REPUBLIC OF THE PHILIPPINES

DEPARTMENT OF JUSTICE
NATIONAL PROSECUTION SERVICE
OFFICE OF THE CITY PROSECUTOR
QUEZON CITY

BENAJAMIN ENCINAS JR.

Complainant,

-versus- I.S. No._________________

For: QUALIFIED THEFT and

ESTAFA and/or other
applicable crimes.

MALOU ARBAN and JOHN TENG ARBAN

Respondents.

x----------------------------------------------------------x

COMPLAINT-AFFIDAVIT

I, BENJAMIN ENCINAS, of legal age, married, and currently a resident of No. 14

Sacred Heart St, Paradise Village, Barangay Sangandaan, Quezon City, after having
duly sworn to in accordance with the law, do hereby state and depose:

ESTAFA AND QUALIFED THEFT (Not Liquidated Cash Advances/Padded

Receipts/and Withholding of the Original Owner’s Cpy of the Transfer Certificate Title.)

1. I, JEFFERSON B. DAVID, of legal age, Filipino, with office address at 7th AND
8TH floors of DMG Building, Guevara Street corner Calbayog Street, City of
Mandaluyong, after first being duly sworn according to law, hereby depose and
state:
2. I am the manager of RFC’s Operation Support and Services Department (OSS),
duly authorized to represent and institute complaint on its behalf. A copy of
RFC’s Secretary Certificate is attached as Annex “A”.
3. That JOEMARIE E. NECESARIO (“RESPONDENT” for brevity) was a former
employee of complainant RFC, specifically Legal Supervisor of the latter’s Legal
Department, and a resident of No. 40A, M. De La Cruz Street, Krus Na Ligas,
Quezon City, where he may be served with Notices, Orders, and Legal
Processes of this Honorable Office.
4. I am executing this Complaint-Affidavit to accuse and indict respondent for
ESTAFA as defined and penalized under Article 315(1)(b), Revised Penal
Code, Other Deceits, as defined and penalized under Article 318, Revised
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 Penal Code and such other applicable crimes under the premises arising from,
or in connection with his employment of deceit and/or fraud through abuse of
confidence, in the acquisition of one motor vehicle owned by complainant RFC, a
2006 Honda Civic with a plate number of ZFG 425 (“SUBJECT VEHICLE” for
brevity), in which the respondent misappropriated and converted to his own use
and benefit to the prejudice of the complainant RFC.
5. In support hereof, I attest to the truth of the following:
6. Sometime in 2016, We met spouses Malu Arban and John Teng Arban under the
premise that they will be helping us secure our lost title.
1. Malu Arban is a Court Mediator while John Teng Arban is a Licensed Real Estate
Broker. Jointly, they act as our real estate broker particular to the lot with details,
as evidenced by the Special Agreement. They are tasked to process… Their
duties included the pament of taxes ( documentary stamp taxes, capital gains
taxes, transfer taxes) for the transfer of title from previous owners to new
owners/buyers of the property.
2. As real estate broker, they are tasked to exclusive to sell the subject property
3. Because of the nature of the accused’s work and the trust reposed in her by
private complainant, the latter gave her considerable amounts of cash some with
receipts and some without.
4. They made us sign in a Special Agreement wherein they would facilitate the
transfer of our title from my parent’s name to my name and file a petition for the
issuance of duplicate original. In the early part of 2017, according to them, they
were able to secure a TCT through Judicial Proceeding but without us seeing the
copy neither get a hold of it.
5. Spouses are fully paid the services rendered but yet still unliquidated as of this
date. The accused-appellant was given a free hand in liquidating her expenses in her
own handwriting.
6. Upon verification from banks and government agencies with which the accused-
appellant transacted in relation to her tasks, the private complainant discovered that
what the accused-appellant submitted were handwritten ‘padded’ liquidation statements
because her reported expenses turned out to be higher than what she actually spent;
and worse, the ‘official’ receipts she submitted to private complainant were fake
7. In the request for the blue copy at the LRA, turns out that the title was already
transferred to our name, and my wife, CAREN ENCINAS. However, I cannot
understand why despite there is a transfer and release already, the same copy
was not translated yet to us.
8. I was surprised to see in their own admission in the complaint affidavit they
submitted that they were is possession of the original TCT.
9. In spite of our repeated insistence to get the same from them, they would
repeatedly and deliberately refuse to hand us copy.
10. Art. 308. Who are liable for theft.—Theft is committed by any person who, with
intent to gain but without violence against or intimidation of persons nor force

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 upon things, shall take personal property of another without the latter’s consent
xxx” (Revised Penal Code of the Philippines).

11. Qualified theft on the other hand is committed when a domestic servant or a
person who abuses the confidence entrusted to him/her commits theft. Such act
qualifies theft because of the circumstance of trust given to the offender. In detail,
the law provides that:

12. “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 the plantation or 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” (As amended by R.A. 120 and B.P. Blg. 71, May 1, 1980) (Revised
Penal Code of the Philippines).

13. Qualified theft has the element of abuse of confidence by the offender which
if present, turns the crime of a simple theft into qualified theft. In addition, the
penalty for the latter is set to be higher from a simple theft.

14. Entrusted to take care of belonging.

15. Considering that the person you are accusing of theft is your househelp, the
element of abuse of confidence is present since that person is entrusted to take
care of your belongings. As a result, that person is liable of qualified theft instead
of just theft.

16. The elements of the crime of Theft as provided for in Article 308 of the Revised Penal
Code [(RPC)] are:

(1) x x x there [was] taking of personal property;

(2) x x x [the] property belongs to another;
(3) x x x the taking [was] done with intent to gain;
(4) x x x the taking [was] without the consent of the owner; and
(5) x x x the taking was accomplished without the use of violence against or
intimidation of persons or force upon things.

17. [These] pieces of circumstantial evidence presented by the prosecution constitute an

unbroken chain leading to a fair and reasonable conclusion that accused-appellant took
sums of money that were entrusted to her by the private complainant. x x x[41]

18. Circumstantial evidence may prove the guilt of appellant and “justify a conviction if the
following requisites concur: (a) there is more than one circumstance; (b) the facts from
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 which the inferences are derived are proven; and (c) the combination of all the
circumstances is such as to produce a conviction beyond reasonable doubt.”[42] In other
words, “[f]or circumstantial evidence to be sufficient to support conviction, all
circumstances must be consistent with each other, consistent with the hypothesis that
the accused is guilty and at the same time inconsistent with the hypothesis that he is
innocent, and with every other rational hypothesis except that of guilt.”[43] Here, we
agree with the CA that the circumstances above enumerated lead to the reasonable
conclusion that appellant took amounts of money from Rebecca.

19. With regard to the third element, “[i]ntent to gain (animus lucrandi) is presumed to be
alleged in an information, in which it is charged that there was unlawful taking
(apoderamiento) and appropriation by the offender of the things subject of
asportation.”[44] In this case, it was established that appellant padded her expenses and
submitted fake receipts of her supposed payment for the processing of the transfer of
land titles, to gain from the money entrusted to her by Rebecca. Her intentional failure
to properly and correctly account for the same constitutes appropriation with intent to
gain.

20. With regard to the fifth element, it is clear from the facts that the taking was
accomplished without the use of violence against or intimidation of persons or force
upon things.

21. From these, it is clear that all the elements of theft are obtaining in this case. The next
crucial question now is, did appellant commit the crime with grave abuse of confidence
as to make her liable for qualified theft? “Under Article 310 of the [RPC], theft
[becomes] qualified when it is, among others, committed with grave abuse of
confidence. x x x”[45] The grave abuse of confidence must be the result of the relation
by reason of dependence, guardianship, or vigilance, between the appellant and the
offended party that might create a high degree of confidence between them which the
appellant abused.

22. Here, it is undisputed that appellant was a close friend of Rebecca and her family. It
was due to this personal relationship that appellant was employed by Rebecca as a
legal secretary and liaison officer. The latter position necessarily entails trust and
confidence not only because of its nature and the functions attached to it, but also
because appellant makes representations on behalf of Rebecca as regards third
parties. By reason of this, all matters essentially pertaining to the conduct of business of
the law office were known by, and entrusted to, appellant. This included the
safekeeping of important documents and the handling of money needed for the

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 processing of papers of Rebecca’s clients. It is thus safe to assume that Rebecca relied
on appellant when it comes to the affairs of her law office as to create a high degree of
trust and confidence between them. And as Rebecca trusted appellant completely, and
by reason of her being the liaison officer, she handed the monies to appellant without
requiring the latter to sign any paper to evidence her receipt thereof. She also allowed
appellant to liquidate the expenses incurred through mere handwritten liquidation
statements solely prepared by appellant and treated them, as well as the official
receipts presented, as true and correct. It thus becomes clear that it is because of the
trust and confidence reposed by Rebecca upon appellant that the latter was able to
make it appear from her liquidation statements that she spent the sums she received
from Rebecca for their intended purposes. To conceal this, she presented to Rebecca
fake or altered receipts for the supposed payment, all of which form part of the records
as evidence. Unfortunately for appellant, she was not able to refute Rebecca’s
allegations against her as well as the evidence supporting the same since what she
advanced during trial were mere bare denials. The Court has “oft pronounced that x x x
denial x x x [is] an inherently weak [defense] which cannot prevail over the positive and
credible testimony of the prosecution witness that the accused committed the
crime.”[47] The Court therefore concludes that appellant took undue advantage of
Rebecca’s confidence in her when she appropriated for herself sums of money that the
latter entrusted to her for a different purpose. The theft in this case was thus committed
with grave abuse of confidence. Hence, appellant was correctly held by the lower
courts as liable for qualified theft.

23. The elements of the crime of theft as provided for in Article 308 9 of the Revised
Penal Code are as follows: (1) that there be taking of personal property; (2) that
said property belongs to another; (3) that the taking be done with intent to gain;
(4) that the taking be done without the consent of the owner; and (5) that the
taking be accomplished without the use of violence against or intimidation of
persons or force upon things.10 Theft becomes qualified when any of the
following circumstances under Article 31011 is present: (1) the theft is committed
by a domestic servant; (2) the theft is committed with grave abuse of confidence;
(3) the property stolen is either a motor vehicle, mail matter or large cattle; (4) the
property stolen consists of coconuts taken from the premises of a plantation; (5)
the property stolen is fish taken from a fishpond or fishery; and (6) the property
was taken on the occasion of fire, earthquake, typhoon, volcanic eruption, or any
other calamity, vehicular accident or civil disturbance
a. Re: Estafa
24. Article 315 (1) (b), Revised Penal Code provides:

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 “Article 315. Swindling (estafa). - Any person who shall
defraud another by any of the means mentioned herein
below shall be punished by:

xxx xxx xxx

1. With unfaithfulness or abuse of confidence, namely:

(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 xxx xxx”

25. The elements of this felony are: (1) That money, goods, or other personal property
be 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 of return, the same; (2)
That there be misappropriation or conversion of such money or property by the
offender, or denial on his part of such receipt; (3) That such misappropriation or
conversion or denial is to the prejudice of another; and (4) That there is demand made
by the offended party to the offender.

26. Here, all the said elements are present in that:

As to the first, second and third elements, that the subject vehicle was held in trust
by the respondent Necesario. Clearly, He has the obligation to pay the outstanding bid
price within fifteen (15) days from the auction sale. Consequently, respondent failed to
pay the remaining bid price which created an obligation for him to return or deliver the
subject vehicle to RFC. Clearly, respondent misappropriated the Honda Civic, as his
own vehicle by failing to pay the outstanding bid price nor deliver the same to RFC.
Complainant was prejudiced by the act of the respondent, RFC was deprived from
exercising acts of ownership over the said motor vehicle.

As to the fourth element, it is beyond cavil that RFC made several demands against
the respondent to pay the outstanding bid price or return the said unit. However, despite
repeated demands, respondent failed and still fails to date to settle his outstanding
balance nor deliver the Honda Civic to RFC.

27. Re: Other Deceits

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 Article 318 of the RPC provides:

“Art. 318. Other deceits. — The penalty of arresto mayor

and a fine of not less than the amount of the damage
caused and not more than twice such amount shall be
imposed upon any person who shall defraud or damage
another by any other deceit not mentioned in the
preceding articles of this chapter. x x x” (Emphasis and
underscoring supplied)

28. The foregoing provision of the RPC refers to other deceits which defrauds or
damages another not mentioned in the preceding articles of the said Code, which
includes fraudulent acts.

29. Obviously, respondent employed fraudulent acts and nefarious schemes when
he participated in the auction sale by just paying the bid bond and later posting
an offer to bid over the subject vehicle, which facilitated him to win as the highest
bidder. However, respondent never intended to pay the full amount of his bid,
taking advantage of his employment with the complainant company, by
continuing to unlawfully hold on the said motor vehicle despite repeated
demands of its return.

30. As a result thereof, respondent is presumed to have misappropriated and

converted the said vehicle which is to great prejudice to RFC.

I am executing this Complaint-Affidavit, to attest to the truthfulness of the

foregoing facts and respectfully praying to this Honorable Office that after due
proceedings, a criminal information for Qualified Theft, Estafa and other appropriate
crimes as may be warranted by attending circumstances, be filed against herein
respondents MALOU ARBAN and JOHN TENG ARBAN with the proper court, and for
such other lawful purposes this may serve.

IN WITNESS WHEREOF, I have hereunto set my hand this ______ day of February
2018 at Quezon City Philippines

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 BENJAMIN ENCINAS JR.
Complainant-Affiant

SUBSCRIBED AND SWORN to before me this ____ day of February, 2018 at Quezon
City, Philippines. I hereby certify that I have personally examined the affiant and I am
fully satisfied that he voluntary executed his Complaint-Affidavit and understood the
same.

___________________________
Assistant City Prosecutor

CERTIFICATION

I HEREBY CERTIFY that I have personally examined the affiants and I am

satisfied that she understood and voluntarily executed the contents of her affidavit.

___________________________________
Asst. City Prosecutor

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Copy furnished:

JOHN TENG ARBAN

MALOU ARBAN

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