Dear Atty. Maan,
Over a period of several months, our store manager noticed discrepancies in our collection totals. The discrepancies were relatively small at first, but they began to add up over time.
One day, we decided to conduct a surprise audit. To our surprise we discovered that the cash that was collected was significantly less than what the sales records indicated.
It was clear that money was disappearing, and the evidence pointed towards an inside job. We have identified that it was the collection officer who was responsible and has since been dismissed.
Can we still file a case against her?
Renzo
***
Dear Renzo,
Based on the facts you presented, the acts of such employee are constitutive of Qualified Theft. The elements of qualified theft punishable under Article 310 in relation to Article 308 of the RPC are as follows: (1) there was a taking of personal property; (2) the said property belongs to another; (3) the taking was done without the consent of the owner; ( 4) the taking was done with intent to gain; (5) the taking was accomplished without violence or intimidation against person, or force upon things; and (6) the taking was done under any of the circumstances enumerated in Article 310 of the RPC, i.e., with grave abuse of confidence.
In the case of People of the Philippines vs Yolanda Santos, G.R. 237982, 14 October 2020, the Supreme Court ruled that an employee was guilty of qualified theft to wit:
“Clearly, the collection officer was entrusted only with the material or physical (natural) or de facto possession of the thing, thus, her misappropriation of the same constitutes theft. 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.
In the instant case, all the elements of qualified theft under Article 310 in relation to Article 308 of the RPC are present. She had actual possession of the monies, yet failed to remit the same to her employer. As an employee tasked to merely collect payments from clients, she did not have a right over the thing as she was merely entrusted to collect the cash collections in behalf of her employer.
Likewise, the fact that the “taking” was accomplished without the use of violence or intimidation against persons, or force upon things was undisputed. Thus, based on the foregoing circumstances, intent to gain is apparent on the part of the accused-appellant.
“Intent to gain or animus lucrandi is an internal act which can be established through the overt acts of the offender, and is presumed from the proven unlawful taking. Actual gain is irrelevant as the important consideration is the intent to gain.”
From the foregoing, your employee may be held liable for Qualified theft in the event that all of the elements were proved beyond reasonable doubt.
Hope this helps.
Atty. Mary Antonnette Baudi