Theft vs Estafa

The crime of theft is closely related to the crime of estafa. Oftentimes, it creates confusion to
the victim as to what should be charged against his offender. However, although having
similarities, these two crimes are very much different from each other.

Theft

Theft is committed when the offender has taken a personal property of another, without the
owner’s consent. Such taking, since it is unknown to the owner, only gives the offender
material possession of the property. To define, material possession means the actual physical
possession of the personal property, where the possessor does not have a better right over
such property than the owner. Then, after taking the property, the offender misappropriates
the property. The offender takes the property and uses it as if he is really the owner.

For example, if Ana takes the mobile phone of Maria from Maria’s pouch without her
consent, then Ana should be liable for theft. In this case, Ana has physical possession of the
mobile phone, and after taking it she may use it as if it was her own.

Estafa

If the possession of the property by the offender arouse from a contract or an agreement,
then the possessor has juridical possession of the property – a right over the property, which
he can claim and set up even against the owner.

The juridical possession contemplated for the estafa refers to the delivery of the thing to the
offender in trust, or on commission, or for administration or under any other circumstance
involving the duty to deliver or to return the same thing received. If the delivery, is therefore,
not made under any of said concepts, the crime is theft.

To distinguish theft from estafa, it is important to know whether the possession of the property
by the offender is only material or if it is coupled with juridical possession. For example, in the
case of Ana and Maria, if Maria agrees to lend Ana her mobile phone for a week, then Ana
has a right over the mobile phone for that week. Maria cannot take the mobile phone from
Ana during the week that they have agreed upon. Because of their agreement, Ana
acquired juridical possession over the property. But, if Ana sells the phone during the week
that it was within her possession, then it is obvious that she has converted the use of the
property. She was permitted to use it, but she was not authorized to sell it. If this happens,
estafa is committed.

Qualified Theft and Estafa

Both qualified theft and estafa may be committed by abuse of confidence. However, it will
be easier to determine whether the crime is qualified theft or estafa once it is settled if the
possession is merely material or juridical. If it is only material possession and there was
misappropriation, then the crime committed is qualified theft. If there was juridical possession
and it was misappropriated or converted, then the crime committed is estafa.

Where only the material possession is transferred, conversion of the property gives rise to the
crime of theft; where both material and juridical possession are transferred, misappropriation
of the property would constitute estafa; and, where in addition to the material and juridical
possession, the ownership of the property is transferred, misappropriation would only give rise
to a civil obligation. (People vs Aquino, [CA] 36 O.G. 1886)
Theft = Material Possession + Misappropriation

Estafa = Material Possession + Juridical Possession + Misappropriation/Conversion

Civil obligation = Material Possession + Juridical Possession + Ownership

Case in point is Sheala Matrido vs. People of the Philippines, GR. No. 179061, July 13, 2009. In
this case, Sheala was the credit and collection assistant of Empire East Land Holdings, Inc.
whose duty was to collect payments from buyers of real estate properties developed by
Empire East Land Holdings, Inc., issue receipts therefor, and remit the payments to employer
in Makati City. Sheala failed to remit payments received from its clients, so she was charged
with estafa.

The Supreme Court ruled that Sheala is liable for qualified theft, not estafa. She did not have
juridical possession over the amount involved. A sum of money received by an employee in
behalf of the employer is considered to be only in the material possession of the employee.
For there to be juridical possession, the employer must recognize such, otherwise the crime
committed remains to be qualified theft.

Possession of agent vs possession of employee

The conversion of personal property in the case of an employee having material possession
of the said property constitutes theft, whereas in the case of an agent to whom both
material and juridical possession have been transferred, misappropriation of the same
property constitutes estafa.

A sum of money received by an employee in behalf of an employer is considered to be only

in the material possession of the employee. The material possession of an employee is
adjunct, by reason of his employment, to a recognition of the juridical possession of the
employer. So long as the juridical possession of the thing appropriated did not pass to the
employee-perpetrator, the offense committed remains to be theft, qualified or otherwise.
PEOPLE OF THE PHILIPPINES vs TERESITA PUIG and ROME PORRAS GR NO 173654 - 765

Qualified Theft, as defined and punished under Article 310 of the Revised Penal Code, is
committed as follows, viz:

ART. 310. Qualified Theft. The crime of theft shall be punished by the penalties next higher by
two degrees than those respectively specified in the next preceding article, if committed by
a domestic servant, or with grave abuse of confidence, or if the property stolen is motor
vehicle, mail matter or large cattle or consists of coconuts taken from the premises of a
plantation, fish taken from a fishpond or fishery or if property is taken on the occasion of fire,
earthquake, typhoon, volcanic eruption, or any other calamity, vehicular accident or civil
disturbance. (Emphasis supplied.)

Theft, as defined in Article 308 of the Revised Penal Code, requires the physical taking of
another’s property without violence or intimidation against persons or force upon things. The
elements of the crime under this Article are:

1. Intent to gain;

2. Unlawful taking;

3. Personal property belonging to another;

4. Absence of violence or intimidation against persons or force upon things.

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 owner’s 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.

On the sufficiency of the Information, Section 6, Rule 110 of the Rules of Court requires, inter
alia, that the information must state the acts or omissions complained of as constitutive of the
offense.

On the manner of how the Information should be worded, Section 9, Rule 110 of the Rules of
Court, is enlightening:

Section 9. Cause of the accusation. The acts or omissions complained of as constituting the
offense and the qualifying and aggravating circumstances must be stated in ordinary and
concise language and not necessarily in the language used in the statute but in terms
sufficient to enable a person of common understanding to know what offense is being
charged as well as its qualifying and aggravating circumstances and for the court to
pronounce judgment.

It is evident that the Information need not use the exact language of the statute in alleging
the acts or omissions complained of as constituting the offense. The test is whether it enables
a person of common understanding to know the charge against him, and the court to
render judgment properly.

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.