FACTS:

Petitioner Benabaye was the Loans Bookkeeper of Siam Bank and was authorized to collect and/or accept loan payments of Siam Bank’s clients and issue provisional receipts therefor, accomplish a cash transfer slip at the end of each banking day detailing the amounts of money that she has received, and remit such payments to Tupag, her supervisor.

Sometime in 2001, Siam Bank conducted an audit investigation of its loan transactions and found out that fraud and certain irregularities attended the same. It discovered the non-remittance of some loan payments received from its clients based on the provisional receipts issued by its account officers, as well as the daily collection reports corresponding to the said provisional receipts.

Siam Bank directed Benabaye to explain the discrepancies between the provisional receipts she had issued and the unremitted money involved, and made a final demand upon her to return the amount of the money involved. In her written explanation, Benabaye claimed that the discrepancies could be clarified by her supervisor, Tupag, to whom she had submitted her daily cash transfer slips together with the corresponding provisional receipts.

Tupag admitted his accountability and, while claiming that some of his co-employees were privy to the acts which resulted in the discrepancies, he did not disclose their identities.

Siam Bank terminated the employment of both Benabaye and Tupag and subsequently filed a criminal case for Estafa.

The RTC found both Benabaye and Tupag guilty beyond reasonable doubt of Estafa under Article 315, paragraph 1 (b).

The CA affirmed Benabaye’s conviction in toto, similarly finding that all the elements of Estafa through misappropriation have been established.

The CA ruled that conspiracy between Benabaye and Tupag was sufficiently established, considering that both had access and facility to determine if payments made by Siam Bank’s clients were properly remitted.

 

ISSUES:

1. Whether or not the CA erred in sustaining Benabaye’s conviction for the crime of Estafa through misappropriation.
2. What is the effect of the perfected appeal of Benabaye on her co-accused Tubag?

 

RULING:

1. The first element of Estafa through misappropriation has not been established.

Article 315, paragraph 1 (b) of the RPC, as amended, under which Benabaye was charged and prosecuted, states:
Art. 315. Swindling (estafa). – Any person who shall defraud another by any means mentioned herein below shall be punished by:

1st. 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. In such cases, and in connection with the accessory penalties which may be imposed and for the purpose of the other provisions of this Code, the penalty shall be termed prision mayor or reclusion temporal, as the case may be[.]

x x x x

1. With unfaithfulness or abuse of confidence, namely:

x x x x

(b) By misappropriating or converting, to the prejudice of another, money, goods or any other personal property 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[.]

The elements of Estafa under this provision are:

(a) the offender’s receipt of money, goods, or other personal property in trust, or on commission, or for administration, or under any other obligation involving the duty to deliver, or to return, the same;

(b) misappropriation or conversion by the offender of the money or property received, or denial of receipt of the money or property;

(c) the misappropriation, conversion or denial is to the prejudice of another; and

(d) demand by the offended party that the offender return the money or property received.

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.

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 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 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.

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.

The Court agrees.

Records show that Benabaye was merely a collector of loan payments from Siam Bank’s clients. At the end of every banking day, she was required to remit all cash payments received together with the corresponding cash transfer slips to her supervisor, Tupag. As such, the money merely passes into her hands and she takes custody thereof only for the duration of the banking day. Hence, as an employee of Siam Bank, specifically, its temporary cash custodian whose tasks are akin to a bank teller, she had no juridical possession over the missing funds but only their physical or material possession.

As a bank cash custodian, the Court ruled that she had no juridical possession over the missing funds. Relative thereto, in Guzman v. CA,where a travelling sales agent was convicted of the crime of Estafa for his failure to return to his principal the proceeds of the goods he was commissioned to sell, the Court had occasion to explain the distinction between the possession of a bank teller and an agent for purposes of determining criminal liability for Estafa, viz.:

There is an essential distinction between the possession of a receiving teller of funds received from third persons paid to the bank, and an agent who receives the proceeds of sales of merchandise delivered to him in agency by his principal. In the former case, payment by third persons to the teller is payment to the bank itself; the teller is a mere custodian or keeper of the funds received, and has no independent right or title to retain or possess the same as against the bank. An agent, on the other hand, can even assert, as against his own principal, an independent, autonomous, right to retain the money or goods received in consequence of the agency; as when the principal fails to reimburse him for advances he has made, and indemnify him for damages suffered without his fault.

Thus, being a mere custodian of the missing funds and not, in any manner, an agent who could have asserted a right against Siam Bank over the same, Benabaye had only acquired material and not juridical possession of such funds and consequently, cannot be convicted of the crime of Estafa as charged. In fine, the dismissal of the Estafa charge against Benabaye should come as a matter of course, without prejudice, however, to the filing of the appropriate criminal charge against her as may be warranted under the circumstances of this case.

 

2.

Separately, in light of the foregoing, Benabaye’s supervisor and co-accused in this case, Tupag, who likewise was not appointed as an agent of Siam Bank and thus had no juridical possession of the subject sums, must also be discharged of the same Estafa charge in view of Section 11 (a), Rule 122 of the Revised Rules of Criminal Procedure, as amended, which states:

SEC. 11. Effect of appeal by any of several accused.—

(a) An appeal taken by one or more of several accused shall not affect those who did not appeal, except insofar as the judgment of the appellate court is favorable and applicable to the latter.

While it is true that only Benabaye was able to successfully perfect her appeal, the rule is that an appeal in a criminal proceeding throws the whole case open for review of all its aspects, including those not raised by the parties.

Considering that under Section 11 (a), Rule 122 of the Revised Rules of Criminal Procedure as above-quoted, a favorable judgment, as in this case, shall benefit the co-accused who did not appeal or those who appealed from their judgments of conviction but for one reason or another, the conviction became final and executory, Benabaye’s discharge for the crime of Estafa is likewise applicable to Tupag. Note that the dismissal of the Estafa charge against Tupag is similarly without prejudice to the filing of the appropriate criminal charge against him as may be warranted under the circumstances pertinent to him.

The criminal charges against petitioner Benabaye and her co-accused Tupag are DISMISSED without prejudice.