Qualified Theft vs Narvaez, Et. a.( F)

Republic of the Philippines ) Quezon City ) S.S.

COMPLAINT-AFFIDAVIT I, ADAM MCGRO, of legal age, Filipino, and holding office at 2 nd Floor, Mcgro Square, #96 Geometry Road, Victoria Subdivision, Quezon City, after being duly sworn to in accordance with law, hereby depose and state: That –  That –  1. I am hereby charging ROUELITO LIM NARVAEZ who can be served with subpoena and other processes of the Honorable Office at AMG560 Wheels Shop, 671-672 Boni Avenue, Mandaluyong City, of the crime of Qualified Theft committed in Mandaluyong City and within the jurisdiction of the Honorable Office, as follows: a. At all times material to this Complaint, from the year 2015 to 2017, the above-named respondent offered his services though the AMG560 Wheels Shop, a company allegedly owned by him located at No. 671 Boni Avenue, Mandaluyong Mandaluyong City, to have my following cars undergo automobile services and mag wheels and tires set-up: (1) Range Rover P38 White (with a value of Php 2,500,000.00 (2) Porsche Cayenne Turbo S Dark Silver with a Plate Number XJT 202(with a value of Php 3,500,000.00) (3) BMW 7 Series Blue Plate Number UTH 444 (with a value of Php 850,000.00) (4) BMW E36 E36 Agua Blue Blue Plate Nunber Nunber GSJ 217 (with a value value of Php 500,000.00) (5) BMW M5 Silver Silver Plate Nunber BRY 555 (with a value of Php 1,300,000.00)

(6) BMW E36 Agua Blue Plate Plate Nunber GSJ 217 (with a value of Php 500,000.00) (7) BMW E39 Silver Plate Nunber WCP 181 (with a value of Php 700,000.00)

(8) TOYOTA FJ Blue Plate Plate Nunber NPI 301 (with a value value of Php 1.400,000.00)

(9) Porsche Sypder Silver Plate Number UWI 183 (with a value of Php 3,000,000.00) (10) Mercedes Touring Sports Silver (with a value of Php 600,000.00)

 b. Having been convinced of respondent’s claimed expertise, I delivered to him the above-mentioned vehicles for the said services at AMG560 Wheels Shop located at No. 671-672 Boni Avenue, Mandaluyong City. c. I also paid respondent in full for all the services which he allegedly performed on my said vehicles. d. My transactions with respondent are evidenced by the following exchange of messages 1 at Messenger wherein he expressly admitted having received the above-mentioned vehicles to undergo the services that he offered, his express admission of his receipt on various dates, of the payments 2  that I made for the services, and his offer to me of other automobile services which I accepted.

2. However, it has been more than a year since I delivered to him the above-mentioned above-mentioned vehicles, but to date, respondent has not delivered them to me. 3. Despite my repeated follow-ups, respondent would just give me lame excuses and a run around. 4. This prompted prompted me to engage the services services of a lawyer who sent sent him a demand letter for the return of the above-mentioned vehicles. 5. Upon receipt of the demand letter of our lawyer, he was very furious when he called me up and admitted to me that he already sold the, BMW E39 / Toyota FJ which is valued at Php PHP 2,000,000.00.

6.  Not only that, respondent is now selling some of the vehicles that I  bought from him and his business associates and he included in the

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 Printed copies of which are hereto attached as  Annexes “A”, “A-1” to “A-9”  and   and made integral parts hereof. 2

 Evidence by my remittances hereto attached as Annexes “ B “ B

“ to “

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said list of vehicles for sale, my above-mentioned Porsche RS60 Spyder with a value of Php 2,500,000.00.3 7. According to my lawyer, what respondent did to me is punishable under the RPC as Qualified Theft based on the similar case of  Lauro Santos vs. People of the Philippines4. And to quote: “ Although the information charged the petitioner with estafa, the crime committed was theft. It is settled that what controls is not the designation of the offense but the description thereof as alleged in the information. 11 And as described therein, the offense imputed to Santos contains all the essential elements of theft, to wit: (1) that there be a 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 or intimidation against persons or force upon things.12 Theft should not be confused with estafa. According to Chief Justice Ramon C. Aquino in his book on the Revised Penal Code, "The principal distinction between the two crimes 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) 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." 13 The petitioner argues that there was no intent to gain at the time of the taking of the vehicle and so no crime was committed.1âwphi1 In U.S. v. De Vera, 14  we held that the subsequent appropriation by the accused of the thing earlier delivered to him supplied the third element that made the crime theft instead of estafa. Illustrating, the Court declared: ... let us suppose that A, a farmer in the Province of Bulacan, agrees to sell B a certain quantity of rice at a certain price per picul. A ships several sacks of the grain which B receives in his warehouse. If, prior to the measuring required before the payment of the agreed price, B takes a certain quantity of rice from the different sacks, there can be no doubt that he is guilty of the crime of theft.  Now, it may be asked: Did not B receive the sacks of rice shipped to him by A?-Yes. And did A voluntarily deliver the sacks of rice which he owned by shipping them to B?Yes Was the taking of the rice by B from the different 3

 A copy of respondent’s Advertisement showing a List of Vehicles being sold by him that includes my RS60 Spyder is hereto attached as  Annex “C” and made an integral part hereof. 4

G.R. No. 77429, January 29, 1990.

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sacks done with A's consent?- No. This shows, to our mind, that the theory of the defense is untenable, according to which, when the thing is received and then appropriated or converted to one's own use without the consent of the owner, the crime committed is not that of theft. It was erroneous for the respondent court to hold the petitioner guilty of qualified theft because the fact that the object of the crime was a car was not alleged in the information as a qualifying circumstance. 15 Santos would have had reason to argue that he had not been properly informed of the nature and cause of the accusation against him, as qualified theft carries a higher p enalty. But although not pleaded and so not considered qualifying, the same circumstance may be considered aggravating, having been  proved at the trial. 16  Hence the imposable penalty for the theft, there being no other modifying circumstances, should be in the maximum degree.”

8. I executed this Affidavit to attest to the truth of all the foregoing. Further Affiant Sayeth Naught.

ADAM MCGRO  Affiant

SUBSCRIBED AND SWORN to before me this ______ day of December, 2017, at Mandaluyong City.

 Asst. City Prosecutor

CERTIFICATION

I HEREBY CERTIFY that I have examined the affiant and convinced that he has personally read and understood the contents of his ComplaintAffidavit which according to him are true and correct of his own personal knowledge and based on available authentic records.

 Asst. City Prosecutor  4

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