Debt payment

Dear Atty. Maan,

I lent a colleague P150,000 because she promised to return it within three months. It has been almost a year, and despite repeated demands, she has not paid me. I recently discovered that she also owes money to several other people and that she belongs to a group which does the same to others. It appears that they can no longer be contacted. Can this be considered syndicated estafa?

Migs

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Dear Migs,

As a general rule, the mere failure to pay a debt does not constitute estafa. Under Article 315 of the Revised Penal Code, estafa requires the presence of specific elements, such as fraud or deceit, depending on the mode alleged.

In cases involving loans, it must generally be established that the borrower employed fraudulent representations before or at the time the money was obtained, and that such representations induced the lender to part with the money.

On the other hand, Section 1 of PD 1689 qualifies the offense of Estafa if it is committed by a syndicate, viz:

Section 1. Any person or persons who shall commit estafa or other forms of swindling as defined in Articles 315 and 316 of the Revised Penal Code (RPC), as amended, shall be punished by life imprisonment to death if the swindling (estafa) is committed by a syndicate consisting of five or more persons formed with the intention of carrying out the unlawful or illegal act, transaction, enterprise or scheme, and the defraudation results in the misappropriation of moneys contributed by stockholders, or members of rural banks, cooperatives, “samahang nayon(s),” or farmers’ associations, or funds solicited by corporations/associations from the general public.

Synthesizing the two provisions of law, the elements of Syndicated Estafa, therefore, are as follows: (a) Estafa or other forms of swindling, as defined in Articles 315 and 316 of the RPC, is committed; (b) the Estafa or swindling is committed by a syndicate of five or more persons; and (c) the defraudation results in the misappropriation of moneys contributed by stockholders, or members of rural banks, cooperatives, “samahang nayon(s),” or farmers’ associations, or of funds solicited by corporations/associations from the general public.

From the facts you presented, the mere fact that the borrower failed to fulfill her promise to pay, or that she has other outstanding obligations, does not automatically establish criminal liability under estafa. It must be established that the foregoing elements are present.

Hope this helps.

Atty. Mary Antonnette Baudi