G.R. No. 233971. January 22, 2018

SECOND DIVISION: [G.R. No. 233971, January 22, 2018] FELIX P. BALACCUA, JR. V. PEOPLE OF THE PHILIPPINES.

For resolution is the instant petition for review on certiorari under Rule 45 of the Rules of Court seeking to nullify the Decision[1] of the Court of Appeals (CA), promulgated on May 26, 2017, as well as its Resolution[2] dated August 22, 2017, in CA-G.R. CR No. 36885.

Herein petitioner was charged with the crime of estafa as defined and penalized under Article 315, paragraph 1(b) of the Revised Penal Code (RPC). The accusatory portion of the Information reads, thus:
That in or about and sometimes (sic) in the month of October, 2006 or prior thereto, in the City of Muntinlupa, Philippines and within the jurisdiction of this Honorable Court, the above-named accused, being the Country Manager of MK Asia Logistics Pte. Ltd., represented by its local representative, Gracia B. Balangue, received in trust income earned from payments made by the complainant's customers/clienteles amounting to US$50,720.00 with the express obligation to remit or deposit the income earnings to the depositary bank of the complainant; but the accused once in possession of the said income earnings, far from complying with his obligation, failed to remit or deposit the amount of US$50,720.00 with unfaithfulness and abuse of confidence, with intent to defraud, did then and there willfully, unlawfully and feloniously misapply, misappropriate and convert to his own personal use and benefit the said income earnings of the complainant, and despite repeated demands made upon him, accused failed and refused and still fails and refuses to remit the said amount. Further, accused having received in trust and for administration one (1) IBM Think Pad R52 with SIN No. L31320VI Part No. 1860-32A and its accessories and seven (7) flexi-tanks, worth $2,000.00 and $3,150.00, respectively, from the complainant with obligation involving the duty to make delivery of, or to return, the same after termination of the employment services with the complainant; but the accused, once in possession of the one (1) IBM Think Pad R52 with SIN No. L31320VI Part No. 1860-32A and its accessories and seven (7) flexi-tanks with unfaithfulness and abuse of confidence, with intent to defraud, far from complying with his obligation, despite repeated demands, did then and there fail to return and deny having received such aforementioned property.
To the damage and prejudice of the complainant in the total amount of US$55,870.00.[3]
Herein private complainant company MK Asia Logistics Pte. Ltd. (MK Asia) is a Singapore-based company engaged in the business of integrating and consolidating various transport services as well as packaging of materials. It has a representative office in the Philippines with herein petitioner as its Country Manager who was in charge of MK Asia's business transactions in the Philippines and the custodian of its office equipment, materials and documents in the country. On October 2, 2006, petitioner tendered his resignation which was approved and made effective on October 9, 2006. Hence, petitioner was instructed to stop operations and to return and turn over MK Asia's documents and properties to its newly-appointed representative. In the meantime, on October 3, 2006, petitioner received from one of MK Asia's client companies the amount of US$50,720.00. Despite repeated demands, petitioner failed to fully remit the said amount as well as to return a laptop worth US$2,000.00 and seven (7) flexi-tanks worth US$3,150.00. As a consequence, petitioner was charged with estafa under Article 315, par. 1(b) of the RPC. In his defense, petitioner claimed that the amount which he was alleged to have misappropriated was used by him to settle the company's payables with the knowledge of MK Asia, as evidenced by receipts and bank transaction documents. As to the laptop and flexi-tanks, petitioner denied having received such from MK Asia.

After trial on the merits, the Regional Trial Court (RTC) of Muntinlupa City, Branch 276 found that, with respect to the sum of US$50,720.00, the prosecution was able to prove all the elements of the crime of estafa under Article 315, paragraph 1(b) of the RPC. Thus, the RTC, in its Decision[4] dated June 24, 2014, imposed upon petitioner the indeterminate penalty of four (4) years and two (2) months of prision correccional, as minimum, to twenty (20) years of reclusion temporal, as maximum. Petitioner was also ordered to pay respondent the sum of US$50,720.00 as actual damages. However, insofar as the laptop and the seven (7) flexi-tanks are concerned, the RTC ruled that the prosecution failed to discharge its duty to prove all the elements of the crime charged in the Information to warrant a finding of petitioner's guilt as there was no showing that he received the said items from the private complainant.

Aggrieved, herein petitioner filed an appeal with the CA.

In its assailed Decision, promulgated on May 26, 2017, the CA affirmed the findings and conclusion of the RTC with respect to the crime charged and the penalty imposed. However, as to the civil aspect of the case, the CA found that out of the P2,536,202.88 (which was the peso equivalent of the alleged misappropriated amount of US$50,720.00 in October 2006), petitioner was able to liquidate the amount of P1,302,958.87 by presenting in evidence receipts and bank documents, leaving the remaining sum of P1,233,244.01 unaccounted for. Thus, the CA held that petitioner is liable to pay to private complainant only the latter amount.

Petitioner filed a Motion for Reconsideration,[5] but the same was denied in a Resolution issued by the CA on August 22, 2017.

In the present petition for review on certiorari under Rule 45 of the Rules of Court, petitioner raises the following assignments of error, to wit:
I. THE COURT OF APPEALS ERRED IN AFFIRMING THE CASE OF ESTAFA DESPITE THE FACT (A) AUTHORITY OF MK ASIA LOGISTICS PTE LTD. TO GRACIA B. BALANQUE TO FILE, SUE THE INSTANT CASE, WHO HAS NO AUTHORITY TO DO SO AS THE AUTHORITY, EXHIBITS "K" & "K-1" INCLUSIVE, WAS DENIED ADMISSION BY THE COURT A QUO (RTC), AND; (B) THERE WAS NO DEMAND TO REMIT. THE DEMAND WAS ONLY TO LIQUIDATE. 
II. THE COURT OF APPEALS ERRED WHEN IT AFFIRMED CONVICTION OF THE REGIONAL TRIAL COURT AFTER FINDING THAT US$50,720.00 PART OF WHICH WERE SPENT FOR THE INTEREST OF PRIVATE COMPLAINANT MK ASIA LOGISTICS PTE. LTD. AND WHY SHOULD THE PETITIONER BE CONVICTED ON THE ISSUE OF US$50,720.00.[6]
The petition lacks merit.

Anent, petitioner's first assigned error contending that the local representative of private complainant company has no valid authority to prosecute the instant case, suffice it to say that all criminal actions commenced by a complaint or information shall be prosecuted under the direction and control of the public prosecutor.[7] The private complainant in a criminal case is merely a witness and not a party to the case.[8] Moreover, it is well settled that in criminal cases where the offended party is the State, the interest of the private complainant or the private offended party is limited to the civil liability.[9] Thus, in the prosecution of the offense, as in the instant case, the complainant's role is limited to that of a witness for the prosecution.[10]

As to whether or not a demand was made by the private complainant upon petitioner, the Court finds no cogent reason to depart from the factual findings of both the RTC and the CA that several demands were made by the private complainant asking petitioner not only to liquidate his expenses but also to turn over the private complainant's documents and properties in his custody, but he failed to do so.

With respect to petitioner's claim in his second assigned error that he used the whole amount of US$50,720.00 to answer for the payables of the private complainant company as well as the salaries of its employees, while the RTC and the CA differed with respect to the amount which was misappropriated, the factual findings of both courts were consistent in finding petitioner liable for estafa for failure to remit the money entrusted to him. The settled rule is that this court is not a trier of facts and the factual findings of the trial court, when sustained by the appellate court, are binding in the absence of any indication that both courts misapprehended any fact that could change the disposition of the controversy.[11]

Thus, considering the allegations, issues and arguments presented in the instant petition, the Court resolves to deny the petition for failure to sufficiently show that the CA committed any reversible error in its assailed Decision, which affirms petitioner's conviction of the crime of estafa under Article 315, paragraph 1(b) of the RPC, as to warrant the exercise of the Court's appellate jurisdiction.

Nonetheless, the Court modifies the penalty imposed upon petitioner in accordance with existing law. In the instant case, the CA ruled that out of the P2,536,202.88, which was the peso equivalent of the alleged misappropriated amount of US$50,720.00 in October 2006, petitioner was able to liquidate the total amount of P1,302,958.87, leaving the sum of P1,233,244.01 unremitted. The latter amount should, thus, be the basis in determining the penalty to be imposed upon petitioner. The penalty of four (4) years and two months of prision correccional, as minimum, to twenty (20) years of reclusion temporal, as maximum, imposed by the RTC as affirmed by the CA was based on the provisions of law prevailing at the time of the commission of the crime until the promulgation of the lower courts' decisions.

However, the recent passage into law of RA 10951[12] has, among others, increased the value of the properties as bases in the imposition of penalties and fines with respect to certain crimes defined in and penalized by the RPC. Among these is Article 315, as amended by RA 4885, PD 1689 and PD 818, which is further amended to read as follows:
Art. 315. Swindling (estafa).— Any person who shall defraud another by any of the means mentioned hereinbelow shall be punished by: 
"1st. The penalty of prisión correccional in its maximum period to prisión mayor in its minimum period, if the amount of the fraud is over Two million four hundred thousand pesos (P2,400,000) but does not exceed Four million four hundred thousand pesos (P4,400,000), 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 Two million pesos (P2,000,000); 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 prisión mayor or reclusion temporal, as the case may be.  
"2nd. The penalty of prisión correccional in its minimum and medium periods, if the amount of the fraud is over One million two hundred thousand pesos (P1,200,000) but does not exceed Two million four hundred thousand pesos (P2,400,000). 
"3rd. The penalty of arresto mayor in its maximum period to prisión correccional in its minimum period, if such amount is over Forty thousand pesos (P40,000) but does not exceed One million two hundred thousand pesos (P1,200,000). 
"4th. By arresto mayor in its medium and maximum periods, if such amount does not exceed Forty thousand pesos (P40,000): Provided, That in the four cases mentioned, the fraud be committed by any of the following means:
"1. With unfaithfulness or abuse of confidence, namely: 
"(a) altering the substance, quantity, or quality of anything of value which the offender shall deliver by virtue of an obligation to do so, even though such obligation be based on an immoral or illegal consideration.
"(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.
"(c) By taking undue advantage of the signature of the offended party in blank, and by writing any document above such signature in blank, to the prejudice of the offended party or any third person. 
"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.
"(b) By altering the quality, fineness or weight of anything pertaining to his art or business.
"(c) 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.
"(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) clays 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.
"Any person who shall defraud another by means of false pretenses or fraudulent acts as defined in paragraph 2(d) hereof shall be punished by: 
"1st. The penalty of reclusion temporal in its maximum period, if the amount of fraud is over Four million four hundred thousand pesos (P4,400,000) but does not exceed Eight million eight hundred thousand pesos (P8,800,000). If the amount exceeds the latter, the penalty shall be reclusion perpetua.
"2nd. The penalty of reclusion temporal in its minimum and medium periods, if the amount of the fraud is over Two million four hundred thousand pesos (P2,400,000) but does not exceed Four million four hundred thousand pesos (P4,400,000).
"3rd. The penalty of prisión mayor in its maximum period, if the amount of the fraud is over One million two hundred thousand pesos (P1,200,000) but does not exceed Two million four hundred thousand pesos (P2,400,000).
"4th. The penalty of prisión mayor in its medium period, if such amount is over Forty thousand pesos (P40,000) but does not exceed One million two hundred thousand pesos (P1,200,000).
"5th. By prisión mayor in its minimum period, if such amount does not exceed Forty thousand pesos (P40,000).
"3. Through any of the following fraudulent means:
"(a) By inducing another, by means of deceit, to sign any document.
"(b) By resorting to some fraudulent practice to insure success in a gambling game.
"(c) By removing, concealing or destroying, in whole or in part, any court record, office files, document or any other papers." (Emphasis supplied)
Section 100 of the said RA provides that "it shall have retroactive effect to the extent that it is favorable to the accused or person serving sentence by final judgment."

The pertinent portions of the abovequoted amendment provide that the penalty of prisión correccional in its minimum and medium periods shall be imposed upon the offender if the amount of the fraud is over one million two hundred thousand pesos (P1,200,000.00) but does not exceed two million four hundred thousand pesos (P2,400,000.00). Applying the Indeterminate Sentence Law, the penalty next lower in degree would be arresto mayor in its medium and maximum periods. Thus, the minimum term of the indeterminate sentence should be anywhere from two (2) months and one (1) day to six (6) months, while the maximum shall not exceed four (4) years and two (2) months.

IN VIEW OF THE FOREGOING, the Court ADOPTS the findings of fact and conclusions of law in the Decision dated May 26, 2017 of the Court of Appeals in CA-G.R. CR No. 36885 and AFFIRMS said Decision, which affirmed with modification the June 24, 2014 Decision, of the Regional Trial Court of Muntinlupa City, Branch 276, in Criminal Case No. 07-804 finding petitioner Felix P. Balaccua, Jr. guilty of the crime of estafa, as defined and penalized under Article 315, paragraph 1(b) of the Revised Penal Code, with the MODIFICATION that the penalty to be imposed shall be imprisonment of FOUR (4) MONTHS and TWENTY (20) DAYS of arresto mayor, in its maximum period, as minimum, to TWO (2) YEARS, ELEVEN (11) MONTHS and ELEVEN (11) DAYS of prision correccional, in its medium period, as maximum. The Court likewise AFFIRMS the assailed CA Decision which orders petitioner to pay to the private complainant MK Asia Logistics Pte. Ltd. the amount of P1,233,244.01, or its equivalent in US Dollars, as actual damages.

SO ORDERED.

[1] Penned by Associate Justice Remedios A. Salazar-Fernando, with Associate Justices Mario V. Lopez and Eduardo B. Peralta, Jr., concurring; rollo pp. 42-55.
[2] Id. at 66-67.
[3] Id. at 43-44.
[4] Id. at 68-85.
[5] Id. at 56-64.
[6] Id. at 18.
[7] Leviste v. Alameda, 640 Phil. 620, 637 (2010).
[8] Id.
[9] People of the Philippines v. Court of Appeals, 755 Phil. 80, 98 (2015).
[10] Id.
[11] Viray v. People of the Philippines, 720 Phil. 841, 849 (2013).
[12] AN ACT ADJUSTING THE AMOUNT OR THE VALUE OF PROPERTY AND DAMAGE ON WHICH A PENALTY IS BASED, AND THE FINES IMPOSED UNDER THE REVISED PENAL CODE, AMENDING FOR THE PURPOSE ACT NO. 3815, OTHERWISE KNOWN AS "THE REVISED PENAL CODE", AS AMENDED. The law took effect on September 16, 2017.

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