J.A.B. Bulao & Associates

CASE 2016-0069: RICARDO DEL POSO y DELA CERNA,  V. PEOPLE OF THE PHILIPPINES (G.R. No. 210810, 7 DECEMBER 2016,  PERALTA, J.) (R.A. 7610; CHILD ABUSE; WHO ARE CHILDREN; WHEN QUESTIONS OF FACT CAN BE RAISED UNDER RULE 45; QUESTION OF FACT VIS A VIS QUESTION OF LAW; WHEN MITIGATING CIRCUMSTANCES OF LACK OF MOTIVE AND PASSION/OBFUSCATION APPLIES) (BRIEF TITLE: DEL POSO VS PEOPLE)

DISPOSITIVE:

“WHEREFORE, the Petition for Review on Certiorari under Rule 45 dated January 28, 2014 of Ricardo Del Poso y Dela Cerna is DENIED for lack merit and the Decision dated July 22, 2013, dismissing petitioner’s appeal and affirming the Decision dated July 1, 2011 of the Regional Trial Court, Branch 38, Manila in Criminal Case No. 05-239429, convicting petitioner of violation of Section 10 (a) of R.A No. 7610 and imposing upon petitioner the indeterminate penalty of imprisonment of four ( 4) years, nine (9) months and eleven (11) days of prision correccional, as minimum, to six (6) years, eight (8) months and one (1) day of prision mayor, as maximum, is AFFIRMED.

SO ORDERED.”

SUBJECTS/DOCTRINES/DIGEST:

MAY QUESTIONS OF FACT BE RAISED UNDER RULE 45?

AS AN EXCEPTION TO THE RULE, QUESTIONS OF FACT MAY BE RAISED IN A RULE 45 PETITION IF ANY OF THE FOLLOWING IS PRESENT:

(1) WHEN THERE IS GRAVE ABUSE OF DISCRETION;

(2) WHEN THE FINDINGS ARE GROUNDED ON SPECULATIONS;

(3) WHEN THE INFERENCE MADE IS MANIFESTLY MISTAKEN;

( 4) WHEN THE JUDGMENT OF THE COURT OF APPEALS IS BASED ON A MISAPPREHENSION OF FACTS;

(5) WHEN THE FACTUAL FINDINGS ARE CONFLICTING;

 (6) WHEN THE COURT OF APPEALS WENT BEYOND THE ISSUES OF THE CASE AND ITS FINDINGS ARE CONTRARY TO THE ADMISSIONS OF THE PARTIES;

(7) WHEN THE COURT OF APPEALS OVERLOOKED UNDISPUTED FACTS WHICH, IF PROPERLY CONSIDERED, WOULD JUSTIFY A DIFFERENT CONCLUSION;

(8) WHEN THE FINDINGS OF THE COURT OF APPEALS ARE CONTRARY TO THOSE OF THE TRIAL COURT;

(9) WHEN THE FACTS SET FORTH BY THE PETITIONER ARE NOT DISPUTED BY THE RESPONDENT; AND

(10) WHEN THE FINDINGS OF THE COURT OF APPEALS ARE PREMISED ON THE ABSENCE OF EVIDENCE AND ARE CONTRADICTED BY THE EVIDENCE ON RECORD. 8

WHEN DOES QUESTION OF FACT EXIST?

A QUESTION OF FACT EXISTS “WHEN THE DOUBT OR DIFFERENCE ARISES AS TO THE TRUTH OR THE FALSEHOOD OF ALLEGED FACTS.

WHEN DOES QUESTION OF LAW EXISTS?

ON THE OTHER HAND, A QUESTION OF LAW EXISTS “WHEN THE DOUBT OR DIFFERENCE ARISES AS TO WHAT THE LAW IS ON A CERTAIN STATE OF FACTS.”

WHAT IS CHILD ABUSE?

SECTION 3 OF THE SAME LAW DEFINES CHILD ABUSE AS

3 (B) “CHILD ABUSE” REFERS TO THE MALTREATMENT, WHETHER HABITUAL OR NOT, OF THE CHILD WHICH INCLUDES ANY OF THE FOLLOWING:

(1) PSYCHOLOGICAL AND PHYSICAL ABUSE, NEGLECT, CRUELTY, SEXUAL ABUSE AND EMOTIONAL MALTREATMENT;

(2) ANY ACT BY DEEDS OR WORDS WHICH DEBASES, DEGRADES OR DEMEANS THE INTRINSIC WORTH AND DIGNITY OF A CHILD AS A HUMAN BEING.

DEFINE CHILDREN?

THE SUBJECT STATUTE DEFINES CHILDREN AS PERSONS BELOW EIGHTEEN (18) YEARS OF AGE; OR THOSE OVER THAT AGE BUT ARE UNABLE TO FULLY TAKE CARE OF THEMSELVES OR PROTECT THEMSELVES FROM ABUSE, NEGLECT, CRUELTY, EXPLOITATION OR DISCRIMINATION BECAUSE OF A PHYSICAL OR MENTAL DISABILITY OR CONDITION.13

PETITIONER CONTENDS THAT THE COURT A QUO FAILED TO APPRECIATE THE MITIGATING CIRCUMSTANCE OF LACK OF INTENTION TO COMMIT SO GRAVE A WRONG. IS HE CORRECT?

NO.

SUCH MITIGATING CIRCUMSTANCE CAN BE TAKEN INTO ACCOUNT ONLY WHEN THE FACTS PROVEN SHOW THAT THERE IS A NOTABLE AND EVIDENT DISPROPORTION BETWEEN THE MEANS EMPLOYED TO EXECUTE THE CRIMINAL ACT AND ITS CONSEQUENCES.

CAN THE MITIGATING CIRCUMSTANCE OF PASSION OR OBFUSCATION APPLY?

NO.

THE MITIGATING CIRCUMSTANCE OF PASSION OR OBFUSCATION ONLY APPLIES IF THE ACT OF THE VICTIM IS BOTH UNLAWFUL AND SUFFICIENT TO PRODUCE SUCH CONDITION OF MIND.

A CHILD WHO FELL ASLEEP WHILE ATTENDING TO A BUSINESS ESTABLISHMENT :S NOT AN OFFENSE AT ALL AND COULD NOT GIVE RISE TO AN IMPULSE SUFFICIENT AND POWERFUL TO NATURALLY PRODUCE A JUSTIFIED DIMINUTION OF AN ADULT’S SELFCONTROL. IN THIS CASE PETITIONER BURNT THE CHILD WITH HOT IRON.

TO BE ENTITLED TO THE MITIGATING CIRCUMSTANCE [OF PASSION AND/OR OBFUSCATION THE FOLLOWING ELEMENTS MUST BE PRESENT: (1) THERE SHOULD BE AN ACT BOTH UNLAWFUL AND SUFFICIENT TO PRODUCE SUCH CONDITION OF MIND; (2) THE ACT THAT PRODUCED THE OBFUSCATION WAS NOT FAR REMOVED FROM THE COMMISSION OF THE CRIME BY A CONSIDERABLE LENGTH OF TIME, DURING WHICH THE PERPETRATOR MIGHT RECOVER HIS NORMAL EQUANIMITY.

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scd-2016-0091-ricardo-del-poso-y-dela-cerna-vs-people-of-the-philippines

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CASE 2016-0068: NATIONAL POWER CORPORATION  VERSUS SPOUSES CONCHITA MALAPASCUA-MALIJAN and LAZARO MALIJAN,  (G.R. No. 211731, 7 DECEMBER 2016,  PERALTA, J.); CONCHITA MALAPASCUA-MALIJAN and HEIRS OF LAZARO MALIJAN VERSUS NATIONAL POWER CORPORATION (G.R. No. 211818, 7 DECEMBER 2016,  PERALTA, J.) (SUBJECTS: EXPROPRIATION; JUST COMPENSATION; LEGAL RATE OF INTEREST; ATTORNEY’S FEES; EXEMPLARY DAMAGES (BRIEF TITLE: NPC VS. SPOUSES MALIJAN ET AL)

DISPOSITIVE:

“WHEREFORE, the Petition for Review on Certiorari under Rule 45 of the Rules of Court dated May 11, 2014 of Conchita Malapascua-Malij an and Heirs of Lazaro Malijan in G.R. No. 211818 is DENIED for lack of merit, while the Petition for Review on Certiorari under Rule 45 dated April 21, 2014 of the National Power Corporation is GRANTED. Consequently, the Decision dated June 13, 2012 of the Court of Appeals and its subsequent Resolution dated March 12, 2014, reversing the Decision dated February 22, 2008 of the Regional Trial Court, Branch 6, Tanauan City, Batangas, are AFFIRMED with the modification that the award of exemplary damages and attorney’s fees is DELETED.

 SO ORDERED.”

SUBJECTS/DOCTRINES/DIGEST:

ON LEGAL RATE OF INTEREST

“Recently, the BSP Monetary Board (ESP-MB), in its Resolution No. 796 dated May 16, 2013, approved the amendment of Section 2 of Circular No. 905, Series of 1982, and accordingly, issued Circular No. 799, Series of2013, effective July 1, 2013, the pertinent portion of which reads:

The Monetary Board, in its Resolution No. 796 dated 16 May 2013, approved the following revisions governing the rate of interest in the absence of stipulation in loan contracts, thereby amending Section 2 of Circular No. 905, Series of 1982:

Section 1. The rate of interest for the loan or forbearance of any money, goods or credits and the rate allowed in judgments, in the absence of an express contract as to such rate of interest, shall be six percent (6%) per annum.

Section 2. In view of the above, Subsection X305.1 of the Manual of Regulations for Banks and Sections 4305Q.1, 4305S.3 and 4303P.1 of the Manual of Regulations for Non-Bank Financial Institutions are hereby amended accordingly.

This Circular shall take effect on 01 July 2013.

Accordingly, the prevailing interest rate for loans and forbearance of money is six percent (6%) per annum, in the absence of an express contract as to such rate of interest.”

XXXXX

ON EXEMPLARY DAMAGES

“Under Article 2229 of the Civil Code, “[ e ]xemplary or corrective damages are imposed, by way of example or correction for the public good, in addition to the moral, temperate, liquidated or compensatory damages.” As this court has stated in the past: “Exemplary damages are designed by our civil law to permit the courts to reshape behaviour that is socially deleterious in its consequence by creating negative incentives or deterrents against such behaviour.””

XXXXX

ON ATTORNEY’S FEES

The award of attorney’s fees is also unwarranted because of the lack of factual and legal justification. An award of attorney’s fees has always been the exception rather than the rule. To start with, attorney’s fees are not awarded every time a party prevails in a suit.37 Nor should an adverse decision ipso facto justify an award of attorney’s fees to the winning party.38 The policy of the Court is that no premium should be placed on the right to litigate.39 Too, such fees, as part of damages, are assessed only in the instances specified in Article 220840 of the Civil Code. Indeed, attorney’s fees are in the nature of actual damages.41 But even when a claimant is compelled to litigate with third persons or to incur expenses to protect his rights, attorney’s fees may still be withheld where no sufficient showing of bad faith could be reflected in a party’s persistence in a suit other than an erroneous conviction of the righteousness of his cause.42 And lastly, the trial court must make express findings of fact and law that would bring the suit within the exception. What this demands is that the factual, legal or equitable justifications for the award must be set forth not only in the fallo but also in the text of the decision, or else, the award should be thrown out for being speculative and conjectural.”

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 scd-2016-0090-national-power-corp-vs-sps-conchita-malapascua-malijan-and-lazaro-malijan-conchita-malapascua-malijan-and-lazaro-malijan-vs-national-power-co

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CASE 2016-0089: JOSE RIZAL L. REMO, REYNALDO G. PANALIGAN, TITA L. MATULIN, ISAGANI CASALME, CIPRIANO P. ROXAS, CESARIO S. GUTIERREZ, CELSO A. LANDICHO and EDUARDO L. TAGLE VERSUS  THE HONORABLE SECRETARY OF JUSTICE AGNES VST DEVANADERA,HONORABLE JUDGE DANILO SANDOVAL, HONORABLE CITY PROSECUTOR CARLOS BALLELOS, BATANGAS II ELECTRIC COOPERATIVE, INC., RUPERTO H. MANALO, NATIONAL ELECTRIFICATION ADMINISTRATION, LOURDES CRUZ, VIRGINIA BORJA, EDGAR DE GUZMAN AND RODULFO CANLAS (G.R. NO.  192925, 09 DEC 2016, PEREZ, J.) (SUBJECTS: SIMPLE ESTAFA; SYNDICATED ESTAFA; MEANING OF SYNDICATE; MEANING OF MISAPPROPRIATION AND CONVERSION, MEANING OF JURIDICAL POSSESSION) (BRIEF TITLE: REMO ET AL VS. HON. SECR OF JUSTICE ET AL.)

DISPOSITIVE:

“WHEREFORE, premises considered, the petition is hereby GRANTED. We hereby render a decision as follows:

1. REVERSING and SETTING ASIDE the decision dated 18 February 2010 and resolution dated 16 July 2010 of the Court of Appeals (CA) in CA-G.R. SP No.  110838;
2. SETTING ASIDE the resolution dated 28 July 2009 of the Secretary ·of the   Department of Justice in LS. Nos. 07-0552 to 0553 and DIRECTING the Secretary of Justice to issue a resolution dismissing the criminal complaint docketed as LS. Nos. 07-0552 to 0553 before the Office of City Prosecutor of Lipa City for lack of probable cause and lack of merit;
3. DIRECTING the incumbent Secretary of the Department of Justice to file motion to dismiss the informations in Criminal Case Nos. 0503-2007 and 0504-2007 with the Regional Trial Court of Lipa City, Branch 12, and to ask for the LIFTING of the warrants of arrest issued against petitioners pursuant to the 7 October 2009 Order of the said RTC of Lipa City.

Let a copy of this Decision be served to the Regional Trial Court, Branch 12, of Lipa City for its consideration.

SO ORDERED.”

SUBJECTS/DOCTRINES/DIGEST:

WHAT IS THE COURT’S CONCLUSION?

“We hold that the CA erred when it found that the DOJ Secretary did not commit grave abuse of discretion in issuing 28 July 2009 resolution in I.S. Nos. 07-0552. In view of the absolute dearth of evidence supporting the finding of probable cause against petitioners, we indeed find that the said resolution had been the product of such abuse of discretion. Consequently, we must set aside the decision of the CA and direct the incumbent Secretary of Justice to withdraw the informations filed against petitioners pursuant to the 28 July 2009 resolution.

The warrants of arrest issued against petitioners in Criminal Case Nos. 0503-2007 and 0504-2007 must too be lifted, as a necessary consequence of the invalidity of the indictment against them.”

WHO COMMITS ESTAFA?

ANY PERSON WHO CAUSES PECUNIARY DAMAGE UPON ANOTHER THROUGH ANY OF THE ACTS OF ABUSE OF CONFIDENCE OR OF DECEIT, AS ENUMERATED IN ARTICLE 315 OF THE RPC.

STATE ONE SUCH ACTS OF ABUSE OF CONFIDENCE SPECIFIED IN ARTICLE 315( 1 )(B) OF THE RPC.

“(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 SUEH MONEY, GOODS, OR OTHER PROPERTY.”

WHAT ARE THE ELEMENTS OF SUCH ESTAFA UNDER PAR. B?

1. THAT MONEY, GOODS OR OTHER PERSONAL PROPERTY IS 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 A DEMAND MADE BY THE OFFENDED PARTY ON THE OFFENDER.

WHAT IS THE LEGAL BASIS OF SYNDICATED ESTAFA?

SECTION 1 OF PD NO. 1689.

THE SAID SECTION READS:

SECTION 1. ANY PERSON OR PERSONS WHO SHALL COMMIT ESTAFA OR OTHER FORMS OF SWINDLING AS DEFINED IN ARTICLE 315 AND 316 OF THE REVISED PENAL CODE, AS AMENDED, SHALL BE PUNISHED BY LIFE IMPRISONMENT TO DEATH IF THE SWINDLING (ESTAFA) IS COMMITTED BY A SYNDICATE CONSISTING OF FIVE OR MORE PERSONS FORMED WITH THE INTENTION OF CARRYING OUT THE UNLAWFUL OR ILLEGAL ACT, TRANSACTION, ENTERPRISE OR SCHEME, AND THE DEFRAUDATION RESULTS IN THE MISAPPROPRIATION OF MONEYS CONTRIBUTED BY STOCKHOLDERS, OR MEMBERS OF RURAL BANKS, COOPERATIVE, “SAMAHANG NAYON(S)”, OR FARMERS’ ASSOCIATIONS, OR OF FUNDS SOLICITED BY CORPORATIONS/ASSOCIATIONS FROM THE GENERAL PUBLIC. WHEN NOT COMMITTED BY A SYNDICATE AS ABOVE DEFINED, THE PENALTY IMPOSABLE SHALL BE.RECLUSION TEMPORAL TO RECLUSION PERPETUA IF THE AMOUNT OF THE FRAUD EXCEEDS 100,000 PESOS.

IN ESSENCE WHAT IS SYNDICATED ESTAFA?

IT IS THE  COMMISSION OF ANY KIND OF ESTAFA UNDER ARTICLE 315 OF THE RPC (OR OTHER FORMS OF SWINDLING UNDER ARTICLE 316) WITH TWO (2) ADDITIONAL CONDITIONS:

ONE, THE ESTAFA OR SWINDLING WAS PERPETRATED BY A “SYNDICATE” AND

TWO, THE ESTAFA OR SWINDLING RESULTED IN THE “MISAPPROPRIATION OF MONEY CONTRIBUTED BY STOCKHOLDERS, OR MEMBERS OF RURAL BANKS, COOPERATIVE, SAMAHANG NAYON(S), OR FARMERS ASSOCIATION, OR OF FUNDS SOLICITED BY CORPORATIONS/ASSOCIATIONS FROM THE GENERAL PUBLIC.

WHAT IS THE REASON WHY THERE IS NO PROBABLE CAUSE IN THIS CASE FOR SYNDICATED ESTAFA?

 BECAUSE PETITIONERS, UNDER THE CIRCUMSTANCES, CANNOT BE CONSIDERED AS A “SYNDICATE” UNDER PD NO. 1689.

WHY?

 AS STATED IN THE FOREGOING DISCUSSION, IN ORDER TO COMMIT THE CRIME OF SYNDICATED ESTAFA, THE ESTAFA MUST BE COMMITTED BY A “SYNDICATE” AS CONTEMPLATED BY THE LAW.

PETITIONERS DO NOT CONSTITUTE A SYNDICATE.

WHAT DOES THE TERM SYNDICATE MEAN?

IN PD NO. 1689, THE TERM SYNDICATE IS DESCRIBED AS:

“CONSISTING OF FIVE OR MORE PERSONS FORMED WITH THE INTENTION OF CARRYING OUT THE UNLAWFUL OR ILLEGAL ACT, TRANSACTION, ENTERPRISE OR SCHEME X X X.”

DOES THIS MEAN THAT FIVE CONSPIRING PERSONS WHO DEFRAUD ANY STOCKHOLDER OR MEMBER OF THE CORPORATION OR ASSOCIATION COMMITS SYNDICATED ESTAFA?

NO.

THEY CANNOT AUTOMATICALLY BE CONSIDERED SYNDICATE.

ACCORDING TO JURISPRUDENCE, THE FIVE OR MORE PERSONS  MUST USE THE ASSOCIATION THAT THEY FORMED OR MANAGED TO DEFRAUD ITS OWN STOCKHOLDERS, MEMBERS OR DEPOSITORS. THIS WAS THE RULING IN GALVEZ  VS. CA.

WHAT HAPPENED IN THE GALVEZ CASE?

IN GALVEZ, A CRIMINAL COMPLAINT FOR SYNDICATED ESTAFA WAS FILED AGAINST FIVE INDIVIDUALS WHO WERE THE INTERLOCKING DIRECTORS OF TWO CORPORATIONS THAT PURPORTEDLY DEFRAUDED A COMMERCIAL BANK. ACTING ON SUCH COMPLAINT, THE CITY PROSECUTOR ISSUED A RESOLUTION FINDING PROBABLE CAUSE TO INDICT THE DIRECTORS FOR SIMPLE ESTAFA UNDER ARTICLE 3 L 5(2)(A) OF THE RPC, BUT NOT FOR SYNDICATED ESTAFA. THIS RESOLUTION WAS SUBSEQUENTLY REVERSED BY THE DOJ SECRETARY UPON REVIEW, BUT WAS ULTIMATELY SUSTAINED BY THE CA ON CERTIORARI. IN ITS APPEAL TO THIS COURT, THE COMMERCIAL BANK RAISED THE QUESTION OF WHETHER THE CITY PROSECUTOR WAS CORRECT IN NOT CHARGING THE DIRECTORS WITH SYNDICATED ESTAFA.

GALVEZ RESOLVED THE QUESTION IN THE AFFIRMATIVE. CITING THE TEXT OF SECTION I OF PD NO. 1689 AS WELL AS PREVIOUS CASES THAT APPLIED THE SAID LAW, GALVEZ DECLARED THAT IN ORDER TO BE CONSIDERED AS A SYNDICATE UNDER PD NO. 1689, THE PERPETRATORS OF AN ESTAFA MUST NOT ONLY BE COMPRISED OF AT LEAST FIVE INDIVIDUALS BUT MUST HAVE ALSO USED THE ASSOCIATION THAT THEY FORMED OR MANAGED TO DEFRAUD ITS OWN STOCKHOLDERS, MEMBERS OR DEPOSITORS.

GALVEZ HELD THAT SINCE  THE DIRECTORS THEREIN WERE “OUTSIDERS” OR WERE NOT AFFILIATED IN ANY WAY WITH THE COMMERCIAL BANK WHOSE FUNDS THEY ALLEGEDLY MISAPPROPRIATED, THEY CANNOT BE CHARGED WITH SYNDICATED ESTAFA BUT ONLY OF SIMPLE ESTAFA UPDER ARTICLE 315(2)(A) OF THE RPC.

WHAT IS NOW THE STANDARDS BY WHICH A GROUP OF PURPORTED SWINDLERS MAY BE CONSIDERED AS A SYNDICATE UNDER PD NO. 1689?

 1. THEY MUST BE AT LEAST FIVE (5) IN NUMBER;54

 2.THEY MUST HAVE FORMED OR MANAGED55 A RURAL BANK, COOPERATIVE, “SAMAHANG NAYON,” FARMER’S ASSOCIATION OR ANY OTHER CORPORATION OR ASSOCIATION THAT SOLICITS FUNDS FROM THE GENERAL PUBLIC.56

3. THEY FORMED OR MANAGED SUCH ASSOCIATION WITH THE INTENTION OF CARRYING OUT AN UNLAWFUL OR ILLEGAL ACT, TRANSACTION, ENTERPRISE OR SCHEME57 I.E., THEY USED THE VERY ASSOCIATION THAT THEY FORMED OR MANAGED · AS THE MEANS TO DEFRAUD ITS OWN STOCKHOLDERS, MEMBERS AND DEPOSITORS.58

IN THIS INSTANT CASE ARE THE PETITIONERS A SYNDICATE?

NO.

THEY DID NOT USE BATELEC II AS A MEANS TO DEFRAUD ITS MEMBERS OF THEIR CONTRIBUTIONS.

THERE IS NO DOUBT THAT PETITIONERS MET THE FIRST AND SECOND STANDARDS UNDER GALVEZ: PETITIONERS ARE MORE THAN FIVE (5) IN NUMBER AND THEY, AS ITS DIRECTORS, HAD MANAGEMENT OF BATELEC II-AN ELECTRIC COOPERATIVE. WHAT IS LACKING ON THE PART OF THE PETITIONERS IS THE THIRD STANDARD. PETITIONERS DO NOT CONSTITUTE A SYNDICATE UNDER PD NO. 1689, AS THEY NEVER USED BATELEC II AS A MEANS TO DEFRAUD ITS MEMBERS.

TO SATISFY THE THIRD STANDARD UNDER GALVEZ, IT MUST BE ESTABLISHED THAT THE PURPORTED SWINDLERS USED THE VERY ASSOCIATION THEY FORMED OR MANAGED TO DEFRAUD ITS MEMBERS. SINCE THE ASSOCIATION CONTEMPLATED BY PD NO. 1689 MUST BE ONE THAT “SOLICIT[S] FUND FROM THE GENERAL PUBLIC,” IT FOLLOWS THAT THE FRAUD COMMITTED THROUGH SUCH ASSOCIATION MUST PERTAIN TO ITS RECEIPT OF CONTRIBUTION OR SOLICITATION FROM ITS STOCKHOLDERS, MEMBERS OR THE PUBLIC. SUCH KIND OF FRAUD IS EVIDENTLY MISSING BECAUSE THE CONTRIBUTIONS OF THE MEMBERS OF BATELEC II WERE PAID TO THE LATTER NOT OUT OF ANY FRAUDULENT ACT, TRANSACTION OR SCHEME BUT AS PAYMENTS FOR THE ELECTRICITY BEING SUPPLIED BY THE COOPERATIVE.

BUT PETITIONERS MIS-USED SUCH CONTRIBUTIONS. IS THIS NOT ESTAFA?

ANY ALLEGED MISUSE OF SUCH CONTRIBUTIONS COMMITTED BY PETITIONERS WOULD MERELY BE AN ACT OF MISMANAGEMENT COMMITTED AGAINST IT.

WAS THERE SIMPLE ESTAFA?

NO, BECAUSE THE FIRST TWO ELEMENTS OF ESTAFA ARE NOT PRESENT.

THE FIRST ELEMENT OF ESTAFA UNDER ARTICLE 315( 1 )(B) OF THE RPC IS THAT THE OFFENDERS MUST HAVE RECEIVED MONEY, GOODS OR OTHER PERSONAL PROPERTY

• IN TRUST (B) ON COMMISSION ( C) FOR ADMINISTRATION OR (D) UNDER ANY OBLIGATION INVOLVING THE DUTY TO MAKE DELIVERY OF, OR TO RETURN THE SAME.

THIS ELEMENT IS ABSENT IN THIS CASE SINCE PETITIONERS DID NOT RECEIVE ANY OF THE FUNDS OF BA TELEC II AS SUCH.

BUT THE PETITIONERS AS DIRECTORS OF BA TELEC II MAY BE VESTED WITH CONTROL OVER HOW THE COOPERATIVE SPENDS ITS FUND.

SUCH CONTROL CANNOT BE CONSIDERED AS RECEIPT AND POSSESSION OF SUCH FUNDS UNDER ARTICLE 315(1 )(B) OF THE RPC.

BUT DID THEY NOT HAVE JURIDICAL POSSESSION OF SUCH FUND?

 JURIDICAL POSSESSION IS THE TYPE OF POSSESSION THAT IS ACQUIRED BY THE TRANSFEREE OF A THING WHEN HE RECEIVES THE SAME UNDER THE CIRCUMSTANCES MENTIONED IN ARTICLE 315( 1 )(B) OF THE RPC.

NOTE THE PHRASE “HE RECEIVES THE SAME”. THIS MEANS THAT  HE MUST  RECEIVE THE FUND.

WHEN JURIDICAL POSSESSION IS ACQUIRED, THE TRANSFEREE OBTAINS SUCH RIGHT OVER THE THING THAT HE CAN SET UP EVEN AGAINST ITS OWNER.63 THIS IS WHAT PETITIONERS LACK.

THEY SIMPLY DO NOT HAVE ANY RIGHT OVER SUCH FUNDS THAT THEY CAN SET UP AGAINST BATELEC II.

 ASSUMING THAT THE FIRST ELEMENT OF ESTAFA UNDER ARTICLE 315(1 )(B) OF THE RPC IS PRESENT IN THIS CASE, WILL THERE BE NOW A FINDING OF PROBABLE CAUSE?

NO.

A FINDING OF PROBABLE CAUSE AGAINST PETITIONERS IS STILL BOUND TO COLLAPSE.

THIS IS SO BECAUSE THE SECOND ELEMENT OF ESTAFA UNDER THE SAID ARTICLE IS ALSO NON-EXISTENT.

THE SECOND ELEMENT OF ESTAFA UNDER ARTICLE 315(1)(B) OF THE RPC REQUIRES THAT THERE MUST BE MISAPPROPRIATION OR CONVERSION OF THE MONEY OR PROPERTY RECEIVED BY THE OFFENDER OR A DENIAL ON HIS PART OF SUCH RECEIPT.

IN THIS CASE THERE WAS NO MISAPPROPRIATION OF MONEY OR PROPERTY BY THE PETITIONERS.

WHAT DOES MISAPPROPRIATION OR CONVERSION OF MONEY OR PROPERTY MEAN?

THE TERMS MISAPPROPRIATION OR CONVERSION, IN THE CONTEXT OF THE ARTICLE ON POINT, CONNOTES “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.”64

THIS ELEMENT WAS NOT ESTABLISHED IN THIS CASE.

BUT THE PETITIONERS APPROVED ANOMALOUS CONTRACTS. IS THIS NOT PROOF THAT THEY MISAPPROPRIATED THE MONEYS OF THE COOPERATIVE?

NO.

IN APPROVING THE ITI AND SUPERTRAC CONTRACTS, THE PETITIONERS MERELY EXERCISED THEIR PREROGATIVE-AS DIRECTORS OF THE COOPERATIVE-TO ENTER INTO CONTRACTS THAT THEY DEEM TO BE BENEFICIAL FOR BATELEC II. 65

THOUGH THE PETITIONERS MAY HAVE COMMITTED CERTAIN LAPSES, ERRORS IN JUDGMENT OR EVEN VIOLATIONS OF NEA GUIDELINES IN MAKING SUCH APPROVAL, THESE DO NOT HAVE THE EFFECT OF RENDERING THE CONTRACTS WITH ITI AND SUPERTRAC ILLEGAL OR VOID AB INITIO.

HENCE, FROM A STRICTLY LEGAL PERSPECTIVE, ANY PAYMENT MADE BY BA TELEC II PURSUANT TO SUCH CONTRACTS-BACKED AS THEY WERE BY THE PROPER BOARD APPROVALS66-CANNOT PER SE BE DEEMED A MISAPPROPRIATION OR CONVERSION OF THE COOPERATIVE’S FUNDS.

TO READ THE DECISION, JUST CLICK/DOWNLOAD THE FILE BELOW.

scd-2016-0089-jose-rizal-l-remo-et-al-vs-the-honorable-secretary-of-justice-agnes-vst-devenadera-et-al-g-r-no-192925-december-9-2016

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