Indict her

Josie offered her services to BRC Realty as the latter’s real estate agent in buying parcels of land in Laguna which are to be developed into a golf course. She told BRC Realty that more or less ten lot owners are her clients who were willing to sell their properties. Convinced of her representations, BRC Realty released P23 million in her favor to be used in buying those parcels of land. Josie, instead of buying those parcels of land, converted and misappropriated the money given by BRC Realty to her personal use and benefit. BRC Realty sent a formal demand for Josie to return the amount of P23 million to no avail despite her receipt of the said demand.

BRC Realty filed a complaint for the crime of estafa against Josie before the Prosecutor’s Office.

During the preliminary investigation before the Prosecutor’s Office, Josie, while admitting that she acted as a real estate agent for BRC Realty, denied having converted or misappropriated the involved amount of money. She claimed the following:

(a) the said amount was used solely for the intended purpose, (b) it was BRC Realty that requested her services in procuring the lots, (c) it was upon BRC Realty’s prodding that she was constrained to contact her friends who were also into the real estate business, including one named Mat, (d) prior to the venture, Mat submitted to her copies of certificates of title and related documents covering the properties being offered for sale, (e) that after validating and confirming the prices as well as the terms and conditions attendant to the projected sale, BRC Realty instructed her to proceed with the release of the funds. It was BRC Realty that failed to pay the landowners of their remaining unpaid balances. Meanwhile, Josie received information that her sub-broker Mat had been depositing the involved money entrusted to him under his personal account. In fact, BRC Realty authorized Josie to institute, proceed, pursue and continue with whatever criminal or civil action against Mat, or such person to whom she may have delivered or entrusted the money she had received in trust from the firm, for the purpose of recovering such money. Josie filed a complaint for the crime of estafa against Mat. Mat was indicted for estafa. She therefore concluded that she thus cannot be held liable for estafa.

Q: What is the purpose of a preliminary investigation?

A: A preliminary investigation constitutes a realistic judicial appraisal of the merits of a case. Its purpose is to determine whether (a) a crime has been committed; and (b) whether there is a probable cause to believe that the accused is guilty thereof. The public prosecutor merely determines whether there is probable cause or sufficient ground to engender a well-founded belief that a crime has been committed, and that the respondent is probably guilty thereof and should be held for trial. A preliminary investigation does not require a full and exhaustive presentation of the parties’ evidence. Precisely, there is a trial to allow the reception of evidence for both parties to substantiate their respective claims.

Q: What are the elements of the crime of estafa under Art. 315 (1) (b) that must be established in order to indict one for the said crime?

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 demand made by the offended party on the offender.

Q: What do the words “convert” and “misappropriate” connote?

A: They connote an 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.

Q: Is there probable cause to indict Josie for the crime of estafa under Art. 315 (1) (b)?

A: Yes. Josie did not dispute that she received in trust the amount of P23 million from BRC Realty as proven by the checks and vouchers to be used in purchasing the parcels of land. BRC Realty wrote a demand letter for Josie to return the same amount but was not heeded. Hence, the failure of Josie to deliver the titles or to return the entrusted money, despite demand and the duty to do so, constituted prima facie evidence of misappropriation. 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 proceeds of the sale or to return the items to be sold and fails to give an account of their whereabouts. Thus, the mere presumption of misappropriation or conversion is enough to conclude that a probable cause exists for the indictment of Josie for estafa. As to whether the presumption can be rebutted by Josie is already a matter of defense that can be best presented or offered during a fullblown trial.

Source: Burgundy Realty Corporation vs. Reyes, G.R. No. 181021,December 10, 2012

Ma. Soledad Deriquito-mawis is Dean, Lyceum of the Philippines University; Board of Trustee for Philippine Association of Law Schools; and founder of Mawis Law Office