COMPLAINT-AFFIDAVIT I, ____________, of legal age, Filipino and with office address at ____________, after having been duly sworn in accordance with law, do hereby depose and state that: 1. I am the ____________ and the Authorized Representative of __________, a Corporation duly organized and existing under the law of the Philippines, with principal business address at _______________. -
2. Respondent _________, (“Esguerra” for brevity) is of legal age, Filipino, and with residence at __________, where she may be served with the subpoena and other processes of this Honorable Office. She is the former cashier and currently the branch manager of _________, Binangonan branch. 3. Respondent ________________. (“__” for brevity), is of legal age, Filipino, and with residence at ______________ where he may be served with the subpoena and other processes of this Honorable Office. He is an external collector of Robinsons Bank employed by Work with US. 4. Respondent __________ (“_________” for brevity), is of legal age, Filipino, and with residence at _______________ where he may be served with the subpoena and other processes of this Honorable Office. Respondents should be held criminally liable for Qualified Theft under Article 310 in relation to Article 308 of the Revised Penal Code. 1
5. Respondents are criminally liable for Qualified Theft under Article 310 of the Revised Penal Code, in relation to Article 308, for taking, with intent to gain, with grave abuse of confidence and without the consent of ___, various sums of money from Complainant in the total amount of PESOS: SIX HUNDRED THIRTYEIGHT THOUSAND NINE HUNDRED SIXTY-EIGHT AND 94/100 (Php638,968.94).
Articles 308 and 310 of the Revised Penal Code states thus: “Article 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 upon things, shall take personal property of another without the latter's consent.” (Emphasis supplied) “Article 310. Qualified Theft. — The crime of theft shall be punished by the penalties next higher in degree 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 large cattle or consists of coconuts, or fish taken from a fishpond or fishery, or if the property is taken on the occasion of fire, earthquake, typhoon, volcanic eruption, or any other calamity, vehicular accident or civil disturbance.” (Emphasis supplied) 6. Respondents _______ should be charged with the crime of Qualified Theft committed as follows: “ .” Respondents unlawfully took substantial amounts of money from Complainant ____ and used it for their personal benefit. 7. On ___________, ____ entered into a Dealership Arrangement Agreement with ___ wherein __ Bank will finance the motorcycle loans of the motorcycle buyers of ___ Bikes. On the other hand, ____ agreed to collect and remit the monthly amortizations of the clients/borrowers on behalf of ____ through payments in any of its branches or through field collectors. ____ further agreed to be liable to ____ for any loss or breach of its contractual obligations and warranties, including non-remittance, pursuant to the Agreement. A copy of the Dealership Arrangement Agreement dated ________is attached hereto as Annex “C” and made an integral part hereof. 8. On March 5, 2015, Respondent ____ was initially hired by ____as cashier of its Binangonan Branch and she occupied said position until April 3, 2018. 2
It was the duty of Respondent as cashier, among others, to receive cash and check deposits and loan payments, cash checks and process withdrawals. After receiving the monthly amortization payments from the clients, she encodes the payment details in ____ system. The branch manager then verifies the payment details encoded by the cashier in the system. A copy of the Job Description of Respondent ___ is attached hereto as Annex “D” and made an integral part hereof. 9. On July 16, 2018, Respondent ____ was promoted to Manager but she still continued to perform cashier/teller duties. 10. Respondent ___ was initially hired by ___ as Marketing Assistant on January 11, 2016 and was later hired by ___ as external field collector and credit investigator on October 27, 2017. Respondent ___ was also hired by ___ as external collector/credit investigator on April 10, 2017. It was their duty as field collectors to follow up, collect and receive cash payments from clients/borrowers of ___. Upon receipt of the payments from the clients, they issue a receipt to the client indicating the date of payment and the month the amortization is applied to. They then encode the payment transaction details to the ___ system. Thereafter, they turn over the cash payments to the cashier of ___, herein Respondent ___. The cashier in turn verifies the amount she receives from the collectors with the information encoded by the collectors in the ____ system. Copies of the Job Descriptions of Respondent ___ are attached hereto as Annexes “E” and “F” and made integral parts hereof. 11. On August 11, 2018, ___, Cashier of ___, Binangonan branch, and ____, Receptionist of ___, Binangonan branch, went to the main office of ____ in Cubao, Quezon City and reported to ___ the alleged misappropriation of cash collections, forgeries of agent’s signature and connivance among Respondents ___ then immediately reported the matter to me. 12. Based on the report of Ms. __, I went to ___ Binangonan Branch on August 13, 2018 together with the Internal Audit Group of ___ composed of __ to conduct a surprise audit checking. 13. The surprise audit revealed a partial finding of missing cash funds and collections in the total amount of Six Hundred Thirty-Eight Thousand Nine Hundred Sixty-Eight Pesos and 94/100 (Php638,968.94). A copy of the Partial Report dated September 20, 2018 is hereto attached and made integral part hereof as Annex “G”. Below is a table of the partial findings which shows the amounts taken/unremitted by Respondents:
13.1. Upon examination of the receipts and the recorded transactions in __, there were one hundred nine (109) receipts representing clients’ monthly amortization payments in the total amount of 3
Php570,130.00 that were not reported and unremitted by Respondent __. It was also revealed that there were sixteen (16) unremitted monthly amortizations in the total amount of Php61,156.00. A copy of the M___ record is hereto attached and made integral part hereof as Annex “H”. 13.1.1. Seventy (70) unreported receipts representing the total amount of Php399,907.00 were prepared and signed by Respondent ___. Copies of the Receipts are hereto attached and made integral parts hereof as Annexes “I” to “I-69”. 13.1.2. Thirty-four (34) unreported receipts representing the total amount of Php147,376.00 were prepared and signed by ___. Copies of the Receipts are hereto attached and made integral parts hereof as Annexes “J” to “J-33”. 13.1.3. Two (2) Receipts representing the total amount of Php10,612.00 were prepared and signed by Respondent __. Copies of the Receipts are hereto attached and made integral parts hereof as Annexes “K” to “K-1”. 13.1.4. Two (2) Receipts representing the total amount of Php9,799.00 were prepared and signed by Respondent ___. Copies of the Receipts are hereto attached and made integral parts hereof as Annexes “L” to “L-1”. 13.1.5. One (1) Receipt representing the total amount of Php2,436.00 was prepared and signed by Respondent ________. A copy of the Receipt is hereto attached and made integral part hereof as Annex “M”. 13.1.6. Ms. ___, encoded in ___, under the authorization and instruction of Respondent ___, a set of receipts numbered 3019 to 3034 representing payments in the total amount of Php61,156.00. However, the payments were not remitted to the Bank. Copies of the Receipts No. 3019 to 3034 are hereto attached and made integral parts hereof as Annexes “N” to “N-15”. 13.1.7.Upon field verification with the clients’ copies of the receipts, Receipts No. 3029 to 3034 which were about to be encoded in Netsuite on August 13, 2018 were dated August 11, 2018, suggesting that cash were actually received on that date. Copies of the clients copy of the receipts are hereto attached and made integral part hereof as Annexes “O” to “O-5”. 13.2.
There was a shortage on petty cash fund computed as follows: Cash on hand Current expenses/vouchers
Check on hand c/o treasury dept. Total PCF expenses Less: PCF Variance (Shortage):
2,040.00 4,317.06 10,000.00 5,682.94
A copy of the Petty Cash Fund Breakdown is hereto attached and made integral part hereof as Annex “P”. 13.3.
Checks amounting to Php920.00 and Php3,068.50 were released to Respondent ___ last August 2, 2018 representing petty cash replenishment and are encashed on the same day. However, the proceeds of the checks were not remitted. There was no cash counted and expenses/vouchers only amounted to Php2,277.06. Copies of the logbook and Statement of Account are hereto attached and made integral parts hereof as Annexes “Q” and “R”. 13.4. A check was released to Respondent ___ for payment to Accredited Service Provider (ASP) in the amount of Php2,000.00. However, there was no receipt shown to support that it was remitted. A copy of the check is hereto attached and made integral part hereof as Annex “S”. 14. On August 14, 2018, in coordination with ___, ___ conducted its own investigation. Respondent ___ were invited as resource persons. During the investigation Respondent ___ denied any knowledge and/or participation regarding the anomalies in ___ Binangonan. Copies of the Statements of Respondent ___ are hereto attached and made integral parts hereof as Annexes “T” to “U”. 15. On August 15, 2018, the ___ representatives went to ___ main office in Cubao, Quezon City in order to conduct further investigation. They were able to talk to ___ who has personal knowledge on the scheme of Respondents in stealing from ___, to wit: 15.1. When Respondents ___ collects the monthly amortizations of the clients/borrowers, they only indicate the date of payment on the client’s copy of the receipts. No date is indicated on the branch copy of the receipts. 15.2. They will then turnover only a portion of their collections to the cashier as well as its corresponding receipts. They make it appear that only the amount turned over to the cashier was collected by retaining the branch copies of the receipts. Moreover, only the amount turned over to the cashier is reported in ___ so that there will be no inconsistencies with the amount reported in MC Best and the amount turned over to the cashier. 15.3. Respondents used the funds they took for their own personal benefit like cigarettes and food. 5
Since they took a portion of the collection, there are clients whose loan account became past due. Those clients had complained to ___. The collectors, Respondents __, acting in conspiracy with the manager, Respondent __, misrepresented to the clients that their payments were only misposted and it will be corrected. 15.5. In order to conceal their illegal acts, the Respondents never reported the complaints to ___. They also used the current or subsequent day collections to cover up the monthly amortizations that they took on the previous day. They used the undated receipts to make it appear that the collections were made on the date indicated on said receipts. 16. Respondent ___ admitted that she took and used for her personal benefit the monthly amortization payments of the clients using the same scheme used by Respondents ___. She stated that after receiving the monthly amortization payments from the clients, she will encode into the system only a portion of the day’s collection. She also said that she also issued to the clients dated receipts but she did not indicate the date on the branch copy of the receipts which she concealed in order to cover up the amounts that she took (Paragraph 3 of Respondent ___’s Statement). A copy of the Statement of Respondent __ dated August 15, 2018 is hereto attached and made integral part hereof as Annex “V”. 17. Respondent __ also admitted that she acted in conspiracy with the collectors, Respondents ___ to steal the payments due to ___ and to conceal their illegal acts. They will tell the complaining clients that their payments were only misposted and that they will correct the same. She will not report the incident to her superiors and in order to further conceal the money that she stole, she will use the current or subsequent day collections to cover up the monthly amortizations that she took on the previous days. She also stated that Respondents ___ were remitting receipts without the corresponding cash payments from the clients/borrowers and that she does not report the illegal acts of Respondents ___ to her superiors and to ___. (Paragraph 2 and 3 of Respondent __ Statement) 18. After the investigation, Respondent _a promised to pay the stolen monthly amortizations but she has not given any payment up to this date. Moreover, Respondent ___ cannot be located and contacted by ___s since August 2018. Respondents are criminally liable for Qualified Theft under Article 310 of the Revised Penal Code in relation to Article 308. 19. The Supreme Court, in the case of People vs. Puig and Porras (G.R. Nos. 173654-765, August 28, 2008) discussed the elements of the crime of Qualified Theft thus: 6
“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.” (Emphasis supplied) 20. All of the above elements of Qualified Theft are present in this case. Hence, Respondents should be held criminally liable for Qualified Theft. 20.1. Respondents ___ took the total amount of (Php638,968.94) from the Complainant by collecting the payments of the clients and not reporting the same to __. 20.2. Complainant is liable to ___ for the funds that it agreed to collect from the borrowers.
20.3. The taking of the subject funds was with intent to gain which was evident from the fact that Respondents took and used the collections for their own personal benefit. 20.3.1. Respondents __ used the money they took from the Complainant to buy cigarettes and food. Paragraph 3 of ___ Statement states, to wit:
“.” 20.3.2. Respondent __ admitted that she used the collections/money she took to pay her debts. Paragraph 1 of Respondent __ Statement states, to wit:
“” 20.3.3. Respondents also used the collections/money they took from the Complainant to treat the staffs of ___Binangonan to lunch on several occasions according to __. (Paragraph 1 of Ms. _) 21.4. The taking was done without the consent of the Complainant __. Respondents concealed their illegal activities by retaining the branch copy of the receipts, failing to reporting the monthly amortization payments of the borrowers into the ____’ systems and not reporting the borrowers’ complaints to their superiors. 21.5. The taking was accomplished without violence or intimidation against person or force upon things. 21.6. The taking was done with grave abuse of confidence. In the case of People vs. Puig and Porras, the Supreme Court reiterated that bank employees who come into possession of the money deposited in therein enjoy the confidence reposed in them by the bank, to wit:
“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: 8
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 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 (444 SCRA 98, 100-101), 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 withdr[a]w 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: [S]ince the teller occupies a position of confidence, and the bank places money in the teller’s possession due to the 9
confidence reposed on the teller, the felony of qualified theft would be committed (Id. at 119). Also in People v. Sison (379 Phil. 363, 366-367), 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 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 (Id. at 385). From another end, People v. Locson (57 Phil. 325), 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 (Id.) 10
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," (Rollo, p. 158) 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.” (Emphasis supplied) 21. I have executed this complaint-affidavit to attest to the truth of the foregoing and to initiate a complaint against Respondent, for and on behalf of ___, for Qualified Theft, and/or such other offenses in the Revised Penal Code which this Honorable Office may deem appropriate after the conduct of Preliminary Investigation. FURTHER AFFIANT SAYETH NAUGHT. IN WITNESS WHEREOF, I sign ______________________ at ______________ City.
____ Affiant / Authorized Representative
SUBSCRIBED AND SWORN before me on this ______________________ at ______________ City. I hereby certify that I have personally examined the complaint and that I am convinced that the foregoing is her true and voluntary act and deed.
