Can a Homeowners Association File an Estafa Case and Later File an Affidavit of Desistance Without Waiving the Right to Civil Liability?

In the Philippines, the legal framework provides several avenues to address the misappropriation of funds within a Homeowners Association (HOA). Misappropriation, in this context, refers to the unauthorized use of association funds by an individual, such as an administrative assistant.

Filing an Estafa Case

Estafa, or swindling, is a criminal offense under Article 315 of the Revised Penal Code. It involves defrauding another party through deceit or abuse of confidence, which can certainly apply to situations where an HOA's funds are misappropriated by an individual in a position of trust.

Steps to File an Estafa Case:

Document the Misappropriation: Gather all evidence, including financial records, statements, and any communication that can support the claim of misappropriation.
File a Complaint: The HOA, represented by its board or a designated officer, can file a complaint with the police or the Office of the Prosecutor.
Preliminary Investigation: The Prosecutor will conduct an investigation to determine if there is probable cause to file charges in court.
Filing of Information: If probable cause is established, the Prosecutor will file an information in court, and the criminal proceedings will commence.

Affidavit of Desistance and Civil Liability

An Affidavit of Desistance is a sworn statement by the complainant expressing their intent to withdraw the complaint. While it can influence the outcome of the case, it does not automatically result in the dismissal of criminal charges, as the offense of estafa is considered a public crime and is prosecuted by the state.

Key Points about Affidavit of Desistance:

Effect on Criminal Case: The filing of an Affidavit of Desistance may lead to the dismissal of the criminal case, particularly if the Prosecutor finds that there is insufficient evidence to pursue the case without the complainant's cooperation.
Civil Liability: The execution of an Affidavit of Desistance does not waive the right to pursue civil liability. The aggrieved party can still file a separate civil action to recover the misappropriated funds.

Provisional Desistance and Settlement Agreements

In some cases, parties may enter into a settlement agreement to resolve the dispute. This often involves the defendant agreeing to repay the misappropriated funds. However, if the defendant fails to adhere to the terms of the settlement, the HOA can take further legal action.

Reviving the Case upon Breach of Settlement:

Conditional Desistance: A form of provisional desistance can be incorporated into the settlement agreement, specifying that the criminal case can be revived if the defendant reneges on the agreement.
Court Enforcement: The settlement agreement can be submitted to the court, and any breach can be enforced through legal mechanisms, including reinstating the criminal complaint or filing for breach of contract.

Conclusion

In summary, an HOA in the Philippines can file an estafa case against an individual who misappropriates its funds and later submit an Affidavit of Desistance without waiving the right to civil remedies. Additionally, through a well-drafted settlement agreement, the HOA can ensure that the case can be revived if the defendant fails to comply with the settlement terms. This multi-faceted approach allows the HOA to protect its financial interests while providing flexibility in resolving the dispute.