Qualified Theft vs Estafa: How Do Qualified Theft and Estafa Differ From Each Other?

The crimes of Theft and Estafa or Simple Estafa are closely related to each other in the sense that it involves possession, and taking or misappropriation, of the thing. There is also Simple Theft, as distinguished from qualified one. Most of the time, it creates confusion as to what is the appropriate crime and charge should the offender will be liable for. However, these are two different felonies. Now, Qualified Theft vs Estafa: How Do Qualified Theft and Estafa Differ From Each Other?¹

The principal but basic distinction between these two crimes is that, in Qualified Theft, there is taking of personal property, whereas in Estafa, the offender receives the property and misappropriates it for his own benefit.

In Estafa or simple Estafa, damage is an essential element before the consummation of the crime. Even if the offender had already in his possession the personal property, Estafa may, in certain situations, not be considered as consummated. Still, there must be a misappropriation done by the offender resulting to some form of monetary damages suffered by the injured or offended party. Hence, there can also be an Attempted or Frustrated Estafa, as the case may be.

In the crime of Estafa, the offender receives the property not only having physical or material possession thereof but, also, juridical possession. Besides abuse of confidence, in the commission of Estafa, perpetrator may employ false pretense and/or fraudulent act. This is called swindling in ordinary parlance.²

In Qualified Theft or Theft in general, intent to gain is the essential element of this crime. It connotes stolen property.³ Yet, it does not matter that the property has been fully taken, since the very act of taking means exercising control over the thing. What is, therefore, important is the control over the thing and the intent to gain therefrom.

In order to be qualified, trust and confidence must be present and be reposed upon the offender by the offended party or the private complainant.

Discussion of the Offense of Qualified Theft

Qualified Theft is a crime against property, and it is a criminal charge punishable under the Revised Penal Code. The very essence of this offense is the taking, without the consent and with intent to gain, of the personal property of another. Indispensably also, the taking must be with grave abuse of confidence and without any violence against persons or any force upon things. Hence, it is an unlawful taking in the eyes of the law.⁴

In the crime of Qualified Theft, the taking of personal property with intent to gain should be proven beyond reasonable doubt. The burden to overcome the presumption of innocence of the accused rests with the prosecution.

What is Qualified Theft?

Under the provision of Article 310 of the Revised Penal Code, Qualified Theft is a crime of theft or taking, with intent to gain, of a personal property of the owner without the latter’s consent, and 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).

However, under the present state of law, when the subject matter is a vehicle, and the same was taken without the consent of its owner, carnapping would be the appropriate crime.

Elements of Qualified Theft

The elements of qualified theft in relation to Articles 308 and 309 and is punishable under Article 310 of the Revised Penal Code (RPC), are as follows:

• there is taking of personal property
• that the said property belongs to another
• that the said taking be done with intent to gain
• that the taking be done without the owner’s consent
• that the taking be accomplished without the use of violence or intimidation against persons, nor force upon things
• that it can be done under any of the circumstances enumerated in Article 310 of the Revised Penal Code

When is Qualified Theft non-bailable?

Qualified Theft involves two provisions of the Revised Penal Code, in order to impose the proper penalty, thus, knowing likewise, whether or not bail may be posted as a matter of right. These provisions are Articles 309 and 310 of the Revised Penal Code, to wit:

Art. 309. Penalties. – Any person guilty of theft shall be punished by:⁵

“1. The penalty of prisión mayor in its minimum and medium periods, if the value of the thing stolen is more than One million two hundred thousand pesos (₱1,200,000) but does not exceed Two million two hundred thousand pesos (₱2,200,000); but if the value of the thing stolen exceeds the latter amount, the penalty shall be the maximum period of the one prescribed in this paragraph, and one (1) year for each additional One million pesos (₱1,000,000), but the total of the penalty which may be imposed shall not exceed twenty (20) years. In such cases, and in connection with the accessory penalties which may be imposed and for the purpose of the other provisions of this Code, the penalty shall be termed prisión mayor or reclusion temporal, as the case may be.⁶

“x x . .”

And

Article 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.⁷

When the prescribed penalty is determined, then, it follows that we will know whether the felony is bailable or not. In the Daigle vs. Cruz,⁸ the Supreme Court categorically explained such situation. Thus:

“Verily, for purposes of determining whether respondent is entitled to bail as a matter of right, the prescribed penalty follows the computation as provided under Article 309 as amended.⁹

“The value of the money allegedly stolen here is US$100,000.00 or P4,900,000.00 based on a P49.00 per U.S. dollar conversion at the time of the incident.⁹

“Applying Article 309, as amended, if the value of the thing stolen is more than P1,200,000.00 but does not exceed P2,200,000.00, the prescribed penalty is prision mayor in its minimum and medium periods. In case the value of the thing stolen exceeds P2,200,000.00, the penalty shall be the maximum period of prision mayor in its minimum and medium period. To this amount, one (1) year for each P1,000,000.00 exceeding the P2,200,000.00 threshold shall be added.⁹

“Since the amount allegedly stolen is P4,900,000.00, which clearly exceeded P2,200,000.00, the prescribed base penalty in accordance with Article 309, as amended, is prision mayor in its minimum and medium periods to be imposed in the maximum period, i. e, eight (8) years, eight (8) months, and one (1) day to ten (10) years. Considering that the value of the stolen money further exceeded P2,200,000.00, an additional one (1) year for each P1,000,000.00 in excess of the P2,200,000.00 shall be added to the prescribed base penalty, disregarding any remainder amount.⁹

Applying the above, the High Court, provided a table for this, nonetheless, disregarding the excess of P700,000.00 [the remainder].

“The prescribed penalty for stealing P4,900,000.00, therefore, is twelve (12) years of prision mayor, the designation of which is prision mayor in its maximum period. This is the prescribed penalty for simple theft. Under Article 310 of the RPC, the prescribed penalty for qualified theft is two (2) degrees higher than that prescribed for simple theft. The penalty two (2) degrees higher than prision mayor maximum is reclusion temporal in its medium period, i.e., fourteen (14) years, eight (8) months, and one (1) day to seventeen years (17) and four ( 4) months.“⁹

Thus, taking cue upon this pronouncement in Daigle, we only add any amount from the base value of P2,200,000.00 to determine the prescribed years of imprisonment. Having known the applicable years of incarceration, we will now have the idea what penalty may be imposed, within the range of any period in Reclusion Temporal (minimum, medium, or maximum), the baseline penalty being Prision Mayor in its Maximum Period.

Learning the proper prescribed penalty in any of the periods in Reclusion Temporal, add two (2) degrees as mandated by Article 310 of the Revised Penal Code. As to when is qualified theft non-bailable, this table below may offer a categorical illustration.

Consequently, it is safe to state that the reckoning amount for which the felony of Qualified Theft may not be bailable as a matter of right is P7,200,000.00. This sum of money that is allegedly embezzled will translate to a penalty of Reclusion Temporal in its Medium Period: From 14 years, 8 months and 1 day to 17 years and 4 months.¹⁰

When you add two (2) degrees from Reclusion Temporal Medium, you will get a penalty of Reclusion Perpetua.

Reclusion Temporal in its Medium Period (1 degree)

Reclusion Temporal in its Maximum Period (1 degree)

Reclusion Perpetua (1 degree)

By analogy:

“x x . . when the penalty prescribed for the crime is composed of several periods, corresponding to different divisible penalties, the penalty next lower in degree shall be composed of the period immediately following the minimum prescribed and of the two next following, which shall be taken from the penalty prescribed, if possible; otherwise from the penalty immediately following in the above mentioned respective graduated scale.“¹¹

In contrast to Simple Theft, where the maximum sentence that may be given is 20 years, this is not applicable in Qualified Theft. The Supreme Court clarified this in the case of San Diego vs. People,¹² Hence:

“Unlike in Simple Theft where the maximum penalty cannot exceed twenty (20) years, in Qualified Theft such limitation does not exist. Nonetheless, inasmuch as the penalty imposable in the case at bar exceeds twenty (20) years, logically, the penalty that should be imposed is reclusion perpetua, which is the penalty one degree higher than reclusion temporal.“¹³

Illustration of Theft, whether Simple or Qualified

Theft in General

Maria went to the shopping mall. Suddenly, she saw a certain brand of watch that she really loved. She asked the sales lady if she can check the watch to see if it fits her. The sales lady handed over to Maria the “Rolex” watch. Clandestinely, and with intent to gain, Maria put the watch on her bag. however, she was caught in the CCTV camera. After leaving the store, she was apprehended.

Hence, she did not succeed in taking the watch. In this case, Maria is liable for the crime of theft since there was an element of taking the thing which is the Rolex watch and there is an intent to gain. Even if she did not succeed in taking the watch with her, Maria’s act of “taking” already consummates the crime of theft. The concept of taking in the crime of theft simply means exercising control over the thing.

Qualified Theft

Maria applied as a domestic servant. She was recommended by a friend to Letty, the house owner. Letty accepted Maria as a house helper. Letty has a well-off family. She took the pieces of jewelry and cash on her drawers. One day, while Letty and her family were away, Maria, with intent to gain, took advantage of the situation.

She seized the pieces of jewelry and the remaining cash from the drawers of Letty and left the house. She was subsequently arrested. In this case, Maria is liable for Qualified theft. She is a domestic servant who took advantage of the trust and confidence reposed in her by Letty.

Related Jurisprudence

Among several cases that the Supreme Court decided, involving crimes of Qualified Theft, some of which are as follows:

In the case of People of the Philippines vs. Laquila, ¹⁴ the Supreme Court held that intent to gain or animus lucrandi is an internal act that can be established through the overt acts of the offender, and it is presumed from the proven unlawful taking the offender committed. The actual gain is irrelevant as the important consideration is the intent to gain.

In the present case, Jennie’s animus lucrandi is presumed from her admitted taking of the stolen items. Further, her aforesaid excuse that she was merely tricked cannot be given credence for likewise being illogical, especially in view of Carmel’s warning against scammers and explicit directive not to entertain such phone calls.

Thus, the Court finds no reason to deviate from the factual findings of the trial court, as affirmed by the Court of Appeals, as there is no indication that it overlooked, misunderstood or misapplied the surrounding facts and circumstances of the case. In fact, the trial court was in the best position to assess and determine the credibility of the witnesses presented by both parties, and hence, due deference should be accorded to the same. As such, Jennie’s conviction for Qualified Theft must be upheld.

In another Decision:

In the case of Cruz, et.al. vs. People of the Philippines, ¹⁵ it was held that our Constitution provides the presumption that the accused is innocent until proven otherwise by proof beyond a reasonable doubt. Such proof requires moral certainty, or that “degree of proof which produces conviction in an unprejudiced mind.” Additionally, the prosecution has the burden to overcome the presumption of innocence. And, in the discharge of its burden, the prosecution must rely on the strength of its evidence, and not on the weakness of the defense.

In the case at bar, petitioners with their co-accused Pardilla were charged with Qualified Theft, but the Court held that they are presumed innocent unless the prosecution established by proof beyond reasonable doubt that they are guilty as charged in relation to the elements as contemplated in Articles 308 and 309 of the Revised Penal Code.

Therefore, in order for petitioners to be found guilty of Qualified Theft, the prosecution must prove with moral certainty that Prestige Brands had lost its personal property through petitioners’ felonious taking thereof or by their acts of depriving Prestige Brands of its control and possession without its consent. However, the prosecution miserably failed to discharge its burden. Wherefore, the accused are hereby acquitted on the ground that their guilt has not been proved beyond reasonable doubt.

On the qualifying aspect in theft:

In the case of People of the Philippines vs. Valencia, ¹⁶ the Court has explained that, while grave abuse of trust and confidence per se does not produce the felony as an effect, it is a “circumstance which aggravates and qualifies the commission of the crime of theft”; hence, the imposition of a higher penalty is necessary. It is not difficult to understand why the character of accused-appellant’s work as a domestic helper qualifies the offense she committed.

The rationale for the imposition of a higher penalty against a domestic servant is the fact that in the commission of the crime, the helper will essentially gravely abuse the trust and confidence reposed upon her by her employer. After accepting and allowing the helper to be a member of the household, thus entrusting upon such person the protection and safekeeping of the employer’s loved ones and properties, a subsequent betrayal of that trust is so repulsive as to warrant the necessity of imposing a higher penalty to deter the commission of such wrongful acts.

The established facts point to the soundness of the Regional Trial Court’s and the Court of Appeals’ conclusion that accused-appellant is guilty beyond reasonable doubt of qualified theft. Thus, her conviction must be upheld.

What is the crime of Estafa or Swindling?

There are felonies under Crimes against Property enumerated in our Revised Penal Code. One of which is Estafa or most commonly known as swindling. Let us study further swindling as provided in our Revised Penal Code.

Definition of Swindling

As stated in the Revised Penal Code, swindling or Estafa is committed when any person defrauds another with unfaithfulness or abuse of confidence, by means of false pretenses or fraudulent acts, or through fraudulent means.

The Revised Penal Code further enumerates the circumstances where an accused defrauds another by abuse of confidence or by means of deceit.

Swindling, committed with unfaithfulness or abuse of confidence, is performed, as follows:

1. By altering the substance, quantity, or quality or anything of value which the offender shall deliver by virtue of an obligation to do so, even though such obligation be based on an immoral or illegal consideration;
2. 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; and
3. By taking undue advantage of the signature of the offended party in blank, and by writing any document above such signature in blank, to the prejudice of the offended party or of any third person.

On the other hand, swindling, committed by means of deceit, are performed, as follows:

1. By using fictitious name, or falsely pretending to possess power, influence, qualifications, property, credit, agency, business or imaginary transactions, or by means of other similar deceits;
2. By altering the quality, fineness or weight of anything pertaining to his art or business;
3. By pretending to have bribed any Government employee, without prejudice to the action for calumny which the offended party may deem proper to bring against the offender. In this case, the offender shall be punished by the maximum period of the penalty;
4. By post-dating a check, or issuing a check in payment of an obligation when the offender has no funds in the bank, or his funds deposited therein were not sufficient to cover the amount of the check. The failure of the drawer of the check to deposit the amount necessary to cover his check within three (3) days from receipt of notice from the bank and/or the payee or holder that said check has been dishonored for lack of insufficiency of funds shall be prima facie evidence of deceit constituting false pretense or fraudulent act;
5. By obtaining any food, refreshment or accommodation at a hotel, inn, restaurant, boarding house, lodging house, or apartment house and the like without paying therefor, with intent to defraud the proprietor or manager thereof, or by obtaining credit at hotel, inn, restaurant, boarding house, lodging house, or apartment house by the use of any false pretense, or by abandoning or surreptitiously removing any part of his baggage from a hotel, inn, restaurant, boarding house, lodging house or apartment house after obtaining credit, food, refreshment or accommodation therein without paying for his food, refreshment or accommodation;
6. By inducing another, by means of deceit, to sign any document;
7. By resorting to some fraudulent practice to ensure success in a gambling game; and
8. By removing, concealing or destroying, in whole or in part, any court record, office files, document or any other papers.

Elements of Swindling

Estafa, in general, possesses these elements:

• The accused defrauded another by abuse of confidence or by means of deceit; and
• The damage or prejudice capable of pecuniary estimation is instigated to an offended party or a third person.
• On the other hand, the elements of estafa by means of deceit are, to wit:
• There must be a false pretense or fraudulent act or means; and
• The false pretense, fraudulent act or means must be made or executed prior to or simultaneously with the commission of the fraud.

Illustrations of Swindling

Guido has been designated ad litem (court-appointed) as a guardian of Nilo, Guido’s ward. The Court tasked Guido to administer the property of Nilo, the latter still being a minor. Nilo has been orphaned because of the untimely death of his wealthy parents. Guido became interested in the properties and valuables, subject of the guardianship. Guido misappropriated and converted to his benefits substantial valuable properties of Nilo. In this case, Guido is liable for Estafa.

Another example would be where Person X, a manager of the fast-food chain, is entrusted to account for Php1 Million, constituting the total sales of the said branch for May 2020. However, he feloniously misappropriated and converted said funds for his personal use and benefit constitutes Estafa as defined and penalized under Article 315, paragraph 1(b) of the Revised Penal Code.

Mario bought a second hand from Kardo. The latter agreed to be paid simultaneously by means of a check amounting to P200,000.00. When Kardo delivered the car to Mario, the latter simultaneously issued the aforementioned check dated at that time and gave it to Kardo. The next day, Kardo encashed the check. However, it was dishonored for insufficiency of funds. Kardo notified Mario about the dishonor. However, 6 days lapsed from the time Mario was notified, the latter still never made good the check or even gave an equivalent amount to Kardo to pay the former’s obligation. In this case, Mario is liable for Estafa by issuing a worthless check.

Relevant Jurisprudence

There are many Supreme Court decisions that rule in cases of Estafa. Some of the jurisprudence discussing Estafa are, to wit:

In People v. Villapando, ¹⁷ the Supreme Court ruled that the presence of good faith made is a valid defense against the crime of Estafa which led to the acquittal of the accused. It was explained that:

“He issued a postdated check, believing in good faith that he would be able to deposit in the bank sufficient funds to pay said check when presented for collection. He was justified in expecting that he could raise the necessary amount from his fees as physician, before the check fell due. Then later, foreseeing his inability to pay said check at maturity, he made an arrangement with his creditor to pat it little by little.”

In Samo v. People, ¹⁸ Justice Arsenio Dizon discussed in his penned decision about the payment made relative to a complaint of Estafa as defined in paragraph 1(b) of Article 315 of the Revised Penal Code. It was discussed that:

“The fact that, subsequent to the filing of the cases in the Court of First Instance (now Regional Trial Court), petitioner (accused) made partial payments on account does not alter the situation. Payment does not extinguish criminal liability for Estafa.”

Lastly, in Batac v. People, ¹⁹ Justice Samuel Martires discussed the elements of Estafa under Article 315, paragraph 2(d) of the Revised Penal Code, to wit:

“Jurisprudence has consistently held that such Estafa consists of the following elements: (1) the offender has postdated or issued a check in payment of an obligation contracted at the time of the postdating or issuance; (2) at the time of postdating or issuance of said check, the offender has no funds in the bank or the funds deposited are not sufficient to cover the amount of the check; and (3) the payee has been defrauded.”

Furthermore, it was also discussed in the same case that:

“It has been settled in jurisprudence that in the above-defined form of Estafa, it is not the non-payment of a debt which is made punishable, but the criminal fraud or deceit in the issuance of a check.”

What really matters

In sum, what really matters most in determining whether the crime committed is Estafa or qualified theft is the nature of possession, whether it is material or juridical possession. When material possession takes place, the crime committed constitutes as Qualified Theft or Theft in general, as the case may be. On the other hand, Estafa is committed when the offender has juridical possession over a thing.

A perusal of the Supreme Court decision in the case of Matrido v. People ²⁰ provides that:

“The principal distinction between the two crimes (Estafa and Qualified Theft) is that in theft the thing is taken while in Estafa the accused receives the property and converts it to his own use or benefit. However, there may be theft even if the accused has possession of the property. If he was entrusted only with the material or physical (natural possession) or de facto possession of the thing, his misappropriation of the same constitutes theft, but if he has the juridical possession of the thing, his conversion of the same constitutes embezzlement or Estafa.”

Furthermore, Ricafort v. Hon. Wenceslao Fernan, et al. ²¹ discussed the difference of Estafa and Qualified Theft, to wit:

“In general, the crime of Estafa is distinguished from that of theft by the manner in which the offender in each case acquires possession of the property. The estafador receives the possession of the property, while the thief takes, without the owner’s consent; the possession of the latter’s property.”

The same jurisprudence also presented exceptions to the rule, as follows:

“There are, however, instances where even if the property misappropriated was received by the offender, the misappropriation will constitute theft, and not estafa. In such cases, distinction should be made whether the offender, on receiving the property, acquired: (1) the material possession alone or (2) the material and juridical possession, or (3) the material and juridical possession plus the ownership, of the property. Where only the material possession is transferred, conversion of the property gives rise to the crime of theft; where both material and juridical possessions are transferred, misappropriation of the property would constitute estafa; and where in addition to the material possession, the ownership of the property is transferred, misappropriation would only give rise to a civil obligation.”

Is Theft included in Estafa?

As a rule, theft is not included in Estafa. As provided under our law, Theft is defined as the stealing or acquiring of an item without the owner’s knowledge or consent, wherein in Estafa, the item is received by the felon with consent. Therefore, by following the strict definition of theft, it may not be included in Estafa.

However, in the recent Decision of the Supreme Court, ²² if the facts obtaining also suggest the commission or application of the elements of Theft, qualified or otherwise, still, the accused, even though initially charged with the crime of Estafa, may be convicted with Qualified Theft.

What is “Qualified” Estafa?

While technically, there is no nomenclature as to the term “Qualified” Estafa. Yet, it may just be a matter of, in layman’s term, calling such an offense because there is a violation of the trust reposed upon the offender as in Qualified Theft.

Thus, “Qualified” Estafa may be termed as such, in layman’s pronouncement, when a thing is entrusted to the felon, thus, receiving it for trust, commission, or administration of such thing, he failed to return the same as provided under Article 315 of the Revised Penal Code.

The reason is that, despite the trust the owner reposed, the malefactor still has the temerity to commit larceny in the highest and more unimaginable level.

The fact that the owner puts his trust and confidence upon the offender makes this felony a “qualified” one, but not technically as “Qualified Estafa”, as there is no legal nomenclature for such offense under the Revised Penal Code of the Philippines.

How do you prove “Qualified” Estafa?

At the risk of being repetitive, it must be stressed the there is no crime of “Qualified Estafa” under the Philippine Revised Penal Code.

In layman’s perspective, an Estafa is thought to be “qualified” if the offense was done by a person who was voluntarily entrusted with a thing or property by the owner and misappropriated the same.

It must be noted that, when a person misappropriates a property entrusted to him and abuses such trust by taking advantage of the same,  Estafa will be “qualified”, according to the offended party’s perception.

Here, what is material should be the presence of abuse of confidence or the violation of the trust the victim reposed upon the offender. Proving that aspect, while not being a qualifying circumstance in strict legal sense, will necessarily give rise to the notion that such act of swindling is qualified.

Can a person charged with Qualified theft be convicted for Estafa?

As a rule, a person charged with qualified theft cannot be convicted for Estafa. As provided by Article 310 of the Revised Penal Code, qualified theft is defined as the taking of one’s property without the owner’s consent, and must be done by a domestic servant, with grave abuse of confidence, if the property stolen is a motor vehicle, mail matter, or cattle, consists of coconuts from premises of plantation, fish from fishpond, and taken during a calamity. Also, in theft, he only took material possession of the thing.

Meanwhile, Estafa or swindling is defined in the Revised Penal Code as defrauding another through abuse of confidence or through means of deceit, wherein the owner consented to the voluntary giving of a thing to the offender and was entrusted to take care of it for administration, trust or commission.

Thus, in Qualified Theft, the owner did not consent to the taking of the property, while in Estafa, there is a voluntary entrustment of the property.

However, by applying the variance doctrine and by analogy with the recent case of Tan vs. People, ²³, it may well be possible to convict an offender with the crime of Estafa even if he is charged in the information for the crime of Qualified Theft. 

Difference between Material and Juridical Possession

In Tan vs. People, ²³ the Supreme Court categorically pronounced:

As early as 1956, the Court, in Guzman vs. Court of Appeals, ²⁴ already demarcated the line between possession by an employee who receives funds in behalf of the company and possession of an agent, thus:

“There is an essential distinction between the possession by a receiving teller of funds received from third persons paid to the bank, and an agent who receives the proceeds of sales of merchandise delivered to him in agency by his principal. In the former case, payment by third persons to the teller is payment to the bank itself; the teller is a mere custodian or keeper of the funds received, and has no independent right or title to retain or possess the same as against the bank. An agent, on the other hand, can even assert, as against his own principal, an independent, autonomous, right to retain the money or goods received in consequence of the agency; as when the principal fails to reimburse him for advances he has made, and indemnify him for damages suffered without his fault.”

“Therefore, as it now stands, 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. Notably, such material possession of an employee is adjunct, by reason of his employment, to a recognition of the juridical possession of the employer. As long as the juridical possession of the thing appropriated did not pass to the employee, the offense committed is theft, qualified or otherwise.”         

Qualified Theft Penalty

While Art. 310 of the Revised Penal Code has not been amended by Republic Act [RA] No. 10951,²⁵ the threshold value of money for the application of Qualified Theft Penalty has been amended. It must be noted that the penalty for qualified theft relates to the amount of money embezzled under the felony of Simple Theft.

Hence, prior to the amendment of Art. 309, the crime of Simple Theft and Qualified Theft are punished, as follows, to wit:

Article 309. Penalties. – Any person guilty of theft shall be punished by:²⁶

1. The penalty of prision mayor in its minimum and medium periods, if the value of the thing stolen is more than 12,000 pesos but does not exceed 22,000 pesos, but if the value of the thing stolen exceeds the latter amount the penalty shall be the maximum period of the one prescribed in this paragraph, and one year for each additional ten thousand pesos, but the total of the penalty which may be imposed shall not exceed twenty years. In such cases, and in connection with the accessory penalties which may be imposed and for the purpose of the other provisions of this Code, the penalty shall be termed prision mayor or reclusion temporal, as the case may be.²⁷

2. The penalty of prision correccional in its medium and maximum periods, if the value of the thing stolen is more than 6,000 pesos but does not exceed 12,000 pesos.²⁷

3. The penalty of prision correccional in its minimum and medium periods, if the value of the property stolen is more than 200 pesos but does not exceed 6,000 pesos.²⁷

4. Arresto mayor in its medium period to prision correccional in its minimum period, if the value of the property stolen is over 50 pesos but does not exceed 200 pesos.²⁷

5. Arresto mayor to its full extent, if such value is over 5 pesos but does not exceed 50 pesos.²⁷

6. Arresto mayor in its minimum and medium periods, if such value does not exceed 5 pesos.²⁷

7. Arresto menor or a fine not exceeding 200 pesos, if the theft is committed under the circumstances enumerated in paragraph 3 of the next preceding article and the value of the thing stolen does not exceed 5 pesos. If such value exceeds said amount, the provision of any of the five preceding subdivisions shall be made applicable.²⁷

8. Arresto menor in its minimum period or a fine not exceeding 50 pesos, when the value of the thing stolen is not over 5 pesos, and the offender shall have acted under the impulse of hunger, poverty, or the difficulty of earning a livelihood for the support of himself or his family.²⁷

Article 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 erruption, or any other calamity, vehicular accident or civil disturbance. (As amended by R.A. 120 and B.P. Blg. 71. May 1, 1980).²⁸

Under Republic Act No. 10951

Presently, under RA No. 10951, which was signed into law on August 29, 2017, the crime of Simple Theft, without amending the provision on Qualified Theft, is penalized as follows, to wit:

Section 81. Article 309 of the same Act is hereby amended to read as follows:²⁹

“Art. 309. Penalties. – Any person guilty of theft shall be punished by:³⁰

“1. The penalty of prisión mayor in its minimum and medium periods, if the value of the thing stolen is more than One million two hundred thousand pesos (₱1,200,000) but does not exceed Two million two hundred thousand pesos (₱2,200,000); but if the value of the thing stolen exceeds the latter amount, the penalty shall be the maximum period of the one prescribed in this paragraph, and one (1) year for each additional One million pesos (₱1,000,000), but the total of the penalty which may be imposed shall not exceed twenty (20) years. In such cases, and in connection with the accessory penalties which may be imposed and for the purpose of the other provisions of this Code, the penalty shall be termed prisión mayor or reclusion temporal, as the case may be.³⁰

“2. The penalty of prisión correccional in its medium and maximum periods, if the value of the thing stolen is more than Six hundred thousand pesos (₱600,000) but does not exceed One million two hundred thousand pesos (₱1,200,000).³⁰

“3. The penalty of prisión correccional in its minimum and medium periods, if the value of the property stolen is more than Twenty thousand pesos (₱20,000) but does not exceed Six hundred thousand pesos (₱600,000).³⁰

“4. Arresto mayor in its medium period to prisión correccional in its minimum period, if the value of the property stolen is over Five thousand pesos (₱5,000) but does not exceed Twenty thousand pesos (₱20,000).³⁰

“5. Arresto mayor to its full extent, if such value is over Five hundred pesos (₱500) but does not exceed Five thousand pesos (₱5,000).³⁰

“6. Arresto mayor in its minimum and medium periods, if such value does not exceed Five hundred pesos (₱500).³⁰

“7. Arresto menor or a fine not exceeding Twenty thousand pesos (₱20,000), if the theft is committed under the circumstances enumerated in paragraph 3 of the next preceding article and the value of the thing stolen does not exceed Five hundred pesos (₱500). If such value exceeds said amount, the provisions of any of the five preceding subdivisions shall be made applicable.³⁰

“8. Arresto menor in its minimum period or a fine of not exceeding Five thousand pesos (₱5,000), when the value of the thing stolen is not over Five hundred pesos (₱500), and the offender shall have acted under the impulse of hunger, poverty, or the difficulty of earning a livelihood for the support of himself or his family.”³⁰

Without RA No. 10951 amending the provision of Art. 310 [Qualified Theft] of the Revised Penal Code, the penalty for such crime is still two (2) degrees higher than those respectively specified in Art. 309 of the Revised Penal Code as amended by RA No. 10951.

1. What is Estafa? How is it Different from Theft?[↩]
2. How to file an estafa case[↩]
3. The Differences Between Theft and Robbery[↩]
4. G.R. No. 210318, July 28, 2020[↩]
5. Section 81, Republic Act No. 10951, amending Article 309 of the Revised Penal Code[↩]
6. Id.[↩]
7. Article 310, Revised Penal Code[↩]
8. G. R. No. 246914, March 11, 2020[↩]
9. Ibid.[↩][↩][↩][↩][↩]
10. Article 76, Revised Penal Code[↩]
11. Article 61, par. 4, Revised Penal Code[↩]
12. G.R. No. 176114, April 8, 2015[↩]
13. Ibid.[↩]
14. G.R. No. 234023, September 03, 2018[↩]
15. G.R. No. 206437, November 22, 2017[↩]
16. G.R. No. 225735, January 10, 2018[↩]
17. G.R. No. 33224, September 4, 1931[↩]
18. G.R. Nos. L-17603-04, May 31, 1962[↩]
19. G.R. No. 191622, June 6, 2018[↩]
20. G.R. No. 179061, July 13, 2009[↩]
21. G.R. No. L-9789, May 25, 1957[↩]
22. Tan vs. People, G.R. No. 210318, July 28, 2020[↩]
23. G.R. No. 210318, July 28, 2020, supra.[↩][↩]
24. G.R. No. L-9572.  July 31, 1956[↩]
25. RA 10951[↩]
26. Art. 309, Revised Penal Code[↩]
27. Id.[↩][↩][↩][↩][↩][↩][↩][↩]
28. Art. 310, Revised Penal Code[↩]
29. Section 81, RA 10951[↩]
30. Id.[↩][↩][↩][↩][↩][↩][↩][↩][↩]