CRIMINAL LAW 2

MODULE NUMBER 4

Notes and References:

1.) RPC, Criminal Law by Luis B. Reyes

2.) Antonio Gregorio, Fundamentals of Criminal Law Review;
3.) Boado, Notes and cases on the RPC
4.) Jurisprudence and related laws
5.) BATASnatin
Chapter Four
USURPATION

Art. 312. Occupation of real property or usurpation of real rights in property

ELEMENTS:
1.) That the offender takes possession of any real property or usurps any real rights in
property;
2.) That the real property or real rights belong to another;
3.) That violence against or intimidation of persons is used by the offender in occupying
real property or usurpation real rights in property; and
4.) That there is intent to gain.

ACTS PUNISHABLE:

1.) By taking possession of any real property belonging to another by means of violence
against or intimidation of persons;
2.) By usurping any real rights in property belonging to another by means of violence
against or intimidation of persons.
1
In G.R. No. L-47033, June 16, 1978, it held that: (READ IN FULL TEXT)

The elements of the offense are (1) occupation of another's real property or usurpation of a
real right belonging to another Person; (2) violence or intimidation should be employed in
possession the real property or in usurping the real right, trial (3) the accused should be
animated by the intent to gain. (2 Cuello Calon, Derecho Penal. 14th Edition, pp. 911-912).

We hold that the offense charged by the chief of police in the aforequoted complaint is only
the crime of usurpation of real property. The threat uttered by Lamberto Castrodes did not
give rise to the complex offense of usurpation of real property with grave threats. That threat
is the intimidation contemplated in the crime of usurpation of real property. It does not
constitute a distinct crime. (See Decision dated October 3, 1883 of the Supreme Court of Spain,
3 Viada, Codigo Penal, 4th Edition, pp. 460-1; 2 Hidalgo, Codigo Penal, pp. 730-731).

The crime of usurpation of real property, if punishable with a fine of from 200 to 500 pesos, is
within the jurisdiction of the municipal court, because, according to section 87(c) of the
Judiciary Law, the municipal court has jurisdiction over offenses in which the penalty
provided by law is imprisonment for not more than three years, or a fine of not more than
three thousand pesos, or both such fine trial imprisonment. Hence, the penalty imposed upon
Generoso Castrodes is correct.

NOTA BENE:
 If no violence or intimidation, only civil liability exists;
 Art. 312 does not apply when the violence or intimidation took place SUBSEQUENT
to the entry into the property. Violence or intimidation must be the means used in
occupying real property or in usurping real rights.

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 Art. 312 does not apply to a case defiance of the writ of execution issued in the
forcible entry case.
 Criminal action for usurpation of real property is not a bar to civil action for forcible
entry.
 Note R.A. 947 which punishes entering or occupying agricultural land including
lands granted to private individual.

USURPATION THEFT/ROBBERY
-there is occupation/usurpation -there is taking or asportation.
-there is real property or real right -personal property is taken.
involved.
-with intent to gain. -with intent to gain.

Art. 313. Altering boundaries or landmarks.

Elements:
1. That there be boundary marks or monuments of towns, provinces, or estates or any
other marks intended to designate the boundaries of the same;
2. That the offender alters said boundary marks.

Illustration:
If your neighbor took the mohon (a rock placed by a geodetic engineer to designate
your estate’s boundaries) and placed it somewhere else so as to increase his own boundaries.
(Fmimie).

Chapter Six
2
SWINDLING AND OTHER DECEITS

Art. 315. Swindling (estafa)

The ELEMENTS OF ESTAFA in GENERAL are:

1. That the accused defrauded another (a) by abuse of confidence, or (b) by means
of deceit; and
2. That damage or prejudice capable of pecuniary estimation is caused to the offended
party or third person.

The FIRST ELEMENT covers three different ways of committing ESTAFA, to wit:
1.) With unfaithfulness or abuse of confidence;
2.) By means of false pretense or fraudulent acts;
3.) Through fraudulent means.

-The 3 ways however may be reduced in 2 ways only.

1.) Estafa with abuse of confidence;
2.) Estafa by means of deceit.

IMPORTANT: “Deceit is NOT an essential requisite of Estafa with abuse of confidence”.

In G.R. No. 199150, February 6, 2012, it held that: READ IN FULL TEXT

First, the offense of estafa, in general, is committed either by (a) abuse of confidence or (b) means of
deceit. The acts constituting estafa committed with abuse of confidence are enumerated in item (1) of
8 

Article 315 of the Revised Penal Code, as amended; item (2) of Article 315 enumerates estafa committed by
means of deceit. Deceit is not an essential requisite of estafa by abuse of confidence; the breach of
confidence takes the place of fraud or deceit, which is a usual element in the other estafas . In this
9 

case, the charge against the petitioner and her subsequent conviction was for estafa committed by abuse of

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confidence. Thus, it was not necessary for the prosecution to prove deceit as this was not an element of the
estafa that the petitioner was charged with. (Emphasis Supplied)

Note: it is likewise important that the damage or prejudice be capable of PECUNIARY

ESTIMATION as this is the basis for the penalty in estafa, (as well as jurisdiction). See R.A.
No. 10951.

ELEMENTS of ESTAFA with UNFAITHFULNESS:

1.) That the offender has an onerous obligation to deliver something of value;
2.) That he alters its substance, quantity or quality;
3.) That damage or prejudice is caused to another.

-Under this provision of par 1 (a), Article 315, the obligation to deliver already existed, and
the offender, on making the delivery, has altered the substance, quantity or quality of the
thing he delivered. (Pp vs. Gansai, C.A. 61 O.G. 3603)

NOTA BENE:
 Read REPUBLIC ACT No. 3720, “An Act to Ensure the Safety and Purity of Foods,
Drugs, and Cosmetics Being made Available to the Public by Creating the Food and
Drug Administration Which Shall Administer and Enforce the Laws Pertaining
Thereto”.
 Read REPUBLIC ACT No. 7394, The Consumer Act of the Philippines.
 When there is no agreement as to the quality of the thing delivered, the delivery of
the thing not acceptable to the complainant is not estafa.

Illustration:
Lyka is engaged in a catering business. Because of their friendship, Myra secured her services
for her 30th birthday and the latter told the former that she is expecting 100 guests, and Myra
3 then chose the menu. After the party, Myra received a lot of comments and messages, some
from her social media account that they almost starved at the party as the serving was too
little and the food was “hindi masarap and nakakasuka”.

There is no estafa in this case. (one of the cases I handled-FMimie)

Note: By specific provision of paragraph (a), of subdivision No. 1, Article 315, the crime of
estafa may arise even if the thing to be delivered, under the obligation to deliver it, is not a
subject of lawful commerce, such as opium. (SEE IN FULL TEXT the case of PP vs.
Manansala, 58 Phil. 796)

ELEMENTS OF ESTAFA with ABUSE OF CONFIDENCE are as follows:

1.) That money, goods, or other personal property be 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;
2.) That there be misappropriation or conversion of such money or property by the
offender; or denial on his part of such receipt;
3.) That such misappropriation or conversion or denial is to the prejudice of another;
and
4.) That there is a demand made by the offended party to the offender.

NOTA BENE:
 CHECKS is included in the term “money”

In G.R. No. 153460, January 29, 2007, it held that: (READ IN FULL TEXT)

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In the instant case, [petitioner] admittedly converted or diverted the check he received by
encashing it from the drawee bank, and yet, did not pay the deficiency custom duties and
taxes as agreed upon….22

As to what circumstances justify a party so receiving money to withhold the application of the
same to the agreed purpose, there is no fixed rule. 23 Each case should be decided based on its
own particular facts. Reference must be made primarily to the good or bad faith exhibited by
the accused in withholding the money from the use for which it was intended to be
applied.24 In this case, petitioner never gave a good reason for not remitting the money to the
BOC or for not returning it to private complainant. Petitioner only made self-serving
statements to justify withholding the P150,000. The ruling in the civil case declaring that the
importer, neither petitioner nor private complainant, was required by law to pay the
deficiency taxes did not vindicate petitioner. The ruling of the court did not justify his
withholding the amount which was entrusted to him as private complainant’s share in the tax
burden; it only identified the proper taxpayer of the subject tax. Petitioner only offered to
return the money after the filing of the civil case against him and after being charged before
the city prosecutor for estafa.25

Indeed, the misappropriation or conversion by petitioner caused prejudice to private

complainant and his wife.

 Money, goods or other personal property must be RECEIVED by the offender, for if it
was taken away, the crime would be theft.
 The term “or under any other obligation involving the duty to make delivery of, or to
return the same, includes quasi-contracts and certain contracts of bailment.
 Note the term JURIDICAL POSSESSION

In G.R. No. 203466, February 25, 2015, it held that: (READ IN FULL TEXT):
4
Under the first element, when the money, goods, or any other personal property is received by the offender
from the offended party (1) in trust or (2) on commission or (3) for administration, the offender acquires
both material or physical possession and juridical possession of the thing received. Juridical possession
means a possession which gives the transferee a right over the thing which the transferee may set
up even against the owner. 41

It bears to stress that a sum of money received by an employee on behalf of an employer is considered to be
only in the material possession of the employee.  The material possession of an employee is adjunct, by
42

reason of his employment, to a recognition of the juridical possession of the employer. So long as the
juridical possession of the thing appropriated did not pass to the employee-perpetrator, the offense
committed remains to be theft, qualified or otherwise.  Hence, conversion of personal property in the case
43

of an employee having mere material possession of the said property constitutes theft, whereas in the case
of an agent to whom both material and juridical possession have been transferred, misappropriation of the
same property constitutes Estafa.44

In this case, Benabaye maintains that the first element of Estafa through misappropriation has not been
established, insisting that her possession of the collected loan payments was merely material and not
juridical; therefore, she cannot be convicted of the said crime. (Emphasis supplied)
45

 Loan of sum of money is not estafa.

EXPLANATION:
In G.R. No. 189081, August 10, 2016, it held that: (READ IN FULL TEXT)

The situation envisioned in the foregoing cases, as in this case, is civil liability ex
contractu where the civil liability arises from an entirely different source of obligation.
Therefore, it is not the type of civil action deemed instituted in the criminal case, and
consequently must be filed separately. This is necessarily so because whenever the court
makes a finding that the elements of estafa do not exist, it effectively says that there is no

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crime. There is no act or omission that constitutes criminal fraud. Civil liability ex
delicto cannot be awarded as it cannot be sourced from something that does not exist.

When the court finds that the source of obligation is in fact, a contract, as in a contract of
loan, it takes a position completely inconsistent with the presence of estafa. In estafa, a
person parts with his money because of abuse of confidence or deceit. In a contract, a person
willingly binds himself or herself to give something or to render some service. 50 In estafa, the
accused's failure to account for the property received amounts to criminal fraud. In a
contract, a party's failure to comply with his obligation is only a contractual breach. Thus,
any finding that the source of obligation is a contract negates estafa. The finding, in turn,
means that there is no civil liability ex delicto. Thus, the rulings in the foregoing cases are
consistent with the concept of fused civil and criminal actions, and the different sources of
obligations under our laws.

---the case only shows that when the ownership of the thing is transferred to the
person who has received it, his failure to return the same will only give to civil
liability.

 When the transaction of purchase and sale fails, there is no estafa if the accused
refused to return the advance payment.
 In the same manner, there is NO ESTAFA if the thing is received under a contract of
sale on credit.
 Criminal liabilility for estafa already is not affected by compromise or novation of
contract, for it is a public offense which must be prosecuted and punished by the
state at its own volition.

SECOND element of ESTAFA with ABUSE OF CONFIDENCE under paragraph (b),

subdivision no. 1, Article 315.
5
1.) By misappropriating the thing received;
2.) By converting the thing received;
3.) By denying that the thing was received.

NOTA BENE:
 The words “convert” and “misappropriated” connote an act of using or disposing of
another property as if it were one’s own or devoting it to a purpose or use different
from that agreed upon. To misappropriate for one’s own use includes, not only
conversion to one’s personal advantage but also every attempt to dispose of the
property of another without right. (US vs. Panes, 37 Phil. 118)
 CONVERSION-presupposes that the thing has been devoted to a purpose or use
different from that agreed upon.
Illustration: Princess received pieces of jewelries from Agatha under the condition
that the former has to return them after one month if not sold. They further agreed
that there can be no sub-agents between them and the agreement was even placed in
writing. After a month, Princess gave the said jewelries to Victoria, a sub-agent, who in
turn delivered them to Jocelyn in payment of her debt amounting to 150k that Victoria
had obtained from Jocelyn.
Held: In giving the right to a sub-agent, Princess assumed the right to dispose of it as if
it were hers, thereby committing conversion and a clear breach of trust.
Note: In estafa, damage to the offended party, not the gain of the offender, is the
important consideration.
 Note: there must be proof of misappropriation or conversion.
 ESTAFA by DENYING having received the thing:
Illustration: Princess borrowed a diamond earring from Agatha to be worn for a
particular occasion. Thereafter, Princess denied having received the earring from
Agatha and treated the same as her own.

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Held: This is ESTAFA

In G.R. No. 174113, January 13, 2016, it held that: (READ IN FULL TEXT)

The essence of this kind of  [E]stafa  is the appropriation or conversion of money or property
received to the prejudice of the entity to whom a return should be made. The words "convert"
and "misappropriate" connote the act of using or disposing of another's property as if it were
one's own, or of devoting it to a purpose or use different from that agreed upon. To
misappropriate for one's own use includes not only conversion to one's personal advantage,
but also every attempt to dispose of the property of another without right. In proving the
element of conversion or misappropriation, a legal presumption of misappropriation arises
when the accused fails to deliver the proceedsof the sale or to return the items to be sold and
fails to give an account of their whereabouts.  19 (Emphases and underscoring supplied)

In this case, a judicious review of the case records reveals that the elements of Estafa, as
defined and penalized by the afore-cited provision, are present, considering that: (a)
Rodriguez delivered the jewelry to Cheng for the purpose of selling them on commission basis;
(b) Cheng was required to either remit the proceeds of the sale or to return the jewelry after
one month from delivery; (c) Cheng failed to do what was required of her despite the lapse of
the aforesaid period; (d) Rodriguez attempted to encash the check given by Cheng as security,
but such check was dishonored twice for being drawn against insufficient funds and against a
closed account; (e) Rodriguez demanded that Cheng comply with her undertaking, but the
latter disregarded such demand; (j) Cheng's acts clearly prejudiced Rodriguez who lost the
jewelry and/or its value.

Third element of ESTAFA with ABUSE OF CONFIDENCE under paragraph (b), subdivision
no. 1, Article 315- - - - - Prejudice of the offended party
6
NOTA BENE:
 It is not necessary that the offender obtained gain for what is important is that
“there is prejudice to another” (not necessarily the owner of the property.
 According to which those guilty of estafa “who to the prejudice of another , shall
appropriate or misapply any money, goods, or any kind of personal property which
they may have received as a deposit, on commission, for administration or in any
other character producing the obligation to deliver or return the same DOES NOT
include money received for a partnership. Thus, failure of a partner to account for
partnership funds may give rise to a civil obligation, NOT ESTAFA.
 In the same manner, a CO-OWNER is not liable for estafa, unless there is already a
termination of the co-ownership.

FOURTH element of ESTAFA with ABUSE OF CONFIDENCE under paragraph (b),

subdivision no. 1, Article 315- - - - - Demand

NOTA BENE:
 This is the only kind of estafa where demand is a condition sine qua non.
 Thus, failure to account upon demand, is circumstantial evidence of
misaapropriation.
 NOTE: There is no estafa through negligence. See the elements
 Go back to the difference between estafa with abuse of confidence vs. theft

ESTAFA WITH ABUSE OF CONFIDENCE vs. MALERSATION:

-the offender are entrusted with funds or -the offender are entrusted with funds or
property. property.
-continuing offense. -continuing offense.
-funds and property are always private. -usually public funds or property.

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-offender is a private individual or even a -the offender who is usually a public officer
public officer who is not accountable for is accountable for public funds or property.
public funds or property.
-the crime is committed by -the crime is committed by appropriating,
misappropriating, converting or denying taking or misappropriating or consenting,
having received money, goods or other or, through abandonment or negligence,
personal property. permitting any other person to take the
public funds or property.

Elements of Estafa by taking advantage of the signature in blank (Article 315, No. 1 (c));
1.) That the paper with the signature of the offended party to be in blank;
2.) That the offended party should have delivered it to the offender;
3.) That above the signature of the offended party, a document is written by the
offender without authority to do so;
4.) That the document so written creates a liability of, or causes damage to, the
offended party or any third person.

Elements of ESTAFA BY MEANS of DECEIT

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.
THREE WAYS of committing ESTAFA under this provision:
1.) By using fictitious name;
2.) By falsely pretending to possess a.) power, b.) influence, c.) qualifications, d.)
7
property, e.) credit, f.) agency, g.) business or imaginary transactions; or
3.) By means of other similar deceits

The gravamen of the offenses charged in all the afore-mentioned cases is the employment of
fraud or deceit to the damage or prejudice of another. As defined in Balasa:

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. On
the other hand, 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.34

NOTA BENE:
 Where the complainant was aware of the fictitious nature of the pretense, there is
no estafa through false pretense.
 In the prosecution for estafa under Art. 315, paragraph 2(a) of the Revised Penal Code,
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 complainant, it being essential that such false
statement or fraudulent representation constitutes the very cause or the only motive
which induces the complainant to part with the thing. If there be no such prior or
simultaneous false statement or fraudulent representation, any subsequent act of the

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accused, cannot serve as a basis for prosecution for that class of estafa. (People vs.
Gines, et al., C.A. 61 O.G. 1365).
 There is use of fictitious name when a person uses a name other than his real name.
 ESTAFA by means of OTHER SIMILAR DECEITS should not be covered by any of
those specifically mentioned in subdivision 2, paragraph (a), but SIMILAR to any of
them.
 In Estafa by means of deceit, there must be EVIDENCE that the representation by the
accused is false.
Thus, say for example that AAA pretended to be engaged in a certain business and
enticed one BBB to invest money on it. But once in possession of the said money,
appropriated the same to the prejudice of BBB.--- in this case, aside from proving that
AAA used false pretense to induce BBB to invest in his business, there must also
evidence to show that the business of AAA is a fraud or not existing. (Opinion, FMimie).
 The facts that make the pretense false must exist prior to or simultaneous with the
execution of the fraud.
 The offender must be able to obtain something from the offended party because of
the false pretense, that is, without which the offended party would not have parted
with it.
 AGAIN, what distinguishes estafa from theft is not the presence or absence of fraud
or deceit but whether only material possession or both the juridical and physical
possession of the thing was transferred.
 ESTAFA THROUGH FALSIFICATION

In G.R. No. 171672, February 02, 2015, it held that: (READ IN FULL TXT)
The guilt of the petitioner for four counts of estafa through falsification of a
commercial document was established beyond reasonable doubt. As a bank teller, she
took advantage of the bank depositors who had trusted in her enough to leave their
passbooks with her upon her instruction. Without their knowledge, however, she filled
8 out withdrawal slips that she signed, and misrepresented to her fellow bank employees
that the signatures had been verified in due course. Her misrepresentation to her co-
employees enabled her to receive the amounts stated in the withdrawal slips. She
thereby committed two crimes, namely: estafa, by defrauding BPI Family Savings, her
employer, in the various sums withdrawn from the bank accounts of Matuguina and
Cornejo; and falsification of a commercial document, by forging the signatures of
Matuguina and Cornejo in the withdrawal slips to make it appear that the depositor
concerned had signed the respective slips in order to enable her to withdraw the
amounts. Such offenses were complex crimes, because the estafa would not have been
consummated without the falsification of the withdrawal slips.

Nonetheless, there is a need to clarify the penalties imposable.

According to Article 48 of the Revised Penal Code,6 the penalty for a complex crime is

that corresponding to the most serious crime, the same to be applied in its maximum
period. Otherwise, the penalty will be void and ineffectual, and will not attain finality.

 Estafa through false pretense made in writing is only a simple crime of estafa, not a
complex crime of estafa through falsification.
 Fraud in estafa by means of deceit must be proved with clear and positive evidence.
 Estafa by altering the quality, fineness or weight of anything pertaining to his art or
business.---see again R.A. No. 7394 for the comparison
 Estafa by means of fraudulent acts---Note that while in false pretenses, the deceit
consists in the use of deceitful words, in fraudulent acts, the deceit consists
principally in deceitful acts.

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 ESTAFA by POSTDATING a CHECK or ISSUING a CHECK in PAYMENT OF AN

OBLIGATION---In here instead of reading the provision in the RPC, read in entirety
Batas Pambansa Blg. 22.

IMPORTANT: ISSUANCE OF A CHECK IN PAYMENT OF EXISTING OBLIGATION IS NOT

ESTAFA
Note the case of G.R. No. 154159. March 31, 2005, it held that, (READ IN FULL TEXT)

Deceit, to constitute estafa, should be the efficient cause of defraudation. It must have been
committed either prior or simultaneous with the defraudation complained of. 34 There must be
concomitance: the issuance of a check should be the means to obtain money or property from the
payee. Hence, a check issued in payment of a pre-existing obligation does not constitute estafa
even if there is no fund in the bank to cover the amount of the check.35

Appellant maintains that the subject check was one of the sixteen (16) checks she issued at once to
private complainant in payment of a pre-existing obligation. 36 The court a quo however upheld
private complainant’s theory that appellant issued him the subject check for rediscounting in
February 1998, long after her account was closed on March 26, 1997.

We reverse.

While findings of fact of trial courts are accorded not only respect, but at times, finality, this rule
admits of exceptions, as when there is a misappreciation of facts.

The evidence on record debunks the rediscounting theory of private complainant. He did not part
with his money out of the fraudulent assurances of appellant that the subject check was good and
would never bounce.

A careful examination of the records establishes that appellant issued him the subject check in
payment of a pre-existing obligation. Both private complainant and appellant concur in their
9 testimonies that they met sometime in 1996. Both parties also admit that at this point, appellant
started borrowing money from private complainant.

It cannot be denied that the subject check, like the four other NOW checks on exhibit, was issued
and signed by the same persons and charged to the same NOW Account at Allied Bank. Private
complainant’s theory that these checks were previously issued to him for rediscounting at different
times is incredulous:

NOTA BENE: B.P. No. 22

AS TO ITS ELEMENTS and APPLICATION

In G.R. No. 224979, December 13, 2017, it held that: (READ IN FULL TEXT)

All told, the Court of Appeals committed no reversible error in affirming the RTC decision,
which upheld the conviction of Lim for 10 counts of violation ofB.P. Blg. 22 and her civil
liability for the face value of the 11 checks.

The elements of violation ofB.P. Blg. 22 are as follows:

1. The accused makes, draws or issues any check to apply to account or for value;

2. The check is subsequently dishonored by the drawee bank for insufficiency of funds
or credit; or it would have been dishonored for the same reason had not the drawer,
without any valid reasons, ordered the bank to stop payment; and

3. The accused knows at the time of the issuance that he or she does not have sufficient
funds in, or credit with, drawee bank for payment of the check in full upon its
presentment.

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All the foregoing elements were established beyond reasonable doubt by the prosecution, as
thoroughly discussed by the MeTC:

As to the first element, the Court finds that the checks were issued for value. Accused is the co-
maker of the promissory note (Exhibit "D") wherein she voluntarily bound herself to be jointly
and severally liable with Rochelle Benito, her sister, to Blue Pacific Inc. for the amount of
₱605,000.00 plus interests. Accused is also a signatory to the eleven checks issued, along with
her sister, in favor of Blue Pacific. These checks constitute the means for payment of the
promissory note signed by the accused and her sister. It is undisputed that the co-accused,
Rochelle Benito was able to travel to the United States. The expenses incurred for the said
travel came, undoubtedly, from the proceeds of the said loan albeit the accused did not
personally received the proceeds thereof. Although there was no personal receipt of the
proceeds by the accused, it is undisputed that the principal objective of the accused, the
processing and travel of her sister to the United States was accomplished. The accused then
stood to benefit from the loan. The allegation of human trafficking, fraud and payment
remains allegations as no evidence was presented to the Court to prove [them]. The pieces of
evidence presented, testimonial and documentary, show that this is a business transaction
between Blue Pacific and the accused.

As to the second element, except for Exhibit "G", the evidence shows that the ten (10) checks
were presented for payment and subsequently dishonored for the reason "Account Closed".
The check dated May 29, 2004 with check number 0105461 in the amount of ₱67,617.65 was
not presented for payment, and hence to criminal liability attached thereto.

As to the third element, Exhibit "Q", the demand letter dated May 18, 2005 addressed to Ivy
Benito Lim and signed by Juanito Enriquez was undisputedly received by the accused Ivy Lim
as shown in Exhibit "Q-6". The distinctive strokes in writing the name "Ivy" and the flourish of
the stroke in writing "im" in the latter part thereof, compared with the signatures appearing
10 on all the checks shown that these signatures were made by one and [the] same person. No
evidence was presented by the defense to refute the sending, receipt and existence of the
signature of accused Ivy Lim in Exhibits "Q" and Q-6".25

AS TO THE IMPORTANCE OF NOTICE OF DISHONOR and HOW IT SHOULD BE MADE

(Lack of it is FATAL)
In G.R. No. 196289, August 15, 2016, it held that: (READ IN FULL TEXT)

A perusal of the records of the case, likewise shows the absence of any indication that
petitioner received the notices of dishonor allegedly sent by Landbank. The absence of
proof that petitioner received any notice informing her of the fact that her checks were
dishonored and giving her five banking days within which to make arrangements for
payment of the said checks prevents the application of the disputable presumption that she
had knowledge of the insufficiency of her funds at the time she issued the checks. 27 Absent
such presumption, the burden shifts to the prosecution to prove that petitioner had
knowledge of the insufficiency of her funds when she issued the said checks, otherwise, she
cannot be held liable under the law. 28chanrobleslaw

The giving of the written notice of dishonor does not only supply proof for the second
element arising from the presumption of knowledge the law puts up, but also affords the
offender due process.29 The law thereby allows the offender to avoid prosecution if she
pays the holder of the check the amount due thereon, or makes arrangements for the
payment in full, of the check by the drawee within five banking days from receipt of the
written' notice that the check had not been paid. 30 Thus, the absence of a notice of dishonor
is a deprivation of petitioner's statutory right.

Anent the demand letter sent through registered mail, the same was not proven beyond
reasonable doubt that petitioner received the same. Although the Registry Return Card

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shows that the letter was received and signed for by a Jennifer Mendoza who identified
herself as a househelper of petitioner, it was not proven that the same person is a duly
authorized agent of the addressee or the petitioner. For notice by mail, it must appear that
the same was served on the addressee or a duly authorized agent of the addressee. 31 To
establish beyond reasonable doubt that the issuer of the check indeed received the demand
letter is highly important because it creates the presumption that the same issuer knew of
the insufficiency of the funds. It is [also] essential for the maker or drawer to be notified of
the dishonor of her check, so she could pay the value thereof or make arrangements for its
payment within the period prescribed by law. 32 To assume that because the Registry
Receipt Card appears to have the signature of a person other than the addressee and that
same person had given the letter to the addressee, is utterly erroneous and is not proof
beyond reasonable doubt as required in criminal cases.

Thus, there being no clear showing that petitioner actually knew of the dishonor of her
checks, this Court cannot with moral certainty convict her of violation of B.P. 22. The failure
of the prosecution to prove that petitioner was given the requisite notice of dishonor is a
clear ground for her acquittal.3

ESTAFA through ANY OF THE FOLLOWING FRAUDULENT MEANS:

 ESTAFA by inducing another, by means of deceit, to sign any document (Art. 315 No.
3 (a)
ELEMENTS:
1.) That the offender induced the offended party to sign any document.
2.) That deceit be employed to make him sign the document.
3.) That the offended party personally signed the document;
4.) That prejudice be caused.

NOTA BENE:
11  The offender must induce the offended party to sign the document. Thus, if the
offended party is all-willing to sign the document and there is deceit as to the
character or contents of the documents that he had signed, the crime would be
falsification, not estafa.

In G.R. No. L-12597, August 30, 1917, it held: (READ IN FULL TEXT)

Do the proven facts establish the crime of estafa or the crime of falsification of a private
document?

The amount involved would, under the supposition that the offense is estafa, place the fraud
under paragraph 3 of article 534 of the Penal Code. As supplementary to this provision,
paragraph 7 of the following article provides for the imposition of the penalty upon "any
person who shall commit a fraud by inducing another, by means of deceit, to sign any
document." The documents in question, Exhibits A and B, were signed by the complainants.
Did the accused employ deceit to get the complainants to so sign? The answer is plain that if
we accept the findings of the trial court then the accused made misrepresentations to mislead
the complainants as to the character of the documents executed by them. There is no
intimation to the effect that the documents were read over to the parties thereto in a
language which they understood. Is injury to complainants necessary also to be shown in
order to constitute estafa under the portion of the Penal Code we are construing? A decision
of the Supreme Court of Spain of December 24, 1891, holds that, "in order that the crime
defined in paragraph 7 of article 548 of the Penal Code (535 of our Code) may exist, it is
necessary that with the object to deceive a person, he be made to subscribe, with deceit, a
certain document, i. e., that at the moment of putting his signature thereon he was induced by
error as to the import, concept, or importance of the document affecting the will of the signer
when he expressed his consent thereto in that manner."

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 ESTAFA by means removing, concealing or destroying documents.

ELEMENTS:
1.) That there be court records, office files, documents or any other papers;
2.) That the offender removed, concealed or destroyed any of them;
3.) That the offender had intent to defraud them.

ESTAFA by means removing, concealing or destroying documents vs. Infidelity in the

custody of documents (Art. 266)
ESTAFA by means removing, concealing Infidelity in the custody of documents
or destroying documents (Art. 266)

-the manner of committing is the same. -the manner of committing is the same.
-the offender is a private individual or even -the offender is a public officer who is
a public officer who is not officially officially entrusted with the document.
entrusted with the documents.
-there is intent to defraud. -there is no such intent.

NOTA BENE:
 A person who destroys the record of a criminal case for the purpose of affording
immunity to the persons accused therein, is guilty of malicious mischief and not
estafa, because the intention of the accused is not to defraud.
 DAMAGE/PREJUDICE should be capable of pecuniary estimation, and may
consists in:
1.) The offended party being deprived of his money or property, as a result of
the defraudation;
2.) Disturbance in property rights; or
3.) Temporary prejudice
 If there is no deceit, and there is no abuse of confidence, there is no estafa.
12
In G.R. No. L-38544 July 30, 1982, it held that: (READ IN FULL TEXT)
Deceit and Abuse of Confidence may co-exist

It is true that estafa under paragraph 1(b) is essentially a different offense from estafa under
paragraph 2(a) of the same article because the elements of these two offenses are not the same. In
estafa under paragraph 1(b), which is committed with grave abuse of confidence, it must be shown
that the offender received money or other personalty 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 but
misappropriated it to the prejudice of another. It is also necessary that previous demand be made on
the offender. To sustain a conviction for estafa under paragraph 2(a), on the other hand, deceit or
false representation to defraud and the damage caused thereby must be proved. And no demand is
necessary.  15

This does not mean, however, that presentation of proof of deceit in a prosecution for estafa under
paragraph 1(b) is not allowed. Abuse of confidence and deceit may co-exist. Even if deceit may be
present, the abuse of confidence win characterize the estafa as the deceit will be merely incidental
or as the Supreme Court of Spain held, is absorbed by abuse of confidence.  16

It has also been held that as long as there is a relation of trust and confidence between the
complainant and the accused and even though such relationship has been induced by the accused
thru false representations and pretense and which is continued by active deceit without truthfully
disclosing the facts to the complainant, the estafa committed is by abuse of confidence although
deceit co-exists in its commission.  17

Thus, the questioned testimony eliciting the fact that accused respondent falsely represented to the
complainant-petitioner that the amount of P127.58 out of the total of P1,632.97 belonged to Cesar
Dalangin may not be said to be at variance with the allegations of the Information. The presence of
deceit would not change the whole theory of the prosecution that estafa with abuse of confidence
was committed. Besides, in estafa by means of deceit, it is essential that the false statement or
fraudulent representation constitutes the very cause or the only motive which induces the

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complainant to part with the thing.  18  The municipal court properly denied, therefore, the motion to strike
out the testimonies anent use of false representations.

It is true that estafa under paragraph 1(b) is essentially a different offense from estafa under
paragraph 2(a) of the same article because the elements of these two offenses are not the
same. In estafa under paragraph 1(b), which is committed with grave abuse of confidence, it
must be shown that the offender received money or other personalty 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 but misappropriated it to the prejudice of another. It is also
necessary that previous demand be made on the offender. To sustain a conviction for estafa
under paragraph 2(a), on the other hand, deceit or false representation to defraud and the
damage caused thereby must be proved. And no demand is necessary.  15

This does not mean, however, that presentation of proof of deceit in a prosecution for estafa
under paragraph 1(b) is not allowed. Abuse of confidence and deceit may co-exist. Even if
deceit may be present, the abuse of confidence win characterize the estafa as the deceit will
be merely incidental or as the Supreme Court of Spain held, is absorbed by abuse of
confidence.  16

It has also been held that as long as there is a relation of trust and confidence between the
complainant and the accused and even though such relationship has been induced by the
accused thru false representations and pretense and which is continued by active deceit
without truthfully disclosing the facts to the complainant, the estafa committed is by abuse of
confidence although deceit co-exists in its commission.  17
13
Thus, the questioned testimony eliciting the fact that accused respondent falsely represented
to the complainant-petitioner that the amount of P127.58 out of the total of P1,632.97
belonged to Cesar Dalangin may not be said to be at variance with the allegations of the
Information. The presence of deceit would not change the whole theory of the prosecution
that estafa with abuse of confidence was committed. Besides, in estafa by means of deceit, it is
essential that the false statement or fraudulent representation constitutes the very cause or
the only motive which induces the complainant to part with the thing.  18 The municipal court
properly denied, therefore, the motion to strike out the testimonies anent use of false
representations.

Art. 316. Other forms of swindling.

PAR.1.- By conveying, selling, encumbering, or mortgaging any real property, pretending to

be the owner of the same.

Elements:
1.) That the thing be immovable, such as a parcel of land or a building;
2.) That the offender who is not the owner of said property should represent that he is
the owner thereof;
3.) That the offender should have executed an act of ownership (selling, leasing,
encumbering, or mortgaging the real property;
4.) That the act be made to the prejudice of the owner or a third person.

NOTA BENE:
 The thing disposed of must be real property. If its chattel, the crime is ESTAFA;
 Even if deceit is practiced against the second purchaser, but damage is incurred by
the first purchase, there is violation of par. 1 of Art. 316.

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 Since the penalty is based on the “value of the damage”, there must be actual
damage caused.

PAR.2 - By disposing of real property as free from encumbrance, although such

encumbrance be not recorded.

ELEMENTS:
1.) That the thing disposed of be real property;
2.) That the offender knew that the real property was encumbered, whether the
encumbrance is recorded or not;
3.) That there must be express representation by the offender that the real property is
free from encumbrance;
4.) That the act of disposing of real property be made to the damage of another.

NOTA BENE:
 Encumbrance includes every right or interest in the land which exists in favor of third
persons.
 The offended party would not have granted the loan had he known that the property
was already encumbered.
 When the loan had already been granted when the defendant offered the property as
security for the loan, Art. 316 par.2 is not applicable.
 Usurious loan with equitable mortgage is not an encumbrance on the property;
 There must be damage caused. It is not necessary that the act prejudice the owner of the
land.

PAR. 3 - By wrongfully taking by the owner his personal property from its lawful
possessor.

14 ELEMENTS:
1.) That the offender is the owner of personal property;
2.) That said personal property is in the lawful possession of another;
3.) That the offender wrongfully takes it from its lawful possessor;
4.) That the prejudice is thereby caused to the possessor or third person.

NOTA BENE:
 In US vs. Albao, it held that: if the owner took the personal property from its lawful
possessor without the latter’s knowledge and later chaged him with the value of the
property, the crime is theft.
 If the thing is taken by means of violence, without intent to gain, the crime is grave
coercion, not estafa.

PAR.3 - By executing ay fictitious contract to the prejudice of another.

PAR.4 - By accepting any compensation for services not rendered or for labor not
performed.

 This kind of estafa needs fraud as an important element. If there is no fraud, it

becomes “payment not knowing” or solution indebiti under the Civil Code, with
civil obligation to return the wrong payment.

PAR.5- By selling, mortgaging or encumbering real property/ies with which the offender
guaranteed the fulfillment of his obligation as surety.

ELEMENTS:
1.) That the offender is a surety in a bond given in a criminal or civil action;

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2.) That he guaranteed the fulfillment of such obligation with his real property or
properties;
3.) That he sells, mortgages, or in any manner encumbers said real property;
4.) That such sale, mortgage or encumbrance is (a) without express authority from the
court, or (b) made before the cancellation of his bond, or (c) before being relieved
from the obligation contracted by him.

SYNDICATED ESTAFA
In G.R. Nos. 209655-60, January 14, 2015, it held that: (READ IN FULL TEXT)

Section 1. Any person or persons who shall commit estafa or other forms of swindling as
defined in Articles 315 and 316 of the Revised Penal Code, as amended, shall be punished by
life imprisonment to death if the swindling (estafa) is committed by a syndicate consisting of
five or more persons formed with the intention of carrying out the unlawful or illegal act,
transaction, enterprise or scheme, and the defraudation results in the misappropriation of
moneys contributed by stockholders, or members of rural banks, cooperatives, "samahang
nayon(s)," or farmers’ associations, or funds solicited by corporations/associations from the
general public.

Thus, the elements of Syndicated Estafa are: (a) Estafa or other forms of swindling, as defined
in Articles 315 and 316 of the RPC, is committed; (b) the Estafa or swindling is committed by a
syndicate of five (5) or more persons; and (c) defraudation results in the misappropriation of
moneys contributed by stockholders, or members of rural banks, cooperative, "samahang
nayon(s)," or farmers’ associations, or of funds solicited by corporations/associations from
the general public.42

XxxxxxxxxX
15 To be sure, a Ponzi scheme is a typeof investment fraud that involves the payment of
purported returns to existing investors from funds contributed by new investors. Its
organizers often solicit new investors by promising to invest funds in opportunities claimed to
generate high returns with little or no risk. In many Ponzi schemes, the perpetrators focus on
attracting new money to make promised payments to earlier-stage investors to create the
false appearance that investors are profiting from a legitimate business. 45 It is not an
investment strategy but a gullibility scheme, which works only as long as there is an ever
increasing number of new investors joining the scheme. 46 It is difficult to sustain the scheme
over a long period of time because the operator needs an ever larger pool of later investors to
continue paying the promised profits toearly investors. The idea behind this type of swindle is
that the "con-man" collects his money from his second or third round of investors and then
absconds before anyone else shows up to collect. Necessarily, Ponzi schemes only last weeks,
or months at the most.47

In this light, it is clear that all the elements of Syndicated Esta/a, committed through a Ponzi
scheme, are present in this case, considering that: (a) the incorporators/directors of TGICI
comprising more than five (5) people, including herein accused-appellants, made false
pretenses and representations to the investing public - in this case, the private complainants -
regarding a supposed lucrative investment opportunity with TGICI in order to solicit money
from them; (b) the said false pretenses and representations were made prior to or
simultaneous with the commission of fraud; (c) relying on the same, private complainants
invested their hard earned money into TGICI; and (d) the incorporators/directors of TGICI
ended up running away with the private complainants' investments, obviously to the latter's
prejudice.

Art. 317. Swindling a minor.

ELEMENTS:

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1.) That the offender takes advantage of the inexperience or emotions or feelings of a
minor;
2.) That he induces such minor (1) to assume an obligation, or (2) to give release, or (3)
to execute a transfer of any property right;
3.) That the consideration is (1) some loan, (2) credit, or (3) other personal property.
4.) That the transaction is to the detriment of such minor.

 Real property is not included because it cannot be made to disappear, since a

minor cannot convey real property without judicial authority.

Art. 317. Swindling a minor.

This includes:
1.) By defrauding or damaging another by any other deceit not mentioned in the
preceding articles;
2.) By interpreting dreams, by making forecasts, by telling fortunes, or by taking
advantage of the credulity of the public in any other similar manner, for profit or
gain.

 Simply put, 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 which is
proved. In the case at bar, the petitioner was convicted of the crime falling under
"Other deceits" which is necessarily included in the crime of estafa under Article
315, paragraph 2(d) considering that the elements of deceit and damage also
constitute the former. Hence, the petitioner's right to be properly informed of the
accusation against her was never violated. [70] (Citation omitted)

16

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