LOAN per se does not exempt a criminal from indictment for estafa so long as it can be proved, as is the factual mileu in the instant case, that the motive behind such a transaction was deceit, swindling and malice on the part of the debtor/respondent.

It must be stressed that LOAN per se does not exempt a criminal from indictment for estafa so long as it can be proved, as is the factual mileu in the instant case, that the motive behind such a transaction was deceit, swindling and malice on the part of the debtor/respondent. We repeat hereinbelow what we had argued in our previous pleadings before this Honorable Office. In the case of LIBERATA AMBITO, BASILIO AMBITO, and CRISANTO AMBITO vs. PEOPLE OF THE PHILIPPINES and COURT OF APPEALS, G.R. No. 127327, February 13, 2009, it was held that in the pxxx cution for Estafa under Article 315, paragraph 2(a) of the RPC,[8] it is indispensable that the element of deceit, consisting in the false statement or fraudulent representation of the accused, be made prior to, or at least simultaneously with, the delivery of the thing by the complainant; and that false pretense or fraudulent act must be committed prior to or simultaneously with the commission of the fraud, it being essential that such false statement or representation constitutes the very cause or the only motive which induces the offended party to part with his money. Thus:

x x x.

The elements of Estafa by means of deceit, whether committed by false pretenses or concealment, are the following (a) that there must be a false pretense, fraudulent act or fraudulent means. (b) That such false pretense, fraudulent act or fraudulent means must be made or executed prior to or simultaneous with the commission of the fraud. (c) That 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) That as a result thereof, the offended party suffered damage.[9]

In the pxxx cution for Estafa under Article 315, paragraph 2(a) of the RPC,[10] it is indispensable that the element of deceit, consisting in the false statement or fraudulent representation of the accused, be made prior to, or at least simultaneously with, the delivery of the thing by the complainant.

The false pretense or fraudulent act must be committed prior to or simultaneously with the commission of the fraud, it being essential that such false statement or representation constitutes the very cause or the only motive which induces the offended party to part with his money. In the absence of such requisite, any subsequent act of the accused, however fraudulent and suspicious it might appear, cannot serve as basis for pxxx cution for estafa under the said provision.[11]

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Indeed, in Barrameda vs. Court of Appeals, 313 SCRA 477, 485 [1999], this Honorable Court, citing Tubb vs. People, supra, held that the specific word demand need not be used to show that demand had, indeed, been made upon the person charged with the offense. A query as to the whereabouts of the money is tantamount to a demand.

The criminal case that can be filed against the recruiter is estafa covered under Article 315 paragraph 4 (1) (b) of the Revised Penal Code (RPC). Under the said provision of law, a crime of estafa may be committed by means of misappropriating or converting, to the prejudice of another, money, goods or any other personal property received by the offender in trust, or on commission, or for administration, or under any other obligation involving the duty to make delivery of, or to return the same, even though such obligation be totally or partially guaranteed by a bond; or by denying having received such money, goods or other property.The accused for estafa shall only be convicted if you are able to prove, through submission of documents or affidavits from witnesses, the presence of the following elements: 1) that personal property is received in trust, on commission, for administration or under any other circumstance involving the duty to make delivery of or to return the same, even though the obligation is guaranteed by a bond;(2) that there is conversion or diversion of such property by the person who has so received it or a denial on his part that he received it;(3) that such conversion, diversion or denial is to the injury of another and(4) that there be demand for the return of the property (Criteta Chua-Bruce v. CA, G.R. No. 109595, April 27, 2000).