Republic of the Philippines
Department of Justice
National Prosecution Service
OFFICE OF THE CITY PROSECUTOR OF ALBAY
Legazpi City
GINA A. BITARA
Complainant,
versus NPS Docket No.
_______________
For: Swindling (Estafa)
under Art. 315, par. 1(b) of
the Revised Penal Code
CAROL C. ROSAURO
Respondent.
x------------------------------------------------x
COMPLAINT – AFFIDAVIT
I, GINA ARIATE BITARA, of legal age, married, Filipino citizen, and
a resident of Legazpi City, after being sworn to in accordance with law,
hereby depose and state that:
1. I am formally charging respondent CAROL CRISTOBAL
ROSAURO, of legal age, Filipino, and a resident of Purok-2 Baybay, Brgy.
42, Rawis, Legazpi City for violation of Article 315 paragraph 1(b) of the
Revised Penal Code, committed by her as follows:
1.1. Carol Rosauro is a co-worker of private complainant Gina
Bitara, wherein Rosauro had acquired an aggregate amount of six hundred
fifty thousand pesos (P650,000.00) from various transactions;
1.2. On 23 April 2019, two hundred thousand (P200,000.00)
worth of cash was released in the name of respondent Rosauro as evidenced
by a Petty Cash Voucher1 for “Lending Release”, and wherein stated the
date of return to be on 25 May 2019 with a 12% interest rate. This voucher
was signed by respondent herself;
1
Copy of voucher is hereto attached as Annex “A”
1.3. On 25 April 2019, two other transactions transpired: first,
the release of one hundred fifty thousand (P150,000.00) labeled as
“Emergency Loan for Sir Rolly ” with a 15% interest rate; and second,
another “Emergency Loan” for Mrs. Borlagdan worth one hundred thousand
pesos (P100,000.00). Both these transactions were evidenced by separate
Petty Cash Vouchers hereto attached as Annexes “B” and “C”;
1.4. Moreover, two (2) Emergency Loans2 amounting to one
hundred thousand pesos (P100,000.00) each purportedly for a certain
“Dothy Colle” were both received by Rosauro on 01 May 2019 and 03 May
2019 respectively. It was stated under the voucher that both loans are to be
returned on 29 May 2019;
1.5. When all the foregoing obligations fell due, complainant
Bitara apprised Rosauro of her liabilities to collect the sums of money
released for each and every transaction, having been the authorized person
who received the same in the first place. However, contrary to
complainant’s knowledge, the money was not delivered to any of the named
personnel in the vouchers;
1.6. In truth, the aggregate amount of six hundred fifty
thousand pesos (P650,000.00) for the five (5) transactions were not
handed out to any of the persons named in the vouchers, but was
misappropriated, misused, and even converted by Rosauro to her own
personal use, as the purposes for which the amounts were allocated for
were not fulfilled;
1.7. On 26 November 2020, complainant Bitara sent a demand
letter to Carol Rosauro for the collection of the entire obligation with legal
3
interest, altogether amounting to seven hundred twelve thousand eight
hundred twenty-one pesos (P712,821.00), and had given the latter
fifteen days to heed the demand. However, it fell on deaf ears;
2. In the light of the foregoing, I am charging CAROL CRISTOBAL
ROSAURO for willfully and unlawfully defrauding me by means of
misappropriating or converting the amount released under her name, and
for misapplying the same for her personal disposal, induced and succeeded
in inducing me to give and deliver, as in fact, I have delivered unto her the
total amount of six hundred fifty thousand pesos (P650,000.00),
exclusive of legal interest, because of her unfaithfulness and/or abuse of
2
Copy of petty cash vouchers are hereto attached as Annexes “D” and “E”
3
Copy of the Demand Letter is hereto attached as Annex “F”
confidence in mishandling the amount for her selfish desires without
apprising me of the reasons on where it was faithfully spent, on the strength
of the manifestations and fraudulent machinations she employed solely for
the purpose of obtaining, as in fact she did obtain the aforesaid aggregate
amount from various fictitious transactions, which amount once in her
possession, with intent to defraud, willfully, unlawfully and feloniously
misappropriated, converted, and misapplied the same, to my damage
and prejudice.
THE CRIMINAL CHARGE AND ALLEGATIONS IN SUPPORT
THEREOF
3. Constrained by the circumstances, I employed the services of a
counsel and he directed my attention to the appropriate provisions of law
and jurisprudence applicable to the present case.
4. Swindling (estafa) under Article 315 par. 1(b) of the Revised
Penal Code which provides:
Art. 315. Swindling (estafa). — Any person who shall defraud another by
any of the means mentioned hereinbelow shall be punished by:
x x x … the fraud be committed by any of the following means:
1. With unfaithfulness or abuse of confidence, namely:
xxx
(b) By misappropriating or converting, to the prejudice of another,
money, goods or any other personal property received by the offender in trust,
or on commission, or for administration, or under any other obligation involving
the duty to make delivery of, or to return the same, even though such obligation
be totally or partially guaranteed by a bond; or by denying having received such
money, goods, or other property;
xxx
5. The elements of estafa through misappropriation under Article
315, paragraph 1(b) are: (a) the offender's receipt of money, goods, or
other personal property in trust, or on commission, or for administration, or
under any other obligation involving the duty to deliver, or to return, the
same; (b) misappropriation or conversion by the offender of the money or
property received, or denial of receipt of the money or property; (c) the
misappropriation, conversion or denial is to the prejudice of another; and
(d) demand by the offended party that the offender return the money or
property received.
6. The Supreme Court in Milla v. People4, explained:
The terms "convert" and "misappropriate" have been
held to connote "an act of using or disposing of another's
property as if it were one's own or devoting it to a purpose or
use different from that agreed upon." The phrase, "to
misappropriate to one's own use" has been said to include
"not only conversion to one's personal advantage, but also every
attempt to dispose of the property of another without right.”
(Emphasis supplied)
7. In the case of Pamintuan v. People5, the Court had the
opportunity to elucidate further on the essence of the aforesaid crime, as
well as the proof needed to sustain a conviction for the same, to wit:
The essence of this kind of Estafa is the
appropriation or conversion of money or property
received to the prejudice of the entity to whom a return
should be made. The words "convert" and "misappropriate"
connote the act of using or disposing of another's property as if
it were one's own, or of devoting it to a purpose or use different
from that agreed upon. To misappropriate for one's own use
includes not only conversion to one's personal advantage, but
also every attempt to dispose of the property of another without
right. In proving the element of conversion or
misappropriation, a legal presumption of
misappropriation arises when the accused fails to deliver
the proceeds of the sale or to return the items to be sold
and fails to give an account of their whereabouts.
(Emphasis supplied)
8. In the case at bar, all the foregoing elements are present, in that:
4
G.R. No. 188726, January 25, 2012
5
G.R. No. 172820, June 23, 2010
The First Element: Receipt of Money in Trust, Obligation
involving Duty to Deliver Or Return
Carol Rosauro received under her name the money for all the
five transactions with the obligation to deliver the same to named
personnel for specific purposes. However, the same did not
materialize. Complainant Bitara verified the non-receipt of the
amounts from certain Mrs. Borlagdan, Sir Rolly, and Dothe Colle, and
they attested that no such transaction under their respective names
were true.
Receipt of the money is discernible from the Petty Cash
Vouchers which were all signed by Rosauro. In all the foregoing
transactions, not only did Carol Rosauro possessed the money
physically, but also acquired juridical possession over it. Juridical
possession means a possession which gives the transferee a right
over the thing which the transferee may set up even against the
owner.6 Carol Rosauro is an employee who is authorized in disbursing
money. Her position is imbued with confidence to carry out the job
faithfully. Therefore, upon receipt of the money, she was responsible
in handling the specific account of the money disbursed. By receiving
the money from the complainant, the respondent also had the
obligation to make delivery of or return the same to Bitara.
The Second Element: The Misappropriation and the Obligation
to Return
On the matter of misappropriation, the respondent could not
come up with any valid reasons to which to account for the large sum
she received. Rosauro did not show any statement of accounts, or
official receipts. Failing to give an account of the money’s
whereabouts bears the presumption of its misappropriation, to which
the respondent should overcome. Failure to account, upon demand, is
circumstantial evidence of misappropriation.7
Through the use of five (5) Petty Cash Vouchers, Rosauro was
able to dispose of the funds to the disadvantage of complainant.
6
Balerta v. People. G.R. No. 205144, November 26, 2014.
7
Reyes, 757.
The Third Element: Prejudice to Complainant
Needless to say, complainant Bitara was greatly prejudiced by
the misappropriation of her funds and by respondent’s unfaithful
spending. Damage, as an element of estafa, may consist in: (1) the
offended party being deprived of his money or property as a result of
the defraudation; (2) disturbance in property right; or (3) temporary
prejudice.8
For the purpose of proving the existence of injury or damage, it
is unnecessary to inquire whether, as a matter of fact, the unpaid debt
could be or had been successfully collected. 9 The commission of the
crime is entirely independent of the subsequent and casual event of
collecting the amount due and demandable, the result of which,
whatever it may be, can in no wise have any influence upon the legal
effects of the already consummated misappropriation or conversion.
In this case, the receipt of Rosauro of the money and the
moment she had misused it for her own benefit already caused
prejudice to the complainant.
The Fourth Element: Demand
The consummation of the crime of estafa does not depend on the
fact that a request for the return of the money is first made and
refused in order that the author of the crime should comply with the
obligation to return the sum misapplied. The appropriation or
conversion of money received to the prejudice of the owner thereof is
the sole essential fact which constitute the crime of estafa, and
thereupon the author thereof incurs the penalty imposed by the RPC. 10
Bearing this principle in mind, complainant Bitara nonetheless
sent out a final demand letter dated 26 November 2020 to respondent
Rosauro, requiring the return of the aggregate amount of six hundred
fifty thousand pesos (P650,000.00) plus legal interest of sixty-two
thousand eight hundred twenty-one pesos (P62,821.00). After the
8
Brokmann v. People, 681 Phil. 84, 87 (2012)
9
United States v. Tan Jenjua, supra note 19, at 43 and United States v. Kilayko
10
Salazar v. People of the Philippines, 439 Phil. 762, 775 (2002), citing U.S. v. Ramirez, 9
Phil. 67, 70 (1907)
fifteen-day period given to Rosauro to pay, complainant opted to file
legal charges consequent to former’s failure to return the money.
8. Furthermore, because of the deceit employed by Carol Rosauro as
well as the fraudulent acts committed against me as shown above, I have
suffered wounded feelings, extreme anxiety, sleepless nights and the
emotional anguish for which the award of MORAL DAMAGES in the
amount of fifty thousand pesos (P50,000.00) would be proper under the
circumstances.
9. To serve as example for the public good and deter persons from
committing the acts perpetrated by the respondent in the future, I believe
the award of EXEMPLARY DAMAGES in our favor in the amount of fifty
thousand pesos (P50,000.00) would also be proper under the
circumstances.
10. Resulting from respondent’s misappropriation and deceit in
obtaining money and refusal to return the same, I have been constrained to
engage the services of a counsel, to prepare, file and prosecute the case, for
which I have incurred ATTORNEY’S FEES in the amount of one hundred
thousand pesos (P100,000.00) plus appearance fee for each
hearing/conference/meeting.
11. In the same manner, I will likewise pay for the COST OF
LITIGATION and/or COST OF THE SUIT which should be properly paid
by the respondent for perpetrating the fraudulent acts.
12. I am executing this Complaint-Affidavit to attest to the truth of all
the foregoing facts and to initiate the appropriate civil and criminal actions
against respondent CAROL CRISTOBAL ROSAURO.
AFFIANT FURTHER SAYETH NAUGHT.
IN WITNESS WHEREOF, I have hereunto affixed my signature this
___th day of January, 2021 at Daraga, Albay.
GINA ARIATE BITARA
Complainant-Affiant
SUBSCRIBED AND SWORN TO, before me this ___th day of
January 2021 at Daraga, Albay.
I hereby certify that I have personally examined the affiant and
that I am satisfied that she voluntarily executed and understood her
complaint-affidavit.
