Republic of the Philippines

Department of Justice
OFFICE OF THE CITY PROSECUTOR
Las Piñas City

MUST BE SUN RETAIL CORP. and ELECOM SM

SOUTHMALL LAS PINAS CITY
BRANCH, represented by its Human Resources &
Admin. Manager, DAISY SORIANO-RAFAL
Complainant,

- versus - I.S. No. ______________________

For: Qualified Theft under Article
310 and Estafa under Article 315
par.2 (a), Revised Penal Code

MS. JANICE C. MAKILING,

Respondent.
x-----------------------------------------------x

COMPLAINT-AFFIDAVIT
I, DAISY SORIANO-RAFAL, Filipino, of legal age, with office
address at Space #03006 Level 3 Gateway Araneta Center Socorro3,
Quezon City, after having been duly sworn in accordance with law, hereby
depose and state that:

1. I am the Human Resources and Administrative Manager and

duly authorized representative of MUST BE SUN RETAIL
CORPORATION (hereinafter “MUST BE,” for brevity), a corporation duly
organized and existing under the laws of the Republic of the Philippines,
with principal office addess at 370 Cyberzone SM City Southmall, Alabang,
Zapote Road, Brgy. Almanza Uno, Las Piñas City. The company is engaged
in the selling and distribution of cellphones, gadgets and other products
and supplies and one of its branches is at Elecom SM Southmall, Pas Pinas
City. “Must be” previously used the business name LIMBANYAK
FORTUNE TRADING CORPORATION but due to amendment of its
Articles of Incorporation on ______, it was changed to Must Be Sun Retail
Corporation.

1.1. Copy of the Board Resolution authorizing Ms. Daisy Soriano-

Rafal to institute this action is hereto attached as Annex “A” and the
Amended Articles of Incorporation as Annex “A-1”

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 2. Ms. Janice Cabahug Makiling (hereinafter “Respondent,” for
brevity) is a Filipino citizen, of legal age, and a resident of #158 Pag-asa III,
Imus, Cavite, where she may be served with subpoena and other processes
of this Honorable Office. The Respondent used to work with Limbanyak
Frotyune Trading Corporation at its SM Southmall Las Pinas City Branch.

3. “Must be” is formally charging Respondent of QUALIFIED

THEFT under Article 310 in relation to Article 308 and ESTAFA under
Article 315 paragraph (2) a of the Revised Penal Code of the Philippines,
committed in the Las Piñas City, under the jurisdiction of this Honorable
Office. The facts constituting the said criminal offense are as follows:

4. Respondent was employed by Limbanyak as Store OIC for the

ELECOM SM SOUTHMALL LAS PINAS CITY BRANCH in December
2015 until her absence without official leave (AWOL) on February 7,
2016.Under the Job Description for Store OIC, she is responsible for the
sales, recording, documentation and safekeeping of the products sold and
payments received by the company.

5. As Store OIC, she is tasked with the following:

Job Title: Store OIC

Report to: Sales and Operations Manager

Responsibilities:

 Manages and monitors sales staff to ensure that each staff

member is performing its sales duties and providing excellent
customer service in order to reach monthly sales targets.
 Briefs, trains and assists new employees on store operations
and procedures.
 Manage day-to-day operations of store.
 Monitors inventory levels and coordinates with head office on
deliveries.
 Monitors and handles the visual merchandising of each store.
 Manage sales staff schedules and monitors punctually of
supplies, inventory and equipment.
 Handles cashiering if necessary.
 Attends to customer complaints and finds solutions to their
concern.
 Prepare sales and Z-reports, attendance of staff.

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 Ensure on-time deposit or remittance of cash sales to the
authorized persons/banksxxx xxxx

5.1. Copy of the Job Description is hereto attached as Annex “B”;

6. Respondent, as Store OIC is the point person of “Must be” in

her designated area. All instructions and products/ supplies of the
Company are coursed through her.

7. During her term in the Store, Respondent was entrusted with

the possession of company owned items for sale to the public. Surprisingly,
some of the items were seen in her possession for her personal use. The
items are as follows:

Iphone charger Php 1, 590.00

Iphone case Php 950.00
Pouch Php 480.00
Dual Driver Try Me Php 1, 850.00
Earphone High-res Php 4, 450.00
Telpad Tablet Php 12, 000.00
_____________
TOTAL Php 21, 290.00

8. For several times, Respondent was seen by Ms. Annalou Pinos

and Ms. Marycris Rencio using the company property for her own use and
benefit.Moreover, she made it appear that the items are hers personally.
Respondent thereafter never returned the same to the Store.

8.1. Copy of the Respondent’s and respondent’s daughter’s pictures

using the cellphone owned by the company are hereto attached
as Annexes “C”-“C-4”.

9. Alarmed with the unlawful acts of the Respondet, incident

reports were submitted by Ms. Annalou Pinos, Ms. Marnel Rodriguez and
Ms. Marycris Rencio to the management, to the effect that Respondent
orders the store associates to issue cash payment transaction receipts and
give them to her but she does not enter the transaction in the point of sale
(POS) terminal. What appears then is that there is a sale and a receipt is
issued to an unknown person but the sale does not really exist. The
purpose is to make it appear that a transaction was made so that a certain
item is disposed/ sold but said transaction is not entered into the machine
so that the item “purchased” will be for Respondent’s personal gain.

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 9.1. Attached hereto as Annex “D”-“D-2” are copies of the
affidavits.

10. In another instance, on January 22, 2016, Marycris Recio was

ordered by the Respondent to issue sales invoice receipt for the sale of an
Iphone case to a certain Rhea Padilla in the amount of Php 1, 150.00 . She
did as ordered, however, upon checking the receipt which Respondent
gave to the customer, there was no POS machine validated receipt attached
to it.

10.1. Copy of the Sales Invoice is hereo attached as Annex “E”.

11. Again, on a different date, Respondent went out of the store

bringing with her a large Elecom paper bag. At that instance, the store
alarm rang but she just ignored.

12. One time, a customer by the name of Hannah Monton bought a

headset from the Store. The Respondent issued her a POS validated receipt
in the amount of Php 550.00 (which the customer did not get) and instead,
got the Sales Invoice with a higher amount of Php 1,190.00.indicated.

12.1. Copy of the subject receipts are hereto attached as Annex “F”

13. Upon being informed of the reports, Respondent left the

company without official leave. She then spoke with Analou Pinos telling
her that the latter should keep mum on the matters she knew about her.

15.1. Copy of the exchanges of text message is hereto attached

as Annex “G”;

14. It could be observed from the flow of conversation that

Respondent admitted that she appropriated to her personal use the
company’s properties, and that she just borrowed but intends to return the
same.

15. Immediately when Respondent stopped reporting for work, an

Audit Inventory was conducted by the management of Elecom SM
Southmall. It was found out that there are 299 piece of items missing inside
the store with a total value of Two Hundred Forty Three Thousand Two
Hundred Twenty Five Pesos (Php243,225.00). These were not accounted for
nor reported by the Respondent.

15.1. A copy of the Store’s stock level report is hereto attached as

Annex “H”.

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 16. Todate, Respondent failed to pay the said amount despite
repeated demands.

17. Respondent’s unlawful and malicious acts constitute a violation

of Article 310 in relation to Article 308 of the Revised Penal Code, to wit:

“Art. 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.
xxx xxx xxx”

“Art. 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 the plantation
or 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.
(As amended by R.A. 120 and B.P. Blg. 71. May 1, 1980).”
(Emphasis supplied)

18. The elements of Qualified Theft committed with grave abuse of

confidence are as follows: 

a. Taking of personal property;

b. That the said property belongs to another;
c. That the said taking be done with intent to gain;
d. That it be done without the owner’s consent;
e. That it be accomplished without the use of violence or intimidation
against persons, nor of force upon things;
f. That it be done with grave abuse of confidence1.
 
19. On the basis of the foregoing elements, there is probable cause
to indict Respondent for Qualified Theft.

19.1. First.The presence of the first and second elements are

undeniable. The payments for the items sold or for sale are personal
properties of Must Be which Respondent unlawfully took.

19.2. Second. The second requisite is likewise clearly

established from the foregoing facts. The taking was done without
the consent and authority of then Limbanyak and now Must Be. Since
1
People v. Morito, G.R. 193479, 19 October 2011 citing People v. Puig, G.R. Nos. 173654-765, August 28, 2008, 563
SCRA 564, 570; Roque v. People, G.R. No. 138954, November 25, 2004, 444 SCRA 98, 120.

5
 the taking was unlawful, there exists a presumption of intent to gain
on the part of Respondent.

The High Court had the occassion to declare:

“Intent to gain or animus lucrandi is an internal act

that is presumed from the unlawful taking by the
offender of the thing subject of asportation. Actual gain
is irrelevant as the important consideration is the intent
to gain.”2

19.3. Third. The theft was committed with grave abuse of

confidence. There is no denying that the nature of Respondent’s work
was one which involved high degree of trust. As Store OIC,
Respondent has direct access to the items which supposedly are for
sale up to the payment and recording of payments received from
customers. She, having direct access to the supplies, receipts and
documentation misrepresented that she is authorized to use the items
for her own and duly accounted for .Respondent had gravely abused
the confidence reposed upon her by taking advantage of her position
in perpetrating the theft of the items.

19.4. Fourth. As Store OIC Respondent made use of her

position to obtain the payments and appropriated them for herself.
She could not have taken the amount had she not been conferred
with her position. Clearly, the taking was done with grave abuse of
confidence. The High Tribunal decreed:

“The taking was also clearly done with grave

abuse of confidence. As a credit and collection assistant
of private complainant, petitioner made use of her
position to obtain the amount due to private
complainant. As gathered from the nature of her
functions, her position entailed a high degree of
confidence reposed by private complainant as she had
been granted access to funds collectible from clients.
Such relation of trust and confidence was amply
established to have been gravely abused when she failed
to remit the entrusted amount of collection to private
complainant.3” (emphasis supplied)

20. Respondent’s unlawful and malicious acts likewise constitute a

violation of Article 315 par. 2(a) of the Revised Penal Code, to wit:

2
Matrido v. People, G.R. 179061, 13 July 2009
3
Ibid.

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

xxx xxx xxx

2. By means of any of the following false pretenses or

fraudulent acts executed prior to or simultaneously with the
commission of fraud:
 
(a) By using fictitious name, or falsely pretending to
possess power, influence, qualifications, property, credit,
agency, business or imaginary transactions, or by means of
other similar deceits.

21. The elements of Estafa under Article 315 par. 2(a) are as
follows:

a. “There must be a false pretense, fraudulent act or fraudulent means;

b. Such false pretense, fraudulent act or fraudulent means must be
made or executed prior to or simultaneously with the commission of
the fraud;
c. The offended party must have relied on the false pretense, fraudulent
act or fraudulent means, that is, he was induced to part with his
money or property because of the false pretense, fraudulent act or
fraudulent means;
d. As a result thereof, the offended party suffered damage.”4

22. Based on the foregoing elelments, there is likewise probable

cause in indicting Respondent for the crime of Estafa.

22.1. First. Respondent’s misrepresentation that she is

authorized to use the items for sale constitutes false pretense or
fraudulent act as provided in the first element;

22.2. Second. The misrepresentation that the items are hers and
thus she has authority to sell for a higher amount and had issued
sales invoice with a different amount from the POS validated receipt
are just some of the instances aside from the instances when
Respondent issued no receipt at all.

22.3. Third. Were it not for Respondent’s misrepresentation

that she is duly authorized todecide for herself on how to dispose the
items and issue sales invoices with a different amount from the

4
Augusto Sim, Jr. vs. Hon. Court of Appeals and the People of the Philippines, G. R. No. 159280, May 18, 2004, citing
L. B. Reyes, Revised Penal Code, Book II, (14thed, 1998), p. 763.

7
 Official receipt, the customers would not have parted their money on
her.

23. As a result thereof, Must Be suffered damages in the amount of

Two Hundred Sixty Four Thousand and Five Hundred Fifteen Peso (Php
264,515.00 )unremitted payments broken down as follows:

Items seen in her possession- Php 21, 290.00

Items lost and not accounted for- Php243, 225.00
______________
TOTAL Php 264, 515.00

24. By reason of Respondent’s felonious acts, Must Be was

compelled to engage the services of a lawyer to prosecute this instant case,
thus necessarily incurring attorney’s fees and expenses of litigation.

25. Respondent, with criminal intent, knowingly, deliberately

and nefariously, had acted with grave abuse of confidence in stealing the
payments rightfully and legally belonging to MUST BE, thereby
successfully causing the Complainant actual damage in the amount of Two
Hundred Sixty Four Thousand and Five Hundred Fifteen Peso (Php
264,515.00 )

26. I am executing the foregoing Complaint-Affidavit to attest to

the truth of the foregoing, and purposely to hold Respondent liable for
QUALIFIED THEFT under Article 310 and ESTAFA under Article 315
Paragraph 2 (a) of the Revised Penal Code.

IN WITNESS WHEREOF, I have affixed my signature this __day of

June 2016 in Las Pinas City, Philippines.

DAISY SORIANO-RAFAL
For and in behalf of MUST BE SUN
RETAIL CORP.
Affiant

SUBSCRIBED AND SWORN to before me this __ day of June 2016

in Las Pinas City, Philippines. I also hereby certify that I have personally
examined the affiant and I am satisfied that she has voluntarily executed
and understood her Complaint-Affidavit.

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Assistant City Prosecutor