Dear Atty. Kathy,

We have a former employee, M, who was recently dismissed based on the complaint of 9 employees which proved that M stole from them the service charge collections for a period of 7 months, in 3 of the Company’s branches. In addition to termination of employment, the Company is also considering filing a criminal case for qualified theft, considering that M was a roving manager who enjoyed the trust and confidence of the Company, for almost 4 years, at the time of her dismissal. Please advise if the correct criminal case is qualified theft.

Trisha

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Dear Trisha,

The crime of theft and qualified theft is defined and punished under the Revised Penal Code (RPC), as follows:

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.

Theft is likewise committed by:

1. Any person who, having found lost property, shall fail to deliver the same to the local authorities or to its owner;

2. Any person who, after having maliciously damaged the property of another, shall remove or make use of the fruits or object of the damage caused by him; and

3. Any person who shall enter an enclosed estate or a field where trespass is forbidden or which belongs to another and, without the consent of its owner, shall hunt or fish upon the same or shall gather fruits, cereals, or other forest or farm products.

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 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.

Thus, based on the RPC, the essential elements of theft are: (1) the taking of personal property; (2) the property belongs to another; (3) the taking away was done with intent of gain; (4) the taking away was done without the consent of the owner; and (5) the taking away is accomplished without violence or intimidation against person or force upon things. If all these elements are present in M’s case, then indeed, there may be a crime of theft, which becomes qualified when it is committed under any of the circumstances enumerated in Article 310 of the RPC, for example, when it is done with grave abuse of confidence.

However, according to the Supreme Court, the element of abuse of confidence under Article 310 of the RPC, to qualify the crime of theft, is not present in a case such as M’s case. While it appears that M is a managerial employee, a position that requires the trust and confidence of your Company, it must be highlighted that the crime was committed, not against the Company but against the employees, whose relationship with M does not involve nor require the element of trust and confidence. Thus, the qualifying element of abuse of confidence cannot be applied in M’s case. Without this qualifying element, M may only be convicted of theft in its simple form, and not qualified theft.

(Janice L. Tealogo, et al. vs. People of the Philippines, G.R. No. 238383, 2 April 2025)

Atty. Kathy Larios