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n that there is a relation between the accused and the offended party wherein th

e latter confided his security as to his person, life and property to the accuse
d withofsuch
Abuse confidence
degree ofisconfidence
determinedand fromthat
thethe
trust
accused
reposed
abused
by the
theoffended
same. party t
o the offender. It may also refer to the nature of the work of the offender whic
h mustofnecessarily
Abuse confidenceinvolve
is alsotrust
an element
and confidence.
of estafa. To avoid confusion between the
ft with abuse of confidence (qualified theft) and estafa with abuse of confidenc
e, where the offender misappropriates a thing after he receives it from the vict
im, the student must remember that in qualified theft, only the physical or mate
rial possession of the thing is transferred. If the offender acquires the juridi
cal as well as the physical possession of the thing and he misappropriates it, t
he crime committed is estafa. Juridical possession of the thing is acquired when
one holds the thing in trust, or on commission, or for administration or under
any other obligation involving the duty to deliver or to return the thing receiv
ed. If the possession of the offender is not under any of these concepts, the cr
ime
no
theft
Where
confidence,
isonly
qualified
material
the not
material
possession
theft.
qualified
possession
theft
estafais transferred,
juridical possession
conversion of the property gi
ves rise to the crime of theft. Where both the material and juridical possession
is transferred, misappropriation of the property would constitute estafa. When
the material and juridical possession of the thing transfers ownership of the pr
operty to the possessor, any misappropriation made by the possessor will not res
ult in the if
Qualified: commission
done by one
of any
whocrime,
has access
eithertoforplace
theft
where
of stolen
estafa.property is kept
industrial
when
e.g.,accused
novation
guards,
theory
partner
considered
tellers
applies
is notthe
only
liable
deed
if there
forsale
of QTs (estafa)
aasrelation
sham (modus) and he had intent to ga
in, hisvehicle
motor absconding
in kabit
is QTsystem sold to another-theft. Motor vehicle not used as
PU carnapping
On
Wheninthe
kabit
subject
system
andistheft
but
motor
under
ofvehicle,
motor
K ofvehicle
lease-estafa
the Theft becomes qualified. Under R.A. 6539
, Anti-Carnapping Act of 1972, the term motor vehicle includes, within its prote
ction, any vehicle which uses the streets, with or without the required license,
or any vehicle which is motorized using the streets, such as a motorized tricyc
le. taking
The (Izon with
vs. People,
intent to107gain
SCRAof123)
a motor vehicle belonging to another, without
the latter s consent, or by means of violence or intimidation of persons, or by us
ing force upon things is penalized as carnapping under Republic Act No. 6539 (An
Act Preventing and Penalizing Carnapping), as amended. The overt act which is
being punished under this law as carnapping is also the taking of a motor vehicl
e under circumstances of theft or robbery. If the motor vehicle was not taken b
y the offender but was delivered by the owner or the possessor to the offender,
who thereafter misappropriated the same, the crime is either qualified theft und
er Article 310 of the Revised Penal Code or estafa under Article 315 (b) of the
Revised Penal Code. Qualified theft of a motor vehicle is the crime if only the
material or physical possession was yielded to the offender; otherwise, if juri
dical
theft
THEFT
Article
USURPATION
OCCUPATION
Acts
1.
mailpunished:
possession
matter
ofTaking
OF 311
312
large
PROPERTY
OF REAL
private
possession
cattle
was
OFPROPERTY
also
THE
mail
NATIONAL
yielded,
ofto
ORany
be
USURPATION
real
QT,
LIBRARY
theNot
property
crime
postmaster
ANDis
OF REAL
NATIONAL
belonging
estafa.
RIGHTSMUSEUM
Art.
IN another
to PROPERTY
226 by means of
violenceUsurping
2. against any
or intimidation
real rights in of property
persons; belonging to another by means of vi
olence against orn that there is a relation between the accused and the offended
party wherein the latter confided his security as to his person, life and prope
rty to the accused with such degree of confidence and that the accused abused th
e same.of confidence is determined from the trust reposed by the offended party t
Abuse
o the offender. It may also refer to the nature of the work of the offender whic
h mustofnecessarily
Abuse confidenceinvolve
is alsotrust
an element
and confidence.
of estafa. To avoid confusion between the
ft with abuse of confidence (qualified theft) and estafa with abuse of confidenc
e, where the offender misappropriates a thing after he receives it from the vict
im, the student must remember that in qualified theft, only the physical or mate
rial possession of the thing is transferred. If the offender acquires the juridi
cal as well as the physical possession of the thing and he misappropriates it, t
he crime committed is estafa. Juridical possession of the thing is acquired when
one holds the thing in trust, or on commission, or for administration or under
any other obligation involving the duty to deliver or to return the thing receiv
ed. If the possession of the offender is not under any of these concepts, the cr
ime
no
theft
Where
confidence,
isonly
qualified
material
the not
material
possession
theft.
qualified
possession
estafa
theft is transferred,
juridical possession
conversion of the property gi
ves rise to the crime of theft. Where both the material and juridical possession
is transferred, misappropriation of the property would constitute estafa. When
the material and juridical possession of the thing transfers ownership of the pr
operty to the possessor, any misappropriation made by the possessor will not res
ult in the if
Qualified: commission
done by one
of any
whocrime,
has access
eithertoforplace
theft
where
of stolen
estafa.property is kept
novation
e.g.,
industrial
when accused
guards,
theory
partner
considered
tellers
applies
is not only
theliable
deed
if there
forsale
of QTs (estafa)
aasrelation
sham (modus) and he had intent to ga
in, hisvehicle
motor absconding
in kabit
is QTsystem sold to another-theft. Motor vehicle not used as
PU carnapping
On
Wheninthe
kabitsubject
system
andistheft
but
motor
under
ofvehicle,
motor
K ofvehicle
lease-estafa
the Theft becomes qualified. Under R.A. 6539
, Anti-Carnapping Act of 1972, the term motor vehicle includes, within its prote
ction, any vehicle which uses the streets, with or without the required license,
or any vehicle which is motorized using the streets, such as a motorized tricyc
le. taking
The (Izon with
vs. People,
intent to 107gain
SCRAof123)a motor vehicle belonging to another, without
the latter s consent, or by means of violence or intimidation of persons, or by us
ing force upon things is penalized as carnapping under Republic Act No. 6539 (An
Act Preventing and Penalizing Carnapping), as amended. The overt act which is
being punished under this law as carnapping is also the taking of a motor vehicl
e under circumstances of theft or robbery. If the motor vehicle was not taken b
y the offender but was delivered by the owner or the possessor to the offender,
who thereafter misappropriated the same, the crime is either qualified theft und
er Article 310 of the Revised Penal Code or estafa under Article 315 (b) of the
Revised Penal Code. Qualified theft of a motor vehicle is the crime if only the
material or physical possession was yielded to the offender; otherwise, if juri
dical
theft
THEFT
Article
USURPATION
OCCUPATION
Acts
1.
mailpunished:
possession
matter
ofTaking
OF 311
312
large
PROPERTY
OF REAL
private
possession
cattle
was
OFPROPERTY
also
THEmailNATIONAL
yielded,
ofto
ORany
be
USURPATION
real
QT,
LIBRARY
theNot
property
crime
postmaster
ANDis
OF REAL
NATIONAL
belonging
estafa.
RIGHTSMUSEUM
Art.
IN another
to PROPERTY
226 by means of
violenceUsurping
2. against any or intimidation
real rights in of property
persons; belonging to another by means of vi
olencetheagainst
That
ELEMENTS: offender or takes
intimidation
possessionof persons.
of any real property or usurps any real right
s in violence
That property.
the real against
propertyororintimidation
real rights of belong
persons
to another.
is used by the offender in occu
pyingthere
That
Since real is
this property
aintent
crimeortoagainst
usurpation
gain. property,
real rights
there must
in property.
be intent to gain. In the ab
sencetheofdegree
Use the intent
of intimidation
to gain, thetoact determine
may constitute
the degree
Coercion.
of the penalty to be appl
ied for theunder
Usurpation usurpation.
Article 312 is committed in the same way as robbery with violen
ce or intimidation of persons. The main difference is that in robbery, personal
property is involved; while in usurpation of real rights, it is real property.
The
(People
possession
v. Judge of the
Alfeche,
land orJulyreal23,rights
1992) must be done by means of violence or i
ntimidation. So, if the evidence of the prosecution shows that the accused enter
ed the premises by means of strategy, stealth or methods other than the employme
nt of violence, no crime was committed by the offender. (People vs. Alfeche, Jr.
,Usurpation
211 SCRA 770)of real rights and property should not be complexed using Article 48
when violence or intimidation is committed. There is only a single crime, but
a two-tiered penalty is prescribed to be determined on whether the acts of viole
nce used is akin to that in robbery in Article 294, grave threats or grave coerc
ion and an incremental penalty of fine based on the value of the gain obtained b
y the is
There offender.
no crime of threat and usurpation of real property since threat is an i
ndispensable element of usurpation of real rights. Hence, where threats are utte
red to the owner of real property by one illegally occupying it, the crime commi
tted is not the complex crime of usurpation of real property with grave threats
because making a threat is an inherent element of usurpation of real property. (
Castrodes
The complainant
vs. Cubelo,
must be83the SCRAperson
670) upon whom violence was employed. If a tenant
was occupying the property and he was threatened by the offender, but it was th
e owner who was not in possession of the property who was named as the offended
party, the same may be quashed as it does not charge an offense. The owner woul
d, squatting
On
According
1. at most,
Those
tobethewho
entitled
Urban
have the
Development
to capacity
civil recourse
and
or means
Housing
only.
toAct,
pay rent
the following
or for legitimate
are squatters:
housi
ng but areIntruders
2.
3. squatting
Also theofpersons
anyway;
lands reserved
who were forawarded
socialized
lots buthousing,
sold orpre-empting
lease them posses
out;
sion that
Note by occupying
violationtheofsame.Article 312 is punishable only with fine. So, if physical
injuries are inflicted on the victim due to the violence employed by the offend
er in the usurpation of real rights, the latter shall be punished separately for
Violence
the crimeemployed
of physical
resultsinjuries.
to the death of the offended party. When such eventual
ity does occur, then the crime may rightfully be denominated as usurpation of re
al rights resulting to homicide, murder, parricide, or infanticide as the case m
ay be.there
Article
ALTERING
That
ELEMENTS: 313
BOUNDARIES
be boundary OR marks
LANDMARKS or monuments of towns, provinces, or estates, or an
y other
CULPABLE
Article
FRAUDULENT
ELEMENTS
That
To bethere
the
heliable
marks
314
absconds
INSOLVENCY
offender
INSOLVENCY
be for
intended
prejudice
with
fraudulent
alters
is ahis
(culpable
totosaid
debtor;
designate
property.
his
insolvency,
boundary
that
creditors.
insolvency)
themarks.
is, boundaries
he
the was
disposal
obligations
ofofthethesame.
due
merchandise
and payable.
must be
done with malice. The mere circumstance that a person has disposed of his mercha
ndise by removing them from the place where they were kept would necessarily imp
ly fraud. What is required is actual prejudice to the creditor. The intention of
The
thelaw
accused
does not
alonerequire
is notthe enough.
offender
(People
to bevs.a merchant.
Guzman, C.The A. law
40 O.says
G. 2655)
any person, a
nd this refers to anyone who becomes a debtor and performs the acts made punisha
ble property
The by the law. which the offender may abscond which consists of both real and pers
The law
onal property.
on fraudulent
(Peopleinsolvency
vs. Chong is Chuydifferent
Lingobo,from 45 Phil.
the Insolvency
372) Law. For the I
nsolvency Law to apply, the criminal act must have been committed after the inst
itution of the insolvency proceedings against the offending debtor. But under th
e present article, there is no requirement that the accused should be adjudged b
ankruptisorembezzlement
SWINDLING
Estafa AND
insolvent.
OTHER DECEITSunder common law. It is a well-known crime to lawyers and
businessmen. It is a continuing crime unlike theft. Being a public crime, it ca
n be the
Article
ELEMENTS
That prosecuted
315
OF ESTAFA
accused dedefrauded
officio.
IN GENERAL:
another
(315)(a.) by abuse of confidence, or (b) or means
of deceit
That damageandor prejudice capable of pecuniary estimation is caused to the offend
ed party
The concept
or of
third
damage
personunder this article does not mean actual or real damage. It
may consist in mere disturbance of the property rights of the offended party. H
owever, the damage must be capable of pecuniary estimation. This requirement is
important because in estafa, the penalty is dependent on the value of the proper
Since estafa is a material crime, it can be divided into consummated, attempted
ty.
or frustrated stages. In the latter case, the damage can be in the form of tempo
raryELEMENTS
B.
That
The accused
prejudice
the
he
damage
alters
offender
OF prejudice
or
doesornot
ESTAFA
its suffering,
has
substance,
receive
WITHis
an onerous
UNFAITHFULNESS:
caused
orquantity,
the inconvenience
obligation
goods
to another.
but
or delivers
(315)
quality.
tocapable
delivera thing
ofsomething
pecuniary
underofanestimation.
value.
onerous obl
igation which is not in accordance with the substance, quantity or quality agree
d upon. It is the altering of the substance, quality or quantity of the thing de
livered
The wordwhich
onerous
makesmeans
the offender
that theliable
offendedforparty
the crime
has fully
of estafa.
complied with his obligat
ions to pay. So, if the thing delivered whose substance was altered, is not yet
fully
C. ELEMENTS
or partially
OF ESTAFA paid,
WITHthen
ABUSE
theOFcrime
CONFIDENCE
of estafa UNDERis SUBDIVISION
not committed. NO.1 PAR. (B),
OF ART.315
That money, goods, or other personal property be received by the offender in tru
st, or on commission, or for administration, or under any other obligation invol
ving there
That the dutybe misappropriation
to make delivery or of conversion
or to return, of such
the same.
money or property by the of
fender,
that suchormisappropriation
dental on his part or conversion
of such receipt.
or dental is to the prejudice of anothe
r andfourth
That
(The there iselement
a demand is not
madenecessary
by the offended
when there
partyistoevidence
the offender.
of misappropriation
of is
It thenecessary
goods by in thethis
defendant.
kind of estafa,
[Tubb v.forPeople,
the money,
et al.,goods
101 or
Phil.
personal
114] ).propert
y to have been received by the offender in trust, or on commission or for admini
stration. He must acquire both material or physical as well as juridical possess
ion of the thing received. In these instances, the offender, who is the transfer
Aee,money
acquires
marketa transaction
right over ahoweverthing which
partakes
he may
of the
set nature
up evenofagainst
a loan,theandowner.
non-pay
ment thereof would not give rise to criminal liability for Estafa through misapp
ropriation or conversion. In money market placements, the unpaid investor shoul
d institute against the middleman or dealer, before the ordinary courts, a simpl
e action for recovery of the amount he had invested, and if there is allegation
of fraud, the proper forum would be the Securities and Exchange Commission. (Se
sbreno
D. 2ND ELEMENT
vs. CourtOFofESTAFA
Appeals,
WITHetABUSE
al.,OF240CONFIDENCE
SCRA 606).UNDER PARAGRAPH (B), SUBDIVISI
c.ON
By
Unfaithfulness
Notes:
a.
b.
thing
no thing
N0.1,
misappropriating
converting
denying
by
existing
agreement
altering
is delivered
ART.
received
that
obligation
as315
the
orthe
the
toAbuse
=by
thing
has
substance
quality
3and
the
thing
offender
WAYS
not
toof
thing
received.
converting
was
deliver
been
OFNo
Confidence
COMMITTING:
received.
under
fully
estafa
even
transactions
orifpartially
ifdelivery
it istransferring
not
paid
is aunsatisfactory
for
subjectjuridical
not
ofestafa
lawfulpossessi
commerce
on, notPDownership
under 115 (Trust Receipts Law) failure to turn over to the bank the proceeds
of samethething
salereceived
of the goods must covered
be returnedby TRotherwise
Estafaestafa; sale on credit by agency
Novation
when
Estafa it was
not
mustto
affected
take
be soldplace
byfor
Novation
before
cash criminal
of
estafa
Contract
liability
because wasitincurred
is a public
or perhaps
offenseprior
Misappropriating
g.
to the
Converting
filing ofact the
toofcriminal
take
using
something
or
information
disposing
for one in
ofscourt
another
own benefit
bysstate
property
prosecutors
as if it was one s ow
n; thing
There musthasbebeen
prejudice
devotedtoforanother
a purposenotornecessary
use different
that offender
from thatshould
agreedobtain
upon gai
nThere is no estafa through negligence. There is likewise no estafa where the acc
used did not
Partners Nopersonally
estafa of moneyprofitororproperty
gain from received
the misappropriation.
for the partnership when the bu
siness is commercial and profits accrued. BUT if property is received for speci
fic
Failure
purpose
to account
and is misappropriated
after the DEMAND isestafa! circumstantial evidence of misappropriati
DEMAND is not a condition precedent to existence of estafa when misappropriation
on
Inmaytheft,
be established
upon delivery by other
of theproof
thing to the offender, the owner expects an immed
iate
Servant,
return
domestic
of theor thing
employee
to himwho misappropriates
otherwise, Estafaa thing he received from his m
asterinisthe
When NOTprosecution
guilty of estafa for malversation
but of qualified
the public
theftofficer is acquitted, the pr
OEstafa
ivate
ffenders
individual
with
areAbuse
entrusted
allegedly
of Confidence
withinfunds
conspiracy
Malversation
or property
with him andmayarebe continuing
held liableoffenses
for estafa
offenders
are entrusted with funds or property and are continuing offensesFunds: always pri
vateFunds: public funds or propertyOffender: private individual, or public officer
not accountableOffender: public officer accountable for public fundsCommitted by m
isappropriating, converting, denying having received moneyCommitted by appropria
E.
That
ting,
misappropriating
ELEMENTS
the
above
taking,
paper
offended
the  party
OF signature
ESTAFA
with theBYshould
signature
TAKING
of thehave
UNDUE
offended
ofdelivered
the
ADVANTAGE
offended
party itaOFdocument
toparty
THE
offender.
SIGNATURE
beisinwritten
blank.
IN BLANK:
by the(315)
offe
nder the
That without
document
authority
so written
to do creates
so. a liability of, or causes damage to, the of
fended
The element
partyoforthis
any estafa
third person.
is also abuse of confidence. The offended party leave
s a blank paper with his signature to another, with specific instructions to mak
e entries thereon according to the wishes of the offended party. But contrary to
such instructions and wishes, the accused makes entries in writing which create
sIfliabilities
the unauthorized
againstwritings
the ownerwereofdone
the by
signature.
a person other than the one to whom th
e owner of the signature delivered the paper in blank, and it caused damage to t
he offended party, the crime committed by the third party is not estafa but fals
Note: If the paper with signature in blank was stolen Falsification if by making
ification.
it appear that he participated in a transaction when in fact he did not so part
F. ELEMENTS
icipate
that there mustOF ESTAFA
be a false
BY MEANS
pretense,
OF DECEIT:
fraudulent
(315) means must be made or executed p
rior such
That to orfalse pretense, fraudulent act or fraudulent means must be made or exe
cutedthe
That prior
offended
to or party
simultaneously
must havewith
relied
theoncommission
the falseofpretense,
the fraud.
fraudulent act,
or fraudulent means, that is, he was induced to part with his money or property
because
That
False
Notes: aspretenses
aofresult
the false
orthereof,
fraudulent
pretense,
the acts
offended
fraudulent
executed
party
act,suffered
prior
or fraudulent
todamage.
or simultaneously
means. with deli
very ofmust
There thebething
evidence
by thethatcomplainant
the pretense of the accused that he possesses power/
influence
The representation
is false that accused possessed influence, to deceive and inveigle the
complainant into parting with his money must however be false to constitute dec
eit under No. 2 of Article 315, RPC. (Dela Cruz vs. Court of Appeals, et al.,
265 SCRA of
Elements 299).
estafa by means of false pretenses or fraudulent acts under Article
315 (2)
Acts
1.
2. punished
Using fictitious
Falsely under
pretending
paragraph
name;
to possess
(a) power, influence, qualifications, property
, credit,
3.
In the prosecution
Byagency,
means ofbusiness
ofother
estafa
similar
orunder
imaginary
deceits.
Article
transactions;
315, no. 2(a),
or it is indispensable th
at the element of deceit consisting in the false statement or fraudulent represe
ntation of the accused, be made prior to, before or at least simultaneously with
the delivery of the thing by the offended party. The added requirement that suc
h false statement or fraudulent representation constitutes the very motive or th
e only reason or cause which induces the offended party to part with the thing w
hile they may be false representation after the delivery of the goods or the thi
ng by the aggrieved party, such false statement or false representation, no matt
er how fraudulent and obnoxious it may appear, cannot serve as a basis for prose
cution under this category of estafa. For the case to prosper against the accuse
d, the prosecution must prove two indispensable elements: deceit and damage to a
nother.means
Credit (Celino
thevs.ability
Courttoofbuy
Appeals,
things163or merchandise
SCRA 97) on the basis of one s charac
ter, capacity to pay or goodwill in the business community. So, if it is used to
deceive another and the deception is the principal reason for the delivery of t
he goods which results in damage to the offended party, the crime committed is e
Under paragraph
stafa.
Altering the quality,
(b) fineness, or weight of anything pertaining to his art or b
Under paragraph
usiness.
Pretending to have
(c)bribed any government employee, without prejudice to the acti
on for calumny which the offended party may deem proper to bring against the off
G. ELEMENTS OF ESTAFA BY POSTDATING A CHECK OR ISSUING A CHECK IN PAYMENT OF AN
ender.
OBLIGATION:
That the offender
(315) postdated a check, or issued a check in payment of an obligati
That such postdatig or issuing a check was done when the offender had no funds i
on.
n the bank or his funds deposited therein were not sufficient to cover the amoun
(1)
(2)
(Remember
t of that
Note
Notes:theThecheck.
that
this
obligation
check
it
onlyisapplies
drawn
theischeck
not
toifenter
pre-existing;
that isintosupposed
an obligation;
to be the sole consideration for
the other party to have entered into the obligation. For example, Rose wants t
o purchase a bracelet and draws a check without insufficient funds. The jeweler
sells herItthe
(3) doesbracelet
not cover solely
checks
because
whereofthethepurpose
consideration
of drawing
in the check
check.)is to gu
arantee
The checka must
loan beas genuine.
this is notIfantheobligation
check is falsified
contemplated
andinisthis
cashed
paragraph
with the ban
k or exchanged for cash, the crime is estafa thru falsification of a commercial
The general rule is that the accused must be able to obtain something from the o
document.
ffended party by means of the check he issued and delivered. Exception: when t
he must
It
good
dishonor
check
faithnot
isisbe
for issued
lack
apromissory
defense.
ofnotfunds
in(PP.
payment
notes,
- prima
VS.orVILLAPANDO,
offacie
guaranties.
an obligation.
evidence
56 PHIL.31)
of deceit or failure to make g
oodthe
If within
checksthree
weredays
issued
afterbynotice
the defendant
of. and he received money for them, then
stopped payment and did not return the money, and he had an intention to stop
paymentiswhen
Deceit presumed
he issuedif thethedrawer
check,fails
theretoisdeposit
estafa.the amount necessary to cover
the check within three days from receipt of notice of dishonor or insufficiency
of
If
It check
funds
is therefore
in the
was issued
bank.
essential
in payment
that of
thepre-existing
check be issued
debtin payment
no estafaof a simultaneous
obligation. The check in question must be utilized by the offender in order to d
efraud the offended party. So, if the check was issued in payment of a promissor
y note which had matured and the check was dishonored, there is not estafa since
the accused did not obtain anything by means of said check. (People vs. Canlas,
IfO.aG.bouncing
1092) check is issued to pay a pre-existing obligation, the drawer is li
able under B. P. Blg. 22 which does not make any distinction as to whether a bad
check is issued in payment of an obligation or to guarantee an obligation. (Que
Offender
vs. People,must73217-18,
be able toSept.
obtain21,something
1987) from the offended party by means of th
e check
The checkhemust
issuesbe issued
and delivers
in payment of an obligation. If the check was issued wi
thout any obligation or if there is lack of consideration and the check is subse
quently
If
H. postdating
ThatELEMENTS
a person
the dishonored,
check
person
OFamakes
OFFENSE
is
check
whomade
the
orissued
makes
DEFINED
draws
or
crime
drawn
or as
and
draws
ofIN
mere
and
estafa
issues
THE
and
issued
guarantee/promissory
FIRST
issues
is
anynot
tocheck.
PARAGRAPH
apply
the
committed.
check
onOFaccount
SECTION
knows
note at
or1:
nothe
forBP
estafa
value.
time
22 of is
sue that he does not have sufficient funds in or credit with the drawee bank for
That
the the
payment
checkofissuch
subsequently
check in full dishonored
upon itsbypresentment.
the drawee bank for insufficiency o
f funds or credit, or would have been dishonored for the same reason had not the
Note:
drawee, Failure
withoutto make
any valid
good within
reason,5ordered
bankingthe daysbank
prima
to facie
stop payment.
evidence of knowled
ge ELEMENTS
I.
Thatofa person
lack OF
andhas
THE
insufficiency
sufficient
OFFENSE DEFINED
funds inIN or
THEcredit
SECONDwithPARAGRAPH
the drawee
OF SECTION
bank when1: BPhe22mak
es orhedraws
That failsandtoissues
keep sufficient
a check. funds or to maintain a credit to cover the full
amount of the check if presented within a period of 90 days from the date appea
ring the
That
Note: thereon.
Failure
checktoismake
dishonored
good within
by the5 banking
drawee bank.days prima facie evididence of knowl
edge of lackbetween
Distinction and insufficiency
estafa under Article 315 (2) (d) of the Revised Penal Code a
nd violation
(1) Underofboth
Batas
Article
Pambansa
315 (2)
Blg.(d)
22:and Batas Pambansa Blg. 22, there is crim
inaltheliability
If check isifdrawn
the for
checka pre-existing
is drawn for obligation,
non-pre-existingthereobligation.
is criminal liability
(2)
only underEstafa
Batas
under
Pambansa
ArticleBlg.31522.
(2) (d) is a crime against property while Batas
Pambansa Blg. 22 is a crime against public interest. The gravamen for the form
er is the deceit employed, while in the latter, it is the issuance of the check.
(3)Hence,Inthere
the estafa
is no double
under Article
jeopardy.315 (2) (d), deceit and damage are material,
(4)
while inInBatas
estafaPambansa
under Article
Blg. 22,315they
(2)are(d),immaterial.
knowledge by the drawer of insuffic
ient funds is not required, while in Batas Pambansa Blg. 22, knowledge by the dr
awer is
When
There ofisthere
insufficient
a primaprima
facie
facie
funds
evidence
evidence
is reqired.
of knowledge
of knowledge of insufficient
of insufficient funds
funds?
when the chec
k was presented within 90 days from the date appearing on the check and was dish
1.
Exceptions
onored.
2.
a. When theWhen
Pays checkthewas
holder ofmaker
presented
the check
or drawer
afteramount
the --90 days duefrom
within
date;
five banking days aft
er receiving
b. Makesnotice
arrangements
that suchforcheck
payment
hasinnotfullbeenbypaid
the drawee
by the ofdrawee;
such check withi
n five
The drawee
banking
mustdays
causeafter
to benotice
writtenof or
non-payment
stamped in plain language the reason for
thethe
If dishonor.
drawee bank received an order of stop-payment from the drawer with no rea
son,theitdrawer
If must behasstated
validthat
reasons
the for
fundsstopping
are insufficient
payment, hetocannot
be prosecuted
be held criminal
here.
ly liable
The unpaidunder
or dishonored
B.P. Blg.check
22. with the stamped information re: refusal to pay i
s prima facie evidence of (1) the making or issuance of the check; (2) the due p
resentment to the drawee for payment & the dishonor thereof; and (3) the fact th
at issuance
On
The the
issuance
checkofof
wasacheck
properly
bouncing
withcheck
dishonored
insufficient forfunds
the reason
may bestamped
held liable
on theforcheck.
estafa and
Batas Pambansa Blg. 22. Batas Pambansa Blg. 22 expressly provides that prosecut
ion under said law is without prejudice to any liability for violation of any pr
ovision in the Revised Penal Code. Double Jeopardy may not be invoked because a
violation of Batas Pambansa Blg. 22 is a malum prohibitum and is being punished
as a crime against the public interest for undermining the banking system of th
e country, while under the Revised Penal Code, the crime is malum in se which re
quires
In estafa,
criminal
the check
intentmust
andhave
damagebeentoissued
the payee
as aandreciprocal
is a crime
consideration
against property.
for par
ting of goods (kaliwaan). There must be concomitance. The deceit must be prior
to or simultaneous with damage done, that is, seller relied on check to part wi
th goods. If it is issued after parting with goods as in credit accommodation o
nly, there is no estafa. If the check is issued for a pre-existing obligation,
there is no estafa as damage had already been done. The drawer is liable under
Batascriminal
For Pambansaliability
Blg. 22.to attach under Batas Pambansa Blg. 22, it is enough that
the check was issued to "apply on account or for value" and upon its presentmen
t it was dishonored by the drawee bank for insufficiency of funds, provided that
the drawer had been notified of the dishonor and inspite of such notice fails t
o pay the holder of the check the full amount due thereon within five days from
Under Batas Pambansa Blg. 22, a drawer must be given notice of dishonor and give
notice.
n five banking days from notice within which to deposit or pay the amount stated
in the check to negate the presumtion that drawer knew of the insufficiency. A
fter this period, it is conclusive that drawer knew of the insufficiency, thus t
heremere
The is noissuance
more defense
of anytokind
theofprosecution
check regardless
under Batas
of thePambansa
intent of
Blg.the22.parties,
whether the check is intended to serve merely as a guarantee or as a deposit, ma
kes the drawer liable under Batas Pambansa Blg. 22 if the check bounces. As a m
atter of public policy, the issuance of a worthless check is a public nuisance a
nd must
Each actbeofabated.
drawing and issuing a bouncing check constitutes a violation of B. P
. Blg.
In De Villa
22. v. CA, decided April 18, 1991, it was held that under Batas Pambansa
Blg. 22, there is no distinction as to the kind of check issued. As long as it
is delivered within Philippine territory, the Philippine courts have jurisdictio
n. Even if the check is only presented to and dishonored in a Philippine bank,
Batas Pambansa Blg. 22 applies. This is true in the case of dollar or foreign c
urrency
In Peoplechecks.
v. Nitafan,
Where it thewas lawheld
makesthatno asdistinction,
long as instrument
none should is abecheck
made.under th
e negotiable instrument law, it is covered by Batas Pambansa Blg. 22. A memoran
dum check is not a promissory note, it is a check which have the word memo, mem , memo
randum written across the face of the check which signifies that if the holder up
on maturity of the check presents the same to the drawer, it will be paid absolu
tely. But there is no prohibition against drawer from depositing memorandum che
ck in a bank. Whatever be the agreement of the parties in respect of the issuan
ce of a check is inconsequential to a violation to Batas Pambansa Blg. 22 where
the check
Cross checks
bounces.
do not make them non-negotiable and therefore they are within the c
overage
The law does
of B.not P. distinguish
Blg. 22. between foreign and local checks. (De Villa vs. Co
urt overdraft
But of Appeals,oretcredit al., arrangement
195 SCRA 722). may be allowed by banks as to their preferre
d clients and Batas Pambansa Blg. 22 does not apply. If check bounces, it is be
causecheck
The bankmust
has be beenpresented
remiss inforhonoring
paymentagreement.
within a 90-day period. If presented fo
r payment beyond the 90 day period and the drawer s funds are insufficient to cove
r it, check
Where there wasis noissued
Batasprior
Pambansato August
Blg. 228,violation.
1984, when Circular No. 12 of the Depa
rtment of the Justice took effect, and the drawer relied on the then prevailing
Circular No. 4 of the Ministry of Justice to the effect that checks issued as pa
rt of an arrangement/agreement of the parties to guarantee or secure fulfillment
of an obligation are not covered by Batas Pambansa Blg. 22, no criminal liabili
ty should be incurred by the drawer. Circular should not be given retroactive e
ffect. (Lazaro v. CA, November 11, 1993, citing People v. Alberto, October 28, 1
J. BYpunished
993)
Acts
1. OBTAINING
a. under FOOD
Obtaining
paragraph
OR CREDIT
food,(e)
ATrefreshment,
HOTELS, INNS, or RESTAURANTS
accommodationETC. at a hotel, inn, r
estaurant,
c.
2.
any
3.
surreptitiously
b.
Failure
of the
b.
c.
With
a.
After
to pay
boarding
establishments;
intent
obtaining
food
Using
Without
Obtaining
Abandoning
removing
to
house,
or false
defraud
accommodation
paying
credit,
paying.
anyor
lodging
credit
pretense;
part
therefor;
the
food,
ofproprietor
house,
his
inrefreshment,
aatbaggage
or apartment
hotel,
or restaurant
manager.
in accommodation;
thehouse;
establishment;
or inn usually gives
rise to civil liability but if the intent to defraud is clear like a surreptiti
ous removal of baggage from the hotel, or resorting to deceitful means to evade
payment,
K.
That
Note:
ELEMENTS
deceit
the
prejudice
If offended
thebe
offender
OFactbe
ESTAFA
employed
shall
induced
caused.
partyBYbewillingly
toINDUCING
personally
punished
the
makeoffended
himsigned
ANOTHER
criminally
signed
signpartythe
TO document
the SIGN
to
document.
assign
document.
Estafa.
ANYaand
DOCUMENTS:
document.
there was
(315)
deceit as to
the character or contents of the document falsification; but where the accused
made representation to mislead the complainants as to the character of the docum
entsorder
Under
Resorting
L.
That
In ELEMENTS
-paragraph
there
the
estafa
offender
to
tobecommit
OFsome
court
ESTAFA
(b)had
fraudulent
removed,
arecords,
crime,
BY REMOVING,
intent concealed
the
practice
office
to defraud
offender
CONCEALING
files,
ortoanother.
destroyed
insure
must
documents
ORsuccess
haveDESTROYING
any
theorofintention
inthem.
any aother
DOCUMENTS:
gambling
topapers.
defraud.
game;
(315) In
other words, the removal, concealment or destruction of the court record should
be done with the intent to defraud the victim. This is distinguished from the cr
ime of removal, concealment or destruction of documents under Article 226 wherei
n fraud is not an element of the crime, and which is committed only by public of
ficers.
If the actWhatofisremoving,
punishedconcealing
under thisorArticle destroying
is theresults
damagefrom to public
hatred,interest.
revenge, o
r other evil motive, the crime committed is malicious mischief under Article 327
When
.Note:aNolawyer,
intentpretending
to defraudto verifydestroying a certain
or removal
pleading
= malicious
in a casemischief
pending before
a court, borrows the folder of the case, and removes or destroys a document whic
h constitute evidence in the said case, said lawyer is guilty of Estafa under pa
r.syndicate
ASyndicated
3 (c) ofEstafa.
Article
of five or 315,moreRPC.persons formed with intent to carry out an unlawful
or illegal act, transaction or scheme and defraudation which results in misappro
priation of money contributed by stockholders or members of rural banks, coopera
tives, samahang nayon or former s association; or funds contributed by corporation
s orDAMAGE
M. associations
OR PREJUDICE for theCAPABLE
generalOF PECUNIARY
welfare. ESTIMATION: (315) (second element of
THE
The
anyoffender
ELEMENTS
form of party
estafa)
OF DAMAGE
beingORdeprived
PREJUDICEofMAY hisCONSIST
money orOFproperty,
THE FF.: as a result of the d
Disturbance
efraudation.
Temporary
N. ELEMENTSprejudice.
in SWINDLING
OF property right (PAR.1) or BY CONVEYING, SELLING, ENCUMBERING, OR MORTGAGI
NG ANYtheREAL
That thing
offender
PROPERTY,
be who
immovable,
PRETENDING
is not the
suchowner
TOasBEa ofTHEsaid
parcelOWNER
ofproperty
OF THEorrepresented
land SAME:
a building.
(316) that he is t
he owner
That the offender
thereof. should have executed an act of ownership (selling, leasing, en
cumbering
That
ESTAFAthe
INFIDELITY
act
or bemortgaging
made
IN THE
to CUSTODY
the prejudice of thePowner
realOFproperty).
DOCUMENTS rivateorindividual
a third person.
was entrustedPublic o
O.fficer
ELEMENTS
entrusted Intent to(PAR.
OF SWINDLING defraud
2)NBYo intent
DISPOSING OF REAL PROPERTY AS FREE FROM ENC
to defraud
UMBRANCE,
that
That the offender
thing
ALTHOUGHdisposed
knew
SUCHthat
ENCUMBRANCE
of bethereal
realproperty.
BEproperty
NOT RECORDED:
was encumbered,
(316) whether the encumb
rancethere
That is recorded
must beorexpressnot. representation by the offender that the real property
That
In isSaddul
free
the act
from
Jr.ofv.encumbrance.
disposing
CA, 192 SCRA of the277,real
it was
property
held that
be madethetoacttheofdamage
using or
of disposin
another.
g of another s property as if it were one s own, or of devoting it to a purpose or u
se different from that agreed upon, is a misappropriation and conversion to the
prejudice of the owner. Conversion is unauthorized assumption an exercise of th
e right of ownership over goods and chattels belonging to another, resulting in
the
P. ELEMENTS
alteration OF ofSWINDLING
their condition
(PAR.3) BY orWRONGFULLY
exclusion of TAKING
the owner
BY THEsOWNER
rights.
HIS PERSONAL
FROM prejudice
That
Under ITS
said
the
paragraph
LAWFUL
offender
personal is4POSSESSOR:
isproperty
wrongfully
thereby
bytheexecuting
owner
caused
(316)
istakes
ofany
in tothe
personal
itthe
fictitious
lawful
from
possessor
property.
itspossession
lawful
contract
or third
possessor.
oftoperson.
another.
the prejudice of anoth
er
Under paragraph 5 by accepting any compensation for services not rendered or for
Q.labor
ELEMENTS
not performed
OF SWINDLING (PAR. 6) BY SELLING, MORTGAGING OR ENCUMBERING REAL PRO
PERTY OR PROPERTIES WITH WHICH THE OFFENDER GUARANTEED THE FULFILLMENT OF HIS OB
LIGATION
That theguaranteed
he AS SURETY:isthe
offender (316)
a fulfillment
surety in a of bondsuch
given
obligation
in a criminal
with hisor real
civilproperty
action.or
properties.
That he sells,
such sale,mortgages,
mortage oror, encumbrance
in any other is (a)
manner
without
encumbers
expresssaid
authority
real property.
from the
court, or (b) made before the cancellation of his bond, or (c) before being rel
ieved
R.
ThatELEMENTS
the
fromoffender
the
OF SWINDLING
obligation
takes advantage
Acontracted
MINOR: of (317)by him.
the inexperience or emotions or feelings of
That
a minor.
he induces such minor (a) to assume an obligation, or (b) to give release,
or (c)thetoconsideration
That execute a transfer is (a)ofsome anyloan
property
of money
right.(b) credit or (c) other persona
l property.
That
The property
the transaction
referredistotointhe thisdetriment
article is of not
suchreal
minor.
property. It is limited to
personal property since a minor cannot convey real property without judicial int
ervention. So, if what is involved is real property, the crime of swindling a mi
nor under this article is not committed even if the offender succeeds in inducin
g the minor to deal with such real property since no damage or detriment is caus
ed ELEMENTS
S.
not
interpretation
The against
mentioned
meaning the
OFabove;
of minor.
OTHER
of
otherdreams,
DECEITS:
deceits forecast,
under
(318)thisfuture-telling
article hasfor reference
profit toor again.
situation whe
rein fraud or damage is done to another by any other form of deception which is
not covered
Another formbyofthe deceit
preceding
would be articles.
in the nature of interpreting dreams, or making
forecasts, telling fortunes or simply by taking advantage of the credulity of th
e public
CHATTEL
Article
A.
That
ELEMENTS:
SELLING
personal
MORTGAGE
319
by any ORproperty
other similar
PLEDGING isPERSONAL
already
manner,
PROPERTY
pledged
doneunder
for profit
ALREADY thePLEDGED
terms
or gain.
of the chattel mortgag
e law.the offender, who is the mortgagee of such property, sells or pledges the s
That
ame orthere
That any is partnothereof.
consent of the mortgagee written on the back of the mortgage an
d noted
KNOWINGLY
that
ELEMENTS:
That personal
the
he onoffender
removes
REMOVING
theproperty
record
suchknows
MORTGAGED
mortgaged
thereof
isthat
mortgaged
PERSONAL
such
inpersonal
the
property
under
office
PROPERTY
tothe
isofso
any chattel
themortaged.
province
register
mortage
or city
oflaw.
deeds.
other than the o
ne inthere
that
That the
whichremoval
isitnowaswritten
islocated
permanent.
consent
at theoftime theofmortgagee
the execution
or hisofexecutors,
the mortgage.
administrati
on would
It or assigns
be thetomortgagor
such removal. who is made liable if the personal property is transfe
rred to the prohibited place. The liability extends to third persons who shall k
nowingly
If
ARSON
(Note:
theAND
chattel
PD remove
OTHERexpressly
1613 mortgage
the mortgaged
CRIMES INVOLVING
isrepealed
nottoregistered,
another
DESTRUCTIONS
or amendedcity
there
Arts
or isprovince.
320-326,
no violation
but PDof1744
Article
revived
319A
rt 320)
ELEMENTS
That an uninhabited
the OF ARSONS
value
burning ofwasthe
OFhut,
done
PROPERTY
property
storehouse,
at a time
OF SMALL
burned orbarn,
does
under
VALUES
shed
notcircumstances
exceed
or any25other
pesos
which
property
clearly
is exclude
burned
That
discharge
explosion
sinking
inundation
damaging
taking
destroying
other
ELEMENTS
all the
danger purpose
similar
uporOF
offender
destruction
the
oftelegraph
rails
stranding
ofengine
CRIME
BURNING
electricset
effective
the of
from the
INVOLVING
causes
fire
of
ONEfire
was
of
the
wires
current
theoffender
Srailway
PROPERTY
to
aspreading
means
destruction
done
vessel
vessel
and or destroyed
in
DESTRUCTION
by
ofposts ASdoing
means
track ofAof:
destruction
or MEANS
thesohis
those was
TOown
property
of COMMIT
to
anyproperty
commit
ARSON
other arson or to cause a g
system
reat (a)
ELEMENTS
That destruction
the OF ARSON
property
the purpose belonging
burned
of the is offender
to another
the exclusive
iswas
burning
property
burneditoris
ofdestroyed
thedefraud
to offenderor cause damage
to another or (b) prejudice is actually caused, or (c) the thing burned is a bu
ildingisindefined
Palattao
Arson notes:
an inhabited as theplace intentional or malicious destruction of a property by fi
Legalcrime
re.
The effectcommitted
if deathisresults
still arson.
from arson.
Death is absorbed in the crime of arson but
the penalty to be imposed ranges from reclusion perpetua to death. (Sec. 5, P.D.
How
Arson
No.arson
1613)
is established
is established. by proving the corpus delicti, usually in the form of circu
mstancial evidence such as the criminal agency, meaning the substance used, like
gasoline, kerosene or other form of bustible materials which caused the fire. I
t can also be in the form of electrical wires, mechanical, chemical or electroni
c contrivance designed to start a fire; ashes or traces of such objects which ar
e found
If
Notes:
the crime
in theofruins arsonofwastheemployed
burned by premises.
the offender as a means to kill the offend
ed party, the crime committed is murder. The burning of the property as the mean
s to kill the victim is what is contemplated by the word fire under Article 248 wh
ich qualifies
When the burning theofcrime
the property
to murder.was(People
done byvs.theVillarosa,
offender only
54 O.toG.cause
3482)damage b
ut the arson resulted to death of a person, the crime committed is still arson b
ecause the death of the victim is a mere consequence and not the intention of th
e offender.
There is no special
(People complex
vs. Paterno, crime47ofO.arson G. 4600)
with homicide. What matters in resolv
ing cases
There is such
involving
a crimeintentional
as recklessarson imprudence
is the resulting
criminal intent
in theofcommission
the offender.
of arso
n. When the arson results from reckless imprudence and it leads to death, seriou
s physical injuries and damage to the property of another, the penalty to be imp
osed shall not be for the crime of arson under P. D. No. 1613 but rather, the pe
nalty shall be based on Article 365 of the Revised Penal Code as a felony commit
ted bythe
Article
MALICIOUS
ELEMENTS:
That such
means
326
offender
act
MISCHIEF
act ofdoes
damaging
culpa.
deliberately
notanother
constitute scaused
property
arsondamage
orbeother
committed
to thecrimes
property
merely
involving
of
foranother.
the
destruction.
sake of damag
ing it. mischief willful damaging of another s property for the sake of causing
Malicious
Notes:
It
Meaning
damage
No
Example.
If means
negligence
no malice
due
ofnot
Killing
todamage
only
hate,
onlythe
loss
in
civil
revenge
cowmalicious
but as
liability
arevenge
or
diminution
other
mischief.
evilofmotive
the value of one s property. It include
s defacing, deforming or rendering it useless for the purpose for which it was m
But after
ade.
There is destruction
damaging theofthing, the property
he usedofitanother
= theftbut there is no misappropriation
. Otherwise,
Article
SPECIAL
Obstruct
Using
Spreading
Damage poisonous
isCASES
to328
performance
not OF
infection
propertyitorMALICIOUS
incident
would
corrosive
of
orofnational
bepublic
of
contagious
atheft
MISCHIEF
crime
substances.
functions.
museum
ifamong
(breaking
he orgathers
cattle.
library,
windows
the archive,
effects
in robbery)
ofregistry,
destruction.
waterworks,
The
road,
cases
promenade,
of malicious or anymischief
other thing
enumerated
used inincommon
this article
by the are
public.
so-called qualifi
ed malicious mischief. The crime becomes qualified either because of the nature
of the damage caused to obstruct a public; or because of the kind of substance u
sed to cause the damage. The crime is still malicious mischief because the offen
der has no intent to gain but derives satisfaction from the act because of hate,
Note:
Article
OTHER
Not
ELEMENTS:
scattering
killing
The
revenge
included
offender
Qualified
MISCHIEF
329
of
orcow
human
other
inas
is malicious
328
punished
excrement
evil
an act motive.
of
according
mischief
revengetonotheuprising
value oforthesedition
damage(#1)
caused to the offe
nded party. If the damages cannot be estimated, the minimum penalty is arresto m
enor by
Article
DAMAGE
done orAND
a fine
330
damaging
OBSTRUCTION
ofrailways,
not more TO MEANS
than OF
telegraph,
200COMMUNICATION
pesos
telephone
shall lines,
be imposed
electric
on thewires,
offender.
traction
cables,
removing
Notes:
not applicable
signal
rails when
systemtelegraph/phone
from tracks
of railways
is destruction
lines don
(artt324)
pertain to railways (example: for
If
none
transmission
people
murder
the art
damage
killed
if48derailment
of
was
aselectric
aintended
result:ispower/light)
means
to cause
of intent
derailment
to kill
only without any intention to kil
l, it will be a crime involving destruction under Article 324. If the derailment
is intentionally done to cause the death of a person, the crime committed will
be murder under
circumstance qualifying
Article the 248.offense if the damage shall result in any derailment
DESTROYING
Article
EXEMPTION
Persons
Spouse,
Theof widowed
cars,331FROM
332
exempt
ascendants
collision
ORspouse
DAMAGING
CRIMINAL
from and
with
criminal
or descendants
STATUES,
other
LIABILITY
respect
liability
accident
PUBLIC
to INthe
orCRIMES
relatives
MONUMENTS
property
a higher
AGAINST
byOR
w/c
penalty
affinity
PAINTINGS
PROPERTY
belonged
shall
intothe
betheimposed
same
deceased
line spo
use the
Brothers
Offenses
Theft
Malicious
Swindling
Exemption
Notes:
For before
( exemption
not
and
involved
mischief
is
the
robbery
sisters
based
sameto
inon)passed
and
the
apply
family
brothers-in-law
exemption
into
insofar
relations
theaspossession
brothers
and sisters-in-law,
of another
and sisters, andif brothers-in-law
living together
and sisters-in-law are concerned, they must be living together at the time of th
e commission
Parties to theofcrime
the crime
not related
of theft, to the
estafa
offended
or malicious
party still
mischief.
remains criminally
Persons
liable
stepfather/mother
adopted
concubine/paramour
common
Only thelaw
exempt
children
relatives
spouse
include:
(descendants)
(ascendants
(property
(spouse) isincur
enumerated bypart
affinity)
of liability
no their earnings)
if the crime relates to theft (
not robbery), swindling, and malicious mischief. Third parties who participate
are not exempt. The relationship between the spouses is not limited to legally
marriedshould
Estafa couples;notthe
be complexed
provision withappliesanytoother
live-in
crimepartners.
in order for exemption to op
TITLE ELEVEN
erate.
CRIMES
Crimes
1.
2.
3.
4.
5.
6. AGAINST
against
Adultery
Concubinage
Qualified
Simple
Acts ofseduction
CHASTITY
chastity
lasciviousness
(Art.
seduction
(Art.333);
(Art.
334);
(Art.
(Art.
338);
with 337);
the
336);
consent of the offended party (Art. 339)
;7. crimes
8.
9.
10.
The Corruption
White
Forcible
Consented
of slave
adultery,
abduction
abduction
oftrade
minors
concubinage,
(Art.
(Art.
(Art.
(Art.
341);
342);
343).
340);
seduction, abduction and acts of lascivious
ness are the so-called private crimes. They cannot be prosecuted except upon th
e complaint initiated by the offended party. The law regards the privacy of the
offended party here as more important than the disturbance to the order of soci
ety. For the law gives the offended party the preference whether to sue or not
to sue. But the moment the offended party has initiated the criminal complaint,
the public prosecutor will take over and continue with prosecution of the offen
der. That is why under Article 344, if the offended party pardons the offender,
that pardon will only be valid if it comes before the prosecution starts. The
moment the prosecution starts, the crime has already become public and it is bey
ond the
Article
ELEMENTS:
ADULTERY
That theregards
she
as offended
333
womansexual
has isthe
party
married
intercourse
man towith
pardon
(even
whomwith
ifthe
she
marriage
aoffender.
has
mansexual
not
subsequently
herintercourses,
husband.
declaredhe must
void)know her
to be are
There
Notes: married.
two reasons why adultery is made punishable by law. Primarily, it is a
violation of the marital vow and secondarily, it paves the way to the introduct
ion of a is
Adultery spurious
a crimechildnot only
into of
thethefamily.
married woman but also of the man who had in
tercourse with a married woman knowing her to be married. Even if the man prove
s later on that he does not know the woman to be married, at the beginning, he m
ust still be included in the complaint or information. This is so because wheth
er he knows the woman to be married or not is a matter of defense and its up to
himafter
If to ventilate
preliminarythatinvestigation,
in formal investigations
the public prosecutor
or a formalistrial.
convinced that the
man did not know that the woman is married, then he could simply file the case a
gainst
The acquittal
the woman.
of the woman does not necessarily result in the acquittal of her c
In order to constitute adultery, there must be a joint physical act. Joint crim
o-accused.
inal intent is not necessary. Although the criminal intent may exist in the min
d of one of the parties to the physical act, there may be no such intent in the
mind of the other party. One may be guilty of the criminal intent, the other in
nocent, and yet the joint physical act necessary to constitute the adultery may
be complete. So, if the man had no knowledge that the woman was married, he wou
ld be innocent insofar as the crime of adultery is concerned but the woman would
still be guilty; the former would have to be acquitted and the latter found gui
Alty,
husband
although
committing
they were concubinage
tried together.
may be required to support his wife committing
adultery
For adultery
undertotheexist,
ruletherein pari
mustdelicto.
be a marriage although it be subsequently annu
lled. There
Adultery is anisinstantaneous
no adultery, crime if thewhich
marriage
is consummated
is void fromandthecompleted
beginning.at the mom
ent of the carnal union. Each sexual intercourse constitutes a crime of adulter
y. Adultery
Madamme
Illustration:
X is aismarried
not a continuing
woman residingcrimeinunlike
Pasayconcubinage.
City. He met a man, Y, at Roxas
Boulevard. She agreed to go with to Baguio City, supposedly to come back the ne
xt day. When they were in Bulacan, they stayed in a motel, having sexual interc
ourse there. After that, they proceeded again and stopped at Dagupan City, wher
e theyare
There wenttwotocounts
a motelofand adultery
had sexual
committed
intercourse.
in this instance: one adultery in Bu
lacan, and another adultery in Dagupan City. Even if it involves the same man,
each intercourse
mitigated if wifeiswasa abandoned
separate crimewithout of justification
adultery. by the offended spouse (ma
n is entitledwithout
Abandonment to thisjustification
mitigating circumstance)
is not exempting but only a mitigating circums
tance. One who invokes abandonment in the crime of adultery hypothetically admit
s criminal liability for the crime charged. (U. S. vs. Serrano, et al., 28 Phil.
While
230) abandonment is peculiar only to the accused who is related to the offended
party and must be considered only as to her or him as provided under Article 62
, paragraph 3, nonetheless, judicially speaking, in the crime of adultery, there
is only one act committed and consequently both accused are entitled to this mi
tigating
attempted:
There
In theiscasecircumstance.
no caught
frustrated
of People
disrobing
vs.
(People
adultery
Pontio
a lover
vs.
because
Guinucud,
Avelino,
of et
the
40al.,
O.G.(58
nature Supp.
ofPhil.
the
11,621),
offense.
194) a private agr
eement was entered into between the husband and wife for them to separate from b
ed and board and for each of them to go for his and her own separate way. Therea
fter, the wife Rosario Tagayum lived with her co-accused Pontio Guinucud in a ne
arby barangay. Their love affair ultimately embroiled the spouses conservative an
d reputable families in a human drama exposed in legal battles and whispers of u
nwanted gossips. In dismissing the complaint, the Court ruled that while a priva
te agreement between the husband and wife was null and void, the same was admiss
ible proof of the express consent given by the condescending husband to the prod
igal wife, a license for her to commit adultery. Such agreement bars the husband
After
from filing
instituting
the complaint
a criminalforcomplaint
adulteryfor
andadultery.
while the case is pending trial and
resolution by the trial court, the offended spouse must not have sexual intercou
rse with the adulterous wife since an act of intercourse subsequent to the adult
erous conduct is considered as implied pardon. (People vs. Muguerza, et al., 13
C.A.isRep.
It seldom1079)
the case that adultery is established by direct evidence. The legal
tenet has been and still is circumstancial and corroborative evidence as will le
ad the guarded discretion of a reasonable and just man to the conclusion that th
e criminal act of adultery has been committed will bring about conviction for th
eHaving
Article
ELEMENTS:
CONCUBINAGE
That
Keeping
crime.
thesexual
he 334
acommitted
man
(U.
mistress
must
S.
intercourse
vs.
beinFeliciano,
any married.
of the
the conjugal
under
following
36
scandalous
Phil.
dwelling.
acts:
753)
circumstances with a woman who is not
Cohabiting
That
Note:
his as
wife.
Scandal
regards
with consists
her woman
the in any
inshe
other
anymust
reprehensible
place.
know him toword/deed
be married. that offends public conscien
ce, redounds to the detriment of the feelings of honest persons and gives occasi
ons
Withtorespect
the neighbor
to concubinage
s spiritual
the same
damageprinciple
and ruinapplies: only the offended spouse
can bring the prosecution. This is a crime committed by the married man, the h
usband. Similarly, it includes the woman who had a relationship with the marrie
d man.
It has been asked why the penalty for adultery is higher than concubinage when b
oth crimes are infidelities to the marital vows. The reason given for this is t
hat when the wife commits adultery, there is a probability that she will bring a
stranger into the family. If the husband commits concubinage, this probability
does not arise because the mother of the child will always carry the child with
her. So even if the husband brings with him the child, it is clearly known tha
t the child is a stranger. Not in the case of a married woman who may bring a
child to the family under the guise of a legitimate child. This is the reason w
hy the
Unlike
If in the
adultery,
charges
formerconsist
crime in
concubinage
thekeeping
penalty
is a acontinuing
ismistress
higher in
thanthetheconjugal
crime. latter.dwelling, there is
no need for proof of sexual intercourse. The conjugal dwelling is the house of
the spouse even if the wife happens to be temporarily absent therefrom. The wom
an however must be brought into the conjugal house by the accused husband as a c
oncubine to fall under this article. Thus, if the co-accused was voluntarily ta
ken and sheltered by the spouses in their house and treated as an adopted child
being a relative of the complaining wife, her illicit relations with the accused
husband does not make her a mistress. (People vs. Hilao, et al., (C.A.) 52 O.G
. 904).
It is only when a married man has sexual intercourse with a woman elsewhere that
Forscandalous
the existencecircumstances
of the crimebecomes
of concubinage
an element
by having
of crime. sexual intercourse under
scandalous circumstances, the latter must be imprudent and wanton as to offend
modesty
When spiesandaresense
employed
of morality
to chronicle
and decency.
the activities of the accused and the evide
nce presented to prove scandalous circumstances are those taken by the detective
s, it is obvious that the sexual intercourse done by the offenders was not under
Causal
scandalous
sexualcircumstances.
intercourse with (U.S.a woman
vs. Campos-Rueda,
in a hotel is35not Phil.
concubinage.
51) Likewise,
keeping of a mistress in a townhouse procured and furnished by a married man who
does not live or sleep with her in said townhouse does not constitute concubina
ge since
The rule is there
that,
is if
no acohabitation.
married man s conduct with a woman who is not his wife was
not confined to occasional or transient interview for carnal intercourse but is
carried n in the manner of husband and wife and for some period of time, then su
ch association is sufficient to constitute cohabitation. (People vs. Zuniga, CA
If57the
O.G.evidence
2497) of the prosecution consists of a marriage contract between the o
ffender and the offended party, and the additional fact of the birth certificate
of a child showing the accused to be the father of the child with the alleged c
ocubine, the same will not be sufficient to convict the accused of concubinage s
ince has
Article
This the335.
law clearly
been Rape states
repealed by Republic
that theActactNo.must8353beoronetheofAnti-Rape
those provided
Law ofby1997.
law. S
ee using
Article
ACTS
ELEMENTS:
by
when
That
NoteArticle
OF is
it
the
that 336
LASCIVIOUSNESS
offender
force
offended
there
266-A.
done orare
under
commits
intimidation,
party
twoanykinds
isof
any
deprived
under
another
the
actoracts
of following
12
ofperson
oflasciviousness
years
ofreason
lasciviousness
ofcircumstances:
age.
either
or otherwise
or lewdness.
sex. under
unconscious,
the RevisedorPenal
Code: this
1.
Under (1)
Article
under336.
article, Article
theActs
offended
336,
of Lasciviousness
andparty
(2) under
may beArticle
a man or
339.a woman. The crime commi
tted, when the act performed with lewd design was perpetrated under circumstance
s which would have brought about the crime of rape if sexual intercourse was eff
ected, is acts of lasciviousness under this article. This means that the offend
ed partybeing
(1)
(2) under
is either
12 years
over 12 years
of age;
of age,
or the lascivious acts were committed on him or
her through violence or intimidation, or while the offender party was deprived
2.of reason,
Articleor otherwise
339. Actsunconscious.
of Lasciviousness with the Consent of the Offended Pa
Under this article, the victim is limited only to a woman. The circumstances un
rty:
der which the lascivious acts were committed must be that of qualified seduction
or simple seduction, that is, the offender took advantage of his position of as
cendancy over the offender woman either because he is a person in authority, a d
omestic, a househelp, a priest, a teacher or a guardian, or there was a deceitfu
l promise
Always remember
of marriage
that there
whichcannever
be nowouldfrustration
really beoffulfilled.
acts of lasciviousness, rape
or adultery because no matter how far the offender may have gone towards the re
alization of his purpose, if his participation amounts to performing all the act
s of execution,
Intent to rape isthenotfelonya necessary
is necessarily
element of produced
the crime
as aofconsequence
acts of lasciviousness
thereof.
. the
In Otherwise,
crime ofthere actswould
of lasciviousness,
be no crime ofthe attempted
intention rape.
of the wrongdoer is not ve
ry material. The motive that impelled the accused to commit the offense is of no
What
importance
constitutesbecauselewdtheoressence
lascivious
of lewdness
conduct must
is inbethedetermined
act itself.
from the circumst
ances of each case. The demarcation line is not always easy to determine but in
order to sustain a conviction for acts of lasciviousness, it is essential that t
he acts complained of be prompted by lust or lewd designs and the victim did not
Toconsent
be guilty
to nor of this
encouraged
crime however,
the act. the acts of lasciviousness must be committed
under any of the circumstances that had there been sexual intercourse, the crim
e would have been Rape. Where circumstances however are such, indicating a clea
r intention to lie with the offended party, the crime committed as Attempted Rap
This crime (Art. 336) can be committed by either sex unlike in Acts of Lasciviou
e.
sness with Consent under Article 339. Thus, a lesbian who toyed with the privat
e part of an eleven-year-old girl who enjoyed it since she was given $50 dollars
before the act, is guilty of Act of Lasciviousness under this Article as the vi
ctim is below twelve year old; and had sexual intercourse been possible and done
, theclasses
Article
SEDUCTION
QUALIFIED
Two
Seduction
act337of
would
SEDUCTION
ofa virgin
qualified
haveOFbeen
over
A seduction:
VIRGIN
Rape.
12 and under 18 years of age by certain persons, such
Seduction
as a person of ainsister
authority,
by herpriest,
brotherteachers
or descendant
etc andby her ascendant, regardless
of hertheageoffended
That
Elements: or reputation
party is(incestuous
a virgin, (presumed
seduction)if she unmarried and of good repu
tation.)
That she offender
the
there must
is abuse
be over
hasofsexual
12authority,
and intercourse
underconfidence
18 yearswithoforher.
age.
relationship on the part of the
offender ( person entrusted with education or custody of victim; person in publi
c authority,
Persons
Those
persons
person
teacher
guardianwho
who,
liable:
in abuse
public
inpriest;
any
their
authority
capacity,
servant)
authority:
is entrusted with the education or custody of the w
oman crime
house
priest
Those
domestic
brother
ascendant
This seduced
servant
whowhowho
abused
also
seduced
seduced
involves
thehis
theirconfidence
his
relationship:
sister
sexual
descendant
reposed in them:
intercourse. The offended woman must be over 12
The
butdistinction
below 18 years. between qualified seduction and simple seduction lies in the fac
t, among others, that the woman is a virgin in qualified seduction, while in sim
ple seduction, it is not necessary that the woman be a virgin. It is enough tha
t shepurposes
For is of good of qualified
repute. seduction, virginity does not mean physical virginity.
TheItvirginity
means thatreferred
the offended
to here,
party
is not
has tonotbehadunderstood
any experience
in so material
before. a sense a
s to exclude the idea of abduction of a virtuous woman of a good reputation. Th
us, when the accused claims he had prior intercourse with the complainant, the l
atter is still to be considered a virgin (U.S. vs. Casten, 34 Phil. 808). But i
f it was established that the girl had a carnal relations with other men, there
can be noincrime
Although qualified
of Seduction
seduction,
as shetheisagenotofathevirgin.
offended woman is considered, if
the offended party is a descendant or a sister of the offender no matter how ol
d she is or whether she is a prostitute the crime of qualified seduction is comm
If a person goes to a sauna parlor and finds there a descendant and despite that
Illustration:
itted.
, had sexual intercourse with her, regardless of her reputation or age, the crim
e ofthequalified
In case of aseduction
teacher,isitcommitted.
is not necessary that the offended woman be his stu
dent. is
Deceit It not
is enough
necessary
thatinshequalified
is enrolled seduction.
in the sameQualified
school.seduction is committe
d even though no deceit intervened or even when such carnal knowledge was volunt
ary on the part of the virgin. This is because in such a case, the law takes fo
r granted the existence of the deceit as an integral element of the crime and pu
nishes it with greater severity than it does the simple seduction, taking into a
ccount the abuse of confidence on the part of the agent. n that there is a rela
tion between the accused and the offended party wherein the latter confided his
security as to his person, life and property to the accused with such degree of
confidence
Abuse of confidence
and that is thedetermined
accused abused
from the trust
same. reposed by the offended party t
o the offender. It may also refer to the nature of the work of the offender whic
h mustofnecessarily
Abuse confidenceinvolve
is alsotrust
an element
and confidence.
of estafa. To avoid confusion between the
ft with abuse of confidence (qualified theft) and estafa with abuse of confidenc
e, where the offender misappropriates a thing after he receives it from the vict
im, the student must remember that in qualified theft, only the physical or mate
rial possession of the thing is transferred. If the offender acquires the juridi
cal as well as the physical possession of the thing and he misappropriates it, t
he crime committed is estafa. Juridical possession of the thing is acquired when
one holds the thing in trust, or on commission, or for administration or under
any other obligation involving the duty to deliver or to return the thing receiv
ed. If the possession of the offender is not under any of these concepts, the cr
ime
no
theft
Where
confidence,
isonly
qualified
material
the not
material
possession
theft.
qualified
possession
theft
estafais transferred,
juridical possession
conversion of the property gi
ves rise to the crime of theft. Where both the material and juridical possession
is transferred, misappropriation of the property would constitute estafa. When
the material and juridical possession of the thing transfers ownership of the pr
operty to the possessor, any misappropriation made by the possessor will not res
ult in the if
Qualified: commission
done by oneof any
whocrime,
has access
eithertoforplace
theft
where
of stolen
estafa.property is kept
industrial
when
e.g.,accused
novationguards,
theory
partner
considered
tellers
applies
is notthe
only
liable
deed
if there
forsale
of QTs (estafa)
aasrelation
sham (modus) and he had intent to ga
in, hisvehicle
motor absconding
in kabit
is QTsystem sold to another-theft. Motor vehicle not used as
PU carnapping
On
Wheninthe
kabitsubject
system
andistheft
but
motorunder
ofvehicle,
motor
K ofvehicle
lease-estafa
the Theft becomes qualified. Under R.A. 6539
, Anti-Carnapping Act of 1972, the term motor vehicle includes, within its prote
ction, any vehicle which uses the streets, with or without the required license,
or any vehicle which is motorized using the streets, such as a motorized tricyc
le. taking
The (Izon with
vs. People,
intent to 107gain
SCRAof123)
a motor vehicle belonging to another, without
the latter s consent, or by means of violence or intimidation of persons, or by us
ing force upon things is penalized as carnapping under Republic Act No. 6539 (An
Act Preventing and Penalizing Carnapping), as amended. The overt act which is
being punished under this law as carnapping is also the taking of a motor vehicl
e under circumstances of theft or robbery. If the motor vehicle was not taken b
y the offender but was delivered by the owner or the possessor to the offender,
who thereafter misappropriated the same, the crime is either qualified theft und
er Article 310 of the Revised Penal Code or estafa under Article 315 (b) of the
Revised Penal Code. Qualified theft of a motor vehicle is the crime if only the
material or physical possession was yielded to the offender; otherwise, if juri
dical
theft
THEFT
Article
USURPATION
OCCUPATION
Acts
1.
mailpunished:
possession
matter
ofTaking
OF 311
312
large
PROPERTY
OF REAL
private
possession
cattle
was
OFPROPERTY
also
THEmail
NATIONAL
yielded,
ofto
ORany
be
USURPATION
real
QT,
LIBRARY
theNot
property
crime
postmaster
ANDis
OF REAL
NATIONAL
belonging
estafa.
RIGHTSMUSEUM
Art.
IN another
to PROPERTY
226 by means of
violenceUsurping
2. against any
or intimidation
real rights in of property
persons; belonging to another by means of vi
olencetheagainst
That
ELEMENTS: offenderor takes
intimidation
possession
of persons.
of any real property or usurps any real right
s in violence
That property.
the real against
propertyororintimidation
real rights of belong
persons
to another.
is used by the offender in occu
pyingthere
That
Since real is
this property
aintent
crimeortoagainst
usurpation
gain. property,
real rights
there must
in property.
be intent to gain. In the ab
sencetheofdegree
Use the intent
of intimidation
to gain, thetoact determine
may constitute
the degree
Coercion.
of the penalty to be appl
ied for theunder
Usurpation usurpation.
Article 312 is committed in the same way as robbery with violen
ce or intimidation of persons. The main difference is that in robbery, personal
property is involved; while in usurpation of real rights, it is real property.
The
(People
possession
v. Judgeof the
Alfeche,
land or
Julyreal
23,rights
1992) must be done by means of violence or i
ntimidation. So, if the evidence of the prosecution shows that the accused enter
ed the premises by means of strategy, stealth or methods other than the employme
nt of violence, no crime was committed by the offender. (People vs. Alfeche, Jr.
,Usurpation
211 SCRA 770)of real rights and property should not be complexed using Article 48
when violence or intimidation is committed. There is only a single crime, but
a two-tiered penalty is prescribed to be determined on whether the acts of viole
nce used is akin to that in robbery in Article 294, grave threats or grave coerc
ion and an incremental penalty of fine based on the value of the gain obtained b
y the is
There offender.
no crime of threat and usurpation of real property since threat is an i
ndispensable element of usurpation of real rights. Hence, where threats are utte
red to the owner of real property by one illegally occupying it, the crime commi
tted is not the complex crime of usurpation of real property with grave threats
because making a threat is an inherent element of usurpation of real property. (
Castrodes
The complainant
vs. Cubelo,
must be83the SCRAperson
670) upon whom violence was employed. If a tenant
was occupying the property and he was threatened by the offender, but it was th
e owner who was not in possession of the property who was named as the offended
party, the same may be quashed as it does not charge an offense. The owner woul
d, squatting
On
According
1. at most,
Those
tobethe
who
entitled
Urban
have the
Development
to capacity
civil recourse
and
or means
Housing
only.
toAct,
pay rent
the following
or for legitimate
are squatters:
housi
ng but areIntruders
2.
3. squatting
Also theofpersons
anyway;
lands reserved
who were forawarded
socialized
lots buthousing,
sold orpre-empting
lease them posses
out;
sion that
Note by occupying
violationtheofsame.
Article 312 is punishable only with fine. So, if physical
injuries are inflicted on the victim due to the violence employed by the offend
er in the usurpation of real rights, the latter shall be punished separately for
Violence
the crimeemployed
of physical
results
injuries.
to the death of the offended party. When such eventual
ity does occur, then the crime may rightfully be denominated as usurpation of re
al rights resulting to homicide, murder, parricide, or infanticide as the case m
ay be.there
Article
ALTERING
That
ELEMENTS: 313
BOUNDARIES
be boundary OR marks
LANDMARKSor monuments of towns, provinces, or estates, or an
y other
CULPABLE
Article
FRAUDULENT
ELEMENTS
That
To bethere
the
he
liable
marks
314
absconds
INSOLVENCY
offender
INSOLVENCY
be for
intended
prejudice
with
fraudulent
alters
is ahis
(culpable
totosaid
debtor;
designate
property.
his
insolvency,
boundary
that
creditors.
insolvency)
themarks.
is, boundaries
he
the was
disposal
obligations
ofofthethesame.
due
merchandise
and payable.
must be
done with malice. The mere circumstance that a person has disposed of his mercha
ndise by removing them from the place where they were kept would necessarily imp
ly fraud. What is required is actual prejudice to the creditor. The intention of
The
thelaw
accused
does not
alonerequire
is notthe enough.
offender
(People
to bevs.a merchant.
Guzman, C.The A. law
40 O.says
G. 2655)
any person, a
nd this refers to anyone who becomes a debtor and performs the acts made punisha
ble property
The by the law. which the offender may abscond which consists of both real and pers
onallaw
The property.
on fraudulent
(Peopleinsolvency
vs. Chong is Chuydifferent
Lingobo,from
45 Phil.
the Insolvency
372) Law. For the I
nsolvency Law to apply, the criminal act must have been committed after the inst
itution of the insolvency proceedings against the offending debtor. But under th
e present article, there is no requirement that the accused should be adjudged b
ankruptisorembezzlement
SWINDLING
Estafa AND
insolvent.
OTHER DECEITS
under common law. It is a well-known crime to lawyers and
businessmen. It is a continuing crime unlike theft. Being a public crime, it ca
n be the
Article
ELEMENTS
That prosecuted
315
OF ESTAFA
accused dedefrauded
officio.
IN GENERAL:
another
(315)(a.) by abuse of confidence, or (b) or means
of deceit
That damageandor prejudice capable of pecuniary estimation is caused to the offend
ed party
The concept
or of
third
damage
person
under this article does not mean actual or real damage. It
may consist in mere disturbance of the property rights of the offended party. H
owever, the damage must be capable of pecuniary estimation. This requirement is
important because in estafa, the penalty is dependent on the value of the proper
Since estafa is a material crime, it can be divided into consummated, attempted
ty.
or frustrated stages. In the latter case, the damage can be in the form of tempo
raryELEMENTS
B.
That
The accused
prejudice
the
he
damage
alters
offender
OF prejudice
or
doesornot
ESTAFA
its suffering,
has
substance,
receive
WITHis
an onerous
UNFAITHFULNESS:
caused
orquantity,
the inconvenience
obligation
goods
to another.
but
or delivers
(315)
quality.
tocapable
delivera thing
ofsomething
pecuniary
underofanestimation.
value.
onerous obl
igation which is not in accordance with the substance, quantity or quality agree
d upon. It is the altering of the substance, quality or quantity of the thing de
livered
The wordwhich
onerous
makesmeans
the offender
that theliable
offendedforparty
the crime
has fully
of estafa.
complied with his obligat
ions to pay. So, if the thing delivered whose substance was altered, is not yet
fully
C. ELEMENTS
or partially
OF ESTAFA paid,
WITHthen
ABUSE
theOFcrime
CONFIDENCE
of estafaUNDER
is SUBDIVISION
not committed. NO.1 PAR. (B),
OF ART.315
That money, goods, or other personal property be received by the offender in tru
st, or on commission, or for administration, or under any other obligation invol
ving there
That the dutybe misappropriation
to make delivery or of conversion
or to return, of such
the same.
money or property by the of
fender,
that suchormisappropriation
dental on his part or conversion
of such receipt.
or dental is to the prejudice of anothe
r andfourth
That
(The there iselement
a demand is not
madenecessary
by the offended
when therepartyistoevidence
the offender.
of misappropriation
of is
It thenecessary
goods by in thethis
defendant.
kind of estafa,
[Tubb v.forPeople,
the money,
et al.,goods
101 or
Phil.
personal
114] ).propert
y to have been received by the offender in trust, or on commission or for admini
stration. He must acquire both material or physical as well as juridical possess
ion of the thing received. In these instances, the offender, who is the transfer
Aee,money
acquires
marketa transaction
right over ahoweverthing which
partakes
he mayof the
set nature
up evenofagainst
a loan,theandowner.
non-pay
ment thereof would not give rise to criminal liability for Estafa through misapp
ropriation or conversion. In money market placements, the unpaid investor shoul
d institute against the middleman or dealer, before the ordinary courts, a simpl
e action for recovery of the amount he had invested, and if there is allegation
of fraud, the proper forum would be the Securities and Exchange Commission. (Se
sbreno
D. 2ND ELEMENT
vs. CourtOFofESTAFA
Appeals,
WITHetABUSE
al.,OF240CONFIDENCE
SCRA 606).UNDER PARAGRAPH (B), SUBDIVISI
c.
ON
By
Unfaithfulness
Notes:
a.
b.
thing
no thing
N0.1,
misappropriating
converting
denying
by
existing
agreement
altering
is delivered
ART.
received
that
obligation
as
315
the
orthe
the
toAbuse
=by
thing
has
substance
quality
3and
the
thing
offender
WAYS
not
toof
thing
received.
converting
was
deliver
been
OFNo
Confidence
COMMITTING:
received.
under
fully
estafa
even
transactions
orifpartially
ifdelivery
it istransferring
not
paid
is aunsatisfactory
for
subjectjuridical
not
ofestafa
lawfulpossessi
commerce
on, notPDownership
under 115 (Trust Receipts Law) failure to turn over to the bank the proceeds
ofsamethething
salereceived
of the goods must covered
be returnedby TRotherwise
Estafaestafa; sale on credit by agency
Novation
when
Estafa it wasnot
mustto
affected
take
be soldplace
byfor
Novation
before
cash criminal
of
estafa
Contract
liability
because wasitincurred
is a public
or perhaps
offenseprior
Misappropriating
g.
to the
Converting
filing ofact the
toofcriminal
take
using
something
or
information
disposing
for one in
ofscourt
another
own benefit
bysstate
property
prosecutors
as if it was one s ow
n; thing
There musthasbebeen
prejudice
devotedtoforanother
a purposenotornecessary
use different
that offender
from thatshould
agreed
obtain
upon gai
nThere is no estafa through negligence. There is likewise no estafa where the acc
used did not
Partners Nopersonally
estafa of money profitororproperty
gain from received
the misappropriation.
for the partnership when the bu
siness is commercial and profits accrued. BUT if property is received for speci
fic
Failure
purpose
to account
and is misappropriated
after the DEMAND isestafa! circumstantial evidence of misappropriati
DEMAND is not a condition precedent to existence of estafa when misappropriation
on
Inmaytheft,
be established
upon delivery by other
of theproof
thing to the offender, the owner expects an immed
iate
Servant,
returndomestic
of theor thing
employee
to himwho misappropriates
otherwise, Estafaa thing he received from his m
asterinisthe
When NOTprosecution
guilty of estafa for malversation
but of qualified
the public
theftofficer is acquitted, the pr
OEstafa
ivate
ffendersindividual
withareAbuse
entrusted
allegedly
of Confidence
withinfunds
conspiracy
Malversation
or property
with himandmayarebecontinuing
held liable
offenses
for estafa
offenders
are entrusted with funds or property and are continuing offensesFunds: always pri
vateFunds: public funds or propertyOffender: private individual, or public officer
not accountableOffender: public officer accountable for public fundsCommitted by m
isappropriating, converting, denying having received moneyCommitted by appropria
E.
That
ting,
misappropriating
ELEMENTS
the
above
taking,
paper
offended
the  party
OF signature
ESTAFA
with theBYshould
signature
TAKING
of thehave
UNDUE
offended
ofdelivered
the
ADVANTAGE
offended
party itaOFdocument
toparty
THE
offender.
SIGNATURE
beisinwritten
blank.
IN BLANK:
by the(315)
offe
nder the
That without
document
authority
so written
to do creates
so. a liability of, or causes damage to, the of
fended
The element
partyoforthisany estafa
third person.
is also abuse of confidence. The offended party leave
s a blank paper with his signature to another, with specific instructions to mak
e entries thereon according to the wishes of the offended party. But contrary to
such instructions and wishes, the accused makes entries in writing which create
s liabilities
If the unauthorized
againstwritings
the owner wereofdone
the bysignature.
a person other than the one to whom th
e owner of the signature delivered the paper in blank, and it caused damage to t
he offended party, the crime committed by the third party is not estafa but fals
Note: If the paper with signature in blank was stolen Falsification if by making
ification.
it appear that he participated in a transaction when in fact he did not so part
F. ELEMENTS
icipate
that there mustOF ESTAFA
be a falseBY MEANS
pretense,
OF DECEIT:
fraudulent
(315) means must be made or executed p
rior such
That to orfalse pretense, fraudulent act or fraudulent means must be made or exe
cutedthe
That prior
offended
to or party
simultaneously
must havewithrelied
theoncommission
the falseofpretense,
the fraud.
fraudulent act,
or fraudulent means, that is, he was induced to part with his money or property
because
That
False
Notes: aspretenses
aofresult
the false
orthereof,
fraudulent
pretense,
the acts
offended
fraudulent
executed
party
act,suffered
prior
or fraudulent
todamage.
or simultaneously
means. with deli
very ofmust
There thebething
evidenceby thethat
complainant
the pretense of the accused that he possesses power/
influence
The representation
is false that accused possessed influence, to deceive and inveigle the
complainant into parting with his money must however be false to constitute dec
eit under No. 2 of Article 315, RPC. (Dela Cruz vs. Court of Appeals, et al.,
265 SCRA of
Elements 299).
estafa by means of false pretenses or fraudulent acts under Article
315 (2)
Acts
1.
2. punished
Using fictitious
Falselyunder
pretending
paragraph
name;
to possess
(a) power, influence, qualifications, property
, credit,
3.
In the prosecution
Byagency,
means ofbusiness
ofother
estafasimilar
orunder
imaginary
deceits.
Articletransactions;
315, no. 2(a), or it is indispensable th
at the element of deceit consisting in the false statement or fraudulent represe
ntation of the accused, be made prior to, before or at least simultaneously with
the delivery of the thing by the offended party. The added requirement that suc
h false statement or fraudulent representation constitutes the very motive or th
e only reason or cause which induces the offended party to part with the thing w
hile they may be false representation after the delivery of the goods or the thi
ng by the aggrieved party, such false statement or false representation, no matt
er how fraudulent and obnoxious it may appear, cannot serve as a basis for prose
cution under this category of estafa. For the case to prosper against the accuse
d, the prosecution must prove two indispensable elements: deceit and damage to a
nother.means
Credit (Celino
thevs.ability
CourttoofbuyAppeals,
things163or merchandise
SCRA 97) on the basis of one s charac
ter, capacity to pay or goodwill in the business community. So, if it is used to
deceive another and the deception is the principal reason for the delivery of t
he goods which results in damage to the offended party, the crime committed is e
Under paragraph
stafa.
Altering the quality,
(b) fineness, or weight of anything pertaining to his art or b
Under paragraph
usiness.
Pretending to have (c)bribed any government employee, without prejudice to the acti
on for calumny which the offended party may deem proper to bring against the off
G. ELEMENTS OF ESTAFA BY POSTDATING A CHECK OR ISSUING A CHECK IN PAYMENT OF AN
ender.
That the offender
OBLIGATION: (315) postdated a check, or issued a check in payment of an obligati
That such postdatig or issuing a check was done when the offender had no funds i
on.
n the bank or his funds deposited therein were not sufficient to cover the amoun
t of that
Note
Notes:
(1)
(2)
(Remember
theThecheck.
this
that
obligation
check
onlyisapplies
it drawn
theischeck
not
toifenter
pre-existing;
that isintosupposed
an obligation;
to be the sole consideration for
the other party to have entered into the obligation. For example, Rose wants t
o purchase a bracelet and draws a check without insufficient funds. The jeweler
sells herItthe
(3) doesbracelet
not cover solely
checks
because
whereofthethepurpose
consideration
of drawing
in the check
check.)is to gu
arantee
The checka must
loan beas genuine.
this is notIfantheobligation
check is falsified
contemplatedandinisthis
cashed
paragraph
with the ban
k or exchanged for cash, the crime is estafa thru falsification of a commercial
The general rule is that the accused must be able to obtain something from the o
document.
ffended party by means of the check he issued and delivered. Exception: when t
he must
It
good
dishonor
check
faithnot
isisbe
for issued
lack
apromissory
defense.
ofnotfunds
in(PP.
payment
notes,
- prima
VS.orVILLAPANDO,
offacie
guaranties.
an obligation.
evidence
56 PHIL.31)
of deceit or failure to make g
oodthe
If within
checks
three
weredays
issued
afterbynotice
the defendant
of. and he received money for them, then
stopped payment and did not return the money, and he had an intention to stop
paymentiswhen
Deceit presumed
he issuedif thethedrawer
check,fails
theretoisdeposit
estafa.the amount necessary to cover
the check within three days from receipt of notice of dishonor or insufficiency
of
If
It check
funds
is therefore
in the
was issued
bank.
essential
in payment
that ofthepre-existing
check be issueddebtin payment
no estafaof a simultaneous
obligation. The check in question must be utilized by the offender in order to d
efraud the offended party. So, if the check was issued in payment of a promissor
y note which had matured and the check was dishonored, there is not estafa since
the accused did not obtain anything by means of said check. (People vs. Canlas,
IfO.aG.bouncing
1092) check is issued to pay a pre-existing obligation, the drawer is li
able under B. P. Blg. 22 which does not make any distinction as to whether a bad
check is issued in payment of an obligation or to guarantee an obligation. (Que
Offender
vs. People,
must73217-18,
be able toSept. obtain
21,something
1987) from the offended party by means of th
e check
The checkhemust
issues
be issued
and delivers
in payment of an obligation. If the check was issued wi
thout any obligation or if there is lack of consideration and the check is subse
H.
That
quently
If ELEMENTS
postdating
a person
the dishonored,
check
person
OFmakes
ais
OFFENSE
who
check
made
or
makes
theissued
DEFINED
draws
or
crime
drawn
or and
draws
asof
INand
mere
issues
estafa
THE
and
issued
guarantee/promissory
FIRST
issues
any
is to
not
PARAGRAPH
check.
apply
the
committed.
check
onOFaccount
SECTION
knows
note at
or1:
nothe
forBP
estafa
value.
time
22 of is
sue that he does not have sufficient funds in or credit with the drawee bank for
That
the the
payment
checkofissuch
subsequently
check in full dishonored
upon itsbypresentment.
the drawee bank for insufficiency o
f funds or credit, or would have been dishonored for the same reason had not the
Note:
drawee, Failure
withoutto make
any valid
good within
reason,5ordered
bankingthedaysbank
prima
to facie
stop payment.
evidence of knowled
ge ELEMENTS
I.
Thatofa person
lack OF
andhas
THE
insufficiency
sufficient
OFFENSE DEFINED
funds in IN or
THEcredit
SECONDwith
PARAGRAPH
the drawee
OF SECTION
bank when1: BPhe22mak
es orhedraws
That failsandtoissues
keep sufficient
a check. funds or to maintain a credit to cover the full
amount of the check if presented within a period of 90 days from the date appea
ring the
That
Note: thereon.
Failure
checktoismake
dishonored
good within
by the5 banking
drawee bank.
days prima facie evididence of knowl
edge of lackbetween
Distinction and insufficiency
estafa under Article 315 (2) (d) of the Revised Penal Code a
nd violation
(1) Underofboth
BatasArticle
Pambansa
315 (2)
Blg.(d)22:and Batas Pambansa Blg. 22, there is crim
inaltheliability
If check isifdrawn
the for
checka pre-existing
is drawn for obligation,
non-pre-existing
thereobligation.
is criminal liability
(2)
only underEstafa
Batas
under
Pambansa
ArticleBlg.31522.(2) (d) is a crime against property while Batas
Pambansa Blg. 22 is a crime against public interest. The gravamen for the form
er is the deceit employed, while in the latter, it is the issuance of the check.
(3)Hence,Inthere
the estafa
is no double
under Article
jeopardy.315 (2) (d), deceit and damage are material,
(4)
while inInBatas
estafaPambansa
under Article
Blg. 22,315they(2)are
(d),immaterial.
knowledge by the drawer of insuffic
ient funds is not required, while in Batas Pambansa Blg. 22, knowledge by the dr
awer is
When
There ofisthere
insufficient
a primaprima
facie
facie
funds
evidence
evidence
is reqired.
of knowledge
of knowledgeof insufficient
of insufficient funds
funds?
when the chec
k was presented within 90 days from the date appearing on the check and was dish
1.
Exceptions
onored.
2.
a. When theWhen
Pays checkthewas
holder ofmaker
presented
the check
or drawer
afteramount
the --90 daysduefrom
within
date;
five banking days aft
er receiving
b. Makesnotice
arrangements
that such forcheck
paymenthasinnotfull
beenbypaid
the drawee
by the of
drawee;
such check withi
n five
The drawee
banking
mustdays
causeafter
to benotice
writtenof or
non-payment
stamped in plain language the reason for
thethe
If dishonor.
drawee bank received an order of stop-payment from the drawer with no rea
son,theitdrawer
If must behasstated
validthatreasons
the for
fundsstopping
are insufficient
payment, hetocannot
be prosecuted
be held criminal
here.
ly liable
The unpaidunder
or dishonored
B.P. Blg.check 22. with the stamped information re: refusal to pay i
s prima facie evidence of (1) the making or issuance of the check; (2) the due p
resentment to the drawee for payment & the dishonor thereof; and (3) the fact th
at issuance
On
The the
issuance
checkofof
wasacheck
properly
bouncing
withcheck
dishonored
insufficient forfunds
the reason
may bestamped
held liable
on theforcheck.
estafa and
Batas Pambansa Blg. 22. Batas Pambansa Blg. 22 expressly provides that prosecut
ion under said law is without prejudice to any liability for violation of any pr
ovision in the Revised Penal Code. Double Jeopardy may not be invoked because a
violation of Batas Pambansa Blg. 22 is a malum prohibitum and is being punished
as a crime against the public interest for undermining the banking system of th
e country, while under the Revised Penal Code, the crime is malum in se which re
quires
In estafa,
criminal
the check
intentmust
andhave
damage
beentoissued
the payee
as aand
reciprocal
is a crime
consideration
against property.
for par
ting of goods (kaliwaan). There must be concomitance. The deceit must be prior
to or simultaneous with damage done, that is, seller relied on check to part wi
th goods. If it is issued after parting with goods as in credit accommodation o
nly, there is no estafa. If the check is issued for a pre-existing obligation,
there is no estafa as damage had already been done. The drawer is liable under
Batascriminal
For Pambansaliability
Blg. 22.to attach under Batas Pambansa Blg. 22, it is enough that
the check was issued to "apply on account or for value" and upon its presentmen
t it was dishonored by the drawee bank for insufficiency of funds, provided that
the drawer had been notified of the dishonor and inspite of such notice fails t
o pay the holder of the check the full amount due thereon within five days from
Under Batas Pambansa Blg. 22, a drawer must be given notice of dishonor and give
notice.
n five banking days from notice within which to deposit or pay the amount stated
in the check to negate the presumtion that drawer knew of the insufficiency. A
fter this period, it is conclusive that drawer knew of the insufficiency, thus t
heremere
The is noissuance
more defense
of anytokind
theofprosecution
check regardless
under Batas
of thePambansa
intent of
Blg.the22.parties,
whether the check is intended to serve merely as a guarantee or as a deposit, ma
kes the drawer liable under Batas Pambansa Blg. 22 if the check bounces. As a m
atter of public policy, the issuance of a worthln that there is a relation betwe
en the accused and the offended party wherein the latter confided his security a
s to his person, life and property to the accused with such degree of confidence
Abuse
and that
of confidence
the accusedisabused
determined
the same.
from the trust reposed by the offended party t
o the offender. It may also refer to the nature of the work of the offender whic
h mustofnecessarily
Abuse confidenceinvolve
is alsotrust
an element
and confidence.
of estafa. To avoid confusion between the
ft with abuse of confidence (qualified theft) and estafa with abuse of confidenc
e, where the offender misappropriates a thing after he receives it from the vict
im, the student must remember that in qualified theft, only the physical or mate
rial possession of the thing is transferred. If the offender acquires the juridi
cal as well as the physical possession of the thing and he misappropriates it, t
he crime committed is estafa. Juridical possession of the thing is acquired when
one holds the thing in trust, or on commission, or for administration or under
any other obligation involving the duty to deliver or to return the thing receiv
ed. If the possession of the offender is not under any of these concepts, the cr
Where
ime
no
theftisonly
material
the not
confidence,
qualified material
possession
theft. possession
qualified estafais transferred,
theft juridical possession
conversion of the property gi
ves rise to the crime of theft. Where both the material and juridical possession
is transferred, misappropriation of the property would constitute estafa. When
the material and juridical possession of the thing transfers ownership of the pr
operty to the possessor, any misappropriation made by the possessor will not res
ult in the if
Qualified: commission
done by one
of any
whocrime,
has access
eithertoforplace
theft
where
of stolen
estafa.property is kept
industrial
when
e.g.,accused
novation
guards,
theory
partner
considered
tellers
applies
is notthe
only
liable
deed
if there
forsale
of QTs (estafa)
aasrelation
sham (modus) and he had intent to ga
in, hisvehicle
motor absconding
in kabit
is QTsystem sold to another-theft. Motor vehicle not used as
PU carnapping
On
Wheninthe
kabit
subject
system
andistheft
but
motor
under
ofvehicle,
motor
K ofvehicle
lease-estafa
the Theft becomes qualified. Under R.A. 6539
, Anti-Carnapping Act of 1972, the term motor vehicle includes, within its prote
ction, any vehicle which uses the streets, with or without the required license,
or any vehicle which is motorized using the streets, such as a motorized tricyc
le. taking
The (Izon with
vs. People,
intent to107gain
SCRAof123)
a motor vehicle belonging to another, without
the latter s consent, or by means of violence or intimidation of persons, or by us
ing force upon things is penalized as carnapping under Republic Act No. 6539 (An
Act Preventing and Penalizing Carnapping), as amended. The overt act which is
being punished under this law as carnapping is also the taking of a motor vehicl
e under circumstances of theft or robbery. If the motor vehicle was not taken b
y the offender but was delivered by the owner or the possessor to the offender,
who thereafter misappropriated the same, the crime is either qualified theft und
er Article 310 of the Revised Penal Code or estafa under Article 315 (b) of the
Revised Penal Code. Qualified theft of a motor vehicle is the crime if only the
material or physical possession was yielded to the offender; otherwise, if juri
dical
theft
THEFT
Article
USURPATION
OCCUPATION
Acts
1.
mailpunished:
possession
matter
ofTaking
OF 311
312
large
PROPERTY
OF REAL
private
possession
cattle
was
OFPROPERTY
also
THE
mail
NATIONAL
yielded,
ofto
ORany
be
USURPATION
real
QT,
LIBRARY
theNot
property
crime
postmaster
ANDis
OF REAL
NATIONAL
belonging
estafa.
RIGHTSMUSEUM
Art.
IN another
to PROPERTY
226 by means of
violenceUsurping
2. against any
or intimidation
real rights in of property
persons; belonging to another by means of vi
ELEMENTS:
olence
That theagainst
offender or takes
intimidation
possessionof persons.
of any real property or usurps any real right
s in violence
That property.
the real against
propertyororintimidation
real rights of belong
persons
to another.
is used by the offender in occu
pyingthere
That
Since real is
this property
aintent
crimeortoagainst
usurpation
gain. property,
real rights
there must
in property.
be intent to gain. In the ab
sencetheofdegree
Use the intent
of intimidation
to gain, thetoact determine
may constitute
the degree
Coercion.
of the penalty to be appl
ied for theunder
Usurpation usurpation.
Article 312 is committed in the same way as robbery with violen
ce or intimidation of persons. The main difference is that in robbery, personal
property is involved; while in usurpation of real rights, it is real property.
The
(People
possession
v. Judge of the
Alfeche,
land orJulyreal
23,rights
1992) must be done by means of violence or i
ntimidation. So, if the evidence of the prosecution shows that the accused enter
ed the premises by means of strategy, stealth or methods other than the employme
nt of violence, no crime was committed by the offender. (People vs. Alfeche, Jr.
,Usurpation
211 SCRA 770)
of real rights and property should not be complexed using Article 48
when violence or intimidation is committed. There is only a single crime, but
a two-tiered penalty is prescribed to be determined on whether the acts of viole
nce used is akin to that in robbery in Article 294, grave threats or grave coerc
ion and an incremental penalty of fine based on the value of the gain obtained b
y the is
There offender.
no crime of threat and usurpation of real property since threat is an i
ndispensable element of usurpation of real rights. Hence, where threats are utte
red to the owner of real property by one illegally occupying it, the crime commi
tted is not the complex crime of usurpation of real property with grave threats
because making a threat is an inherent element of usurpation of real property. (
Castrodes
The complainant
vs. Cubelo,
must be83the SCRAperson
670) upon whom violence was employed. If a tenant
was occupying the property and he was threatened by the offender, but it was th
e owner who was not in possession of the property who was named as the offended
party, the same may be quashed as it does not charge an offense. The owner woul
d, squatting
On
According
1. at most,
Those
tobethe
who
entitled
Urban
have the
Development
to capacity
civil recourse
and
or means
Housing
only.
toAct,
pay rent
the following
or for legitimate
are squatters:
housi
ng but areIntruders
2.
3. squatting
Also theofpersons
anyway;
lands reserved
who were forawarded
socialized
lots buthousing,
sold orpre-empting
lease them posses
out;
sion that
Note by occupying
violationtheofsame.
Article 312 is punishable only with fine. So, if physical
injuries are inflicted on the victim due to the violence employed by the offend
er in the usurpation of real rights, the latter shall be punished separately for
Violence
the crimeemployed
of physical
resultsinjuries.
to the death of the offended party. When such eventual
ity does occur, then the crime may rightfully be denominated as usurpation of re
al rights resulting to homicide, murder, parricide, or infanticide as the case m
ay be.there
Article
ALTERING
That
ELEMENTS: 313
BOUNDARIES
be boundary OR marks
LANDMARKSor monuments of towns, provinces, or estates, or an
y other
CULPABLE
Article
FRAUDULENT
ELEMENTS
That
To bethere
the
heliable
marks
314
absconds
INSOLVENCY
offender
INSOLVENCY
be for
intended
prejudice
with
fraudulent
alters
is ahis
(culpable
totosaid
debtor;
designate
property.
his
insolvency,
boundary
that
creditors.
insolvency)
themarks.
is, boundaries
he
the was
disposal
obligations
ofofthethesame.
due
merchandise
and payable.
must be
done with malice. The mere circumstance that a person has disposed of his mercha
ndise by removing them from the place where they were kept would necessarily imp
ly fraud. What is required is actual prejudice to the creditor. The intention of
The
thelaw
accused
does not
alonerequire
is notthe enough.
offender
(People
to bevs.a merchant.
Guzman, C.The A. law
40 O.says
G. 2655)
any person, a
nd this refers to anyone who becomes a debtor and performs the acts made punisha
ble property
The by the law. which the offender may abscond which consists of both real and pers
onallaw
The property.
on fraudulent
(Peopleinsolvency
vs. Chong is Chuydifferent
Lingobo,from
45 Phil.
the Insolvency
372) Law. For the I
nsolvency Law to apply, the criminal act must have been committed after the inst
itution of the insolvency proceedings against the offending debtor. But under th
e present article, there is no requirement that the accused should be adjudged b
ankruptisorembezzlement
SWINDLING
Estafa AND
insolvent.
OTHER DECEITS
under common law. It is a well-known crime to lawyers and
businessmen. It is a continuing crime unlike theft. Being a public crime, it ca
n be the
Article
ELEMENTS
That prosecuted
315
OF ESTAFA
accused dedefrauded
officio.
IN GENERAL:
another
(315)(a.) by abuse of confidence, or (b) or means
of deceit
That damageandor prejudice capable of pecuniary estimation is caused to the offend
ed party
The concept
or of
thirddamage
personunder this article does not mean actual or real damage. It
may consist in mere disturbance of the property rights of the offended party. H
owever, the damage must be capable of pecuniary estimation. This requirement is
important because in estafa, the penalty is dependent on the value of the proper
Since estafa is a material crime, it can be divided into consummated, attempted
ty.
or frustrated stages. In the latter case, the damage can be in the form of tempo
raryELEMENTS
B.
That
The accused
prejudice
the
he
damage
alters
offender
OF prejudice
or
does ornot
ESTAFA
its suffering,
has
substance,
receive
WITHis
an onerous
UNFAITHFULNESS:
caused
orquantity,
the inconvenience
obligation
goods
to another.
but
or delivers
(315)
quality.
tocapable
deliver
a thing
ofsomething
pecuniary
underofanestimation.
value.
onerous obl
igation which is not in accordance with the substance, quantity or quality agree
d upon. It is the altering of the substance, quality or quantity of the thing de
livered
The wordwhich
onerous
makesmeans
the offender
that theliable
offendedforparty
the crime
has fully
of estafa.
complied with his obligat
ions to pay. So, if the thing delivered whose substance was altered, is not yet
C. ELEMENTS
fully or partially
OF ESTAFA paid,
WITHthen
ABUSE
theOFcrime
CONFIDENCE
of estafaUNDERis SUBDIVISION
not committed.NO.1 PAR. (B),
OF ART.315
That money, goods, or other personal property be received by the offender in tru
st, or on commission, or for administration, or under any other obligation invol
ving there
That the dutybe misappropriation
to make delivery or of conversion
or to return, of such
the same.
money or property by the of
fender,
that suchormisappropriation
dental on his part or conversion
of such receipt.
or dental is to the prejudice of anothe
r andfourth
That
(The there iselement
a demand is not
madenecessary
by the offended
when there
partyistoevidence
the offender.
of misappropriation
of is
It thenecessary
goods by in thethis
defendant.
kind of estafa,
[Tubb v.forPeople,
the money,
et al.,goods
101 or
Phil.
personal
114] ).propert
y to have been received by the offender in trust, or on commission or for admini
stration. He must acquire both material or physical as well as juridical possess
ion of the thing received. In these instances, the offender, who is the transfer
Aee,moneyacquires
marketa transaction
right over ahoweverthing which
partakes
he may
of the
set nature
up evenofagainst
a loan,theandowner.
non-pay
ment thereof would not give rise to criminal liability for Estafa through misapp
ropriation or conversion. In money market placements, the unpaid investor shoul
d institute against the middleman or dealer, before the ordinary courts, a simpl
e action for recovery of the amount he had invested, and if there is allegation
of fraud, the proper forum would be the Securities and Exchange Commission. (Se
sbreno
D. 2ND ELEMENT
vs. CourtOFofESTAFAAppeals,
WITHetABUSE
al.,OF240CONFIDENCE
SCRA 606).UNDER PARAGRAPH (B), SUBDIVISI
c.
ON
By
Unfaithfulness
Notes:
a.
b.
thing
no thing
N0.1,
misappropriating
converting
denying
by
existing
agreement
altering
is delivered
ART.
received
that
obligation
as
315
the
orthe
the
toAbuse
=by
thing
has
substance
quality
3and
the
thing
offender
WAYS
not
toof
thing
received.
converting
was
deliver
been
OFNo
Confidence
COMMITTING:
received.
under
fully
estafa
even
transactions
orifpartially
ifdelivery
it istransferring
not
paid
is aunsatisfactory
for
subjectjuridical
not
ofestafa
lawfulpossessi
commerce
on, notPDownership
under 115 (Trust Receipts Law) failure to turn over to the bank the proceeds
of samethething
salereceived
of the goods must covered
be returnedby TRotherwise
Estafaestafa; sale on credit by agency
Novation
when
Estafa it wasnot
mustto
affected
take
be soldplace
byfor
Novation
before
cash criminal
of
estafa
Contract
liability
because wasitincurred
is a public
or perhaps
offenseprior
Misappropriating
g.
to the
Converting
filing ofact the
toofcriminal
take
using
something
or
information
disposing
for one in
ofscourt
another
own benefit
bysstate
property
prosecutors
as if it was one s ow
n; thing
There musthasbebeen
prejudice
devotedtoforanother
a purposenotornecessary
use different
that offender
from thatshould
agreed obtain
upon gai
nThere is no estafa through negligence. There is likewise no estafa where the acc
used did not
Partners Nopersonally
estafa of money profitororproperty
gain from received
the misappropriation.
for the partnership when the bu
siness is commercial and profits accrued. BUT if property is received for speci
fic
Failure
purpose
to account
and is misappropriated
after the DEMAND isestafa! circumstantial evidence of misappropriati
DEMAND is not a condition precedent to existence of estafa when misappropriation
on
Inmaytheft,
be established
upon delivery by other
of theproof
thing to the offender, the owner expects an immed
iate
Servant,
returndomestic
of theor thing
employee
to himwho misappropriates
otherwise, Estafaa thing he received from his m
asterinisthe
When NOTprosecution
guilty of estafa for malversation
but of qualified
the public
theftofficer is acquitted, the pr
OEstafa
ivate
ffendersindividual
withareAbuse
entrusted
allegedly
of Confidence
withinfunds
conspiracy
Malversation
or property
with himandmayarebecontinuing
held liableoffenses
for estafa
offenders
are entrusted with funds or property and are continuing offensesFunds: always pri
vateFunds: public funds or propertyOffender: private individual, or public officer
not accountableOffender: public officer accountable for public fundsCommitted by m
isappropriating, converting, denying having received moneyCommitted by appropria
E.
That
ting,
misappropriating
ELEMENTS
the
above
taking,
paper
offended
the  party
OF signature
ESTAFA
with theBYshould
signature
TAKING
of thehave
UNDUE
offended
ofdelivered
the
ADVANTAGE
offended
party itaOFdocument
toparty
THE
offender.
SIGNATURE
beisinwritten
blank.
IN BLANK:
by the(315)
offe
nder the
That without
document
authority
so written
to do creates
so. a liability of, or causes damage to, the of
fended
The element
partyoforthisany estafa
third person.
is also abuse of confidence. The offended party leave
s a blank paper with his signature to another, with specific instructions to mak
e entries thereon according to the wishes of the offended party. But contrary to
such instructions and wishes, the accused makes entries in writing which create
s liabilities
If the unauthorized
againstwritings
the owner wereofdone
the bysignature.
a person other than the one to whom th
e owner of the signature delivered the paper in blank, and it caused damage to t
he offended party, the crime committed by the third party is not estafa but fals
Note: If the paper with signature in blank was stolen Falsification if by making
ification.
it appear that he participated in a transaction when in fact he did not so part
F. ELEMENTS
icipate
that there mustOF ESTAFA
be a falseBY MEANS
pretense,
OF DECEIT:
fraudulent
(315) means must be made or executed p
rior such
That to orfalse pretense, fraudulent act or fraudulent means must be made or exe
cutedthe
That prior
offended
to or party
simultaneously
must havewithrelied
theoncommission
the falseofpretense,
the fraud.
fraudulent act,
or fraudulent means, that is, he was induced to part with his money or property
because
That
False
Notes: aspretenses
aofresult
the false
orthereof,
fraudulent
pretense,
the acts
offended
fraudulent
executed
party
act,suffered
prior
or fraudulent
todamage.
or simultaneously
means. with deli
very ofmust
There thebething
evidenceby thethat
complainant
the pretense of the accused that he possesses power/
influence
The representation
is false that accused possessed influence, to deceive and inveigle the
complainant into parting with his money must however be false to constitute dec
eit under No. 2 of Article 315, RPC. (Dela Cruz vs. Court of Appeals, et al.,
265 SCRA of
Elements 299).
estafa by means of false pretenses or fraudulent acts under Article
315 (2)
Acts
1.
2. punished
Using fictitious
Falselyunder
pretending
paragraph
name;
to possess
(a) power, influence, qualifications, property
, credit,
3.
In the prosecution
Byagency,
means ofbusiness
ofother
estafasimilar
orunder
imaginary
deceits.
Articletransactions;
315, no. 2(a), or it is indispensable th
at the element of deceit consisting in the false statement or fraudulent represe
ntation of the accused, be made prior to, before or at least simultaneously with
the delivery of the thing by the offended party. The added requirement that suc
h false statement or fraudulent representation constitutes the very motive or th
e only reason or cause which induces the offended party to part with the thing w
hile they may be false representation after the delivery of the goods or the thi
ng by the aggrieved party, such false statement or false representation, no matt
er how fraudulent and obnoxious it may appear, cannot serve as a basis for prose
cution under this category of estafa. For the case to prosper against the accuse
d, the prosecution must prove two indispensable elements: deceit and damage to a
nother.means
Credit (Celinothevs.ability
Courttoofbuy Appeals,
things163 or merchandise
SCRA 97) on the basis of one s charac
ter, capacity to pay or goodwill in the business community. So, if it is used to
deceive another and the deception is the principal reason for the delivery of t
he goods which results in damage to the offended party, the crime committed is e
Under paragraph
stafa.
Altering the quality,
(b) fineness, or weight of anything pertaining to his art or b
Under paragraph
usiness.
Pretending to have(c)bribed any government employee, without prejudice to the acti
on for calumny which the offended party may deem proper to bring against the off
G. ELEMENTS OF ESTAFA BY POSTDATING A CHECK OR ISSUING A CHECK IN PAYMENT OF AN
ender.
OBLIGATION:
That the offender
(315) postdated a check, or issued a check in payment of an obligati
That such postdatig or issuing a check was done when the offender had no funds i
on.
n the bank or his funds deposited therein were not sufficient to cover the amoun
(1)
(2)
(Remember
t of that
Note
Notes: theThe
check.
that
this
obligation
checkit
onlyisapplies
drawn
theischeck
not
toifenter
pre-existing;
that isintosupposed
an obligation;
to be the sole consideration for
the other party to have entered into the obligation. For example, Rose wants t
o purchase a bracelet and draws a check without insufficient funds. The jeweler
sells herItthe
(3) doesbracelet
not cover solely
checks
because
whereofthethepurpose
consideration
of drawing
in the check
check.)is to gu
arantee
The checka must
loan beas genuine.
this is notIfantheobligation
check is falsified
contemplated
andinisthis
cashed
paragraph
with the ban
k or exchanged for cash, the crime is estafa thru falsification of a commercial
The general rule is that the accused must be able to obtain something from the o
document.
ffended party by means of the check he issued and delivered. Exception: when t
he must
It
good
dishonor
check
faith
not
isisbe
for issued
lack
apromissory
defense.
ofnotfunds
in(PP.
payment
notes,
- prima
VS.orVILLAPANDO,
offacie
guaranties.
an obligation.
evidence
56 PHIL.31)
of deceit or failure to make g
oodthe
If within
checks
threeweredays
issued
afterbynotice
the defendant
of. and he received money for them, then
stopped payment and did not return the money, and he had an intention to stop
paymentiswhen
Deceit presumed
he issuedif thethedrawer
check,fails
theretoisdeposit
estafa.the amount necessary to cover
the check within three days from receipt of notice of dishonor or insufficiency
of
If
It check
funds
is therefore
in the
was issued
bank.
essential
in payment
that ofthepre-existing
check be issued
debtin payment
no estafaof a simultaneous
obligation. The check in question must be utilized by the offender in order to d
efraud the offended party. So, if the check was issued in payment of a promissor
y note which had matured and the check was dishonored, there is not estafa since
the accused did not obtain anything by means of said check. (People vs. Canlas,
IfO.aG.bouncing
1092) check is issued to pay a pre-existing obligation, the drawer is li
able under B. P. Blg. 22 which does not make any distinction as to whether a bad
check is issued in payment of an obligation or to guarantee an obligation. (Que
Offender
vs. People,
must73217-18,
be able toSept. obtain
21,something
1987) from the offended party by means of th
e check
The checkhemust
issuesbe issued
and delivers
in payment of an obligation. If the check was issued wi
thout any obligation or if there is lack of consideration and the check is subse
H.
That
quently
If ELEMENTS
postdating
a person
the dishonored,
check
person
OFmakes
ais
OFFENSE
who
check
made
or
makes
theissued
DEFINED
draws
or
crime
drawn
or and
draws
asof
INand
mere
issues
estafa
THE
and
issued
guarantee/promissory
FIRST
issues
any
is to
not
PARAGRAPH
check.
apply
the
committed.
check
onOFaccount
SECTION
knows
note at
or1:
nothe
forBP
estafa
value.
time
22 of is
sue that he does not have sufficient funds in or credit with the drawee bank for
That
the the
payment
checkofissuch
subsequently
check in full dishonored
upon itsbypresentment.
the drawee bank for insufficiency o
f funds or credit, or would have been dishonored for the same reason had not the
Note:
drawee,Failure
withoutto make
any valid
good within
reason,5ordered
bankingthedaysbank
prima
to facie
stop payment.
evidence of knowled
ge ELEMENTS
I.
Thatofa person
lack OFandhas
THE
insufficiency
sufficient
OFFENSE DEFINED
funds in IN or
THEcredit
SECONDwith
PARAGRAPH
the drawee
OF SECTION
bank when
1: BPhe22mak
es orhedraws
That failsandtoissues
keep sufficient
a check. funds or to maintain a credit to cover the full
amount of the check if presented within a period of 90 days from the date appea
ring the
That
Note: thereon.
Failure
checktoismake
dishonored
good within
by the5 banking
drawee bank.
days prima facie evididence of knowl
edge of lackbetween
Distinction and insufficiency
estafa under Article 315 (2) (d) of the Revised Penal Code a
nd violation
(1) UnderofbothBatasArticle
Pambansa
315 (2)
Blg.(d)22:and Batas Pambansa Blg. 22, there is crim
inaltheliability
If check isifdrawnthe for
checka pre-existing
is drawn for obligation,
non-pre-existing
thereobligation.
is criminal liability
(2)
only under
EstafaBatas
under
Pambansa
ArticleBlg.31522.(2) (d) is a crime against property while Batas
Pambansa Blg. 22 is a crime against public interest. The gravamen for the form
er is the deceit employed, while in the latter, it is the issuance of the check.
(3)Hence,Inthere
the estafa
is no double
under Article
jeopardy.315 (2) (d), deceit and damage are material,
(4)
while inInBatas
estafaPambansa
under Article
Blg. 22,315they
(2)are
(d),immaterial.
knowledge by the drawer of insuffic
ient funds is not required, while in Batas Pambansa Blg. 22, knowledge by the dr
awer is
When
There ofisthere
insufficient
a prima
prima
facie
facie
funds
evidence
evidence
is reqired.
of knowledge
of knowledgeof insufficient
of insufficientfunds
funds?
when the chec
k was presented within 90 days from the date appearing on the check and was dish
1.
Exceptions
onored.
2.
a. When theWhen
Pays checkthewas
holder ofmaker
presented
the check
or drawer
afteramount
the --90 daysduefrom
within
date;
five banking days aft
er receiving
b. Makesnotice
arrangements
that suchforcheck
payment
hasinnotfull
beenbypaid
the drawee
by the of
drawee;
such check withi
n five
The drawee
banking
mustdays
causeafter
to benotice
written
of or
non-payment
stamped in plain language the reason for
thethe
If dishonor.
drawee bank received an order of stop-payment from the drawer with no rea
son,theitdrawer
If must behasstated
validthat
reasons
the for
fundsstopping
are insufficient
payment, hetocannot
be prosecuted
be held criminal
here.
ly liable
The unpaidunder
or dishonored
B.P. Blg.check
22. with the stamped information re: refusal to pay i
s prima facie evidence of (1) the making or issuance of the check; (2) the due p
resentment to the drawee for payment & the dishonor thereof; and (3) the fact th
at issuance
On
The the
issuance
checkofof
wasacheck
properly
bouncing
withcheck
dishonored
insufficientforfunds
the reason
may bestamped
held liable
on theforcheck.
estafa and
Batas Pambansa Blg. 22. Batas Pambansa Blg. 22 expressly provides that prosecut
ion under said law is without prejudice to any liability for violation of any pr
ovision in the Revised Penal Code. Double Jeopardy may not be invoked because a
violation of Batas Pambansa Blg. 22 is a malum prohibitum and is being punished
as a crime against the public interest for undermining the banking system of th
e country, while under the Revised Penal Code, the crime is malum in se which re
quires
In estafa,
criminal
the check
intentmust
andhave
damage
beentoissued
the payee
as aand
reciprocal
is a crime
consideration
against property.
for par
ting of goods (kaliwaan). There must be concomitance. The deceit must be prior
to or simultaneous with damage done, that is, seller relied on check to part wi
th goods. If it is issued after parting with goods as in credit accommodation o
nly, there is no estafa. If the check is issued for a pre-existing obligation,
there is no estafa as damage had already been done. The drawer is liable under
Batascriminal
For Pambansaliability
Blg. 22.to attach under Batas Pambansa Blg. 22, it is enough that
the check was issued to "apply on account or for value" and upon its presentmen
t it was dishonored by the drawee bank for insufficiency of funds, provided that
the drawer had been notified of the dishonor and inspite of such notice fails t
o pay the holder of the check the full amount due thereon within five days from
Under Batas Pambansa Blg. 22, a drawer must be given notice of dishonor and give
notice.
n five banking days from notice within which to deposit or pay the amount stated
in the check to negate the presumtion that drawer knew of the insufficiency. A
fter this period, it is conclusive that drawer knew of the insufficiency, thus t
heremere
The is noissuance
more defense
of anytokindtheofprosecution
check regardless
under Batas
of thePambansa
intent ofBlg.the22.parties,
whether the check is intended to serve merely as a guarantee or as a deposit, ma
kes the drawer liable under Batas Pambansa Blg. 22 if the check bounces. As a m
atter of public policy, the issuance of a worthless check is a public nuisance a
nd must
Each actbeofabated.
drawing and issuing a bouncing check constitutes a violation of B. P
. Blg.
In De Villa
22. v. CA, decided April 18, 1991, it was held that under Batas Pambansa
Blg. 22, there is no distinction as to the kind of check issued. As long as it
is delivered within Philippine territory, the Philippine courts have jurisdictio
n. Even if the check is only presented to and dishonored in a Philippine bank,
Batas Pambansa Blg. 22 applies. This is true in the case of dollar or foreign c
urrency
In Peoplechecks.
v. Nitafan,
Where it
thewaslawheld
makesthat
no as
distinction,
long as instrument
none shouldis abecheck
made.under th
e negotiable instrument law, it is covered by Batas Pambansa Blg. 22. A memoran
dum check is not a promissory note, it is a check which have the word memo, mem , memo
randum written across the face of the check which signifies that if the holder up
on maturity of the check presents the same to the drawer, it will be paid absolu
tely. But there is no prohibition against drawer from depositing memorandum che
ck in a bank. Whatever be the agreement of the parties in respect of the issuan
ce of a check is inconsequential to a violation to Batas Pambansa Blg. 22 where
the check
Cross checks
bounces.
do not make them non-negotiable and therefore they are within the c
overage
The law does
of B.not
P. distinguish
Blg. 22. between foreign and local checks. (De Villa vs. Co
urt overdraft
But of Appeals,oretcredit
al., arrangement
195 SCRA 722). may be allowed by banks as to their preferre
d clients and Batas Pambansa Blg. 22 does not apply. If check bounces, it is be
causecheck
The bankmust
has be
beenpresented
remiss inforhonoring
paymentagreement.
within a 90-day period. If presented fo
r payment beyond the 90 day period and the drawer s funds are insufficient to cove
r it, check
Where there was
is noissued
Batasprior
Pambansa
to August
Blg. 228,violation.
1984, when Circular No. 12 of the Depa
rtment of the Justice took effect, and the drawer relied on the then prevailing
Circular No. 4 of the Ministry of Justice to the effect that checks issued as pa
rt of an arrangement/agreement of the parties to guarantee or secure fulfillment
of an obligation are not covered by Batas Pambansa Blg. 22, no criminal liabili
ty should be incurred by the drawer. Circular should not be given retroactive e
ffect. (Lazaro v. CA, November 11, 1993, citing People v. Alberto, October 28, 1
J. BYpunished
993)
Acts
1. OBTAINING
a. under FOOD
Obtaining
paragraph
OR CREDITfood,(e)
ATrefreshment,
HOTELS, INNS, or RESTAURANTS
accommodationETC.
at a hotel, inn, r
estaurant,
c.
2.
any
3.
surreptitiously
b.
Failure
of the
b.
c.
With
a.
After
to pay
boarding
establishments;
intent
obtaining
food
Using
Without
Obtaining
Abandoning
removing
to
house,
or false
defraud
accommodation
paying
credit,
paying.
anyor
lodging
credit
pretense;
part
therefor;
the
food,
ofproprietor
house,
his
in
refreshment,
aatbaggage
or apartment
hotel,
or restaurant
manager.
in accommodation;
thehouse;
establishment;
or inn usually gives
rise to civil liability but if the intent to defraud is clear like a surreptiti
ous removal of baggage from the hotel, or resorting to deceitful means to evade
payment,
K.
That
Note:
ELEMENTS
deceit
the
prejudice
If offended
thebe
offender
OFactbe
ESTAFA
employed
shall
induced
caused.
party BYbewillingly
toINDUCING
personally
punished
the
makeoffended
himsigned
ANOTHER
criminally
signed
signparty
the
TO document
the SIGN
to
document.
assign
document.
Estafa.
ANYaand
DOCUMENTS:
document.
there was
(315)
deceit as to
the character or contents of the document falsification; but where the accused
made representation to mislead the complainants as to the character of the docum
entsELEMENTS
Under
Resorting
L. -paragraph
estafa
toOFsomeESTAFA
(b)fraudulent
BY REMOVING,practice CONCEALING
to insureORsuccess
DESTROYING
in angambling
that theregame;
is a re
lation between the accused and the offended party wherein the latter confided hi
s security as to his person, life and property to the accused with such degree o
f confidence
Abuse of confidence
and thatisthe determined
accused fromabusedthethetrust
same.reposed by the offended party t
o the offender. It may also refer to the nature of the work of the offender whic
h mustofnecessarily
Abuse confidenceinvolve
is alsotrust an element
and confidence.
of estafa. To avoid confusion between the
ft with abuse of confidence (qualified theft) and estafa with abuse of confidenc
e, where the offender misappropriates a thing after he receives it from the vict
im, the student must remember that in qualified theft, only the physical or mate
rial possession of the thing is transferred. If the offender acquires the juridi
cal as well as the physical possession of the thing and he misappropriates it, t
he crime committed is estafa. Juridical possession of the thing is acquired when
one holds the thing in trust, or on commission, or for administration or under
any other obligation involving the duty to deliver or to return the thing receiv
ed. If the possession of the offender is not under any of these concepts, the cr
ime
no
theft
Where
confidence,
isonly
qualified
material
the not
material
possession
theft.
qualifiedpossession
estafa
theft is transferred,
juridical possession
conversion of the property gi
ves rise to the crime of theft. Where both the material and juridical possession
is transferred, misappropriation of the property would constitute estafa. When
the material and juridical possession of the thing transfers ownership of the pr
operty to the possessor, any misappropriation made by the possessor will not res
ult in the if
Qualified: commission
done by oneof any whocrime,
has access
eithertofor place
theft
where
of stolen
estafa.property is kept
industrial
when
e.g.,accused
novationguards,
theory
partner
considered
tellers
applies
is nottheonly
liable
deed
if there
forsale
of QTs (estafa)
aasrelation
sham (modus) and he had intent to ga
in, hisvehicle
motor absconding
in kabit
is QTsystem sold to another-theft. Motor vehicle not used as
PU carnapping
On
Wheninthe
kabitsubject
system
andistheft
but
motorunder
ofvehicle,
motor
K ofvehicle
lease-estafa
the Theft becomes qualified. Under R.A. 6539
, Anti-Carnapping Act of 1972, the term motor vehicle includes, within its prote
ction, any vehicle which uses the streets, with or without the required license,
or any vehicle which is motorized using the streets, such as a motorized tricyc
le. taking
The (Izon with
vs. People,
intent to 107gainSCRAof123)a motor vehicle belonging to another, without
the latter s consent, or by means of violence or intimidation of persons, or by us
ing force upon things is penalized as carnapping under Republic Act No. 6539 (An
Act Preventing and Penalizing Carnapping), as amended. The overt act which is
being punished under this law as carnapping is also the taking of a motor vehicl
e under circumstances of theft or robbery. If the motor vehicle was not taken b
y the offender but was delivered by the owner or the possessor to the offender,
who thereafter misappropriated the same, the crime is either qualified theft und
er Article 310 of the Revised Penal Code or estafa under Article 315 (b) of the
Revised Penal Code. Qualified theft of a motor vehicle is the crime if only the
material or physical possession was yielded to the offender; otherwise, if juri
dical
theft
THEFT
Article
USURPATION
OCCUPATION
Acts
1.
mailpunished:
possession
matter
ofTaking
OF 311
312
large
PROPERTY
OF REAL
private
possession
cattle
was
OFPROPERTY
also
THE mailNATIONAL
yielded,
ofto
ORany
be
USURPATION
real
QT,
LIBRARY
theNot
property
crimepostmaster
ANDis
OF REAL
NATIONAL
belonging
estafa.
RIGHTSMUSEUM
Art.
IN another
to PROPERTY
226 by means of
violenceUsurping
2. against any or intimidation
real rights in of property
persons; belonging to another by means of vi
olencetheagainst
That
ELEMENTS: offender or takes
intimidation
possessionof persons.
of any real property or usurps any real right
s in violence
That property.
the real against
propertyororintimidation
real rights of belong
persons
to another.
is used by the offender in occu
pyingthere
That
Since real is
this property
aintent
crimeortoagainst
usurpation
gain. property,real rights
there must
in property.
be intent to gain. In the ab
sencetheofdegree
Use the intent
of intimidation
to gain, thetoact determine
may constitute
the degreeCoercion.
of the penalty to be appl
ied for theunder
Usurpation usurpation.
Article 312 is committed in the same way as robbery with violen
ce or intimidation of persons. The main difference is that in robbery, personal
property is involved; while in usurpation of real rights, it is real property.
The
(People
possession
v. Judge of the
Alfeche,
land or Julyreal
23,rights
1992) must be done by means of violence or i
ntimidation. So, if the evidence of the prosecution shows that the accused enter
ed the premises by means of strategy, stealth or methods other than the employme
nt of violence, no crime was committed by the offender. (People vs. Alfeche, Jr.
,Usurpation
211 SCRA 770)
of real rights and property should not be complexed using Article 48
when violence or intimidation is committed. There is only a single crime, but
a two-tiered penalty is prescribed to be determined on whether the acts of viole
nce used is akin to that in robbery in Article 294, grave threats or grave coerc
ion and an incremental penalty of fine based on the value of the gain obtained b
y the is
There offender.
no crime of threat and usurpation of real property since threat is an i
ndispensable element of usurpation of real rights. Hence, where threats are utte
red to the owner of real property by one illegally occupying it, the crime commi
tted is not the complex crime of usurpation of real property with grave threats
because making a threat is an inherent element of usurpation of real property. (
Castrodes
The complainant
vs. Cubelo,
must be83the SCRAperson
670) upon whom violence was employed. If a tenant
was occupying the property and he was threatened by the offender, but it was th
e owner who was not in possession of the property who was named as the offended
party, the same may be quashed as it does not charge an offense. The owner woul
d, squatting
On
According
1. at most,
Those
tobethe
who
entitled
Urban
have the
Development
to capacity
civil recourse
and
or means
Housing
only.
toAct,
pay rent
the following
or for legitimate
are squatters:
housi
ng but areIntruders
2.
3. squatting
Also theofpersons
anyway;
lands reserved
who were forawarded
socialized
lots buthousing,
sold orpre-empting
lease them posses
out;
sion that
Note by occupying
violationtheofsame.
Article 312 is punishable only with fine. So, if physical
injuries are inflicted on the victim due to the violence employed by the offend
er in the usurpation of real rights, the latter shall be punished separately for
Violence
the crimeemployed
of physical
results
injuries.
to the death of the offended party. When such eventual
ity does occur, then the crime may rightfully be denominated as usurpation of re
al rights resulting to homicide, murder, parricide, or infanticide as the case m
ay be.there
Article
ALTERING
That
ELEMENTS: 313
BOUNDARIES
be boundary OR marks
LANDMARKSor monuments of towns, provinces, or estates, or an
y other
CULPABLE
Article
FRAUDULENT
ELEMENTS
That
To bethere
the
he
liable
marks
314
absconds
INSOLVENCY
offender
INSOLVENCY
be for
intended
prejudice
with
fraudulent
alters
is ahis
(culpable
totosaid
debtor;
designate
property.
his
insolvency,
boundary
that
creditors.
insolvency)
themarks.
is, boundaries
he
the was
disposal
obligations
ofofthethesame.
due
merchandise
and payable.
must be
done with malice. The mere circumstance that a person has disposed of his mercha
ndise by removing them from the place where they were kept would necessarily imp
ly fraud. What is required is actual prejudice to the creditor. The intention of
The
thelaw
accused
does not
alonerequire
is notthe enough.
offender
(People
to bevs.a merchant.
Guzman, C.The A. law
40 O.says any person, a
G. 2655)
nd this refers to anyone who becomes a debtor and performs the acts made punisha
ble property
The by the law. which the offender may abscond which consists of both real and pers
onallaw
The property.
on fraudulent
(Peopleinsolvency
vs. Chong is Chuydifferent
Lingobo,from
45 Phil.
the Insolvency
372) Law. For the I
nsolvency Law to apply, the criminal act must have been committed after the inst
itution of the insolvency proceedings against the offending debtor. But under th
e present article, there is no requirement that the accused should be adjudged b
ankruptisorembezzlement
SWINDLING
Estafa AND
insolvent.
OTHER DECEITS
under common law. It is a well-known crime to lawyers and
businessmen. It is a continuing crime unlike theft. Being a public crime, it ca
n be the
Article
ELEMENTS
That prosecuted
315
OF ESTAFA
accused dedefrauded
officio.
IN GENERAL:
another
(315)(a.) by abuse of confidence, or (b) or means
of deceit
That damageandor prejudice capable of pecuniary estimation is caused to the offend
ed party
The concept
or of
third
damage
person
under this article does not mean actual or real damage. It
may consist in mere disturbance of the property rights of the offended party. H
owever, the damage must be capable of pecuniary estimation. This requirement is
important because in estafa, the penalty is dependent on the value of the proper
Since estafa is a material crime, it can be divided into consummated, attempted
ty.
or frustrated stages. In the latter case, the damage can be in the form of tempo
raryELEMENTS
B.
That
The accused
prejudice
the
he
damage
alters
offender
OF prejudice
or
doesornot
ESTAFA
its suffering,
has
substance,
receive
WITHis
an onerous
UNFAITHFULNESS:
caused
orquantity,
the inconvenience
obligation
goods
to another.
but
or delivers
(315)
quality.
tocapable
delivera thing
ofsomething
pecuniary
underofanestimation.
value.
onerous obl
igation which is not in accordance with the substance, quantity or quality agree
d upon. It is the altering of the substance, quality or quantity of the thing de
livered
The wordwhich
onerous
makesmeans
the offender
that theliable
offendedforparty
the crime
has fully
of estafa.
complied with his obligat
ions to pay. So, if the thing delivered whose substance was altered, is not yet
fully
C. ELEMENTS
or partially
OF ESTAFA paid,
WITHthen
ABUSE
theOFcrime
CONFIDENCE
of estafaUNDER
is SUBDIVISION
not committed. NO.1 PAR. (B),
OF ART.315
That money, goods, or other personal property be received by the offender in tru
st, or on commission, or for administration, or under any other obligation invol
ving there
That the dutybe misappropriation
to make delivery or of conversion
or to return, of such
the same.
money or property by the of
fender,
that suchormisappropriation
dental on his part or conversion
of such receipt.
or dental is to the prejudice of anothe
r andfourth
That
(The there iselement
a demand is not
madenecessary
by the offended
when therepartyistoevidence
the offender.
of misappropriation
of is
It thenecessary
goods by in thethis
defendant.
kind of estafa,
[Tubb v.forPeople,
the money,
et al.,goods
101 or
Phil.
personal
114] ).propert
y to have been received by the offender in trust, or on commission or for admini
stration. He must acquire both material or physical as well as juridical possess
ion of the thing received. In these instances, the offender, who is the transfer
Aee,moneyacquires
marketa transaction
right over ahoweverthing which
partakes
he may
of the
set nature
up evenofagainst
a loan,theandowner.
non-pay
ment thereof would not give rise to criminal liability for Estafa through misapp
ropriation or conversion. In money market placements, the unpaid investor shoul
d institute against the middleman or dealer, before the ordinary courts, a simpl
e action for recovery of the amount he had invested, and if there is allegation
of fraud, the proper forum would be the Securities and Exchange Commission. (Se
sbreno
D. 2ND ELEMENT
vs. CourtOFofESTAFAAppeals,
WITHetABUSE
al.,OF240CONFIDENCE
SCRA 606).UNDER PARAGRAPH (B), SUBDIVISI
c.
ON
By
Unfaithfulness
Notes:
a.
b.
thing
no thing
N0.1,
misappropriating
converting
denying
by
existing
agreement
altering
is delivered
ART.
received
that
obligation
as
315
the
orthe
the
toAbuse
=by
thing
has
substance
quality
3and
the
thing
offender
WAYS
not
toof
thing
received.
converting
was
deliver
been
OFNo
Confidence
COMMITTING:
received.
under
fully
estafa
even
transactions
orifpartially
ifdelivery
it istransferring
not
paid
is aunsatisfactory
for
subjectjuridical
not
ofestafa
lawfulpossessi
commerce
on, notPDownership
under 115 (Trust Receipts Law) failure to turn over to the bank the proceeds
of samethething
salereceived
of the goods must covered
be returnedby TRotherwise
Estafaestafa; sale on credit by agency
Novation
when
Estafa it wasnot
mustto
affected
take
be soldplace
byfor
Novation
before
cash criminal
of
estafa
Contract
liability
because wasitincurred
is a public
or perhaps
offenseprior
Misappropriating
g.
to the
Converting
filing ofact the
toofcriminal
take
using
something
or
information
disposing
for one in
ofscourt
another
own benefit
bysstate
property
prosecutors
as if it was one s ow
n; thing
There musthasbebeen
prejudice
devotedtoforanother
a purposenotornecessary
use different
that offender
from thatshould
agreed obtain
upon gai
nThere is no estafa through negligence. There is likewise no estafa where the acc
used did not
Partners Nopersonally
estafa of money profitororproperty
gain from received
the misappropriation.
for the partnership when the bu
siness is commercial and profits accrued. BUT if property is received for speci
fic
Failure
purpose
to account
and is misappropriated
after the DEMAND isestafa! circumstantial evidence of misappropriati
DEMAND is not a condition precedent to existence of estafa when misappropriation
on
Inmaytheft,
be established
upon delivery by other
of theproof
thing to the offender, the owner expects an immed
iate
Servant,
returndomestic
of theor thing
employee
to himwho misappropriates
otherwise, Estafaa thing he received from his m
asterinisthe
When NOTprosecution
guilty of estafa for malversation
but of qualified
the public
theftofficer is acquitted, the pr
OEstafa
ivate
ffendersindividual
withareAbuse
entrusted
allegedly
of Confidence
withinfunds
conspiracy
Malversation
or property
with himandmayarebecontinuing
held liable
offenses
for estafa
offenders
are entrusted with funds or property and are continuing offensesFunds: always pri
vateFunds: public funds or propertyOffender: private individual, or public officer
not accountableOffender: public officer accountable for public fundsCommitted by m
isappropriating, converting, denying having received moneyCommitted by appropria
E.
That
ting,
misappropriating
ELEMENTS
the
above
taking,
paper
offended
the  party
OF signature
ESTAFA
with theBYshould
signature
TAKING
of thehave
UNDUE
offended
ofdelivered
the
ADVANTAGE
offended
party itaOFdocument
toparty
THE
offender.
SIGNATURE
beisinwritten
blank.
IN BLANK:
by the(315)
offe
nder the
That without
document
authority
so written
to do creates
so. a liability of, or causes damage to, the of
fended
The element
partyoforthisany estafa
third person.
is also abuse of confidence. The offended party leave
s a blank paper with his signature to another, with specific instructions to mak
e entries thereon according to the wishes of the offended party. But contrary to
such instructions and wishes, the accused makes entries in writing which create
s liabilities
If the unauthorized
againstwritings
the owner wereofdone
the bysignature.
a person other than the one to whom th
e owner of the signature delivered the paper in blank, and it caused damage to t
he offended party, the crime committed by the third party is not estafa but fals
Note: If the paper with signature in blank was stolen Falsification if by making
ification.
it appear that he participated in a transaction when in fact he did not so part
F. ELEMENTS
icipate
that there mustOF ESTAFA
be a falseBY MEANS
pretense,
OF DECEIT:
fraudulent
(315) means must be made or executed p
rior such
That to orfalse pretense, fraudulent act or fraudulent means must be made or exe
cutedthe
That prior
offended
to or party
simultaneously
must havewithrelied
theoncommission
the falseofpretense,
the fraud.
fraudulent act,
or fraudulent means, that is, he was induced to part with his money or property
because
That
False
Notes: aspretenses
aofresult
the false
orthereof,
fraudulent
pretense,
the acts
offended
fraudulent
executed
party
act,suffered
prior
or fraudulent
todamage.
or simultaneously
means. with deli
very ofmust
There thebething
evidenceby thethat
complainant
the pretense of the accused that he possesses power/
influence
The representation
is false that accused possessed influence, to deceive and inveigle the
complainant into parting with his money must however be false to constitute dec
eit under No. 2 of Article 315, RPC. (Dela Cruz vs. Court of Appeals, et al.,
265 SCRA of
Elements 299).
estafa by means of false pretenses or fraudulent acts under Article
315 (2)
Acts
1.
2. punished
Using fictitious
Falselyunder
pretending
paragraph
name;
to possess
(a) power, influence, qualifications, property
, credit,
3.
In the prosecution
Byagency,
means ofbusiness
ofother
estafasimilar
orunder
imaginary
deceits.
Articletransactions;
315, no. 2(a), or it is indispensable th
at the element of deceit consisting in the false statement or fraudulent represe
ntation of the accused, be made prior to, before or at least simultaneously with
the delivery of the thing by the offended party. The added requirement that suc
h false statement or fraudulent representation constitutes the very motive or th
e only reason or cause which induces the offended party to part with the thing w
hile they may be false representation after the delivery of the goods or the thi
ng by the aggrieved party, such false statement or false representation, no matt
er how fraudulent and obnoxious it may appear, cannot serve as a basis for prose
cution under this category of estafa. For the case to prosper against the accuse
d, the prosecution must prove two indispensable elements: deceit and damage to a
nother.means
Credit (Celino
thevs.ability
Courttoofbuy Appeals,
things163 or merchandise
SCRA 97) on the basis of one s charac
ter, capacity to pay or goodwill in the business community. So, if it is used to
deceive another and the deception is the principal reason for the delivery of t
he goods which results in damage to the offended party, the crime committed is e
Under paragraph
stafa.
Altering the quality,
(b) fineness, or weight of anything pertaining to his art or b
Under paragraph
usiness.
Pretending to have
(c)bribed any government employee, without prejudice to the acti
on for calumny which the offended party may deem proper to bring against the off
G. ELEMENTS OF ESTAFA BY POSTDATING A CHECK OR ISSUING A CHECK IN PAYMENT OF AN
ender.
OBLIGATION:
That the offender
(315) postdated a check, or issued a check in payment of an obligati
That such postdatig or issuing a check was done when the offender had no funds i
on.
n the bank or his funds deposited therein were not sufficient to cover the amoun
(1)
(2)
(Remember
t of that
Note
Notes: theThe
check.
that
this
obligation
check
it
onlyisapplies
drawn
theischeck
not
toifenter
pre-existing;
that isintosupposed
an obligation;
to be the sole consideration for
the other party to have entered into the obligation. For example, Rose wants t
o purchase a bracelet and draws a check without insufficient funds. The jeweler
sells herItthe
(3) doesbracelet
not cover solely
checks
because
whereofthethepurpose
consideration
of drawing
in the check
check.)is to gu
arantee
The checka must
loan beas genuine.
this is notIfantheobligation
check is falsified
contemplatedandinisthis
cashed
paragraph
with the ban
k or exchanged for cash, the crime is estafa thru falsification of a commercial
The general rule is that the accused must be able to obtain something from the o
document.
ffended party by means of the check he issued and delivered. Exception: when t
he must
It
good
dishonor
check
faithnot
isisbe
for issued
lack
apromissory
defense.
ofnotfunds
in(PP.
payment
notes,
- prima
VS.orVILLAPANDO,
offacie
guaranties.
an obligation.
evidence
56 PHIL.31)
of deceit or failure to make g
oodthe
If within
checks
three
weredays
issued
afterbynotice
the defendant
of. and he received money for them, then
stopped payment and did not return the money, and he had an intention to stop
paymentiswhen
Deceit presumed
he issuedif thethedrawer
check,fails
theretoisdeposit
estafa.the amount necessary to cover
the check within three days from receipt of notice of dishonor or insufficiency
of
If
It check
funds
is therefore
in the
was issued
bank.
essential
in payment
that ofthepre-existing
check be issueddebtin payment
no estafaof a simultaneous
obligation. The check in question must be utilized by the offender in order to d
efraud the offended party. So, if the check was issued in payment of a promissor
y note which had matured and the check was dishonored, there is not estafa since
the accused did not obtain anything by means of said check. (People vs. Canlas,
IfO.aG.bouncing
1092) check is issued to pay a pre-existing obligation, the drawer is li
able under B. P. Blg. 22 which does not make any distinction as to whether a bad
check is issued in payment of an obligation or to guarantee an obligation. (Que
Offender
vs. People,
must73217-18,
be able toSept. obtain
21,something
1987) from the offended party by means of th
e check
The checkhemust
issues
be issued
and delivers
in payment of an obligation. If the check was issued wi
thout any obligation or if there is lack of consideration and the check is subse
H.
That
quently
If ELEMENTS
postdating
a person
the dishonored,
check
person
OFmakes
ais
OFFENSE
who
check
made
or
makes
theissued
DEFINED
draws
or
crime
drawn
or and
draws
asof
INand
mere
issues
estafa
THE
and
issued
guarantee/promissory
FIRST
issues
any
is to
not
PARAGRAPH
check.
apply
the
committed.
check
onOFaccount
SECTION
knows
note at
or1:
nothe
forBP
estafa
value.
time
22 of is
sue that he does not have sufficient funds in or credit with the drawee bank for
That
the the
payment
checkofissuch
subsequently
check in full dishonored
upon itsbypresentment.
the drawee bank for insufficiency o
f funds or credit, or would have been dishonored for the same reason had not the
Note:
drawee, Failure
withoutto make
any valid
good within
reason,5ordered
bankingthedaysbank
prima
to facie
stop payment.
evidence of knowled
ge ELEMENTS
I.
Thatofa person
lack OF
andhas
THE
insufficiency
sufficient
OFFENSE DEFINED
funds in IN or
THEcredit
SECONDwith
PARAGRAPH
the drawee
OF SECTION
bank when1: BPhe22mak
es orhedraws
That failsandtoissues
keep sufficient
a check. funds or to maintain a credit to cover the full
amount of the check if presented within a period of 90 days from the date appea
ring the
That
Note: thereon.
Failure
checktoismake
dishonored
good within
by the5 banking
drawee bank.
days prima facie evididence of knowl
edge of lackbetween
Distinction and insufficiency
estafa under Article 315 (2) (d) of the Revised Penal Code a
nd violation
(1) Underofboth
BatasArticle
Pambansa
315 (2)
Blg.(d)22:and Batas Pambansa Blg. 22, there is crim
inaltheliability
If check isifdrawn
the for
checka pre-existing
is drawn for obligation,
non-pre-existing
thereobligation.
is criminal liability
(2)
only underEstafa
Batas
under
Pambansa
ArticleBlg.31522.(2) (d) is a crime against property while Batas
Pambansa Blg. 22 is a crime against public interest. The gravamen for the form
er is the deceit employed, while in the latter, it is the issuance of the check.
(3)Hence,Inthere
the estafa
is no double
under Article
jeopardy.315 (2) (d), deceit and damage are material,
(4)
while inInBatas
estafaPambansa
under Article
Blg. 22,315they(2)are
(d),immaterial.
knowledge by the drawer of insuffic
ient funds is not required, while in Batas Pambansa Blg. 22, knowledge by the dr
awer is
When
There ofisthere
insufficient
a primaprima
facie
facie
funds
evidence
evidence
is reqired.
of knowledge
of knowledgeof insufficient
of insufficient funds
funds?
when the chec
k was presented within 90 days from the date appearing on the check and was dish
1.
Exceptions
onored.
2.
a. When theWhen
Pays checkthewas
holder ofmaker
presented
the check
or drawer
afteramount
the --90 daysduefrom
within
date;
five banking days aft
er receiving
b. Makesnotice
arrangements
that such forcheck
paymenthasinnotfull
beenbypaid
the drawee
by the of
drawee;
such check withi
n five
The drawee
banking
mustdays
causeafter
to benotice
writtenof or
non-payment
stamped in plain language the reason for
thethe
If dishonor.
drawee bank received an order of stop-payment from the drawer with no rea
If theitdrawer
son, must behasstated
validthat
reasons
the for
fundsstopping
are insufficient
payment, hetocannot
be prosecuted
be held criminal
here.
ly liable
The unpaidunder
or dishonored
B.P. Blg.check
22. with the stamped information re: refusal to pay i
s prima facie evidence of (1) the making or issuance of the check; (2) the due p
resentment to the drawee for payment & the dishonor thereof; and (3) the fact th
at issuance
On
The the
issuance
checkofof
wasacheck
properly
bouncing
withcheck
dishonored
insufficientforfunds
the reason
may bestamped
held liable
on theforcheck.
estafa and
Batas Pambansa Blg. 22. Batas Pambansa Blg. 22 expressly provides that prosecut
ion under said law is without prejudice to any liability for violation of any pr
ovision in the Revised Penal Code. Double Jeopardy may not be invoked because a
violation of Batas Pambansa Blg. 22 is a malum prohibitum and is being punished
as a crime against the public interest for undermining the banking system of th
e country, while under the Revised Penal Code, the crime is malum in se which re
quires
In estafa,
criminal
the check
intentmust
andhave
damage
beentoissued
the payee
as aand
reciprocal
is a crime
consideration
against property.
for par
ting of goods (kaliwaan). There must be concomitance. The deceit must be prior
to or simultaneous with damage done, that is, seller relied on check to part wi
th goods. If it is issued after parting with goods as in credit accommodation o
nly, there is no estafa. If the check is issued for a pre-existing obligation,
there is no estafa as damage had already been done. The drawer is liable under
Batascriminal
For Pambansaliability
Blg. 22.to attach under Batas Pambansa Blg. 22, it is enough that
the check was issued to "apply on account or for value" and upon its presentmen
t it was dishonored by the drawee bank for insufficiency of funds, provided that
the drawer had been notified of the dishonor and inspite of such notice fails t
o pay the holder of the check the full amount due thereon within five days from
Under Batas Pambansa Blg. 22, a drawer must be given notice of dishonor and give
notice.
n five banking days from notice within which to deposit or pay the amount stated
in the check to negate the presumtion that drawer knew of the insufficiency. A
fter this period, it is conclusive that drawer knew of the insufficiency, thus t
heremere
The is noissuance
more defense
of anytokind
theofprosecution
check regardless
under Batas
of thePambansa
intent of
Blg.the22.parties,
whether the check is intended to serve merely as a guarantee or as a deposit, ma
kes the drawer liable under Batas Pambansa Blg. 22 if the check bounces. As a m
atter of public policy, the issuance of a worthless check is a public nuisance a
nd must
Each actbeofabated.
drawing and issuing a bouncing check constitutes a violation of B. P
. Blg.
In De Villa
22. v. CA, decided April 18, 1991, it was held that under Batas Pambansa
Blg. 22, there is no distinction as to the kind of check issued. As long as it
is delivered within Philippine territory, the Philippine courts have jurisdictio
n. Even if the check is only presented to and dishonored in a Philippine bank,
Batas Pambansa Blg. 22 applies. This is true in the case of dollar or foreign c
urrency
In Peoplechecks.
v. Nitafan,
Where it
thewas
lawheld
makesthat
no as
distinction,
long as instrument
none should
is abecheck
made.under th
e negotiable instrument law, it is covered by Batas Pambansa Blg. 22. A memoran
dum check is not a promissory note, it is a check which have the word memo, mem , memo
randum written across the face of the check which signifies that if the holder up
on maturity of the check presents the same to the drawer, it will be paid absolu
tely. But there is no prohibition against drawer from depositing memorandum che
ck in a bank. Whatever be the agreement of the parties in respect of the issuan
ce of a check is inconsequential to a violation to Batas Pambansa Blg. 22 where
the check
Cross checks
bounces.
do not make them non-negotiable and therefore they are within the c
overage
The law does
of B.not
P. distinguish
Blg. 22. between foreign and local checks. (De Villa vs. Co
urt overdraft
But of Appeals,oretcredit
al., arrangement
195 SCRA 722).may be allowed by banks as to their preferre
d clients and Batas Pambansa Blg. 22 does not apply. If check bounces, it is be
causecheck
The bankmust
has be
beenpresented
remiss inforhonoring
paymentagreement.
within a 90-day period. If presented fo
r payment beyond the 90 day period and the drawer s funds are insufficient to cove
r it, check
Where there was
is noissued
Batasprior
Pambansa
to August
Blg. 228,violation.
1984, when Circular No. 12 of the Depa
rtment of the Justi