By: Atty. Gregorio B. Austral, CPA
No estafa in simple business loan
The constitutional provision that “no person shall be imprisoned for debt” may apply to simple business loan but may not apply in cases when the element of fraud, deceit, or misappropriation is present.
In Criminal Case No. M-111, respondent Rosalinda M. Amin charges petitioners Yam Chee Kiong and Yam Yap Kieng with estafa through misappropriation of the amount of P50,000.00. But the complaint states on its face that said petitioners received the amount from respondent Rosalinda M. Amin “as a loan.” Moreover, the complaint in Civil Case No. N-5, an independent action for the collection of the same amount filed by respondent Rosalinda M. Amin with the Court of First Instance of Sulu on September 11, 1975, likewise states that the P50,000.00 was a “simple business loan” which earned interest and was originally demandable six (6) months from July 12, 1973.
In Criminal Case No. M-183, respondent Tan Chu Kao charges petitioners Yam Chee Kiong, Jose Y.C. Yam, Ampang Mah, and Anita Yam, alias Yong Tay, with estafa through misappropriation of the amount of P30,000.00. Likewise, the complaint states on its face that the P30,000.00 was “a simple loan.” So does the complaint in Civil Case No. N-8 filed by respondent Tan Chu Kao on April 6, 1976 with the Court of First Instance of Sulu for the collection of the same amount.
In Criminal Case No. M-208, respondent Augusto Sajor charges petitioners Jose Y.C. Yam, Anita Yam alias Yong Tai Mah, Chee Kiong Yam and Richard Yam, with estafa through misappropriation of the amount of P20,000.00. Unlike the complaints in the other two cases, the complaint in Criminal Case No. M-208 does not state that the amount was received as loan. However, in a sworn statement dated September 29, 1976, submitted to respondent judge to support the complaint, respondent Augusto Sajor states that the amount was a “loan.”
Are the respondents liable for estafa?
The facts alleged in the three criminal complaints do not constitute estafa through misappropriation. Estafa through misappropriation is committed according to Article 315, paragraph 1, subparagraph (b), of the Revised Penal Code as follows:
“Art. 315. Swindling (Estafa). — Any person who shall defraud another by any of the means mentioned herein below shall be punished by:
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“1. With unfaithfulness or abuse of confidence, namely:
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“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.”
In order that a person can be convicted under the abovequoted provision, it must be proven that he has the obligation to deliver or return the same money, goods or personal property that he received. Petitioners had no such obligation to return the same money, i.e., the bills or coins, which they received from private respondents. This is so because as clearly stated in criminal complaints, the related civil complaints and the supporting sworn statements, the sums of money that petitioners received were loans.
In simple loan (mutuum), as contrasted to commodatum, the borrower acquires ownership of the money, goods or personal property borrowed. Being the owner, the borrower can dispose of the thing borrowed (Article 248, Civil Code) and his act will not be considered misappropriation thereof.