LEGAL OPINION 5-2014

LEGAL BASIS FOR FILING QUALIFIED THEFT AGAINST BANK EMPLOYEES

THAT MISAPPROPRIATE THE FUNDS OF THE BANK

In order to determine the appropriate criminal case to be filed against the

bank employees, determination of the ownership of the money
misappropriated by said employees must first be established.

OWNERSHIP OF MONEY DEPOSITED BY CLIENTS

The banks relationship with its depositor is not a trustor-trustee relationship.
In the case of a cash deposit, an amount is delivered to the bank by the depositor,
not as a trustor but as a creditor. Their relationship is governed by the New Civil
Code provisions on simple loan as expressly stipulated in Art. 1980, to wit:
Art. 1980. Fixed, savings and current deposits of money in banks and similar
institutions shall be governed by the provisions concerning simple loans.

In a simple loan, the debtor (in this case the bank) becomes the owner of the
cash that was deposited subject to the obligation to pay the depositor.
Art. 1953. A person who receives a loan of money or any other fungible thing acquires
the ownership thereof, and is bound to pay to the creditor an equal amount of the same in kind
and quality.

As a debtor, the bank has no duty to preserve the amount deposited. Since
the contract is governed by the rules on simple loan and not the contract of deposit,
the money received by the bank is not being held for safekeeping for the depositor.
Money so deposited belongs to the bank and may be used for any lawful purpose as
it may deem fit. It follows then, the bank as owner of the money can use the money
deposited for its own personal benefit. In fact, banks are expected to use the
amount deposited for lending or investing in its own name.
Money that flows into banks becomes part of the generic fund and that
money paid out by the bank flows, again, from the bank itself and not from the
individual pool of money maintained by the customer. In other words, the reservoir
is that of the bank, not reservoir comprising earmarked amounts owned by separate
account holders.
Consistent with the existence of the debtor-creditor relationship, the following
rules were laid down in pertinent jurisprudence:
1. The bank can make use as its own the money deposited. Said amount is not
being held in trust for the depositor nor is it being kept for safekeeping (Tan
Tiong Tick vs. American Apothecaries, 65 Phil. 414, 1938).
2. The officers of the bank cannot be held liable for estafa if they authorized the
use of the money deposited by the depositor. There would be no liability for
estafa under Article 315(1)(b) of the Revised Penal Code even if the bank
failed to return the amount deposited. The money that is deposited is not

LEGAL OPINION 5-2014

held in trust by the bank (Guingona vs. City Fiscal of Manila, 128 SCRA 577,
1984).
(Source: Banking Law and Negotiable Instruments Law by Aquino, 2010)

CONCLUSION : BANK OWNS THE MONEY STOLEN BY THE BANK EMPLOYEES

Having established that the money stolen by the tellers is indeed owned by
the bank, the elements for the crime of qualified theft are then satisfied as shown
below:

Elements
of
qualified theft

the

crime

of Acts of the tellers constituting

the elements of the crime of
qualified theft
1. Taking of personal property;
1. The tellers took the money of
the bank
2. That the said property belongs to
2.
The money taken by the
another;
tellers belongs to the Bank (Art.
1953 in relation to Art.1980 of
the Civil Code)
3. That the said taking be done with
3.
Intent to gain can be
intent to gain;
presumed from the unlawful
taking done by the tellers and
their failure to produce said
money upon demand of the
Bank for them to return such
4. That it be done without the
4. The unauthorized withdrawals
owners consent;
done without the requisite
withdrawal
slips,
valid
Debit/Credit
Memo
and
deposits made to fictitious
accounts or relatives accounts
shows clearly the lack of
consent from Bank.
5. That it be accomplished without
5. The tellers were able to take
the use of violence or intimidation
the money of the bank by
against persons, nor of force upon
manipulating the procedures
things; and
and protocols for withdrawals,
use of credit/debit memos and
call-backing. All acts done
without the use of violence or
intimidation nor force upon
things.
6. That it be done with grave abuse
6. Chu and Bughao being tellers
of confidence.
of the Bank, necessarily come
into possession of the monies
deposited to the bank by virtue
of the trust and confidence
reposed to them by the Bank.
In qualified theft, the real offended party is the bank since it was the latters
personal property that was stolen. It is possible therefore that the bank could
choose not to involve the depositors as this criminal issue is purely between the

LEGAL OPINION 5-2014

state, with the bank as the complaining witness, and erring bank employee as the
defendant.

JURISPRUDENCE CONVICTING BANK EMPLOYEES OF QUALIFIED THEFT:

PP V. RUBEN SISON, GR NO. 12383, JANUARY 19, 2000
Facts:
Ruben Sison, the Branch Operations Officer facilitated the crediting of two (2)
fictitious remittances in the amounts of P3,250,000 and P4755,000 in favor of Solid
Realty Development Corporation, an equally fictitious account and the later the
withdrawal of P6,000,000 from the Philippine Commercial International Bank (PCIB)
Luneta Branch.
The accused was able to perform all these transactions by manipulating bank
processes and taking advantage of his position as BOO. He reactivated the dormant
account of Solid Electronics, Inc. and changed its account name to Solid Realty
Development Corporation. He then prepared debit and credit tickets making it
appear that PCIB Cabacan Branch, North Cotabato sent a telegraphic fund transfer
in favor of Solid Realty Development Corporation. After the money was credited to
the fictitious account, the accused then made a back office withdrawal wherein he
made it appear that the fictitious client authorized him to make such withdrawal.
In this case the bank filed a case for estafa but the Office of the City
Prosecutor of Manila issued a Resolution recommending that appellant be charged
with qualified theft, not estafa, considering that as BOO, accused had full control of
and unimpeded access to the bank vault.
Held:
The accused, Ruben Sison, was held guilty of qualified theft based on the
following circumstantial evidence which was sufficiently established by the
prosecution:
1. With any request from the listed depositor, the said account was revived and
restored to active status under the same savings account number but under
different account name. The only personnel of the PCI Bank in its Luneta
Branch who could have effected the change and had motive was the accused.
2. There was no record of the telegraphic transfer of remittance of fund from
Kabacan Branch as attested to by the Kabacan Branch Manager.
3. The 2 fictitious telegraphic transfers received in the Luneta Branch were
tested, approved and encoded by the accused.
4. The accused was able to acquire possession of the two keys needed to open
the bank vault by relieving the cashier who had custody of the other key.
5. The accused acted beyond the scope of his authority, without knowledge and
consent of the bank and through the process of simulated bank office
withdrawals, the accused withdrew from the cash vault using the passbook of
the revived dormant account under the fictitious name of Solid Realty
Development Corporation.
It is of particular importance to emphasize that in
no bank depositor presented as a witness
manipulated by the bank employee is fictitious.
depositor injured by the felonious acts done by the

this case, there was

since the account
There was no bank
accused.

LEGAL OPINION 5-2014

PP VS. TERESITA PUIG AND ROMEO PORRAS, GR NO. 173654-765, AUGUST

28, 2008
Facts:
Two informations for qualified theft were filed against Teresita Puig and
Romeo Porras, the cashier and bookkeeper, respectively, of Rural Bank of Pototan,
Inc.
The trial court dismissed the case on the following grounds:
(1)
the element of taking without the consent of the owners was missing
on the ground that it is the depositors-clients, and not the Bank, which filed
the complaint in these cases, who are the owners of the money allegedly
taken by respondents and hence, are the real parties-in-interest; and
xxx
Held:
The SC reversed and set aside the order of dismissal by the trial court.
To fall under the crime of Qualified Theft, the following elements must concur:
1.

Taking of personal property;

2.

That the said property belongs to another;

3.

That the said taking be done with intent to gain;

4.

That it be done without the owners consent;

5.
That it be accomplished without the use of violence or intimidation
against persons, nor of force upon things;
6.

That it be done with grave abuse of confidence.

It is beyond doubt that tellers, Cashiers, Bookkeepers and other employees of

a Bank who come into possession of the monies deposited therein enjoy the
confidence reposed in them by their employer. Banks, on the other hand,
where monies are deposited, are considered the owners thereof. This is
very clear not only from the express provisions of the law, but from established
jurisprudence. The relationship between banks and depositors has been held to be
that of creditor and debtor. Articles 1953 and 1980 of the New Civil Code, as
appropriately pointed out by petitioner, provide as follows:
Article 1953. A person who receives a loan of money or any other fungible
thing acquires the ownership thereof, and is bound to pay to the creditor an equal
amount of the same kind and quality.
Article 1980. Fixed, savings, and current deposits of money in banks and
similar institutions shall be governed by the provisions concerning loan.
In a long line of cases involving Qualified Theft, this Court has firmly
established the nature of possession by the Bank of the money deposits therein,
and the duties being performed by its employees who have custody of the money or

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have come into possession of it. The Court has consistently considered the
allegations in the Information that such employees acted with grave abuse of
confidence, to the damage and prejudice of the Bank, without particularly referring
to it as owner of the money deposits, as sufficient to make out a case of Qualified
Theft. For a graphic illustration, we cite Roque v. People,[6] where the accused
teller was convicted for Qualified Theft based on this Information:
That on or about the 16th day of November, 1989, in the municipality of
Floridablanca, province of Pampanga, Philippines and within the jurisdiction of his
Honorable Court, the above-named accused ASUNCION GALANG ROQUE, being
then employed as teller of the Basa Air Base Savings and Loan Association Inc.
(BABSLA) with office address at Basa Air Base, Floridablanca, Pampanga, and as
such was authorized and reposed with the responsibility to receive and collect
capital contributions from its member/contributors of said corporation, and having
collected and received in her capacity as teller of the BABSLA the sum of TEN
THOUSAND PESOS (P10,000.00), said accused, with intent of gain, with grave abuse
of confidence and without the knowledge and consent of said corporation,
did then and there willfully, unlawfully and feloniously take, steal and carry away
the amount of P10,000.00, Philippine currency, by making it appear that a certain
depositor by the name of Antonio Salazar withdrew from his Savings Account No.
1359, when in truth and in fact said Antonio Salazar did not withdraw the said
amount of P10,000.00 to the damage and prejudice of BABSLA in the total amount
of P10,000.00, Philippine currency.
In convicting the therein appellant, the Court held that:
Since the teller occupies a position of confidence, and the bank places money
in the tellers possession due to the confidence reposed on the teller, the felony of
qualified theft would be committed.
Also in People v. Sison, the Branch Operations Officer was convicted of the
crime of Qualified Theft based on the Information as herein cited:
That in or about and during the period compressed between January 24, 1992
and February 13, 1992, both dates inclusive, in the City of Manila, Philippines, the
said accused did then and there wilfully, unlawfully and feloniously, with intent of
gain and without the knowledge and consent of the owner thereof, take, steal and
carry away the following, to wit:
Cash money amounting to P6,000,000.00 in different denominations
belonging to the PHILIPPINE COMMERCIAL INTERNATIONAL BANK (PCIBank
for brevity), Luneta Branch, Manila represented by its Branch Manager, HELEN U.
FARGAS, to the damage and prejudice of the said owner in the aforesaid amount of
P6,000,000.00, Philippine Currency.
That in the commission of the said offense, herein accused acted with grave
abuse of confidence and unfaithfulness, he being the Branch Operation Officer of
the said complainant and as such he had free access to the place where the said
amount of money was kept.
The judgment of conviction elaborated thus:
The crime perpetuated by appellant against his employer, the Philippine
Commercial and Industrial Bank (PCIB), is Qualified Theft. Appellant could not have
committed the crime had he not been holding the position of Luneta Branch
Operation Officer which gave him not only sole access to the bank vault xxx. The

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management of the PCIB reposed its trust and confidence in the appellant as its
Luneta Branch Operation Officer, and it was this trust and confidence which he
exploited to enrich himself to the damage and prejudice of PCIB x x x.
From another end, People v. Locson, in addition to People v. Sison, described
the nature of possession by the Bank. The money in this case was in the possession
of the defendant as receiving teller of the bank, and the possession of the
defendant was the possession of the Bank. The Court held therein that when the
defendant, with grave abuse of confidence, removed the money and appropriated it
to his own use without the consent of the Bank, there was taking as contemplated
in the crime of Qualified Theft.
Conspicuously, in all of the foregoing cases, where the Informations merely
alleged the positions of the respondents; that the crime was committed with grave
abuse of confidence, with intent to gain and without the knowledge and consent of
the Bank, without necessarily stating the phrase being assiduously insisted upon by
respondents, of a relation by reason of dependence, guardianship or vigilance,
between the respondents and the offended party that has created a high degree of
confidence between them, which respondents abused, and without employing the
word owner in lieu of the Bank were considered to have satisfied the test of
sufficiency of allegations.
As regards the respondents who were employed as Cashier and Bookkeeper
of the Bank in this case, there is even no reason to quibble on the allegation in the
Informations that they acted with grave abuse of confidence.
In fact, the
Information which alleged grave abuse of confidence by accused herein is even
more precise, as this is exactly the requirement of the law in qualifying the crime of
Theft.
In summary, the Bank acquires ownership of the money deposited by
its clients; and the employees of the Bank, who are entrusted with the possession
of money of the Bank due to the confidence reposed in them, occupy positions of
confidence.
The Informations, therefore, sufficiently allege all the essential
elements constituting the crime of Qualified Theft.

CLAIRE MARIE B. MAURO