Rule agreed to sell the car
to Lourdes for P130,000.00. Thus, on the evening of July 2, 1998, she, Besario and Rule
went to the house of Lourdes with a Vehicle Sales Proposal. Franco signed the document
without reading and understanding the same upon the insistence of Rule. Rule then
signed an official receipt and instructed Franco and Besario to return the next day to give
the same to Lourdes after collecting her downpayment. Lourdes was also assured that the
car would be delivered within three days from receipt of the downpayment.

On July 3, 1998, at around 10 a.m., Franco and Besario came back to collect the
downpayment. Lourdes gave her cash payment to Besario, who counted it. He gave said
cash to Franco, who counted it again. When the money was handed back to Besario, he
put it inside a black bag. Thereafter, Franco and Besario went to a restaurant to pick-up
Rule. They rode a taxi and proceeded to the house of Torres, but it was only Besario and
Rule who went inside. Franco went home without receiving a single centavo for her
transportation fare.

When the car was not delivered, Lourdes called Franco who in turn reminded her
boss to expedite its release. However, the continued failure to receive the vehicle
compelled Lourdes to report the incident to Hoy Gising.It was only during this period that
Franco learned of similar complaints from other customers. Thereafter, Lourdes called
her intermittently asking for a reimbursement. However, the latter could not do anything
since her employers no longer reported to the office. Rule and Torres left Manila and
went to Cebu. She was not aware of their whereabouts at the time of her testimony.
 On the other hand, Besario failed to attend several hearings. The notice to appear
and to present evidence sent to him was returned unserved since he moved to another
address without informing the trial court. Thus, upon motion of the prosecution, he was
declared to have waived his right to present evidence. The case was consequently
submitted for decision.

The Ruling of the Regional Trial Court

On October 23, 2001, the trial court rendered its Decision finding petitioners guilty
beyond reasonable doubt of the crime of estafa under Article 315, par. 1(b) of the
Revised Penal Code. The dispositive portion reads as follows:

ACCORDINGLY, above premises all considered, the Court finding accused

Lyzah Sy Franco and Steve Besario GUILTY, beyond reasonable doubt, of the crime
charged in the Information, the Court hereby sentences said two accused to each suffer
the indeterminate penalty of imprisonment ranging from seventeen (17) years
of reclusion temporal as MAXIMUM to eight (8) years and one (1) day
of prison mayor as MINIMUM and to suffer all the accessory penalties as provided by
law.
Accused Franco and Besario, jointly and severally are likewise ordered to pay
private complainant Ma. Lourdes Antonio the sum of P80,000.00 as actual damages.
SO ORDERED.[4]

The Ruling of the Court of Appeals

On July 26, 2005, the CA promulgated its Decision that affirmed with
modification the decision of the trial court. It convicted the petitioners for the crime of
estafa under Article 315, par. 2(a) of the Revised Penal Code and modified the
penalty. The dispositive portion of its Decision reads as follows:

WHEREFORE, in view of the foregoing premises, the Decision dated October

23, 2001 rendered by the trial court is hereby AFFIRMED, with modification to the
effect that the penalty imposed upon each of the appellants is hereby MODIFIED to an
indeterminate sentence of Four (4) years, Two (2) months, and One (1) day of prision
correccional as minimum to Thirteen (13) years of reclusion temporal as maximum.

Accused Franco and Besario are likewise ordered to pay, jointly and severally,
private complainant, Ma. Lourdes Antonio, the sum of P80,000.00 as actual damages.
SO ORDERED.[5]
 Hence, petitioners filed separate petitions for review on certiorari assailing the
Decision of the CA. Franco contends that the Court of Appeals decided the case on a
mistaken inference and [misappreciation] of facts bordering on speculations, surmises or
conjectures.[6]

On the other hand, Besario ascribes the following error to the CA:

PUBLIC RESPONDENT COURT OF APPEALS COMMITTED REVERSIBLE

ERROR BY DISREGARDING THE LAW, JURISPRUDENCE AND EVIDENCE
WHEN IT RULED THAT PETITIONER BESARIO IS GUILTY OF THE CRIME OF
ESTAFA AS CHARGED IN THE INFORMATION.[7]

In its Consolidated Comment, the Solicitor General opposes the petitions by arguing that
petitioners raise[d] questions of fact which are inappropriate in a petition for review
on certiorari. x x x.[8] The Solicitor General also believes the prosecutions evidence was
sufficient to convict petitioners of estafa under Article 315, par. 2(a) of the Revised Penal
Code and that petitioners defenses failed to overturn the evidence showing their guilt
beyond reasonable doubt.

Our Ruling

The petitions are not meritorious.

Exception to the Finality and Conclusiveness

of Factual Findings of the Court of Appeals

[A]s a rule, our jurisdiction in cases brought to us from the Court of Appeals is limited to
the review and revision of errors of law allegedly committed by the appellate court, as
findings of fact are deemed conclusive and we are not duty-bound to analyze and weigh
all over again the evidence already considered in the proceedings below.[9] While this rule
is not without exception, there are no exceptional circumstances in these cases that
warrant a departure from the findings of facts of the trial court, as affirmed by the
CA. Even after considering the merits, the petitions deserve outright denial.

The conviction of Franco and Besario for conspiring to commit estafa

against Lourdes must therefore stand. The prosecution satisfactorily established their
participation in the scheme to defraud Lourdes, their acts were not isolated from but
related to a plot to deceive her. The prosecution likewise proved beyond reasonable doubt
that the well-planned swindling scheme of Franco and Besario resulted to estafa.

Conspiracy must be Shown as Clearly as the

Commission of the Offense[10]

There is conspiracy when two or more persons agree to commit a felony

and decide to commit it.[11] Conspiracy must be proven on the same quantum of evidence
as the felony subject of the agreement of the parties. [It] may be proved by direct or
circumstantial evidence consisting of acts, words, or conduct of the alleged conspirators
[prior to], during and after the commission of the felony to achieve a common design or
purpose.[12]

Several circumstances in this case conclusively show Francos role in

defrauding Lourdes. She was the one who personally approached Lourdes and actively
made representations on behalf of Final Access Marketing despite previous knowledge of
the companys failure to deliver the vehicle sold to Erlinda. She offered to
help Lourdes purchase a second-hand car by presenting herself as an Assistant
Administrative Coordinator of said company. She also assisted Lourdes in selecting a car
she wanted to buy. Six days later, Franco arrived with Besario and Rule in the house
of Lourdes after regular business hours. Franco made the necessary introductions and
they commenced with a presentation that persuaded Lourdes to part with her
money. They showed Lourdes a prepared Sales Proposal Agreement that Franco signed
as a sales executive.

Franco, together with Besario, returned the next day to collect the downpayment
of Lourdes. After counting the money and putting it inside a bag, they
assured Lourdes that the car would be delivered within three days.When they failed to
fulfill their promise and their unlawful scheme was unraveled, she did not do anything to
placate Lourdes.

We cannot lend credence to Francos assertion that she only knew of her employers
fraudulent scheme after Lourdes reported the same to Hoy Gising. For sure, before their
former clients reported their anomalous transactions to Hoy Gising, they first lodged their
complaints with the company itself. Hence, we are at a loss why Franco, as the companys
Assistant Administrative Coordinator would feign ignorance of the same. We also could
not understand why after discovering her employers fraudulent transactions, and after
said employers absconded, Franco continued to report to their office. She did not even
bother to inform Lourdes that her employers had already absconded. Finally, since she
made representations to Lourdes that the car would be delivered in three days time, the
least that Franco could have done was to investigate the matter and explain
to Lourdes the companys failure to deliver the car. After all, Franco was a friend
of Lourdes niece.

Besario, for his part, actively conspired with Franco by inducing Lourdes to part
with her money. He also went to the house of Lourdes and induced the latter to make a
downpayment on the car she wanted to purchase and sign the Sales Proposal
Agreement. He and Franco collected the money from Lourdes and promised her that the
car would be delivered three days later even if he had knowledge from the previous
transaction with Erlinda that the delivery would never happen. Thereafter, he could not
be reached or found when the car was still undelivered and their devious plot was
exposed.

Evidently, petitioners actions were in relation to the attainment of a common

objective. They had vital roles in the nefarious scheme to sell a vehicle that they knew
would never be delivered, but for which they obtained a substantial sum of money
from Lourdes.

Having established the existence of a conspiracy between Franco and Besario, the
prosecution proceeded to present evidence to prove that the acts of the petitioners
constituted estafa.

Estafa by Means of Deceit

Article 315, par. 2(a) of the Revised Penal Code penalizes fraud or deceit when
committed as follows:
xxxx

2. by means of any of the following false pretenses or fraudulent acts executed

prior to or simultaneously with the commission of fraud:

(a) by using fictitious name, or actions, falsely pretending to possess

power, influence, qualification, property, credit, agency, business or imaginary
transactions, or by means of other similar deceits.

The elements of the crime of estafa under the foregoing provision are: (1) there
must be a false pretense, fraudulent acts or fraudulent means; (2) such false pretense,
fraudulent act or fraudulent means must be made or executed prior to or simultaneously
with the commission of the fraud; (3) the offended party must have relied on the false
pretense, fraudulent act or fraudulent means and was thus induced to part with his money
or property; and (4) as a result thereof, the offended party suffered damage.[13]

Petitioners presented themselves to Lourdes as persons possessing the authority

and capacity to engage in the financing of used vehicles in behalf of Final Access
Marketing. This was a clear misrepresentation considering their previous knowledge not
only of Erlindas complaint but also of several others as regards the failure of Final Access
Marketing to deliver the motor vehicles bought. Lourdes relied on their
misrepresentations and parted with her money. Almost a week passed by, but petitioners
and Rule did not deliver the said motor vehicle. They also did not fulfill their subsequent
promise to provide a replacement or to refund her payment. WhenLourdes visited the
office of Final Access Marketing to demand the return of her money, it was already
closed. She could not locate any of them except for Franco who denied any
wrongdoing. Consequently, she suffered damage.

If indeed they were innocent as they claimed to be, Erlindas complaint to

petitioners and the 12 other similar complaints with Hoy Gising regarding undelivered
vehicles should have dissuaded petitioners from further soliciting customers. The fact that
they continued to offer for sale a second-hand car to Lourdes is indicative of deceit and
their complicity in the conspiracy to commit estafa. The manner in which petitioners
transacted business with Erlinda and Lourdes as well as their awareness of 12 other
similar complaints with Hoy Gising were sufficient to establish the existence of a modus
operandi.

Francos attempt to escape culpability by feigning ignorance of the previously

failed transactions on the delivery of vehicles by Final Access Marketing cannot be
countenanced. As gleaned from the testimony of Erlinda, Franco was already with Final
Access Marketing at the time these transactions occurred. She was therefore familiar with
the companys procedure and policy on the sales of second-hand vehicles. She even
accompaniedLourdes to showrooms and introduced her to Besario and Rule.

As an employee of Final Access Marketing, Franco was expected to be familiar

with its daily activities. It would be unworthy of belief that she did not know of the
complaints for the unexplained failure of Final Access Marketing to deliver vehicles to its
customers. Human nature and experience would compel her to make queries on her own
to discover the reasons for the non-delivery of the vehicles. Her continued insistence in
solicitingLourdes as a client by introducing herself as an Assistant Administrative
Coordinator of Final Access Marketing with the ability to provide financing for a vehicle
of her choice is therefore indicative of fraudulent misrepresentation.

The petitioners also contend that they are not criminally liable since the transaction
with Lourdes was a contract of sale. This contention does not deserve serious
consideration. While the fact that they entered into a contract with Lourdes cannot be
denied, the transaction transpired due to their deceit. It was their misrepresentation that
induced Lourdes to sign the Sales Proposal agreement and part with her money.

In denying any criminal wrongdoing, petitioners blame their co-accused, Torres,

whom they claim to be the owner of Final Access Marketing. The shifting of blame is
common among conspirators in their attempt to escape liability. It is a desperate strategy
to compensate for their weak defense. We are not readily influenced by such a
proposition since its obvious motive is to distort the truth and frustrate the ends of
justice.[14]

The Penalty

Having committed the crime of estafa, the petitioners must suffer the proper
penalties provided by law. The law imposes the penalty of prision correccional in its
maximum period to prision mayor in its minimum period if the amount is
over P12,000.00 but does not exceed P22,000.00. If the amount swindled
exceeds P22,000.00, the penalty shall be imposed in its maximum period, adding one
year for each additional P10,000.00, but the total penalty which may be imposed shall not
exceed 20 years.[15] To determine the minimum of the indeterminate penalty, prision
correccional in its maximum period to prision mayor in its minimum period shall be
reduced by one degree, that is, to prision correccional in its minimum and medium
periods. The minimum period of the indeterminate penalty shall be taken from the full
range of the penalty of prision correccional in its minimum and medium periods, which
is six (6) months and one (1) day to four (4) years and two (2) months. With the amount
of the fraud at P80,000.00, there is P58,000.00 in excess of P22,000.00. Five years must
therefore be added to the maximum period of the prescribed penalty ranging from six (6)
years, eight (8) months and twenty-one (21) days to eight (8) years. Thus, the maximum
term of the penalty would range from eleven (11) years, eight (8) months and twenty-one
(21) days to thirteen (13) years. This is in accord with our ruling in People v.
Temparada,[16] viz:
The prescribed penalty for estafa under Article 315, par. 2(d) of the RPC, when
the amount defrauded exceeds P22,000.00, is prision correccional maximum to prision
mayor minimum. The minimum term is taken from the penalty next lower or anywhere
 within prision correccional minimum and medium (i.e. from 6 months and 1 day to 4
years and 2 months). Consequently, the RTC correctly fixed the minimum term for the
five estafa cases at 4 years and 2 months of prision correccional since this is within the
range of prision correccional minimum and medium.

On the other hand, the maximum term is taken from the prescribed penalty
of prision correccional maximum to prision mayor minimum in its maximum period,
adding 1 year of imprisonment for every P10,000.00 in excess of P22,000.00, provided
that the total penalty shall not exceed 20 years. However, the maximum period of the
prescribed penalty of prision correccional maximum to prision mayor minimum is
not prision mayor minimum as apparently assumed by the RTC. To compute the
maximum period of the prescribed penalty, prision correccional maximum
to prision mayor minimum should be divided into three equal portions of time each of
which portion shall be deemed to form one period in accordance with Article 65 of the
RPC. Following this procedure, the maximum period of prision correccional maximum
to prision mayor minimum is from 6 years, 8 months and 21 days to 8 years. The
incremental penalty, when proper, shall thus be added to anywhere from 6 years, 8
months and 21 days to 8 years, at the discretion of the court.

In computing the incremental penalty, the amount defrauded shall be subtracted

by P22,000.00, and the difference shall be divided by P10,000.00. Any fraction of a year
shall be discarded as was done starting with the case of People v. Pabalan in consonance
with the settled rule that penal laws shall be construed liberally in favor of the accused. x
x x.

WHEREFORE, the petitions for review on certiorari are DENIED. The

Decision of the Court of Appeals in CA-G.R. CR No. 27414 which affirmed with
modification the Decision of the Regional Trial Court, Branch 52, in Criminal Case No.
99-173688 convicting petitioners Lyzah Sy Franco and Steve Besario of the crime of
estafa is AFFIRMED with further modification that the indeterminate prison term
imposed on each of the petitioners is four (4) years and two (2) months of prision
correccional as minimum to thirteen (13) years of reclusion temporal as maximum.

SO ORDERED.
G.R. No. 159280 May 18, 2004

AUGUSTO SIM, JR., petitioner,

vs.
HON. COURT OF APPEALS and The PEOPLE OF THE PHILIPPINES, respondents.

DECISION

YNARES-SANTIAGO, J.:

On appeal by petition for review on certiorari under Rule 45 of the 1997 Rules of Civil Procedure is a
Decision1 by the Court of Appeals (CA) dated May 21, 2003 affirming with modification the
Decision2 of the Regional Trial Court (RTC) of Manila, Branch 34, finding petitioner Augusto Sim, Jr.
and co-accused Elison Villaflor guilty beyond reasonable doubt of estafa under Article 315,
paragraph 2 (a) of the Revised Penal Code, instead of Article 315, paragraph 1 (b) thereof, as well
as its Resolution3 dated August 1, 2003 denying appellants Motion for Reconsideration. Petitioner
and co-accused Elison Villaflor were sentenced to suffer an indeterminate prison term of four (4)
years and two (2) months of prisin correccional, as minimum, to twenty (20) years of reclusin
temporal, as maximum, and to indemnify the private complainant Jay Byron Ilagan the sum of
P480,000.00 representing the amount paid for the purchase of the car that was impounded by the
authorities.

Elison Villaflor and Augusto Sim, Jr., were formally charged with the crime of Estafa in an
Information dated September 6, 1999 which reads:4

That on or about May 2, 1998, in the City of Manila, Philippines, the said accused, conspiring
and confederating together and mutually helping one another, did then and there willfully,
unlawfully and feloniously defraud Jay Byron Ilagan in the following manner, to wit: the said
accused by means of false manifestations which they made to said Jay Byron Ilagan to the
effect that they are selling one (1) colored green Nissan Pathfinder pick-up with motor
number PD27-555735 bearing Plate No. BCF-620 in the amount of P480,000.00 registered
in the name of Henry Austria, and by means of other similar deceits, induced and succeeded
in inducing said Jay Byron Ilagan to give and deliver, as in fact he gave and delivered to said
accused the amount of P480,000.00 on the strength of said manifestations and
representations, said accused well knowing that the same were false and fraudulent, as the
said car is a stolen car and they are not the owner, and were made solely, to obtain, as in
fact they did obtain the amount of P480,000.00 which amount once in their possession, with
intent to defraud, willfully, unlawfully and feloniously misappropriated, misapplied and
converted to their own personal use and benefit, to the damage and prejudice of said Jay
Byron Ilagan in the aforesaid amount of P350,000.00, Philippine currency.

Contrary to law.

Private complainant Jay Byron Ilagan is a tire supplier whose store, Marfi Tire Supply, is
located along the highway at San Pablo City, Laguna. He had been dealing with accused
Elison Villaflor for twenty years, as the latter is engaged in the same business of selling tires
and rims at 39 C-3 Road, Dagat-Dagatan, Caloocan City.

In March 1998, private complainant talked to Elison somewhere in Tondo, Manila, and
expressed his interest in buying a vehicle. Elison told him that he knew someone who sells
vehicles at a cheap price, and that he had bought a Toyota Tamaraw FX at lower than the
market price. Private complainant then asked Elison to ask if there was an Isuzu pick-up for
 sale. A month later, Elison called private complainant to inform him that he was able to find a
1997 Nissan Pathfinder. They agreed to inspect the vehicle together as private complainant
wanted to buy it before his birthday on May 31, 1998.5

On April 30, 1998, only Elison went to Dagupan City to get the Nissan Pathfinder from his friend,
petitioner Augusto Sim, Jr. Petitioner told Elison that the Nissan Pathfinder was given to him by a
customer in payment of a debt and had been used only for a year.

Elison brought the 1997 Nissan Pathfinder to San Pablo City. Private complainant at first did not like
the vehicle since it was not the brand he was looking for. Elison said that his kumpadre would look at
the vehicle as the latter was also interested in it.6

Private complainant decided to buy the 1997 Nissan Pathfinder at the agreed price of P480,000.00.
The amount was paid in five checks issued by Fe Ilagan under her account at Solidbank-San Pablo
Branch. One check was dated May 6, 1998 in the sum of P350,000.00, and four checks in the sum
of P32,500.00 each was dated June 6, July 6, August 6 and September 6, all in 1998.7

Elison gave private complainant photocopies of the Certificate of Registration (C.R.) and Official
Receipt (O.R.) issued by the Land Transportation Office (LTO) showing the name of the owner as
one Henry Austria. While waiting for the processing of the papers, the vehicle was parked at private
complainants place. After a week, Elison brought the deed of sale which private complainant signed
without the signature of the owner, Henry Austria. After private complainant signed the deed of sale,
he gave it back to Elison to be brought back to Dagupan City for signing by the owner/vendor and
transfer of registration in the name of private complainant.8

On June 7, 1998, Elison returned and delivered to private complainant the deed of sale signed by
the owner/vendor, together with the new C.R. and O.R. issued by the LTO of Lingayen, Pangasinan
in the name of private complainant.9

The checks given by private complainant in payment of the vehicle were deposited by petitioner in
his name at Solidbank-Dagupan Branch. All five checks were debited in favor of petitioner. After
receiving the registration papers from Elison, private complainant was eventually able to use the
Nissan Pathfinder.10

On October 28, 1998, private complainants vehicle was apprehended by Anti-Carnapping

operatives of the Philippine National Police (ANCAR NCRTMO). The vehicle and its registration
papers were inspected and thereafter brought to Camp Crame. It turned out that the vehicle was a
"hot car" as it had been reported stolen on November 29, 1997 by its real owner, Golf Construction
of the Philippines, Inc. pursuant to the Alarm Sheet issued by the PNP Traffic Management Group.11

Private complainant accompanied the ANCAR operatives to the residence of Elison. He went with
them to Camp Crame, and named petitioner as the owner of the vehicle. However, they were not
able to locate petitioner right away. Meanwhile, the vehicle was impounded by the authorities. The
investigation revealed that its original motor and chassis numbers were replaced and/or tampered
but its Production Number remained intact. Eventually, the real description of the vehicle was fully
established and identified by no less than the manufacturer/assembler of the unit, Universal Motors
Corporation.12

Private complainant spoke with Elison about the possible recovery of the money paid by him for the
confiscated vehicle. On November 30, 1998, private complainant met petitioner for the first time.
Petitioner signed a Promissory Note with Deed of Undertaking whereby he obligated himself to pay
private complainant the amount of P480,000.00 plus attorneys fees of P50,000.00 in scheduled
installments. Petitioner issued a check in the amount of P75,000.00 but private complainant did not
encash it, thinking that if he does, petitioner would not pay him anymore. Private complainant was
unable to recover the money paid by him to petitioner.13

Thereafter, Elison and petitioner were charged with estafa under a criminal information dated
September 6, 1999. Elison was arraigned on September 17, 1999; while petitioner was arraigned on
June 1, 2000. Both pleaded "not guilty."

After trial, the trial court convicted both Elison and petitioner of the crime of estafa under Art. 315,
par. 1 (b) of the Revised Penal Code. On appeal, the Court of Appeals affirmed the trial courts
judgment with the modification that appellants should be convicted of estafa under Art. 315, par. 2
(a).

Hence, this petition for review on certiorari, assigning the following errors:

THE HONORABLE COURT OF APPEALS, WITH DUE RESPECT, COMMITTED

REVERSIBLE ERROR WHEN IT RULED THAT CONSPIRACY IS PRESENT CONTRARY
TO THE EVIDENCE ON RECORD.

II

THE HONORABLE COURT OF APPEALS, WITH DUE RESPECT, COMMITTED

REVERSIBLE ERROR WHEN IT FAILED TO RULE ON THE ACQUITTAL OF HEREIN
PETITIONER.

Two issues are presented before this Court: (1) Whether there was conspiracy between petitioner
and Elison Villaflor in defrauding private complainant Jay Byron Ilagan; and (2) Whether petitioner is
guilty beyond reasonable doubt of the crime of estafa under Art. 315, par. 2 (a) of the Revised Penal
Code.

On the first assignment of error, petitioner argues that there is no conspiracy between him and co-
accused. He points that it was only co-accused Elison Villaflor who dealt with private complainant.
The latter had not even met him before he was allegedly forced to sign the amicable agreement.

Petitioner further alleges that contrary to the findings of the appellate court, there is no convincing
evidence to show that petitioner performed any previous or simultaneous act with Elison in
committing the offense against private complainant. The witnesses presented by the prosecution did
not show or prove that petitioner directly participated in the commission of the offense or performed
an act which would show community of purpose with Elison.

Petitioners argument is bereft of merit.

Even in the absence of direct evidence of prior agreement to commit the crime, conspiracy may be
deduced from the acts of the perpetrators before, during and after the commission of the crime,
which are indicative of a common design, concerted action and concurrence of
sentiments.14 Conspiracy is deemed implied when the malefactors have a common purpose and
were united in its execution. Spontaneous agreement or active cooperation by all perpetrators at the
moment of the commission of the crime is sufficient to create joint criminal responsibility.15
In Erquiaga v. Court of Appeals,16 we ruled that conspiracy, as a rule, has to be established with the
same quantum of proof as the crime itself and shown as clearly as the commission of the crime.
However, conspiracy need not be shown by direct evidence, but may take the form of circumstances
which, if taken together, would conclusively show that the accused came to an agreement to commit
a crime and decided to carry it out with their full cooperation and participation.

As correctly pointed out by the appellate court, petitioners actions in relation to the fraudulent sale of
the Nissan Pathfinder to private complainant clearly established conspiracy as alleged in the
information, which acts transcend mere knowledge or friendship with co-accused
Elison.17 Notwithstanding the fact that it was only Elison who dealt with or personally transacted with
private complainant until the time the sale was consummated, by his own testimony petitioner
admitted all the acts by which he actively cooperated and not merely acquiesced in perpetrating the
fraud upon private complainant.18 That petitioner is a conspirator having joint criminal design with
Elison is evident from the fact that as between them, both knew that petitioner was the person selling
the vehicle under the false pretense that a certain Henry Austria was the registered
owner.19 Petitioner, together with Elison, clearly deceived private complainant in order to defraud him
in the amount of P480,000.00, to the latters damage and prejudice. In addition, the acts of petitioner
in deliberately misrepresenting himself to private complainant as having the necessary authority to
possess and sell to the latter the vehicle so that he could collect from him P480,000.00 only to
renege on that promise and for failure to reimburse the said amount he collected from private
complainant, despite demand, amount to estafa punishable under Art. 315, par. 2 (a).

The Court of Appeals, in affirming the findings of fact of the trial court, aptly observed:20

That conviction under the afore-cited provision is more proper is evident from the trial courts
finding that appellant Augusto Sim, Jr. from the very beginning was aware that the subject
vehicle was not his nor given to him in payment of debt as he made appellant Villaflor to
believe. Nonetheless, appellant Villaflor was not absolved from liability, having actively
conspired with appellant Augusto Sim, Jr. to convince private complainant to purchase the
Pathfinder upon their false pretense and representation that said vehicle was being sold
by its real owner, Henry Austria, the name appearing in the registration papers and deed of
sale under circumstances clearly showing their knowledge that the status of said vehicle is
dubious or anomalous, as in fact it turned out to be a "hot car" or had been stolen/carnapped
from its true owner. The totality of the evidence indicates a common or joint design, purpose
and objective of the accused-appellants to defraud private complainant who parted with his
money upon the belief that there is no problem regarding the ownership of the Pathfinder
sold to him by the appellants.

The trial court rejected the argument of the defense that it was private complainant who supposedly
had the vehicle and its registration papers checked at Camp Crame before buying the same. It
pointed out that verification would have been difficult considering that the motor and chassis
numbers in the registration papers are correct but the name of the owner appearing therein is false.

Elisons false pretense in holding out that he had authorization from the owner to sell the 1997
Nissan Pathfinder was made in conjunction with petitioners fraudulent misrepresentation that he
was legally entitled to possess the aforesaid vehicle. The evidence shows that petitioner and Elison
acted in conspiracy to deceive private complainant into buying a stolen Nissan Pathfinder, thereby
defrauding the latter in the amount of P480,000.00, and upon their false pretense and representation
as to the real status of the vehicle, i.e., that said unit is in fact being sold by its true owner Henry
Austria and that Augusto Sim, Jr. in whose name the checks were issued had the authority or right to
sell the same. After a few months, the vehicle sold was apprehended and impounded by police
authorities for being stolen or carnapped which resulted in pecuniary damage to private complainant
who had demanded the return of his money from petitioner and Elison.21 The evidence of the
prosecution satisfactorily established the fraudulent acts and representations which induced private
complainant to part with his money for which he suffered damage and loss when the vehicle sold to
him by petitioner and Elison was recovered by its true owner through operatives of the police anti-
carnapping group.22

On the second assignment of error, petitioner contends that the evidence is not sufficient to prove
petitioners guilt beyond reasonable doubt for the crime of estafa under Art. 315, par. 2 (a) of the
Revised Penal Code.

Petitioners contention is untenable.

While the trial court charged and convicted petitioner and his co-accused of estafa under Art. 315,
par. 1 (b) of the Revised Penal Code, the appellate court modified the lower courts decision by
convicting them of the same crime under Art. 315, par. 2 (a).

Regardless of whether petitioner is charged or convicted under either par. 1 (b) or par. 2 (a) of Art.
315 of the Revised Penal Code, he would still be guilty of estafa because damage and deceit, which
are essential elements of the crime, have been established by proof beyond reasonable doubt. False
pretenses or fraudulent acts were committed prior to or simultaneous with the commission of the
fraud by falsely pretending to possess property. In this case, false pretenses or fraudulent acts were
employed prior to or simultaneously with the commission of the fraud by falsely pretending to
possess the 1997 Nissan Pathfinder, where damage and deceit have been established by proof
beyond reasonable doubt.

Fraud, in its general sense, is deemed to comprise anything calculated to deceive, including all acts,
omissions and concealment involving a breach of legal or equitable duty, trust or confidence justly
reposed, resulting in damage to another, or by which an undue and unconscientious advantage is
taken of another. It is a generic term embracing all multifarious means which human ingenuity can
device, and which are resorted to by one individual to secure an advantage over another by false
suggestions or by suppression of truth and includes all surprise, trick, cunning, dissembling and any
unfair way by which another is cheated. Deceit is a species of fraud.23

Swindling or estafa by means of false pretenses or fraudulent acts executed prior to or

simultaneously with the commission of the fraud is committed "[b]y using fictitious name, or falsely
pretending to possess power, influence, qualifications, property, credit, agency, business or
imaginary transactions, or by other similar deceits."24

The elements of estafa under Art. 315, par. 2 (a) are: (1) There must be a false pretense, fraudulent
act or fraudulent means; (2) Such false pretense, fraudulent act or fraudulent means must be made
or executed prior to or simultaneously with the commission of the fraud; (3) The offended party must
have relied on the false pretense, fraudulent act or fraudulent means, that is, he was induced to part
with his money or property because of the false pretense, fraudulent act or fraudulent means; (4) As
a result thereof, the offended party suffered damage.25

These four elements are present in the instant case: (1) False pretenses were employed by
petitioner and his co-accused to deceive private complainant into purchasing the stolen Nissan
Pathfinder; (2) False pretenses were employed prior to, and simultaneously with, the fraudulent sale
of the Nissan Pathfinder; (3) Private complainant relied on false pretenses of petitioner and co-
accused, inducing him to part with his money due to the misrepresentation employed by the
perpetrators of the fraud; and (4) As a result of false pretenses and misrepresentations by petitioner
and co-accused, private complainant suffered damages in the amount of P480,000.00.
Furthermore, we find no cogent reason to disturb the findings of the trial court, which is in the best
position to make an assessment of the witnesses credibility and to appreciate complainants
truthfulness, honesty and candor.26 Factual findings of trial courts, as well as their assessment of the
credibility of witnesses, are entitled to great weight and respect by this Court more so when these
are affirmed by the Court of Appeals.27 As against the positive and categorical testimonies of the
complainant, petitioners mere denial cannot prevail.

The proper imposable penalty for the crime of estafa under Art. 315, par. 2 (a) is prisin
correccional in its maximum period to prisin mayor in its minimum period, if the amount of the fraud
is over P12,000.00 but does not exceed P22,000.00, and if such amount exceeds the latter sum, the
penalty shall be imposed in its maximum period, adding one (1) year for each additional P10,000.00;
but the total penalty which may be imposed shall not exceed twenty (20) years. In such cases, the
penalty shall be termed prisin mayor or reclusin temporal, as the case may be.

Under the Indeterminate Sentence Law,28 if the offense is punished by the Revised Penal Code, the
court shall sentence the accused to an indeterminate penalty, the maximum term of which shall be
that which, in view of the attending circumstances, could be properly imposed under the rules of the
Revised Penal Code, and the minimum term of which shall be within the range of the penalty next
lower to that prescribed by the Code for the offense. The penalty next lower should be based on the
penalty prescribed by the Code for the offense, without first considering any modifying circumstance
attendant to the commission of the crime. The determination of the minimum penalty is left by law to
the sound discretion of the court and can be anywhere within the range of the penalty next lower
without any reference to the periods into which it might be subdivided. The modifying circumstances
are considered only in the imposition of the maximum term of the indeterminate sentence.

In the present case, petitioner defrauded private complainant in the amount of P480,000.00. The fact
that the amount involved in the case at bar exceeds P22,000.00 should not be considered in the
initial determination of the indeterminate penalty; instead, the matter should be so taken as
analogous to modifying circumstances in the imposition of the maximum term of the full
indeterminate sentence. This legal interpretation accords with the rule that penal laws should be
construed in favor of the accused.29

The maximum penalty to be imposed on petitioner should be taken from the maximum period of the
penalty under Art. 315, which is reclusin temporal, since the amount defrauded exceeds
P22,000.00, adding one year for each additional P10,000.00, but the total penalty which may be
imposed should not exceed twenty (20) years.

Since the penalty prescribed by law for the crime of estafa under Art. 31530 is prisin mayor in its
minimum period if the amount of the fraud exceeds P22,000.00, the minimum term should be within
the range of the penalty next lower to that prescribed by the Code for the offense, which is prisin
correccional in its maximum period. Hence, the minimum period of the penalty should be from four
(4) years, two (2) months and one (1) day to six (6) years. The determination of the minimum penalty
is left by law to the sound discretion of the court and can be anywhere within the range of the penalty
next lower without any reference to the periods into which it might be subdivided.

We are convinced that the appropriate penalty in accordance with law that can best serve the ends
of justice in the case at bar should range from four (4) years, two (2) months and one (1) day
of prisin correccional, as minimum, to twenty years of reclusin temporal, as maximum, for the
crime of estafa under Art. 315, par. 2 (a) of the Revised Penal Code.

WHEREFORE, the May 21, 2003 Decision and August 1, 2003 Resolution of the Court of Appeals
is AFFIRMEDwith MODIFICATION as to the penalty imposed. Appellant Augusto Sim, Jr. is
sentenced to an indeterminate prison term of four (4) years, two (2) months and one (1) day
of prisin correccional, as minimum, to twenty (20) years of reclusin temporal, as maximum, for the
crime of estafa under Art. 315, par. 2 (a). He is further ordered to indemnify the private complainant
Jay Byron Ilagan, jointly and severally with Elison Villaflor, the sum of P480,000.00 with interest of
twelve percent (12%) per annum until fully paid.

Costs against petitioner.

SO ORDERED.

G.R. No. L-14313 July 26, 1960

DIONISIO ESGUERRA, petitioner,

vs.
THE PEOPLE OF THE PHILIPPINES, respondent.

Mariano C. Sicat, Florentino C. Lavides and Eriberto Osea for petitioner.

Office of the Solicitor General Edilberto Barot and Solicitor Sumilang V. Bernardo for respondent.

BARRERA, J.:

Appellant Dionisio Esguerra found by the Court of Appeals guilty of estafa, defined and penalized
under Article 315, paragraph 3, 2 (a) of the Revised Penal Code, and sentenced to the penalty
therein provided, has taken appeal by certiorari upon the following assignment of errors:

1. The Court of Appeals erred in convicting the accused of estafa under Art. 315, paragraph
3, 2(a), that is, estafa through false pretenses, when the trial court, the fiscal and the private
prosecutor assured the accused at the trial that he was being prosecuted for estafa under
Art. 315, 1 (b), that is misappropriation of money received in trust or on commission or for
administration, although in fact the information did not charge estafa under any of those two
provisions, so that the motion to quash on the ground that the information did not state an
offense should have been sustained.

2. The Court of Appeals erred in holding that the accused offered to compromise the case,
when the evidence to establish the alleged offer of compromise was rejected by the trial
court.

3. The Court of Appeals erred in not holding that the best evidence of the sum of P2,000
allegedly given to the accused on March 11, 1952 was the receipt being prepared therefor
when the accused left to catch a passing bus if in fact such sum was received by defendant.

4. The Court of Appeals erred in not holding that on the undisputed documentary evidence of
record, the obligation of the accused, if any, was civil and not criminal.

5. The Court of Appeals erred in sentencing the accused to 2 months and 1 day of arresto
mayor to 1 year and 6 months of prison correccional and affirming the trial court's decision in
all other respects, with cost, and in not acquitting the accused.
 The information filed in the trial court reads, thus:

INFORMATION

The undersigned fiscal accused Dionisio Esguerra of the crime of "Estafa" defined and
punished under Art. 315, 3rd paragraph (b), committed as follows:

That on or about and during the period from January 12, 1952 to March 26, 1952, in the
barrio of Siain, municipality of Atimonan, province of Quezon, Philippines, and within the
jurisdiction of this Honorable Court the said accused upon representations made with Yu Yek
Huy & Co., a business firm duly organized and existing under and by virtue of the laws of the
Philippines, thru the Manager of said Company, Yu Yek Bio, that the said accused had
copras ready for delivery to it, took and received from said Yu Yek Bio the sum of FOUR
THOUSAND FOUR HUNDRED PESOS (P 4,400.00) under the express obligation on part of
the said accused to deliver to the said company the equivalent worth of copras at its bodega
at Siain, Atimonan, Quezon as follows: P2,400.00 worth of copras on or before January 31,
1952, and P2,000.00 worth of copras on or before fifteen days from March 11, 1952, or the
same sum of money on the respective dates aforestated but the said accused once in
possession of the said sum of money and far from complying with aforesaid obligation,
despite repeated demands made upon him to do so, did then and there wilfully, unlawfully
and feloniously with intent to defraud the aforesaid company, misapply, misappropriate and
convert the said amount to his own personal use and benefit to the damage and prejudice of
the Yu Yek Huy & Co., in the aforestated amount of P4,400.00 Philippine Currency.

It is to be noted that the first paragraph for the Information specifically refers to the 3rd paragraph (b)
of Article 315 of the Revised Penal Code as the provision under which the accused was being
prosecuted. This particular paragraph refers to estafa committed in a gambling game. On the other
hand, that part of the information referring to representations that the accused had copras ready for
delivery, would seem to imply that the estafa charged is that defined and penalized under paragraph
2 (a) by falsely pretending to possess ... properly, business, etc. The succeeding portion,
however, of the same return the money on the dates agreed, charges the accused of
misappropriation and conversion under paragraph (b) of the same Article 315.

In view of this ambiguity in the information, a motion to quash was filed by the accused. (The motion
to quash is not before us, but from the statement of the Court of Appeals "whether the allegations
in the information constitute an offense or multiple offense, will be taken up in subsequent legal
incursions" it would seem that the ground relied upon is that the allegations in the information
charge no offense, or if they do, they charge multiple offenses.) At the hearing of the motion, the
fiscal and the private prosecutor both manifested that there was clerical error in the first paragraph of
the information and stated and assured that the accused was being charged under paragraph 1 (b)
of Article 315.1 The trial court admitted the correction and the accused went to trial with that
understanding and assurance. After trial in due time, the lower court found the accused guilty as
thus charged under Article 315, paragraph 1 (b) and sentenced him accordingly. On appeal to the
Court of Appeals, where the accused questioned the correctness of the judgment of conviction under
the information as corrected and on the facts proven, the appellate court modified the decision of the
trial court and declared:

xxx xxx xxx

The evidence for the prosecution fully established the fact that the two sums of P2,400.00
and P2,000.00 were given to the accused on the latter's pretense that he had copra in his
bodega which he was drying. Yu Yek Bio testifying, said:
 A. He told me that he had many copras in his bodega and
that he will deliver to me the copras corresponding to
the amount of P2,000.00 together with the 10,000 kilos,
which he promised to deliver at first. (t.s.n., p. 5).

But the said appellant admittedly had no such copra then. Appellant, however, insisted that
he had already delivered the copra corresponding to the first payment of P2,400.00 and to
prove this delivery, he presented in evidence Exhibits 1 to 1-K, the purchase vouchers
showing the receipt of copra by the complainant company on different dates from Felix
Mendoza, Diego Sulit, Diosdado Engco (2 vouchers), Jose Cal, Juanito Esguerra, Juan
Gonzales (2 vouchers) and Tomas Luna. They were all stamped paid. A great deal of
misgiving, however, accompanies this proof; it is unbelievable.

xxx xxx xxx

Anent the second amount of P2,000.00, delivered on March 11, 1952, the appellant alleged
that he did not receive the same, as he was in his place at Malasak, Atimonan, conducting a
liquidation with a copra dealer Amado Villamiel in the morning and in the afternoon of the
said day, he was delivering copra to Yang, the manager of Gua Chi Gan. But the evidence of
the prosecution belies these allegations in an immeasurable manner.

xxx xxx xxx

. . . We have no reason doubt the veracity and truthfulness of these State witnesses who
testified in a direct, positive and straightforward manner.

While we agree with counsel that the appellant cannot be held guilty of estafa under
paragraph 1-b, Art. 315 of the Revised Penal Code, we are nevertheless of the opinion, and
so hold, that appellant is responsible for a violation of paragraph 3 (2-a) of the same article,
which penalizes any person who shall defraud another (2). By means of any of the following
pretenses or fraudulent acts executed prior to or simultaneously with the commission of the
fraud; (a) by using fictitious name or falsely pretending to possess power, influence,
qualifications, property, credit, agency, business, or imaginary transactions or by means of
other similar deceits" (emphasis ours). The information describes and alleges this means of
committing "swindling" and the evidence adduced, amply substantiates said allegations.

Consequently, the Court of Appeals held appellant guilty of estafa under paragraph 3 (2-a) of Article
315. It is from this decision that the accused has taken this present appealed by certiorari.

The issue here is whether after denial of a motion to quash, precisely on the vagueness of the
information, upon assurance by the fiscal and the private prosecutor and accepted by the court that
the offense for which the accused was being prosecuted is that of misappropriation defined in
paragraph 1 (b) of Articles 315, involving unfaithfulness or abuse of confidence and under which the
accused entered trial, the latter could, on appeal, be convicted of an entirely different offense with
different elements, that of false pretenses of possessing property or business made prior to or
simultaneously with the commission of the fraud. The appellant submits that he could not, especially
when the latter offense is not adequately alleged in the information.

We incline to agree with the appellant. It is undisputed that the information contains no allegation of
misrepresentation, bad faith or false pretense, essential element in the crime of which appellant was
found guilty by the Court of Appeals. This is so, evidently, because, as already stated, the fiscal and
the private prosecutor avowedly were prosecuting the accused for the crime of misappropriation and
conversion committed with unfaithfulness and abuse of confidence for which the appellant went to
trial and was convicted by the lower court. It is true the information states that "the accused,
upon representations (not misrepresentations) that the accused had copras ready for delivery to it,
took and received" the sum of P4,400.00. Nowhere does it appear in the information that these
"representations" were false or fraudulent, or that the accused had no such copra at the time he
allegedly made such "representations". The falsity or fraudulentness of the pretense or
representation or act being the very constitutive element of the offense, allegation to that effect,
either in the words of the law or in any other language of similar import, must be made in the
information if the right of the accused to be informed of the nature and cause of the accusation
against him is to be preserved. In this case, for instance, since the representation wherefor the
money was delivered is not being charged as false, and since, if not false, the receipt of the money
on such representation does not constitute an offense, the motion to quash the information on the
ground that it did not charge an offense or the allegations therein did not constitute an offense,
should have been granted. Instead, the fiscal and the private prosecutor assured the court, and both
the court and the accused depended on the assurance that the offense charged is not that of
misrepresentation or false pretense, but that of misappropriation and conversion, of unfaithfulness
and abuse of confidence. To convict him now of the very offense which he correctly assailed was not
adequately alleged in the information and with which the prosecution expressly stated they were not
charging the accused, could result not only in violating appellant's constitutional right to be informed
of the nature and cause of the accusation against him, but in actually misleading him.

Pertinent on this point is Section 4 of Rule 116 of the Rules of Court which provides:

SEC. 4. Judgment in case of variance between allegation and proof. When there is
variance between the offense charged in the complaint or information, and that proved or
established by the evidence, and the offense as charged is included in or necessarily
includes the offense proved, the defendant shall be convicted of the offense proved included
in that which is charged, or of the offense charged included in that which is proved.

Stated differently, an accused may be convicted of an offense proved provided it is included in the
charge, or of an offense charged which is included in that proved. Still stated differently, an accused
can be convicted offenseonly when it is both charged and proved. If it is not charged, the accused
can not be convicted thereof. In other words, variance between the allegation and proof cannot
justify conviction for either the offense charged or the offense proved unless either is included in the
other.

On the merits, there is reasons to believe that the responsibility of herein appellant is only civil in
nature. Exhibit A, upon the strength of which the prosecution mainly relies, reads:

RECEIVED from Messrs. YU YEK HUY & CO., the sum of Two Thousand four hundred
Pesos (P2,400.00) only representing advance payment of 10,000 kilos of copra which I sold
them and shall be delivered in their bodega at Siain, P.I., on or before Jan. 31, 1952.

Jan. 12, 1952

(Sgd.) D. ESGUERRA
Signature of Seller

The language of this receipt, together with the finding of the Court of Appeals that "Factually, the
appellant used to supply copra not only to complainant, but also to other copra exporters in Siain",
clearly indicate, in our opinion, that the transaction was that of sale of copra for future delivery.
Obviously, an advance payment is subject to the disposal of the vendor. If the transaction fails, the
liability arising therefrom is of a civil and not of a criminal nature.2

In view of the foregoing, the decision appealed from is reversed; the accused is acquitted, with
cost de oficio, and the bond given for his provisional liberty cancelled. So ordered.

Paras, C. J., Bengzon, Padilla, Montemayor, Bautista Angelo, Labrador, Concepcion, Reyes, J. B.
L., Endencia, and Gutierrez David, JJ., concur.

Elements and Penalty of Estafa by Means of Deceit

Posted on February 15, 2012by Erineus

Article 315, par. 2(a) of the Revised Penal Code penalizes fraud or deceit when
committed as follows:

xxxx

2. by means of any of the following false pretenses or fraudulent acts executed prior to
or simultaneously with the commission of fraud:

(a) by using fictitious name, or actions, falsely pretending to possess power,

influence, qualification, property, credit, agency, business or imaginary transactions, or
by means of other similar deceits.

The elements of the crime of estafa under the foregoing provision are: (1) there must
be a false pretense, fraudulent acts or fraudulent means; (2) such false pretense,
fraudulent act or fraudulent means must be made or executed prior to or simultaneously
with the commission of the fraud; (3) the offended party must have relied on the false
pretense, fraudulent act or fraudulent means and was thus induced to part with his
money or property; and (4) as a result thereof, the offended party suffered damage.[13]
Petitioners presented themselves toLourdesas persons possessing the authority and
capacity to engage in the financing of used vehicles in behalf of Final Access Marketing.
This was a clear misrepresentation considering their previous knowledge not only of
Erlindas complaint but also of several others as regards the failure of Final Access
Marketing to deliver the motor vehicles bought. Lourdesrelied on their
misrepresentations and parted with her money. Almost a week passed by, but
petitioners and Rule did not deliver the said motor vehicle. They also did not fulfill their
subsequent promise to provide a replacement or to refund her payment.
WhenLourdesvisited the office of Final Access Marketing to demand the return of her
money, it was already closed. She could not locate any of them except for Franco who
denied any wrongdoing. Consequently, she suffered damage.

If indeed they were innocent as they claimed to be, Erlindas complaint to petitioners
and the 12 other similar complaints with Hoy Gising regarding undelivered vehicles
should have dissuaded petitioners from further soliciting customers. The fact that they
continued to offer for sale a second-hand car to Lourdes is indicative of deceit and their
complicity in the conspiracy to commit estafa. The manner in which petitioners
transacted business with Erlinda and Lourdes as well as their awareness of 12 other
similar complaints with Hoy Gising were sufficient to establish the existence of
a modus operandi.
Francos attempt to escape culpability by feigning ignorance of the previously failed
transactions on the delivery of vehicles by Final Access Marketing cannot be
countenanced. As gleaned from the testimony of Erlinda, Franco was already with Final
Access Marketing at the time these transactions occurred. She was therefore familiar
with the companys procedure and policy on the sales of second-hand vehicles. She even
accompaniedLourdesto showrooms and introduced her to Besario and Rule.

As an employee of Final Access Marketing, Franco was expected to be familiar with its
daily activities. It would be unworthy of belief that she did not know of the complaints
for the unexplained failure of Final Access Marketing to deliver vehicles to its
customers. Human nature and experience would compel her to make queries on her
own to discover the reasons for the non-delivery of the vehicles. Her continued
insistence in solicitingLourdesas a client by introducing herself as an Assistant
Administrative Coordinator of Final Access Marketing with the ability to provide
financing for a vehicle of her choice is therefore indicative of fraudulent
misrepresentation.

The petitioners also contend that they are not criminally liable since the transaction
withLourdeswas a contract of sale. This contention does not deserve serious
consideration. While the fact that they entered into a contract withLourdescannot be
denied, the transaction transpired due to their deceit. It was their misrepresentation
that inducedLourdesto sign the Sales Proposal agreement and part with her money.
 In denying any criminal wrongdoing, petitioners blame their co-accused, Torres, whom
they claim to be the owner of Final Access Marketing. The shifting of blame is common
among conspirators in their attempt to escape liability. It is a desperate strategy to
compensate for their weak defense. We are not readily influenced by such a proposition
since its obvious motive is to distort the truth and frustrate the ends of justice.[14]
The Penalty

Estafa (deceit/swindling) under Art. 315, Rev.

Penal Code
For legal research purposes of my readers, may I share the jurisprudential part of a motion for
reconsideration I have just filed with the office of the city prosecutor of a city in southern Metro Manila
seeking the indictment for estafa of the respondent therein. The investigating fiscal had earlier indicted
the respondent only for violation of BP Blg. 22 (bouncing check law). I felt that the respondent should be
likewise indicted for Estafa under Art. 315 of the Rev. Penal Code. I removed all references to names of
parties and the like.

MOTION FOR RECONSIDERATION

THE COMPLAINANT, by counsel, respectfully states:

1. On March 27, 2012 the complainant received via registered mail a copy of the RESOLUTION,
dated March 13, 2012, dismissing the complaint for SYNDICATED ESTAFA and indicting the
respondent x x x merely for violation of B.P. Blg. 22.

The 15th day of the complainant to file this motion expires on April 11, 2012.

Hence, this motion.

2. The complainant submits that the resolution erred in not indicting x x x at the very least for the
felony of regular or ordinary ESTAFA under Art. 315 of the Rev. Penal
Code (assuming, arguendo, that PD 1689, re: Syndicated Estafa does not apply in the instant
case).

The complainant agrees, though, that x x x was correctly indicted for violation of B.P. Blg. 22.

(As of this date, the complainant has paid the requisite filing and docket fees with the Office of
the Clerk of Court of the Metropolitan Trial Court of x x x City, in the amount of more than P95,
000.00, so that the said case for violation of B.P. Blg. 22 may forthwith proceed with dispatch
in the said Court).

3. The complainant humbly submits that the resolution erred in finding that there was no estafa
(whether syndicated or regular/ordinary) because the transaction was a simple loan; that what
motivated the complainant to issue his checks was not the malice or deceit of SON but the
complainants desire for interest income.

The complainant will not contest anymore the issue of Syndicated Estafa under P.D. No.
1689 but will simply focus herein on the sole issue of whether or not x x x should have been
likewise indicted for the felony of Ordinary/Regular Estafa under Art. 315, Rev. Penal
Code.

4. The resolution failed to appreciate the points of law and fact raised by the complainant in his
Reply-Affidavit, to wit:

X x x.

4. Likewise, the resolution erred in not appreciating the proofs of deceit/malice described in the
Complaint as alleged bythe complainant, to wit:

X x x.
5. The complainant does not have the duty to submit proofs of the nonexistence of the alleged x x x
PROJECT. Sufficie it to state that upon the presentation by the complainat in his Complaint of
concrete allegations aboput the clear use by x x x of the x x x PROJECT as her express excuse to
exact money from the complainant, the BURDEN OF EVIDENCE had shifted to x x x to prove
the existence of the said Project to show the purity of her intentions and conscience. But x x x
failed to do this.

6. LOAN per se does not exempt a criminal from indictment for estafa so long as it can be proved,
as is the factual mileu in the instant case, that the motive behind such a transaction was deceit,
swindling and malice on the part of the debtor/respondent.

7. We repeat hereinbelow what we had argued in our previous pleadings before this Honorable
Office.

8. In the case of LIBERATA AMBITO, BASILIO AMBITO, and CRISANTO AMBITO vs. PEOPLE
OF THE PHILIPPINES and COURT OF APPEALS, G.R. No. 127327, February 13, 2009, it was
held that in the prosecution for Estafa under Article 315, paragraph 2(a) of the RPC,[1] it is
indispensable that the element of deceit, consisting in the false statement or fraudulent
representation of the accused, be made prior to, or at least simultaneously with, the delivery of
the thing by the complainant; and that false pretense or fraudulent act must be committed prior
to or simultaneously with the commission of the fraud, it being essential that such false
statement or representation constitutes the very cause or the only motive which induces the
offended party to part with his money. Thus:

x x x.

The elements of Estafa by means of deceit, whether committed by false pretenses or

concealment, are the following (a) that there must be a false pretense, fraudulent act or
fraudulent means. (b) That such false pretense, fraudulent act or fraudulent means must be
made or executed prior to or simultaneous with the commission of the fraud. (c) That the
offended party must have relied on the false pretense, fraudulent act or fraudulent means, that
is, he was induced to part with his money or property because of the false pretense, fraudulent
act or fraudulent means. (d) That as a result thereof, the offended party suffered damage.[2]

In the prosecution for Estafa under Article 315, paragraph 2(a) of the RPC,[3] it is indispensable
that the element of deceit, consisting in the false statement or fraudulent representation of the
accused, be made prior to, or at least simultaneously with, the delivery of the thing by the
complainant.

The false pretense or fraudulent act must be committed prior to or simultaneously with the
commission of the fraud, it being essential that such false statement or representation
constitutes the very cause or the only motive which induces the offended party to part with his
money. In the absence of such requisite, any subsequent act of the accused, however fraudulent
and suspicious it might appear, cannot serve as basis for prosecution for estafa under the said
provision.[4]

In the case at bar, the records would show that PSI was given assurance by petitioners that
they will pay the unpaid balance of their purchases from PSI when the CCTDs with petitioners
banks, the Rural Bank of Banate, Inc. (RBBI) and/or the Rural Bank of Leon, Inc. (RBLI), and
issued under the name of PSI, would be presented for payment to RBBI and RBLI which, in
turn, will pay the amount of deposit stated thereon. The amounts stated in the CCTDs
correspond to the purchase cost of the machineries and equipment that co-petitioner Basilio
Ambito bought from PSI as evidenced by the Sales Invoices presented during the trial. It is
uncontroverted that PSI did not apply for and secure loans from RBBI and RBLI. In fine, PSI
and co-petitioner Basilio Ambito were engaged in a vendor-purchaser business relationship
while PSI and RBBI/RBLI were connected as depositor-depository. It is likewise established
that petitioners employed deceit when they were able to persuade PSI to allow them to pay the
aforementioned machineries and equipment through down payments paid either in cash or in
the form of checks or through the CCTDs with RBBI and RBLI issued in PSIs name with
interest thereon. It was later found out that petitioners never made any deposits in the said
Banks under the name of PSI. In fact, the issuance of CCTDs to PSI was not recorded in the
books of RBBI and RBLI and the Deputy Liquidator appointed by the Central Bank of the
Philippines even corroborated this finding of anomalous bank transactions in her testimony
during the trial. [5]

As borne by the records and the pleadings, it is indubitable that petitioners representations
were outright distortions of the truth perpetrated by them for the sole purpose of inducing PSI
to sell and deliver to co-petitioner Basilio Ambito machineries and equipments. Petitioners
knew that no deposits were ever made with RBBI and RBLI under the name of PSI, as
represented by the subject CCTDs, since they did not intend to deposit any amount to pay for
the machineries. PSI was an innocent victim of deceit, machinations and chicanery committed
by petitioners which resulted in its pecuniary damage and, thus, confirming the lower courts
finding that petitioners are guilty of the complex crime of Estafa through Falsification of
Commercial Documents.
 X x x.

10. Article 315 of the Revised Penal Code on deceit/swindling (estafa) provides any
person who shall defraud another by any of the means mentioned therein shall be punished by
the penalty of prision correccional in its maximum period to prision mayor in its minimum period,
if the amount of the fraud is over 12,000 pesos but does not exceed 22,000 pesos, and if such
amount exceeds the latter sum, the penalty provided in this paragraph shall be imposed in its
maximum period, adding one year for each additional 10,000 pesos; but the total penalty which
may be imposed shall not exceed twenty years; providedthat the fraud be committed by any of
the following means:

1. With unfaithfulness or abuse of confidence, namely:

X x x.

(b) By misappropriating or converting, to the prejudice of another, money, goods, or any other
personalproperty received by the offender in trust or on commission, or for
administration, or under any other obligation involving the duty to make delivery of or to
return the same, even though such obligation be totally or partially guaranteed by a bond; or by
denying having received such money, goods, or other property.

2. By means of any of the following false pretenses or fraudulent acts executed prior to or
simultaneously with the commission of the fraud:

(a) By using fictitious name, or falsely pretending to possess power, influence,

qualifications, property, credit, agency, business or imaginary transactions, or by means
of other similar deceits.

X x x.

(a) By pretending to have bribed any Government employee, without prejudice to the action
for calumny which the offended

party may deem proper to bring against the offender. In this case, the offender shall be
punished by the maximum period of the penalty.

(b) By post-dating a check, or issuing a check in payment of an obligation when the

offender had no funds in the bank, or his funds deposited therein were not sufficient to
cover the amount of check. The failure of the drawer of the check to deposit the amount
necessary to cover his check within three (3) days from receipt of notice from the bank
and/or the payee or holder that said check has been dishonored for lack of insufficiency
of funds shall be prima facie evidence of deceit constituting false pretense or fraudulent
act. (As amended by Republic Act No. 4885, approved June 17, 1967.)

10.1. Article 316 (other forms of swindling) of the Revised Penal Code provides that the penalty
of arresto mayor in its minimum and medium periods and a fine of not less than the value of the
 damage caused and not more than three times such value, shall be imposed upon any person
who, to the prejudice of another, shall execute any fictitious contract.

10.2. Article 318 (other deceits) of the Revised Penal Code provides that the penalty of arresto
mayor and a fine of not less than the amount of the damage caused and not more than twice
such amount shall be imposed upon any person who shall defraud or damage another by any
other deceit not mentioned in the preceding articles of this chapter.

9. In PEOPLE OF THE PHILIPPINES vs. VIRGINIA BABY P. MONTANER, G.R. No.

184053, August 31, 2011, the accused was convicted for the crime of Estafa as defined and
penalized under paragraph 2(d), Article 315 of the Revised Penal Code. The Information alleged
that on or about May 17, 1996 in the Municipality of San Pedro, Province of Laguna and within
the jurisdiction of this Honorable Court accused Virginia (Baby) P. Montaner did then and there
willfully, unlawfully and feloniously defraud one Reynaldo Solis in the following manner: said
accused by means of false pretenses and fraudulent acts that her checks are fully funded draw,
make and issue in favor of one Reynaldo Solis ten (10) Prudential Bank Checks, all having a
total value of FIFTY THOUSAND PESOS (P50,000.00) and all aforesaid checks were postdated
June 17, 1996 in exchange for cash knowing fully well that she has no funds in the drawee bank
and when the said checks were presented for payment the same were dishonored by the
drawee bank on reason of ACCOUNT CLOSED and despite demand accused failed and
refused to pay the value thereof to the damage and prejudice of Reynaldo Solis in the
aforementioned total amount of P50,000.00.

X x x.

The Court cited Paragraph 2(d), Article 315 of the Revised Penal Code provides:

ART. 315. Swindling (estafa). Any person who shall defraud another by any of the
means mentioned hereinbelow x x x:

xxxx

2. By means of any of the following false pretenses or fraudulent acts executed prior to
or simultaneously with the commission of the fraud:

xxxx
 (d) By postdating a check, or issuing a check in payment of an obligation when the
offender had no funds in the bank, or his funds deposited therein were not sufficient to cover the
amount of the check. The failure of the drawer of the check to deposit the amount necessary to
cover his check within three (3) days from receipt of notice from the bank and/or the payee or
holder that said check has been dishonored for lack or insufficiency of funds shall be prima
facie evidence of deceit constituting false pretense or fraudulent act.

According to the Court, the elements of estafa under paragraph 2(d), Article 315 of the
Revised Penal Code are: (1) the postdating or issuance of a check in payment of an obligation
contracted at the time the check was issued; (2) lack of sufficiency of funds to cover the check;
and (3) damage to the payee.[6]

In the said case, the prosecution sufficiently established appellants guilt beyond
reasonable doubt for estafa under paragraph 2(d), Article 315 of the Revised Penal Code.
According to Soliss clear and categorical testimony, appellant issued to him the 10 postdated
Prudential Bank checks, each in the amount ofP5, 000.00 or a total of P50, 000.00, in his house
in exchange for their cash equivalent.

From the circumstances, the Court held that it was evident that Solis would not have
given P50, 000.00 cash to appellant had it not been for her issuance of the 10 Prudential Bank
checks. These postdated checks were undoubtedly issued by appellant to induce Solis to part
with his cash. However, when Solis attempted to encash them, they were all dishonored by the
bank because the account was already closed.

Solis wrote appellant a demand letter dated October 13, 1996 which was received by
appellants husband to inform appellant that her postdated checks had bounced and that she
must settle her obligation or else face legal action from Solis. Appellant did not comply with the
demand nor did she deposit the amount necessary to cover the checks within three days from
receipt of notice. This gave rise to a prima facieevidence of deceit, which is an element of the
crime of estafa, constituting false pretense or fraudulent act as stated in the second sentence of
paragraph 2(d), Article 315 of the Revised Penal Code.

X x x.
10. In the case of BETTY GABIONZA AND ISABELITA TAN, PETITIONERS, VS. COURT
OF APPEALS, LUKE ROXAS AND EVELYN NOLASCO, RESPONDENTS, [G.R. No.
161057, September 12, 2008], it was held that to be clear, it is possible to hold the
borrower in a money market placement liable for estafa if the creditor was induced to
extend a loan upon the false or fraudulent misrepresentations of the borrower; that such
estafa is one by means of deceit; that the borrower would not be generally liable for estafa
through misappropriation if he or she fails to repay the loan, since the liability in such instance is
ordinarily civil in nature, except when deceit is present, of course. Thus:

x x x.

We can thus conclude that the DOJ Resolution clearly supports a prima facie finding that the
crime of estafa under Article 315 (2) (a) has been committed against petitioners. Does it also
establish a prima facie finding that there has been a violation of the then-Revised Securities Act,
specifically Section 4 in relation to Section 56 thereof?

Section 4 of Batas Pambansa Blg. 176, or the Revised Securities Act, generally requires the
registration of securities and prohibits the sale or distribution of unregistered securities. [29] The
DOJ extensively concluded that private respondents are liable for violating such prohibition
against the sale of unregistered securities:

Respondents Roxas and Nolasco do not dispute that in 1998, ASB borrowed funds about 700
individual investors amounting to close to P4 billion, on recurring, short-term basis, usually 30 or
45 days, promising high interest yields, issuing therefore mere postdate checks. Under the
circumstances, the checks assumed the character of "evidences of indebtedness," which are
among the "securities" mentioned under the Revised Securities Act. The term "securities"
embodies a flexible rather than static principle, one that is capable of adaptation to meet the
countless and variable schemes devised by those who seek to use the money of others on the
promise of profits (69 Am Jur 2d, p. 604). Thus, it has been held that checks of a debtor
received and held by the lender also are evidences of indebtedness and therefore "securities"
under the Act, where the debtor agreed to pay interest on a monthly basis so long as the
principal checks remained uncashed, it being said that such principal extent as would have
promissory notes payable on demand (Id., p. 606, citing Untied States v. Attaway (DC La) 211 F
Supp 682). In the instant case, the checks were issued by ASB in lieu of the securities
enumerated under the Revised Securities Act in a clever attempt, or so they thought, to take the
case out of the purview of the law, which requires prior license to sell or deal in securities and
registration thereof. The scheme was to
designed to circumvent the law. Checks constitute mere substitutes for cash if so issued in
payment of obligations in the ordinary course of business transactions. But when they are
issued in exchange for a big number of individual non-personalized loans solicited from the
public, numbering about 700 in this case, the checks cease to be such. In such a circumstance,
the checks assume the character of evidences of indebtedness. This is especially so where the
individual loans were not evidenced by appropriate debt instruments, such as promissory notes,
loan agreements, etc., as in this case. Purportedly, the postdated checks themselves serve as
the evidences of the indebtedness. A different rule would open the floodgates for a similar
scheme, whereby companies without prior license or authority from the SEC. This cannot be
countenanced. The subsequent repeal of the Revised Securities Act does not spare
respondents Roxas and Nolasco from prosecution thereunder, since the repealing law, Republic
Act No. 8799 known as the "Securities Regulation Code," continues to punish the same offense
(see Section 8 in relation to Section 73, R.A. No. 8799).[30]

The Court of Appeals however ruled that the postdated checks issued by ASBHI did not
constitute a security under the Revised Securities Act. To support this conclusion, it cited the
general definition of a check as "a bill of exchange drawn on a bank and payable on demand,"
and took cognizance of the fact that "the issuance of checks for the purpose of securing a loan
to finance the activities of the corporation is well within the ambit of a valid corporate act" to note
that a corporation does not need prior registration with the SEC in order to be able to issue a
check, which is a corporate prerogative.

This analysis is highly myopic and ignorant of the bigger picture. It is one thing for a corporation
to issue checks to satisfy isolated individual obligations, and another for a corporation to
execute an elaborate scheme where it would comport itself to the public as a pseudo-
investment house and issue postdated checks instead of stocks or traditional securities to
evidence the investments of its patrons. The Revised Securities Act was geared towards
maintaining the stability of the national investment market against activities such as those
apparently engaged in by ASBHI. As the DOJ Resolution noted, ASBHI adopted this scheme in
an attempt to circumvent the Revised Securities Act, which requires a prior license to sell or
deal in securities. After all, if ASBHI's activities were actually regulated by the SEC, it is hardly
likely that the design it chose to employ would have been permitted at all.

But was ASBHI able to successfully evade the requirements under the Revised Securities Act?
As found by the DOJ, there is ultimately a prima facie case that can at the very least sustain
prosecution of private respondents under that law. The DOJ Resolution is persuasive in citing
American authorities which countenance a flexible definition of securities. Moreover, it bears
pointing out that the definition of "securities" set forth in Section 2 of the Revised Securities Act
includes "commercial papers evidencing indebtedness of any person, financial or non-financial
entity, irrespective of maturity, issued, endorsed, sold, transferred or in any manner conveyed to
another."[31] A check is a commercial paper evidencing indebtedness of any person, financial or
non-financial entity. Since the checks in this case were generally rolled over to augment the
creditor's existing investment with ASBHI, they
 most definitely take on the attributes of traditional stocks.

We should be clear that the question of whether the subject checks fall within the classification
of securities under the Revised Securities Act may still be the subject of debate, but at the very
least, the DOJ Resolution has established a prima facie case for prosecuting private
respondents for such offense. The thorough determination of such issue is best left to a full-
blown trial of the merits, where private respondents are free to dispute the theories set forth in
the DOJ Resolution. It is clear error on the part of the Court of Appeals to dismiss such finding
so perfunctorily and on such flimsy grounds that do not consider the grave consequences. After
all, as the DOJ Resolution correctly pointed out: "[T]he postdated checks themselves serve as
the evidences of the indebtedness. A different rule would open the floodgates for a similar
scheme, whereby companies without prior license or authority from the SEC. This cannot be
countenanced."[32]

This conclusion quells the stance of the Court of Appeals that the unfortunate events befalling
petitioners were ultimately benign, not malevolent, a consequence of the economic crisis that
beset the Philippines during that era.[33] That conclusion would be agreeable only if it were
undisputed that the activities of ASBHI are legal in the first place, but the DOJ puts forth a
legitimate theory that the entire modus operandi of ASBHI is illegal under the Revised Securities
Act and if that were so, the impact of the Asian economic crisis would not obviate the criminal
liability of private respondents.

X x x.

It is ineluctable that the DOJ Resolution established a prima facie case for violation of Article
315 (2)(a) of the Revised Penal Code and Sections 4 in relation to 56 of the Revised Securities
Act. X x x

X x x.

11. IN FINE, respondent x x x must be indicted at the least for the felony of ordinary/regular
ESTAFA under Art. 315, Rev. Penal Code.

WHEREFORE, premises considered, it is respectfully prayed that resolution, dated March

13, 2012, be reconsidered and that a new resolution be issued FURTHER indicting x x x for the
felony of regular/ordinary ESTAFA under Art. 315, Rev. Penal Code. Involving the two checks
issued by the complainant to satisfy the total claim of the complainant in the amount of Five
Million Pesos (P5, 000,000.00), plus exemplary damages of P100, 000.00, moral damages
of P100, 000.00, attorneys fees of P125, 000.00 plus 5% of the recoverable amounts, and
costs of suit.

Las Pinas City, April 10, 2012.

LASERNA CUEVA-MERCADER

LAW OFFICES

Counsel for the Complainant

Unit 15, Star Arcade. C.V. Starr Ave.

Philamlife Village, Las Pinas City 1740

Tel. No. 8725443; Fax No. 8462539.

MANUEL J. LASERNA JR.

Roll No. 33640, 4/27/85

IBP Lifetime Member No. 1907

IBP Leyte Chapter

PTR 10288207, 1/18/12, Las Pinas City

MCLE Compliance No. IV-1326, 2/3/11

Criminal Law: Estafa Through False

Pretenses
October 19, 2014 by The Lawyer's Post
Ralph is the president and CEO of Primelink, a real estate developer. On
July 4, 1996, Primelink entered into a Joint Venture Agreement with
Pamana Island Resort Hotel and Marina Club to develop an exclusive
residential resort with marina an island in Subic, Zambales. Per their
agreement, Paman will keep the title to the property free from
encumbrances while Primelink will provide capital and handle marketing.
Though the club was slated for opening in July 1998, Primelink started
selling membership shares.
Alfredo, through a sales agent of Primelin, bought one such membership
share, paying the reservation fee of P209,000.00 and eventually paying
full amount of P835,999.94 by April, 1998.
In March 2002, Alfredo filed a case for estafa against Ralph and the
sales agent, Joy, alleging that the club remained undeveloped and
Primelink failed to return his payment despite demand. He also
discovered that Primelink had no license to sell securities from the SEC.
A case for Estafa under Art. 315 paragraph 2(a) was eventually filed
against Ralph and Joy, but only Ralph stood trial as Joy cannot be
located.
In his defense, Ralph invoked that the non-completion of the project was
due to failure on the part of Pamana to keep its obligation on their
agreement, by mortgaging the property to Westmont Bank. On the
matter of sale of unregistered securities, he alleged that it is industry
practice and maintained that he instructed his sales agents to be honest
about the status of the project to prospective buyers.
The Regional Trial Court convicted Ralph of Estafa as charged and
sentenced him to imprisonment.
His appeal to the Court of Appeals also denied, Ralph elevated his case
to the Supreme Court:
The Code defines estafa under Article 315, paragraph 2(a), the offense
for which petitioner and Ragonjan stand accused, as follows:
Swindling (estafa). Any person who shall defraud another x x x
xxxx
2. By means of any of the following false pretenses or fraudulent acts
executed prior to or simultaneously with the commission of the fraud:
(a) By using fictitious name, or falsely pretending to possess power,
influence, qualifications, property, credit, agency, business or imaginary
transactions, or by means of other similar deceits.
This provision lays on the prosecution the burden of proving beyond
reasonable doubt each of the following constitutive elements:
(1) The accused used fictitious name or false pretense that he
possesses (a) power, (b) influence, (c) qualifications, (d) property, (e)
credit, (f) agency, (g) business or (h) imaginary transaction, or other
similar deceits;
(2) The accused used such deceitful means prior to or simultaneous with
the execution of the fraud;
(3) The offended party relied on such deceitful means to part with his
money or property; and
(4) The offended party suffered damage.
xxx
No False Pretense in the status of club development:
Without need of passing upon the question whether Ragonjans
representations to Sy on 10 October 1996 bind petitioner, we resolve the
threshold question whether her alleged statement that the Club will be
finished by July 1998 was in the first place false. The Court of Appeals
grounded its affirmative answer on the fact that the Club remained
unfinished even after the lapse of its target completion date in July 1998.
Section 2(a) of Article 315, however, requires that the false pretense be
used prior to or simultaneous with the execution of the fraud, that is, on
10 October 1996. The crux of this issue then, is whether before or at that
time, Primelink possessed no power (capability) to develop the Club,
rendering Ragonjans statement false.
A review of the records compels a negative answer. When Sy reserved
to buy a Club share on 10 October 1996, barely three months had
passed after Primelink, a duly incorporated real estate developer, signed
the Agreement with Pamana, another real estate developer, to develop
the Club. Four months after Sy bought a Club share, Primelink promoted
the Club here and abroad and continued selling Club shares. All the
while, Primelink released funds to finance the projects initial expenses,
a portion of which Pamana was ordered to repay by a Makati court after
the project was aborted.
xxx
There is false pretense in the sale of unregistered securities to Alfred:
First. Petitioner was no bystander in Primelinks sale of unregistered
shares. Santiago, Primelinks comptroller and drafter of the Agreement,
testified as witness for petitioner that after Primelinks Board of Directors
approved the sale of the unregistered Club shares, petitioner
encouraged and instructed the sale of many shares, no doubt to raise
as much capital for the Club as possible. This was the context of Sys
purchase of a Club share from Primelink.
Petitioner attempts to distance himself from the transaction between
Ragonjan and Sy by claiming that Ragonjan violated standing company
policy to be candid to buyers by disclosing Primelinks lack of license.
We find this unpersuasive. In the first place, petitioner failed to present
independent proof of such company policy, putting in serious doubt the
veracity of his claim. Secondly, it is improbable for Ragonjan to take it
upon herself to fabricate the serious claim that Primelink was a licensed
securities dealer in violation of company policy, in the process risking her
employment. It is more consistent with logic and common sense to hold
that Ragonjan followed company policy in giving assurances to Sy that
Primelink was licensed to sell Club shares. After all, Primelink stood to
attract more investments if it presented itself to the public as a licensed
securities dealer. Indeed, Sy was emphatic in his claim that he bought a
Club share for P0.8 million because he was convinced that there was a
license to sell.
Petitioners direct hand in the unlicensed selling of Club shares, coupled
with Ragonjans position in Primelinks organizational and sales
structure, suffices to prove petitioners liability under the allegation of use
of false pretense of qualification. With Santiagos testimony on
petitioners central role in the sale of unregistered Primelink shares,
further proof of conspiracy between petitioner and Ragonjan is
superfluous.
Second. There is no merit in the argument that Ragonjans assurance to
Sy of Primelinks status as a licensed securities dealer amounts to a
warranty, and thus required, under the warranty clause of the reservation
agreement, to be reduced in writing. The warranty clause, which
provides
Any representation or warranty made by the agent who handled this sale
not embodied herein shall not bind the company, unless reduced in
writing and confirmed by the President or the Chairman of the Board.
refers to warranties on the terms of the share sold, not to the capacity of
Primelink to sell Club shares. Indeed, the fact that the seller has the
right to sell the thing at the time when ownership is to pass, is implied in
sales, dispensing with the need to expressly state such in the contract.
Further, the clause operates to shield Primelink from claims of violation
of unwritten warranties, not its officers from criminal liability for making
fraudulent representation on Primelinks authority to sell Club shares.
Third. It is futile for petitioner to recast, at this late stage of the
proceedings, the nature of the contract between Primelink and Sy as a
reservation agreement and not a contract of sale. At no time during the
trial did the defense present any evidence to support this theory, having
consistently characterized the contract as a pre-selling of Club
share.Indeed, the very warranty clause in the reservation agreement
petitioner invokes to exculpate himself refers to the transaction as sale.
Fourth. Contrary to petitioners submission, there was a law effective at
the time Sy bought the Club share on 10 October 1996, requiring sellers
of securities such as the non-proprietary membership certificate sold by
Primelink to Sy to register with the SEC the sale of such security and
obtain a permit to sell. Relevant portions of Batas Pambansa Blg. 178
(BP 178), which took effect on 22 November 1982 and superseded by
Republic Act No. 8799 only on 8 August 2000, provide:

DIONISIO ESGUERRA, Petitioner, vs. THE PEOPLE OF THE

PHILIPPINES,Respondent.

Mariano C. Sicat, Florentino C. Lavides and Eriberto Ose a for

petitioner.
Office of the Solicitor General Edilberto Barot and Solicitor Sumilang
V. Bernardo for respondent.

BARRERA, J.: chanroble s virtual law l ibra ry

Appellant Dionisio Esguerra found by the Court of Appeals guilty of

estafa, defined and penalized under Article 315, paragraph 3, 2 (a)
of the Revised Penal Code, and sentenced to the penalty therein
provided, has taken appeal by certiorari upon the following
assignment of errors:

1. The Court of Appeals erred in convicting the accused of estafa

under Art. 315, paragraph 3, 2(a), that is, estafa through false
pretenses, when the trial court, the fiscal and the private prosecutor
assured the accused at the trial that he was being prosecuted for
estafa under Art. 315, 1 (b), that is misappropriation of money
received in trust or on commission or for administration, although in
fact the information did not charge estafa under any of those two
provisions, so that the motion to quash on the ground that the
information did not state an offense should have been sustained.
virtua l law lib rary
chanroble svirtualawl ibra ry chan roble s

2. The Court of Appeals erred in holding that the accused offered to

compromise the case, when the evidence to establish the alleged
offer of compromise was rejected by the trial court. chanroblesvi rtua lawlib ra ry chanrobles vi rt ual law li bra ry

3. The Court of Appeals erred in not holding that the best evidence
of the sum of P2,000 allegedly given to the accused on March 11,
1952 was the receipt being prepared therefor when the accused left
to catch a passing bus if in fact such sum was received by
defendant. chanroblesv irt ualawli bra ry chan robles v irt ual law l ibra ry

4. The Court of Appeals erred in not holding that on the undisputed

documentary evidence of record, the obligation of the accused, if
any, was civil and not criminal. chanroble svirtualawl ibra ry chan roble s virtual law lib rary

5. The Court of Appeals erred in sentencing the accused to 2

months and 1 day of arresto mayor to 1 year and 6 months of
prison correccional and affirming the trial court's decision in all
other respects, with cost, and in not acquitting the accused. chanroblesv irt ualawli bra ry chan roble s virt ual law l ibra ry

The information filed in the trial court reads, thus:

INFORMATION chanrobles v irt ual law li bra ry

The undersigned fiscal accused Dionisio Esguerra of the crime of

"Estafa" defined and punished under Art. 315, 3rd paragraph (b),
committed as follows: chanrobles v irt ual law li bra ry

That on or about and during the period from January 12, 1952 to
March 26, 1952, in the barrio of Siain, municipality of Atimonan,
province of Quezon, Philippines, and within the jurisdiction of this
Honorable Court the said accused upon representations made with
Yu Yek Huy & Co., a business firm duly organized and existing under
and by virtue of the laws of the Philippines, thru the Manager of said
Company, Yu Yek Bio, that the said accused had copras ready for
delivery to it, took and received from said Yu Yek Bio the sum of
FOUR THOUSAND FOUR HUNDRED PESOS (P 4,400.00) under the
express obligation on part of the said accused to deliver to the said
company the equivalent worth of copras at its bodega at Siain,
Atimonan, Quezon as follows: P2,400.00 worth of copras on or
before January 31, 1952, and P2,000.00 worth of copras on or
before fifteen days from March 11, 1952, or the same sum of
money on the respective dates aforestated but the said accused
once in possession of the said sum of money and far from
complying with aforesaid obligation, despite repeated demands
made upon him to do so, did then and there wilfully, unlawfully and
feloniously with intent to defraud the aforesaid company, misapply,
misappropriate and convert the said amount to his own personal
use and benefit to the damage and prejudice of the Yu Yek Huy &
Co., in the aforestated amount of P4,400.00 Philippine Currency.

It is to be noted that the first paragraph for the Information

specifically refers to the 3rd paragraph (b) of Article 315 of the
Revised Penal Code as the provision under which the accused was
being prosecuted. This particular paragraph refers to estafa
committed in a gambling game. On the other hand, that part of the
information referring to representations that the accused had copras
ready for delivery, would seem to imply that the estafa charged is
that defined and penalized under paragraph 2 (a) - by falsely
pretending to possess ... properly, business, etc. The succeeding
portion, however, of the same return the money on the dates
agreed, charges the accused of misappropriation and conversion
under paragraph (b) of the same Article 315. chanroblesvi rtua lawlib rary c hanro bles vi rtua l law li bra ry

In view of this ambiguity in the information, a motion to quash was

filed by the accused. (The motion to quash is not before us, but
from the statement of the Court of Appeals - "whether the
allegations in the information constitute an offense or multiple
offense, will be taken up in subsequent legal incursions" - it would
seem that the ground relied upon is that the allegations in the
information charge no offense, or if they do, they charge multiple
offenses.) At the hearing of the motion, the fiscal and the private
prosecutor both manifested that there was clerical error in the first
paragraph of the information and stated and assured that the
accused was being charged under paragraph 1 (b) of Article
315. 1 The trial court admitted the correction and the accused went
to trial with that understanding and assurance. After trial in due
time, the lower court found the accused guilty as thus charged
under Article 315, paragraph 1 (b) and sentenced him accordingly.
On appeal to the Court of Appeals, where the accused questioned
the correctness of the judgment of conviction under the information
as corrected and on the facts proven, the appellate court modified
the decision of the trial court and declared:

xxx xxx xxx chanrobles vi rt ual law li bra ry

The evidence for the prosecution fully established the fact that the
two sums of P2,400.00 and P2,000.00 were given to the accused on
the latter's pretense that he had copra in his bodega which he was
drying. Yu Yek Bio testifying, said:

A. - He told me that he had many copras in his bodega and

that he will deliver to me the copras corresponding to
the amount of P2,000.00 together with the 10,000 kilos,
which he promised to deliver at first. (t.s.n., p. 5).

But the said appellant admittedly had no such copra then.

Appellant, however, insisted that he had already delivered the copra
corresponding to the first payment of P2,400.00 and to prove this
delivery, he presented in evidence Exhibits 1 to 1-K, the purchase
vouchers showing the receipt of copra by the complainant company
on different dates from Felix Mendoza, Diego Sulit, Diosdado Engco
(2 vouchers), Jose Cal, Juanito Esguerra, Juan Gonzales (2
vouchers) and Tomas Luna. They were all stamped paid. A great
deal of misgiving, however, accompanies this proof; it is
unbelievable.

xxx xxx xxx chanrobles vi rt ual law li bra ry

Anent the second amount of P2,000.00, delivered on March 11,

1952, the appellant alleged that he did not receive the same, as he
was in his place at Malasak, Atimonan, conducting a liquidation with
a copra dealer Amado Villamiel in the morning and in the afternoon
of the said day, he was delivering copra to Yang, the manager of
Gua Chi Gan. But the evidence of the prosecution belies these
allegations in an immeasurable manner.

xxx xxx xxx chanrobles vi rt ual law li bra ry

. . . We have no reason doubt the veracity and truthfulness of these

State witnesses who testified in a direct, positive and
straightforward manner. chanroblesvi rt ualawlib ra ry chanrobles vi rt ual law li bra ry

While we agree with counsel that the appellant cannot be held guilty
of estafa under paragraph 1-b, Art. 315 of the Revised Penal Code,
we are nevertheless of the opinion, and so hold, that appellant is
responsible for a violation of paragraph 3 (2-a) of the same article,
which penalizes any person who shall defraud another (2). By
means of any of the following pretenses or fraudulent acts executed
prior to or simultaneously with the commission of the fraud; (a) by
using fictitious name or falsely pretending to possess power,
influence, qualifications, property, credit, agency, business, or
imaginary transactions orby means of other similar deceits"
(emphasis ours). The information describes and alleges this means
of committing "swindling" and the evidence adduced, amply
substantiates said allegations.

Consequently, the Court of Appeals held appellant guilty of estafa

under paragraph 3 (2-a) of Article 315. It is from this decision that
the accused has taken this present appealed by certiorari. chanroblesvi rtua lawlib rary cha nro bles vi rtua l law lib ra ry

The issue here is whether after denial of a motion to quash,

precisely on the vagueness of the information, upon assurance by
the fiscal and the private prosecutor and accepted by the court that
the offense for which the accused was being prosecuted is that of
misappropriation defined in paragraph 1 (b) of Articles 315,
involving unfaithfulness or abuse of confidence and under which the
accused entered trial, the latter could, on appeal, be convicted of an
entirely different offense with different elements, that of false
pretenses of possessing property or business made prior to or
simultaneously with the commission of the fraud. The appellant
submits that he could not, especially when the latter offense is not
adequately alleged in the information. chanroble svirtualawl ibra ry chan rob les vi rtual law lib rary
We incline to agree with the appellant. It is undisputed that the
information contains no allegation of misrepresentation, bad faith or
false pretense, essential element in the crime of which appellant
was found guilty by the Court of Appeals. This is so, evidently,
because, as already stated, the fiscal and the private prosecutor
avowedly were prosecuting the accused for the crime of
misappropriation and conversion committed with unfaithfulness and
abuse of confidence for which the appellant went to trial and was
convicted by the lower court. It is true the information states that
"the accused, upon representations (not misrepresentations) that
the accused had copras ready for delivery to it, took and received"
the sum of P4,400.00. Nowhere does it appear in the information
that these "representations" were false or fraudulent, or that the
accused had no such copra at the time he allegedly made such
"representations". The falsity or fraudulentness of the pretense or
representation or act being the very constitutive element of the
offense, allegation to that effect, either in the words of the law or in
any other language of similar import, must be made in the
information if the right of the accused to be informed of the nature
and cause of the accusation against him is to be preserved. In this
case, for instance, since the representation wherefor the money was
delivered is not being charged as false, and since, if not false, the
receipt of the money on such representation does not constitute an
offense, the motion to quash the information on the ground that it
did not charge an offense or the allegations therein did not
constitute an offense, should have been granted. Instead, the fiscal
and the private prosecutor assured the court, and both the court
and the accused depended on the assurance that the offense
charged is not that of misrepresentation or false pretense, but that
of misappropriation and conversion, of unfaithfulness and abuse of
confidence. To convict him now of the very offense which he
correctly assailed was not adequately alleged in the information and
with which the prosecution expressly stated they were not charging
the accused, could result not only in violating appellant's
constitutional right to be informed of the nature and cause of the
accusation against him, but in actually misleading him. chanroble svirtualawl ibra ry chan roble s virtual law lib rary

Pertinent on this point is Section 4 of Rule 116 of the Rules of Court

which provides:
SEC. 4. Judgment in case of variance between allegation and proof.
- When there is variance between the offense charged in the
complaint or information, and that proved or established by the
evidence, and the offense as charged is included in or necessarily
includes the offense proved, the defendant shall be convicted of the
offense proved included in that which is charged, or of the offense
charged included in that which is proved.

Stated differently, an accused may be convicted of an offense

proved provided it is included in the charge, or of an offense
charged which is included in that proved. Still stated differently, an
accused can be convicted offense only when it is both charged and
proved. If it is not charged, the accused can not be convicted
thereof. In other words, variance between the allegation and proof
cannot justify conviction for either the offense charged or the
offense proved unless either is included in the other. chanroble svirtual awlibra ry chan robles v irt ual law l ibra ry

On the merits, there is reasons to believe that the responsibility of

herein appellant is only civil in nature. Exhibit A, upon the strength
of which the prosecution mainly relies, reads:

RECEIVED from Messrs. YU YEK HUY & CO., the sum of Two
Thousand four hundred Pesos (P2,400.00) only representing
advance payment of 10,000 kilos of copra which I sold them and
shall be delivered in their bodega at Siain, P.I., on or before Jan.
31, 1952. chanroblesvi rtualaw lib rary cha nrob les vi rtua l law lib rary

Jan. 12, 1952

(Sgd.) D. ESGUERRA
Signature of Seller

The language of this receipt, together with the finding of the Court
of Appeals that "Factually, the appellant used to supply copra not
only to complainant, but also to other copra exporters in Siain",
clearly indicate, in our opinion, that the transaction was that of sale
of copra for future delivery. Obviously, an advance payment is
subject to the disposal of the vendor. If the transaction fails, the
liability arising therefrom is of a civil and not of a criminal
nature. 2 chanroble s virtual law lib rary

In view of the foregoing, the decision appealed from is reversed;

the accused is acquitted, with cost de oficio, and the bond given for
his provisional liberty cancelled. So ordered. chanroblesv irt ualawli bra ry chan robles v irt ual law l ibra ry

Paras, C. J., Bengzon, Padilla, Montemayor, Bautista Angelo,

Labrador, Concepcion, Reyes, J. B. L., Endencia, and Gutierrez
David, JJ., concur.

LYZAH SY FRANCO, G.R. No. 171328

Petitioner,

- versus -

PEOPLE OF THE PHILIPPINES,

Respondent.
x- - - - - - - - - - - - - - - - - - - - - - - - - x

STEVE BESARIO, G.R. No. 171335

Petitioner,

Present:

CORONA, C. J., Chairperson,

- versus - VELASCO, JR.,
LEONARDO-DE CASTRO,
DEL CASTILLO, and
PEREZ, JJ.

PEOPLE OF THE PHILIPPINES, Promulgated:

Respondent. February 16, 2011
x--------------------------------------------------------x
 DECISION

DEL CASTILLO, J.:

In the prosecution for the crime of estafa committed under Article 315, paragraph
2(a) of the Revised Penal Code, there must be evidence of false representation or false
pretense on the part of the accused to prove reasonable doubt. In this case, the employees
act of soliciting a client despite previous knowledge of several complaints against his or
her employer for failure to deliver the motor vehicle that was the subject of the
agreement, is tantamount to misrepresentation.
Factual Antecedents

These petitions for review on certiorari impugn the Decision[1] of the Court of Appeals
(CA) in CA-G.R. CR No. 27414 which affirmed with modifications the Decision[2] of the
Regional Trial Court of Manila, Branch 52, in Criminal Case No. 99-173688, convicting
petitioners Lyzah Sy Franco (Franco) and Steve Besario (Besario) of the crime of
Estafa. The Information filed against petitioners and their co-accused, Antonio Rule, Jr.
(Rule) and George Torres (Torres), contained the following accusatory allegations:

That on or about the first week of June 1998, in the City of Manila, Philippines,
the said accused, conspiring and confederating together and helping one another, did then
and there willfully, unlawfully and feloniously defraud MA. LOURDES G. ANTONIO,
in the following manner, to wit: the said accused by means of false manifestations and
fraudulent representations which they made to said Ma. Lourdes G. Antonio, to the effect
that they are employees of FINAL ACCESS MARKETING, a business entity engaged
in the sale and financing of used or repossessed cars, and as such could process and
facilitate the sale of a Mazda car 323 bearing plate number PVB-999 worth P130,000.00
provided they be given the amount of P80,000.00 as down payment and by means of
other deceits of similar import, induced and succeeded in inducing the said Ma. Lourdes
G. Antonio to give and deliver as in fact she gave and delivered to herein accused the said
amount of P80,000.00, and accused knowing fully well that their manifestations and
representations were false and untrue and were made only to obtain the said amount
of P80,000.00 which amount once in their possession, did then and there willfully,
unlawfully and feloniously misapply, misappropriate and convert the said amount
of P80,000.00 to their own personal use and benefit, to the damage and prejudice of said
MA. LOURDES G. ANTONIO in the aforesaid amount of P80,000.00 in its equivalent
amount to the Philippine Currency.
 Contrary to law.[3]

During arraignment, petitioners entered separate pleas of not guilty. Rule and
Torres failed to appear and, to date, remain at large. After the termination of the pre-trial
conference, trial ensued.

The Version of the Prosecution

Ma. Lourdes G. Antonio (Lourdes) testified that petitioners swindled her. She claimed
that Franco was a friend of her niece and that she has known her for almost a year. In the
first week of June 1998, Franco came to her house and offered to assist her in purchasing
a used car. Franco introduced herself as Assistant Administrative Coordinator of Final
Access Marketing which was engaged in the sale and financing of second-hand and
repossessed vehicles. Franco gave her calling card after their conversation.

Lourdes was interested in the offer of Franco since she and her husband were actually
looking for a used car for their taxicab operation. She therefore contacted Franco to take
up her offer.

On June 26, 1998, Franco and Lourdes went to a showroom on Houston Street, San Juan,
Metro Manila, where Lourdes immediately chose a blue Mazda 323 car with Plate No.
PVB No. 999 from those that were on display.

At around 7 oclock in the evening of July 2, 1998, Franco went to the house
of Lourdes and presented a sales proposal. She was with Besario and Rule, whom she
introduced as her superiors. Rule then made a presentation on the Mazda 323 car
informing Lourdes that she can buy it for P130,000.00 with a downpayment
of P80,000.00 and the balance to be paid in 12 equal monthly installments. Rule also
told Lourdes that the car would be delivered within three days from receipt of her money.

Lourdes agreed to pay the downpayment the following day. Before the petitioners
departed, Rule ordered Franco to sign the sales proposal as sales executive. Lourdes also
signed the document. Rule then issued a receipt dated July 3, 1998 and instructed Franco
and Besario to give it to Lourdes after receiving her downpayment upon their return on
the next day.
The following day, July 3, 1998, Franco and Besario returned to the house of Lourdes to
collect the downpayment of P80,000.00. Besario received and counted the money and
handed it to Franco. After counting the money, Franco returned the same to Besario, who
put it inside the bag he was carrying. They gave to Lourdes the receipt dated July 3, 1998
that was signed by Rule. At the same time, they assured her that the car would be
delivered in three days.

The car, however, was not delivered as promised. Lourdes called up Final Access
Marketings office and was able to talk to the owner/manager, Torres, who assured her
that her downpayment would be refunded or that they would look for a replacement.

Meanwhile, Lourdes and her husband returned to the showroom on Houston Street, San
Juan, where they saw the Mazda car already clean. The security guard told them it was
ready for release in the afternoon.

When the car was still undelivered, Lourdes sought the aid of Hoy Gising, a television
show that broadcasts grievances of people against fraudulent schemes. During a visit to
the shows office, Lourdes learned that 12 other persons were victimized by the group of
petitioners.

Lourdes also met with Atty. Renz Jaime, legal counsel of Final Access Marketing, who
assured her that Final Access Marketing would return her money by August. When he
reneged on his promise, formal demand was made on him to settle the obligation of said
business enterprise.

Erlinda Acosta (Erlinda) was one of the alleged victims of petitioners whom Lourdes met
while airing her complaint in the television program Hoy Gising. Erlinda testified that she
was referred to Besario when she was looking for a second-hand vehicle. She went to the
office of Final Access Marketing in Timog Avenue, Quezon City, and was shown by
Besario several pictures of vehicles from which she chose a Mitsubishi Pajero.

On April 7, 1998, Erlinda and her son met Besario, Rule and their other companions in a
restaurant. They brought the vehicle Erlinda wanted to purchase and her son drove it for a
road test. Thereafter, she agreed to buy the vehicle for P600,000.00. She signed a Vehicle
Sales Proposal and handed to Rule a downpayment of US$3,000.00.

On April 20, 1998, Erlinda delivered to Besario and Rule a managers check in the
amount of P245,000.00 as payment for the entire balance. She was then assured that the
vehicle will be delivered a week later. However, Besario and Rule reneged on their
promise. Erlinda went to the office of Final Access Marketing and complained to Franco
but to no avail. Her motor vehicle was never delivered. Thus, she went to Hoy Gising.
Juanito Antonio corroborated the testimony of his wife, Lourdes. He was present when
petitioners Franco and Besario, together with Rule, went to their house in the evening of
July 2, 1998 with a written proposal for the sale of a vehicle. After his wife signed the
document, she gave a downpayment of P80,000.00. When the car was not delivered on
the date agreed upon, he and his wife went to the office of Final Access Marketing. Upon
their inquiries, the security guard on duty said that the car they purchased already had a
gate pass and would be delivered in the afternoon. However, the said vehicle was never
delivered to them.

The Version of the Petitioners

Franco denied involvement in the alleged conspiracy to commit estafa

against Lourdes. She alleged that it was Torres, the owner of Final Access Marketing,
who was the swindler. And like Lourdes, she was a victim in this case.
Franco claimed that petitioner Besario hired her as a clerk-typist. She was
promoted to the position of Assistant Administrative Coordinator and was authorized to
solicit clients for Final Access Marketing.

Franco learned from her sister that Lourdes wanted to purchase a second-hand
car. She went to see Lourdes and presented to the latter a list of repossessed vehicles. She
gave her calling card to Lourdes before they parted. Later on, Lourdes called and visited
the office of Final Access Marketing, where Franco introduced Lourdes to Besario and
Rule.

Franco accompanied Lourdes to showrooms where the latter chose a blue Mazda
car with Plate No. PVB 999. Rule agreed to sell the car
to Lourdes for P130,000.00. Thus, on the evening of July 2, 1998, she, Besario and Rule
went to the house of Lourdes with a Vehicle Sales Proposal. Franco signed the document
without reading and understanding the same upon the insistence of Rule. Rule then
signed an official receipt and instructed Franco and Besario to return the next day to give
the same to Lourdes after collecting her downpayment. Lourdes was also assured that the
car would be delivered within three days from receipt of the downpayment.

On July 3, 1998, at around 10 a.m., Franco and Besario came back to collect the
downpayment. Lourdes gave her cash payment to Besario, who counted it. He gave said
cash to Franco, who counted it again. When the money was handed back to Besario, he
put it inside a black bag. Thereafter, Franco and Besario went to a restaurant to pick-up
Rule. They rode a taxi and proceeded to the house of Torres, but it was only Besario and
Rule who went inside. Franco went home without receiving a single centavo for her
transportation fare.

When the car was not delivered, Lourdes called Franco who in turn reminded her
boss to expedite its release. However, the continued failure to receive the vehicle
compelled Lourdes to report the incident to Hoy Gising.It was only during this period that
Franco learned of similar complaints from other customers. Thereafter, Lourdes called
her intermittently asking for a reimbursement. However, the latter could not do anything
since her employers no longer reported to the office. Rule and Torres left Manila and
went to Cebu. She was not aware of their whereabouts at the time of her testimony.

On the other hand, Besario failed to attend several hearings. The notice to appear
and to present evidence sent to him was returned unserved since he moved to another
address without informing the trial court. Thus, upon motion of the prosecution, he was
declared to have waived his right to present evidence. The case was consequently
submitted for decision.

The Ruling of the Regional Trial Court

On October 23, 2001, the trial court rendered its Decision finding petitioners guilty
beyond reasonable doubt of the crime of estafa under Article 315, par. 1(b) of the
Revised Penal Code. The dispositive portion reads as follows:

ACCORDINGLY, above premises all considered, the Court finding accused

Lyzah Sy Franco and Steve Besario GUILTY, beyond reasonable doubt, of the crime
charged in the Information, the Court hereby sentences said two accused to each suffer
the indeterminate penalty of imprisonment ranging from seventeen (17) years
of reclusion temporal as MAXIMUM to eight (8) years and one (1) day
of prison mayor as MINIMUM and to suffer all the accessory penalties as provided by
law.
Accused Franco and Besario, jointly and severally are likewise ordered to pay
private complainant Ma. Lourdes Antonio the sum of P80,000.00 as actual damages.
SO ORDERED.[4]

The Ruling of the Court of Appeals

On July 26, 2005, the CA promulgated its Decision that affirmed with
modification the decision of the trial court. It convicted the petitioners for the crime of
estafa under Article 315, par. 2(a) of the Revised Penal Code and modified the
penalty. The dispositive portion of its Decision reads as follows:
 WHEREFORE, in view of the foregoing premises, the Decision dated October
23, 2001 rendered by the trial court is hereby AFFIRMED, with modification to the
effect that the penalty imposed upon each of the appellants is hereby MODIFIED to an
indeterminate sentence of Four (4) years, Two (2) months, and One (1) day of prision
correccional as minimum to Thirteen (13) years of reclusion temporal as maximum.

Accused Franco and Besario are likewise ordered to pay, jointly and severally,
private complainant, Ma. Lourdes Antonio, the sum of P80,000.00 as actual damages.
SO ORDERED.[5]

Hence, petitioners filed separate petitions for review on certiorari assailing the
Decision of the CA. Franco contends that the Court of Appeals decided the case on a
mistaken inference and [misappreciation] of facts bordering on speculations, surmises or
conjectures.[6]

On the other hand, Besario ascribes the following error to the CA:

PUBLIC RESPONDENT COURT OF APPEALS COMMITTED REVERSIBLE

ERROR BY DISREGARDING THE LAW, JURISPRUDENCE AND EVIDENCE
WHEN IT RULED THAT PETITIONER BESARIO IS GUILTY OF THE CRIME OF
ESTAFA AS CHARGED IN THE INFORMATION.[7]

In its Consolidated Comment, the Solicitor General opposes the petitions by arguing that
petitioners raise[d] questions of fact which are inappropriate in a petition for review
on certiorari. x x x.[8] The Solicitor General also believes the prosecutions evidence was
sufficient to convict petitioners of estafa under Article 315, par. 2(a) of the Revised Penal
Code and that petitioners defenses failed to overturn the evidence showing their guilt
beyond reasonable doubt.

Our Ruling

The petitions are not meritorious.

Exception to the Finality and Conclusiveness

of Factual Findings of the Court of Appeals
[A]s a rule, our jurisdiction in cases brought to us from the Court of Appeals is limited to
the review and revision of errors of law allegedly committed by the appellate court, as
findings of fact are deemed conclusive and we are not duty-bound to analyze and weigh
all over again the evidence already considered in the proceedings below.[9] While this rule
is not without exception, there are no exceptional circumstances in these cases that
warrant a departure from the findings of facts of the trial court, as affirmed by the
CA. Even after considering the merits, the petitions deserve outright denial.

The conviction of Franco and Besario for conspiring to commit estafa

against Lourdes must therefore stand. The prosecution satisfactorily established their
participation in the scheme to defraud Lourdes, their acts were not isolated from but
related to a plot to deceive her. The prosecution likewise proved beyond reasonable doubt
that the well-planned swindling scheme of Franco and Besario resulted to estafa.

Conspiracy must be Shown as Clearly as the

Commission of the Offense[10]

There is conspiracy when two or more persons agree to commit a felony

and decide to commit it.[11] Conspiracy must be proven on the same quantum of evidence
as the felony subject of the agreement of the parties. [It] may be proved by direct or
circumstantial evidence consisting of acts, words, or conduct of the alleged conspirators
[prior to], during and after the commission of the felony to achieve a common design or
purpose.[12]

Several circumstances in this case conclusively show Francos role in

defrauding Lourdes. She was the one who personally approached Lourdes and actively
made representations on behalf of Final Access Marketing despite previous knowledge of
the companys failure to deliver the vehicle sold to Erlinda. She offered to
help Lourdes purchase a second-hand car by presenting herself as an Assistant
Administrative Coordinator of said company. She also assisted Lourdes in selecting a car
she wanted to buy. Six days later, Franco arrived with Besario and Rule in the house
of Lourdes after regular business hours. Franco made the necessary introductions and
they commenced with a presentation that persuaded Lourdes to part with her
money. They showed Lourdes a prepared Sales Proposal Agreement that Franco signed
as a sales executive.

Franco, together with Besario, returned the next day to collect the downpayment
of Lourdes. After counting the money and putting it inside a bag, they
assured Lourdes that the car would be delivered within three days.When they failed to
fulfill their promise and their unlawful scheme was unraveled, she did not do anything to
placate Lourdes.

We cannot lend credence to Francos assertion that she only knew of her employers
fraudulent scheme after Lourdes reported the same to Hoy Gising. For sure, before their
former clients reported their anomalous transactions to Hoy Gising, they first lodged their
complaints with the company itself. Hence, we are at a loss why Franco, as the companys
Assistant Administrative Coordinator would feign ignorance of the same. We also could
not understand why after discovering her employers fraudulent transactions, and after
said employers absconded, Franco continued to report to their office. She did not even
bother to inform Lourdes that her employers had already absconded. Finally, since she
made representations to Lourdes that the car would be delivered in three days time, the
least that Franco could have done was to investigate the matter and explain
to Lourdes the companys failure to deliver the car. After all, Franco was a friend
of Lourdes niece.

Besario, for his part, actively conspired with Franco by inducing Lourdes to part
with her money. He also went to the house of Lourdes and induced the latter to make a
downpayment on the car she wanted to purchase and sign the Sales Proposal
Agreement. He and Franco collected the money from Lourdes and promised her that the
car would be delivered three days later even if he had knowledge from the previous
transaction with Erlinda that the delivery would never happen. Thereafter, he could not
be reached or found when the car was still undelivered and their devious plot was
exposed.

Evidently, petitioners actions were in relation to the attainment of a common

objective. They had vital roles in the nefarious scheme to sell a vehicle that they knew
would never be delivered, but for which they obtained a substantial sum of money
from Lourdes.

Having established the existence of a conspiracy between Franco and Besario, the
prosecution proceeded to present evidence to prove that the acts of the petitioners
constituted estafa.

Estafa by Means of Deceit

Article 315, par. 2(a) of the Revised Penal Code penalizes fraud or deceit when
committed as follows:
 xxxx

2. by means of any of the following false pretenses or fraudulent acts executed

prior to or simultaneously with the commission of fraud:

(a) by using fictitious name, or actions, falsely pretending to possess

power, influence, qualification, property, credit, agency, business or imaginary
transactions, or by means of other similar deceits.

The elements of the crime of estafa under the foregoing provision are: (1) there
must be a false pretense, fraudulent acts or fraudulent means; (2) such false pretense,
fraudulent act or fraudulent means must be made or executed prior to or simultaneously
with the commission of the fraud; (3) the offended party must have relied on the false
pretense, fraudulent act or fraudulent means and was thus induced to part with his money
or property; and (4) as a result thereof, the offended party suffered damage.[13]

Petitioners presented themselves to Lourdes as persons possessing the authority

and capacity to engage in the financing of used vehicles in behalf of Final Access
Marketing. This was a clear misrepresentation considering their previous knowledge not
only of Erlindas complaint but also of several others as regards the failure of Final Access
Marketing to deliver the motor vehicles bought. Lourdes relied on their
misrepresentations and parted with her money. Almost a week passed by, but petitioners
and Rule did not deliver the said motor vehicle. They also did not fulfill their subsequent
promise to provide a replacement or to refund her payment. WhenLourdes visited the
office of Final Access Marketing to demand the return of her money, it was already
closed. She could not locate any of them except for Franco who denied any
wrongdoing. Consequently, she suffered damage.

If indeed they were innocent as they claimed to be, Erlindas complaint to

petitioners and the 12 other similar complaints with Hoy Gising regarding undelivered
vehicles should have dissuaded petitioners from further soliciting customers. The fact that
they continued to offer for sale a second-hand car to Lourdes is indicative of deceit and
their complicity in the conspiracy to commit estafa. The manner in which petitioners
transacted business with Erlinda and Lourdes as well as their awareness of 12 other
similar complaints with Hoy Gising were sufficient to establish the existence of a modus
operandi.

Francos attempt to escape culpability by feigning ignorance of the previously

failed transactions on the delivery of vehicles by Final Access Marketing cannot be
countenanced. As gleaned from the testimony of Erlinda, Franco was already with Final
Access Marketing at the time these transactions occurred. She was therefore familiar with
the companys procedure and policy on the sales of second-hand vehicles. She even
accompaniedLourdes to showrooms and introduced her to Besario and Rule.

As an employee of Final Access Marketing, Franco was expected to be familiar

with its daily activities. It would be unworthy of belief that she did not know of the
complaints for the unexplained failure of Final Access Marketing to deliver vehicles to its
customers. Human nature and experience would compel her to make queries on her own
to discover the reasons for the non-delivery of the vehicles. Her continued insistence in
solicitingLourdes as a client by introducing herself as an Assistant Administrative
Coordinator of Final Access Marketing with the ability to provide financing for a vehicle
of her choice is therefore indicative of fraudulent misrepresentation.

The petitioners also contend that they are not criminally liable since the transaction
with Lourdes was a contract of sale. This contention does not deserve serious
consideration. While the fact that they entered into a contract with Lourdes cannot be
denied, the transaction transpired due to their deceit. It was their misrepresentation that
induced Lourdes to sign the Sales Proposal agreement and part with her money.

In denying any criminal wrongdoing, petitioners blame their co-accused, Torres,

whom they claim to be the owner of Final Access Marketing. The shifting of blame is
common among conspirators in their attempt to escape liability. It is a desperate strategy
to compensate for their weak defense. We are not readily influenced by such a
proposition since its obvious motive is to distort the truth and frustrate the ends of
justice.[14]

The Penalty

Having committed the crime of estafa, the petitioners must suffer the proper
penalties provided by law. The law imposes the penalty of prision correccional in its
maximum period to prision mayor in its minimum period if the amount is
over P12,000.00 but does not exceed P22,000.00. If the amount swindled
exceeds P22,000.00, the penalty shall be imposed in its maximum period, adding one
year for each additional P10,000.00, but the total penalty which may be imposed shall not
exceed 20 years.[15] To determine the minimum of the indeterminate penalty, prision
correccional in its maximum period to prision mayor in its minimum period shall be
reduced by one degree, that is, to prision correccional in its minimum and medium
periods. The minimum period of the indeterminate penalty shall be taken from the full
range of the penalty of prision correccional in its minimum and medium periods, which
is six (6) months and one (1) day to four (4) years and two (2) months. With the amount
of the fraud at P80,000.00, there is P58,000.00 in excess of P22,000.00. Five years must
therefore be added to the maximum period of the prescribed penalty ranging from six (6)
years, eight (8) months and twenty-one (21) days to eight (8) years. Thus, the maximum
term of the penalty would range from eleven (11) years, eight (8) months and twenty-one
(21) days to thirteen (13) years. This is in accord with our ruling in People v.
Temparada,[16] viz:
The prescribed penalty for estafa under Article 315, par. 2(d) of the RPC, when
the amount defrauded exceeds P22,000.00, is prision correccional maximum to prision
mayor minimum. The minimum term is taken from the penalty next lower or anywhere
within prision correccional minimum and medium (i.e. from 6 months and 1 day to 4
years and 2 months). Consequently, the RTC correctly fixed the minimum term for the
five estafa cases at 4 years and 2 months of prision correccional since this is within the
range of prision correccional minimum and medium.

On the other hand, the maximum term is taken from the prescribed penalty
of prision correccional maximum to prision mayor minimum in its maximum period,
adding 1 year of imprisonment for every P10,000.00 in excess of P22,000.00, provided
that the total penalty shall not exceed 20 years. However, the maximum period of the
prescribed penalty of prision correccional maximum to prision mayor minimum is
not prision mayor minimum as apparently assumed by the RTC. To compute the
maximum period of the prescribed penalty, prision correccional maximum
to prision mayor minimum should be divided into three equal portions of time each of
which portion shall be deemed to form one period in accordance with Article 65 of the
RPC. Following this procedure, the maximum period of prision correccional maximum
to prision mayor minimum is from 6 years, 8 months and 21 days to 8 years. The
incremental penalty, when proper, shall thus be added to anywhere from 6 years, 8
months and 21 days to 8 years, at the discretion of the court.

In computing the incremental penalty, the amount defrauded shall be subtracted

by P22,000.00, and the difference shall be divided by P10,000.00. Any fraction of a year
shall be discarded as was done starting with the case of People v. Pabalan in consonance
with the settled rule that penal laws shall be construed liberally in favor of the accused. x
x x.

WHEREFORE, the petitions for review on certiorari are DENIED. The

Decision of the Court of Appeals in CA-G.R. CR No. 27414 which affirmed with
modification the Decision of the Regional Trial Court, Branch 52, in Criminal Case No.
99-173688 convicting petitioners Lyzah Sy Franco and Steve Besario of the crime of
estafa is AFFIRMED with further modification that the indeterminate prison term
imposed on each of the petitioners is four (4) years and two (2) months of prision
correccional as minimum to thirteen (13) years of reclusion temporal as maximum.