The crime of theft is closely related to the crime of estafa. Oftentimes, it creates confusion to the victim
as to what should be charged against his offender. However, although having similarities, these two
crimes are very much different from each other.
Theft = Material Possession + Misappropriation
Theft is committed when the offender has taken a personal property of another, without the owner’s
consent. Such taking, since it is unknown to the owner, only gives the offender material possession
of the property. To define, material possession means the actual physical possession of the personal
property, where the possessor does not have a better right over such property than the owner. Then,
after taking the property, the offender misappropriates the property. The offender takes the property
and uses it as if he is really the owner.
For example, if Ana takes the mobile phone of Maria from Maria’s pouch without her consent, then Ana
should be liable for theft. In this case, Ana has physical possession of the mobile phone, and after taking
it she may use it as if it was her own.
Estafa = Material Possession + Juridical Possession + Misappropriation/Conversion
If the possession of the property by the offender arouse from a contract or an agreement, then the
possessor has juridical possession of the property – a right over the property, which he can claim and set
up even against the owner.
To distinguish theft from estafa, it is important to know whether the possession of the property by the
offender is only material or if it is coupled with juridical possession. For example, in the case of Ana and
Maria, if Maria agrees to lend Ana her mobile phone for a week, then Ana has a right over the mobile
phone for that week. Maria cannot take the mobile phone from Ana during the week that they have
agreed upon. Because of their agreement, Ana acquired juridical possession over the property.
But, if Ana sells the phone during the week that it was within her possession, then it is obvious that she
has converted the use of the property. She was permitted to use it, but she was not authorized to sell it.
If this happens, estafa is committed.
Qualified Theft and Estafa
Both qualified theft and estafa may be committed by abuse of confidence. However, it will be easier
to determine whether the crime is qualified theft or estafa once it is settled if the possession is merely
material or juridical. If it is only material possession and there was misappropriation, then the crime
committed is qualified theft. If there was juridical possession and it was misappropriated or converted,
then the crime committed is estafa.
Case in point is Sheala Matrido vs. People of the Philippines, GR. No. 179061, July 13, 2009. In this
case, Sheala was the credit and collection assistant of Empire East Land Holdings, Inc. whose duty was
to collect payments from buyers of real estate properties developed by Empire East Land Holdings,
Inc., issue receipts therefor, and remit the payments to employer in Makati City. Sheala failed to remit
payments received from its clients, so she was charged with estafa.
The Supreme Court ruled that Sheala is liable for qualified theft, not estafa. She did not have juridical
possession over the amount involved. A sum of money received by an employee in behalf of the
employer is considered to be only in the material possession of the employee. For there to be juridical
possession, the employer must recognize such, otherwise the crime committed remains to be qualified