REPUBLIC OF THE PHILIPPINESOFFICE OF THE CITY PROSECUTORBACOLOD CITY-oOo-

RE: NPS NO. VI-03-INV-14D-0374 entitled MOISES C. TORRES versus IRENE MACARIOLA for ESTAFA or QUALIFIED THEFT of the Revised Penal Codex------------------------------------------------------------------------------------------------------------------x

RESOLUTIONFor resolution is a charge of Estafa or Qualified Theft filed by complainant Lopez-Torres Finance Corporation represented by its vice-president, Moises C. Torres against respondent, Irene Macariola.

The complainant, in his complaint affidavit, alleged that on August 22, 2013, respondent was hired by Lopez-Torres Finance Corp. as Loan Officer under their Bacolod Branch. She was confident and hardworking until October 2013 where they noticed that her performance was deteriorating. On November 4, 2013, he asked respondent the payment amounting P35, 758.50 being paid personally by Mrs. Bernadette Del Rosario, a borrower, on October 16, 2013, which she pocketed the money, and did not forward the payment to the office and did not deposit the payment in the Corporate Bank Account. To further support the complaint affidavit, Mrs. Del Rosario also submitted a sworn statement that she personally paid her due in time in the amount of P35,758.50 to respondent on October 15, 2013. On November 6, 2013, respondent personally went to Bacolod Branch and handed to her supervisor, Marigold Juayan, a handwritten explanation for her failure to remit the payment. On November 8, 2013, complainant executed a memo to respondent to explain why no disciplinary action should be taken against her failure to remit the payment and violating the companys policy which respondent signed an acknowledgement that she received such memo personally from Marigold Juayan. Despite the order and notice to forward the money, respondent did not comply with the instruction; she changed her contact number; and that she has not made a call to the office anymore.

In support to the charge against respondent, complainant submitted the following documents: a copy of the official receipt # 0002 from Mrs. Bernadette Del Rosario in the amount oof P35,758.50; a Board Resolution No. 5, giving authority to the complainant that he represents that corporation; the sworn statement of the borrower, Mrs. Bernadette Del Rosario, that she personally paid to respondent payment in the amount of P35,758.50 on October 15, 2013; handwritten letter of respondent that she admits she took the money collected for the office; copy of the memo to the respondent and the acknowledgement receipt made by the respondent.

The respondent, in her complaint affidavit, admitted that she was hired on August 22, 2013 by the corporation; that she acknowledged to have received the payment by Mrs. Del Rosario in the amount of P35, 758.50 for her account which was handed to her by the collector of the corporation, Roberto Quivis on October 16, 2013. She then issued a receipt for that payment and gave to Mr. Quivis who handed the said receipt to Mrs. Del Rosario. During that time, her sister-in-law was seriously ill and that her brother pleaded to borrow money from her to help defray the expenses for his wife. Out of pity, she borrowed P8000.00 from the payment given by Mrs. Del Rosario which she intends to return as soon as possible while the amount of P27, 758.50 was already deposited to the Corporations Bank Account. However, she could not secure a copy of the deposit slip as it was already in the possession of the corporation and the bank refuses to give her any proof about the deposit of said amount. Respondent admits that she committed unauthorized act in her work and agrees to pay the whole amount of P35, 758.50 as settlement with the corporation.

In support for respondents defense, respondent submitted the following documents: deposit slip amounting to P3000.00 to the Corporations Bank Account; and handwritten notes that respondent has paid partially to the corporation.

It is shown in the documents that respondent has submitted her counter-affidavit. However, the ten (10) day period for filing a counter-affidavit has already lapsed and therefore, under the Rules of Court, Section 3(d), Rule 112, the case should be resolved ex parte based on complainants evidence.

The charge based on the complaint is Estafa or Qualified Theft under Article 310 of the Revised Penal Code. Based on the facts provided, Qualified Theft and not Estafa has been committed by the respondent. It is a well-settled rule that the conversion of personal property, in the case of an employee, having 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. A sum of money received by an employee in behalf of an employer is considered to be only in the material possession of the employee. Thus, Qualified Theft has been committed by respondent and not Estafa.

For the crime of Theft to be committed, the following elements should be present: (1) that there be taking of personal property; (2) that said property belongs to another; (3) that the taking be done with intent to gain; (4) that the taking be done without the consent of the owner; and (5) that the taking be accomplished without the use of violence against or intimidation of persons or force upon things. (People v. Sison, G.R. No. 123183)

Theft becomes qualified when ANY of the following circumstances under Article 310 is present: (1) the theft is committed by a domestic servant; (2) the theft is committed with grave abuse of confidence; (3) the property stolen is either a motor vehicle, mail matter or large cattle; (4) the property stolen consists of coconuts taken from the premises of a plantation; (5) the property stolen is fish taken from a fishpond or fishery; and (6) the property was taken on the occasion of fire, earthquake, typhoon, volcanic eruption, or any other calamity, vehicular accident or civil disturbance.

After assessing the evidence presented, undersigned investigating prosecutor finds that the elements of Theft under the Revised Penal Code were satisfied and that the Theft is Qualified because it has been committed with grave abuse of confidence. It is shown that the money taken does not belong to respondent but to the corporation and that the respondent took it without the corporation's consent and with grave abuse of confidence by taking advantage of her position as Loan Officer of the finance corporation.

Therefore, it is respectfully submitted that there is probable cause that the respondent is liable for the crime of Qualified Theft under the Revised Penal Code and is probably guilty thereof.

SO RESOLVED

Bacolod City, Philippines, June 3, 2015

MA. THERESA B. DITCHING Prosecutor III

APPROVED: ARMANDO P. ABANADO City Prosecutor

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