As a general rule, in order to constitute deceit there must be a false representation as a matter of fact, a positive assertion of falsehood.

(People vs. Manahan, CA- G.R. No. !"#$-R, $# Ma% !&'( )t might also consist in a fraudulent misrepresentation or contrivance b% *hich one man deceives another *ho has no means of detecting the fraud to the in+ur% of another. (People vs. ,abel, # CAR --( 315 1(5) 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
1.
B.

!"#$%&' 31( )*!&$+$', #-'+# .he abuse of confidence must be grave. .here must be allegation in the information and proof of a relation, b% reason of dependence, guardianship or vigilance, bet*een the accused and the offended part%, that has created a high degree of confidence bet*een them, *hich the accused abused. '.#!+! (315)

1.

/lements of /stafa in General0 . .hat the accused defrauded another (a( b% abuse of confidence1 or (b( b% means of deceit1 and $. .hat damage or pre+udice capable of pecuniar% estimation is caused to the offended part% or third person. 2a%s of committing estafa0 . 2ith unfaithfulness or abuse of confidence $. ,% means of false pretenses or fraudulent acts1 or -. .hrough fraudulent means. .he - *a%s of committing estafa under Art. - & ma% be reduced to $ onl%. .he first form under subdivision is 3no*n as estafa with abuse of confidence, and the second and third forms under subdivisions $ 4 - cover estafa by means of deceit. 5eceit is not an essential element of estafa *ith abuse of confidence. )t is necessar% that the damage or pre+udice be capable of estimation, because the amount of the damage or pre+udice is the basis of the penalt% for estafa. /$.!00"10"$!#$12 !2, %123'".$12 (315 0!" 1(B))

(I)

/lements0 . .hat mone%, goods, or other personal propert% be received b% the offender in trust, or in commission, or for administration, or under an% other obligation involving the dut% to ma3e deliver% of, or to return, the same1

$. .hat there be misappropriation or conversion of such mone% or propert% b% the offender, or denial on his part of such receipt1 -. .hat such misappropriation or conversion or denial is to the pre+udice of another1 and 6. .hat there is a demand made b% the offended part% to the offender. .he 6th element is not necessar% *hen there us evidence of misappropriation of the goods b% the defendant. Chec3 is included in the *ord 7mone%8. Mone%, goods or other personal propert% must be received b% the offender under certain 3inds of transaction transferring +uridical possession to him. 2hen the thing received b% the offender from the offended part% ( ( in trust, or ($( on commission, or (-( for administration, the offender ac9uires both material or ph%sical possession and +uridical possession of the thing received. 7:uridical possession80 means a possession *hich gives the transferee a right over the thing *hich the transferee ma% set up even against the o*ner. 2hen the deliver% of a chattel has not the effect of transferring the +uridical possession thereof, or title thereto, it is presumed that the possession of, and title to, the thing so delivered remain in the o*ner. ;ailure to turn over to the ban3 the proceeds of the sale of goods covered b% trust receipts is estafa. .he phrase 7or under an% obligation involving the dut% to ma3e deliver% of, or to return the same8, includes 9uasi-contracts and certain contracts of bailment. .he obligation to return or deliver the thing must be contractual *ithout transferring to the accused the o*nership of the thing received. 2hen the o*nership of the thing is transferred to the person *ho has received it, his failure to return it *ill give rise to civil liabilit% onl%. Applicable Civil Code provisions0 -Art. 1477. .he o*nership of the thing sold shall be transferred to the vendee upon actual or constructive deliver% thereof. -Art. 1482. 2henever earnest mone% is given in a contract of sale, it shall be considered as part of the price and as proof of the perfection of the contract. )n estafa *ith abuse of confidence under par. (b(, subdivision of Art. - &, the ver% same thing received must be returned, if there is an obligation to return it. )f there is no obligation to return the ver% same thing received, because o*nership is transferred, there is onl% civil liabilit%.

 2hen the transaction of purchase and sale fails, there is no estafa if the accused refused to return the advance pa%ment. .here is no estafa *hen the mone% or other personal propert% received b% the accused is not to be used for a particular purpose or to be returned. Amounts paid b% the students to the school to ans*er for the value of materials bro3en are not mere deposits. .here is no estafa if the thing is received under a contract of sale on credit. Novation of contract from one of agenc% to one of sale, or to one of loan, relieves defendant from incipient criminal liabilit% under the first contract. Acceptance of promissor% note or e<tension of time for pa%ment does not constitute novation. - *a%s of committing estafa *ith abuse of confidence under Art. - & par. (b(0 . ,% misappropriating the thing received. $. ,% converting the thing received. -. ,% den%ing that the thing *as received. 7Conversion80 presupposed that the thing has been devoted to a purpose or use different from that agreed upon. .he fact that an agent sold the thing received on commission for a lo*er price than the one fi<ed, does not constitute the crime of estafa (=> v .orres(. .he la* does not distinguish bet*een temporar% and permanent misappropriations. /stafa under Art. - & par (b( is not committed *hen there is neither misappropriation nor conversion. Right of agent to deduct commission from amounts collected0 -)f the agent is authori?ed to retain his commission out of the amounts he collected, there is no estafa. @ther*ise, he is guilt% of estafa, because he right to commission does not ma3e the agent a +oint o*ner, *ith a right to the mone% collected. .here -rd element of estafa *ith abuse of confidence is that the misappropriation, conversion, or denial b% the offender has resulted in the pre+udice of the offended part%. 7.o the pre+udice of another80 not necessaril% of the o*ner of the propert%. Partners are not liable for estafa of mone% or propert% received for the partnership *hen the business commenced and profits accrued. ;ailure of partner to account for partnership funds ma% give rise to a civil obligation onl%, not estafa.

 /<ception0 *hen offending partner misappropriates the share of another partner in the profits, the act constitutes estafa. A co-o*ner is not liable for estafa, but he is liable if, after the termination of the coo*nership, he misappropriates the thing *hich has become the e<clusive propert% of the other. ,ut *hen the mone% or propert% had been received b% a partner for specific purpose and he later misappropriated it, such partner is guilt% of estafa. =nder the 6th element of estafa *ith abuse of confidence under Art. - &, demand ma% be re9uired. )n estafa b% means of deceit, demand is not necessar%, because the offender obtains deliver% of the thing *rongfull% from the beginning. )n estafa *ith abuse of confidence, the offender receives the thing from the offended part% under a la*ful transaction. 5emand is not re9uired b% la*, but it ma% be necessar%, because failure to account, upon demand, is circumstantial evidence of misappropriation. .he mere failure to return the thing received for safe3eeping, of for administration, or under an% other obligation involving the dut% to ma3e deliver% or return the same or deliver the value thereof to the o*ner could onl% give rise to a civil action and des not constitute the crime of estafa. Presumption of misappropriation arises onl% *hen the e<planation of the accused is absolutel% devoid of merit. .here is no estafa through negligence. .he gravit% of the crime of estfa is determined on the basis of the amount not returned before the institution of the criminal action. /stafa *ith abuse of confidence distinguished from theft0 -A person *ho misappropriated the thing *hich he had received from the offended part% ma% be guilt% of theft, not estafa, if he had ac9uired onl% the material or ph%sical possession of the thing. -)n theft, the offender ta3es the thing1 in estafa, the offender receives the thing from the offended part%. -)f in receiving the thing from the offended part%, the offender ac9uired also the +uridical possession of the thing, and he later misappropriated it, he *ould be guilt% of estafa. )f he onl% ac9uired material and transitor% possession but not the +uridical possession, he is liable onl% for theft, not estafa. )n estafa, the offender receives the thingAhe does not ta3e the thing *ithout the consent of the o*ner. .est to distinguish theft from estafa0 )n theft, upon the deliver% of the thing to the offender, the o*ner e<pects an immediate return of the thing to him. (Albert( 2hen the o*ner does not e<pect the immediate return of the thing he delivered to the accused, the misappropriation of the same is estafa.

 /<ception0 2hen the offender received the thing from the offended part%, *ith the obligation to delver it to a third person and, instead of doing so, misappropriated it to the pre+udice of the o*ner, the crime committed is 9ualified theft. >elling the thing received to be pledged for the o*ner is theft, *hen the intent to appropriate e<isted at the time it *as received. /stafa *ith abuse of confidence distinguished from malversation0 . )n both crimes, the offenders are entrusted *ith funds or propert%. $. ,oth are continuing offenses. -. ,ut *hile in estafa, the funds or propert% are al*a%s private1 in malversation, the% are usuall% public funds or propert%. 6. )n estafa, the offender is a private individual or even a public officer *ho is not accountable for public funds or propert%1 in malversation, the offender *ho is usuall% a public officer is accountable for public funds or propert%. &. )n estafa *ith abuse of confidence, the crime is committed b% misappropriating, converting or den%ing having received mone%, goods or other personal propert%1 in malversation, the crime is committed b% appropriating, ta3ing or misappropriating or consenting, or, through abandonment or negligence, permitting an% other person to ta3e the public funds or propert%. 2hen in the prosecution for malversation the public officer accountable for public funds is ac9uitted, the private individual allegedl% in conspirac% *ith him ma% be held liable for estafa. Misappropriation of firearms received b% a policeman is estafa, if it is not involved in the commission of a crime1 it is malversation, if it is involved in the commission of a crime.

@;;/N>/ Dualified .heft (RPC - #(

P/NAB.C ne<t higher b% t*o degrees than theft . Reclusion Perpetua

/stafa (RPC - &(

.E/;. (RPC -#!( F . e <ceeds $$,### F PM ma< G %ear for each additional #,### pesos1 but total shall not e<ceed $# %ears H $ G '6" H MAI $# C/AR> $. m ore than $,### but does not e<ceed $$,### F PM min and med -. e<ceeds $$,### F PM ma< G %ear for each additional #,### pesos1 but total shall not e<ceed $# %ears H $ G '6" H MAI $# C/AR>

Art. -#!. Penalties. A An% person guilt% of theft shall be punished b%0 1 #he penalty of prision mayor in its minimum and medium periods, if the value of the thing stolen is more than 14,((( pesos but does not e5ceed 44,((( pesos, but if the value of the thing stolen e5ceeds the latter amount the penalty shall be the ma5imum period of the one prescribed in this paragraph, and one year for each additional ten thousand pesos, but the total of the penalty 6hich may be imposed shall not e5ceed t6enty years $n such cases, and in connection 6ith the accessory penalties 6hich may be imposed and for the purpose of the other provisions of this %ode, the penalty shall be termed prision mayor or reclusion temporal, as the case may be chanrobles virtual la6 library 4 #he penalty of prision correccional in its medium and ma5imum periods, if the value of the thing stolen is more than 7,((( pesos but does not e5ceed 14,((( pesos chanrobles virtual la6 library 3 #he penalty of prision correccional in its minimum and medium periods, if the value of the property stolen is more than 4(( pesos but does not e5ceed 7,((( pesos chanrobles virtual la6 library

8 !rresto mayor in its medium period to prision correccional in its minimum period, if the value of the property stolen is over 5( pesos but does not e5ceed 4(( pesos chanrobles virtual la6 library 5 !rresto mayor to its full e5tent, if such value is over 5 pesos but does not e5ceed 5( pesos chanrobles virtual la6 library 7 !rresto mayor in its minimum and medium periods, if such value does not e5ceed 5 pesos chanrobles virtual la6 library 9 !rresto menor or a fine not e5ceeding 4(( pesos, if the theft is committed under the circumstances enumerated in paragraph 3 of the ne5t preceding article and the value of the thing stolen does not e5ceed 5 pesos $f such value e5ceeds said amount, the provision of any of the five preceding subdivisions shall be made applicable chanrobles virtual la6 library : !rresto menor in its minimum period or a fine not e5ceeding 5( pesos, 6hen the value of the thing stolen is not over 5 pesos, and the offender shall have acted under the impulse of hunger, poverty, or the difficulty of earning a livelihood for the support of himself or his family chanrobles virtual la6 library Art. - #. Qualified theft. A .he crime of theft shall be punished b% the penalties ne<t higher b% t*o degrees than those respectivel% specified in the ne<t preceding article, if committed b% a domestic servant, or *ith grave abuse of confidence, or if the propert% stolen is motor vehicle, mail matter or large cattle or consists of coconuts ta3en from the premises of the plantation or fish ta3en from a fishpond or fisher%, or if propert% is ta3en on the occasion of fire, earth9ua3e, t%phoon, volcanic erruption, or an% other calamit%, vehicular accident or civil disturbance. (As amended b% R.A. $# and ,.P. ,lg. J . Ma% , !'#(.