as cashier was not indicated in the said bylaws. It also adopted Exhibits "A" and "B" of the prosecution.

In its assailed decision, the trial court found accused-appellant guilty beyond reasonable doubt of the crime of estafa. It based its ruling on the admission made by accused-appellant in open court that she incurred cash shortages as cashier of the cooperative. The trial court also gave weight to her admission before the board of directors that she had shortages that remained unaccounted for. According to the trial court, such admissions made during accused-appellant's testimony amounted to judicial admissions that were binding on her, absent any showing that the same were made through palpable mistake. It further concluded that all the elements of estafa

Withdraw on the ground that accusedappellant had already filed her brief. Thus, the case was submitted for resolution.

The main issue for Our consideration is whether or not accused-appellant is guilty beyond reasonable doubt of the crime of estafa by means of abuse of confidence.

Accused-appellant attempts to convince Us otherwise by arguing that she had the tacit approval and consent of the cooperative's treasurer to use for her personal needs whatever she collects from the members of the cooperative and such amount will simply be considered as her loan. Moreover, she argues that even without such approval or consent of the treasurer, she still cannot be held liable for estafa because she is not an accountable officer, as her position is not one of those

abuse of confidence, and damage. As for the amount of her liability, however, the trial court held that accused-appellant admitted that her liability was Php 103,000.00, not P255,098.72, and following the doctrine of pro reo, the law should lean in favor of the accused.

Hence, this appeal.

It appears from the records that accusedappellant, through the Public Attorney's Office, earlier filed a Motion to Withdraw Appeal17 before this Court. Attached to the said motion were two letters purportedly written by the accused-appellant where she stated that she intended to withdraw her appeal for the reason that she had already accepted the trial court's verdict. She alleged in the same letter that she was not forced by anybody to withdraw her appeal and that her lawyer had explained to her the consequences of the same. 18

This Court, however, in its Resolution dated June 25, 2010, speaking through Justice Ayson, denied the said Motion to

constitution and by-laws. She posits that her duty as a cashier is merely to physically possess the money, not to juridically possess the same, and hence, she cannot be liable for estafa which requires juridical possession. She likens her position to that of bank teller, which, according to the case of Chua-Burce v. Court of Appeals 19 may not be held liable for estafa in view of the nature of her possession.

Plaintiff-appellee did not file an appellee's brief but filed instead a Manifestation with Recommendation for Acquittal20. It agrees with the argument of the accusedappellant that the crime of estafa was not committed in this case because the said crime requires a fiduciary relationship between the cooperative and accusedappellant which does not exist in the case before Us considering that accusedappellant was in charge only of physical, not juridical possession of the cooperative's funds. This is shown by the fact that accused-appellant has no separate and distinct right over the funds in her custody which she could enforce against the cooperative.

We hasten to note that this Court is not bound by the above recommendation of the Office of the Solicitor General. As an independent court, We are nonetheless bound to make Our own findings of facts and law in this case based on the evidence presented before Us. To be sure, We will not shirk from such responsibility even in the face of the OSG's manifestation that it is recommending the acquittal of the accused-appellant. Thus, even if Our conclusions are the same as that of the OSG's recommendation, We nonetheless deem it imperative to discuss at length the grounds for Our ruling.

We rule in favor of accused-appellant.

We agree with her contention, as well as that of the OSG, that the facts in this case do not constitute the crime of estafa where juridical possession is a determining factor.

We find the following facts to be true: 1. That accused-appellant was a cashier of the subject cooperative; 2. That as cashier, her work consisted in receiving payments and collections from the cooperative's members; 3. That she had the obligation to remit such collections daily to the cooperative's treasurer; 4. That she failed to remit the said amount on a daily basis, in view of which, she incurred shortages in the amount of P255,098.72; 5. That when asked why she was not able to remit said amount, she said she was not yet able to collect from the members; 6. That she was called to the board of directors' meeting where she admitted that she possessed P103,000.00 out of the cooperative's funds, and that she will remit the same to the cooperative; 7. That she was not able to

remit the said amount to the cooperative; 8. That she executed two promissory notes acknowledging her liability and promising that she will pay the cooperative before November 1997; and 9. That she failed to perform her promise to pay.

What is clear from the foregoing, however, is that the nature of accusedappellant's possession of the subject funds

was only material, and not juridical, so much so that the offense she committed does not fall under the definition of the crime of estafa as stated under Article 315, paragraph 1 (b) of the Revised Penal Code which is the provision under which the petitioner was charged and prosecuted. The said provision states:

Art. 315. Swindling (estafa). - Any person who shall defraud another by any of the means mentioned hereinbelow shall be punished by:

1st. The penalty of prision correccional in its maximum period to prision mayor in its minimum period, if the amount of the fraud is over 12,000 pesos but does not exceed 22,000 pesos; and if such amount exceeds the latter sum, the penalty provided in this paragraph shall be imposed in its maximum period, adding one year for each additional 10,000 pesos; but the total 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[.]

misappropriation, conversion or denial is to the prejudice of another; and (4) demand by the offended party that the offender return the money or property received. The essence of this kind of estafa is the appropriation or conversion of money or property received to the prejudice of the entity to whom a return should be made.

possession means a possession which gives the transferee a right over the thing which the transferee may set up even against the owner."22

In the case before Us, there is reason to conclude that what passed on to accusedappellant was just the material possession, and not the juridical possession over the

connote the act of using or disposing of another's property as if it were one's own, or of devoting it to a purpose or use different from that agreed upon. To misappropriate for one's own use includes not only conversion to one's personal advantage, but also every attempt to dispose of the property of another without right. In proving the element of conversion or misappropriation, a legal presumption of misappropriation arises when the accused fails to deliver the proceeds of the sale or to return the items to be sold and fails to give an account of their whereabouts."21

Jurisprudence teaches Us that what should be examined in cases involving estafa is not just the fact of misappropriation but also the nature of the accused's possession of the property entrusted to her, as illustrated in the following case, to wit:

"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. The material possession of an employee is adjunct, by reason of his employment, to a recognition of the juridical possession of the employer. So long as the juridical possession of the thing appropriated did not pass to the employee-perpetrator, the offense committed remains to be theft, qualified or otherwise.

description of her functions, that is, to simply receive the collections from the members and to remit the same to the cooperative's treasurer. This means that accusedappellant, unlike an agent in an agency relationship, does not have a right over the subject funds which she can set up against the cooperative. Thus, her possession is not juridical one which, as defined in the afore-quoted case, pertains to the kind of possession wherein the possessor is given a right over the thing which right he may assert over the owner.

Accused-appellant's case may then be likened to a bank teller who only takes possession of the money in behalf of the bank, and cannot claim any right over such money. In the case of Asuncion Galang Roque v. People of the Philippines 23, the Court explained that money in the possession of the defendant as receiving teller of the bank is deemed to be in the possession of the bank. And when the defendant, with a grave abuse of confidence, removes the money and appropriates it to his own use without the consent of the bank, the offense committed is not estafa but theft.

However, We cannot outrightly rule that accused-appellant is guilty of the crime of theft in the absence of any trial under the said charge. It is settled that "an accused cannot be convicted of an offense not

rights, i.e., to be informed of the charges against him and his right to due process"24 This is especially true when We consider the fact the crime of theft has elements that are separate and distinct from the elements of estafa, namely, (1) Taking of personal property; (2) that said property belongs to another; (3) that said taking be done with intent to gain; (4) that, further, 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. 25 And, in the case of qualified theft, the further element is that the taking was done with grave abuse of confidence.26 Since the trial conducted was in relation to the charge of estafa where different proofs were presented, We cannot convict accused-appellant of theft in this case without running afoul to her constitutional rights to due process and to be informed of the charged against her. While this Court is aware of the case of Lauro Santos v. People of the Philippines, 27 where the Supreme Court convicted the accused of the crime of theft even if the charge against him was for estafa, We nevertheless find that such case does not apply squarely to the one before Us. The essential distinction between that case and this one is that in Santos, the Court made a finding that the information therein alleged all the elements of theft, thus:

"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. 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."28

In contrast, it may not be said that the information in this case alleges the elements of theft. While it may be argued that some of the elements of theft, such as intent to gain, abuse of confidence and lack of owner's consent may be implied from the other allegations in the information for estafa, this Court is not prepared to make this argument in behalf of the prosecution, who, in the first place, even recommended accused-appellant's acquittal even when it argued that the crime committed was actually theft. In ruling in this wise, We are likewise reminded of the settled principle that "penal statutes must be liberally construed in favor of the accused and strictly construed against the state. "29 Moreover, We note that in the afore-cited case of Chua-Burce v. Court of Appeals, 30 which involves the same issue, the Supreme Court merely acquitted the accused-appellant from estafa without making her liable for theft.

While We commiserate with the private complainant in this case, We cannot simply disregard the constitutional rights of the accused. We observe, however, that not all is lost for the private complainant who may still opt to recoup the misappropriated amount from the accused by filing the appropriate civil case against her.

WHEREFORE, in view of the foregoing, the instant appeal is GRANTED.

The Decision dated March 26, 2008 of the Regional Trial Court of Narvacan, Branch 22 in Criminal Case No. 1970-N which convicted accused-appellant Norma

Cabello of the crime of estafa is REVERSED. Accordingly, accused-appellant is ACQUITTED

of the crime of estafa under Article 315 (b) of the Revised Penal Code. Accusedappellant is ordered RELEASED from custody unless she is being held for some other lawful cause.

SO ORDERED.

CERTIFICATION

Pursuant to Article VIII, Section 13 of the Constitution, it is hereby certified that the conclusions in the above decision were reached in consultation before the case was

concur.

Appeal granted. Judgment reversed.

Accused-appellant acquitted of the crime of estafa and ordered released from custody.

Court.

(Orig. Sgd.) JOSEFINA GUEVARA-SALONGA Associate Justice Chairperson, Fourth Division