Appeal by  certiorari  from  the decision  of the  Court of  Appeals  finding appellant  Joaquin Guzman guilty  of the crime of qualified theft.

The facts, as  found by the Court of  Appeals, are  as follows: 

"That  accused Joaquin  Guzman  was a travelling sales  agent of the New  Life  Commercial of Aparri,  Cagayan.  On  March  2, 1953, Guzman left Manila with 45 cases of different assortments  of La  Tondeiia  wine, in a  truck driven by Andres Buenaventura, with  Federico  Cabacungan  as washing  (helper),  on  their return trip  to Aparri, by way  of  Ilocos Norte.  Along  the  route, the accused made various cash sales of wine  and when they reached Ballesteros, Cagayan, at  about 3 o'clock  in the  afternoon   of March 5,  1953, said accused had in his possession the  amount  of P4,873.62.   Here, they parked their truck  at the  Sambrano  Station and  the  accused left his  companions until supper  time at past 7:00  p.m.  When they retired for  the night, driver Buenaventura and  the  accused occupied the driver's  compartment of the  truck, Buenaventura lying on the  driver's seat  and the  accused taking the upper deck with  which the truck was provided  (see photograph Exhibit. A).  The  washing,  Cabacungan, slept in the body of the 'truck where the  wines were kept.  There  was a wall between the body of the truck and  the  driver's compartment;  and on that night  all the windows were  locked  from  inside.  In the morning  of March 6, 1953,  accused Guzman told  the  driver that he  lost the  amount  of P2,840.50,  and his firearm license.   Upon the advice of the  driver,  said accused reported the matter to the Chief o£ Police of Ballesteros, who gave him a certificate of loss of his firearm license.  They were  proceeding to their home journey when, at the outskirts of Ballesteros, they were met by  a  tax collector and  policeman  Mariano David who told the accused to  return  to Ballesteros and execute  an  anidavit regarding the  alleged theft. Before the accused returned to Ballesteros,  he entrusted to the driver Buenaventura, the amount  of Pl,630 in dash and a check for P403.12 under the proper receipt  (Exhibit  C), with the sales invoices, for  delivery to the  manager,  Enrique Go, of the company of Aparri. Driver and washing continued the trip and arrived  at Aparri between 3  and 4 o'clock in  the  afternoon of the same day. The driver delivered the money and invoices  to  Enrique Go and informed  the latter of the  loss.   Go  reported  the matter to the Philippine Constabulary.  The PC  investigators and Go picked the accused at his house at Aparri at 8  o'clock in the morning, on March 7, 1953, after having failed to see him (accused) at Ballesteros the previous night. Questioned at the PC barracks  as to how much money he still had, the accused stated that he had  only P3, in his person.  On March 10, 1953,  the  accused wrote to Go,  requesting him to defer the filing of the criminal complaint until March 16, 1953, on which date he promised to refund the amount lost (Exhibit G).   On March 17, 1953, the said accused paid the amount of P1,500 to Go.  On April 1,  1953, the accused was prosecuted for theft for the  shortage of P804.70."  (Appellant's Brief, pp.  13-15.)

Appellant Guzman claims,  first,  that under the  above findings of fact,  he had  committed only  the  crime of estafa; and second, as the crimes of estafa and theft are essentially  different offenses,  he should be acquitted of the present charge for qualified  theft,  although proceedings may be filed anew against him for the proper offense. We  agree with  appellant that under the above  facts, the Court of  Appeals erred in holding  that  he "had only the material  or physical possession of  the said merchandise or its proceeds, because he was not the owner  thereof; he was simply holding the money  for  and in behalf of  his  employer".

While  it is true  that  appellant received  the proceeds of  his  wine  sales  as travelling salesman  for the  complainant, for and in behalf of the latter as  his principal, and that  possession of the  agent  is  possession  of  the principal, an agent, unlike a servant  or messenger, has both the physical  and juridical  possession  of  the goods received  in agency,  or  the proceeds thereof, which takes the place of the  goods  after their sale by the  agent. His duty to turn  over the proceeds of the agency depends upon his discharge, as  well as the result of the accounting between  him and the principal; and he may set up his  right of  possession as against that of  the  principal until the agency  is  terminated.

The  case cited  by the Court  of Appeals (People vs. Locson, 57 Phil., 325), in support of its theory that appellant only had the material possession of the merchandise he  was selling for his  principal, or  their proceeds, is not in point.  In  said case, the receiving teller  of a bank  who misappropriated,  money received by  him  for the bank, was held guilty  of qualified theft on the theory that the possession of the teller is the possession of  the bank.  There is an essential distinction  between the possession by a receiving teller of funds received  from third persons paid to the bank,  and an  agent  who receives the proceeds  of sales of merchandise  delivered  to  him  in agency  by  his principal.  In  the former case,  payment by  third  persons  to  the  teller  is payment  to the bank itself; the teller is  a mere custodian  or keeper  of  the funds received,  and  has no  independent right or title to retain or  possess the same  as against  the  bank.  An agent, on the  other hand,  can even  assert,  as against his own principal, an independent,  autonomous, right to retain the  money or goods received  in  consequence  of the agency; as when they principal fails to reimburse him for advances he has made,  and indemnify him for damages suffered  without his fault  (Article 1915, new Civil Code; Article 1730, old).

As appellant converted to  his own  use proceeds  of sales  of merchandise delivered  to him  as agent, which he  received in  trust  for and  under obligation to  deliver and turn over  to  his principal, he is guilty of the crime of  estafa as defined by Article 315,  paragraph 1, subparagraph (e), of the Revised  Penal Code.  This has been the consistent  ruling of  this Court  in  cases  where  a sales  agent misappropriates or  fails to  turn  over to his principal proceeds of things  or goods  he was commissioned or  authorized  to  sell for  the  latter.   (U. S.  vs. Reyes, 36 Phil., 791; U. S. vs. Lim,  36 Phil.,  682; People vs. Leachon, 56 Phil., 737).

The next question is  whether the present  information for qualified theft  alleges  sufficient facts to  sustain  a conviction for estafa under Article 315, paragraph 1, subparagraph  (b), of the Revised Penal Code. The information reads: 

"The undersigned accuses  Joaquin  Guzman  of the  crime  of Qualified Theft, defined  and penalized under Articles  308 and 309, No. 3 in connection with Article 310 of the Revised Penal Code, as amended by Commonwealth Acts Nos. 273 and 417 and Republic Act No. 120, committed as follows:

That on or about the 6th day of March, 1953, in the municipality of Aparri, province of Cagayan, and within the jurisdiction of this  Honorable  Court, the  said  accused Joaquin  Guzman, while in the employ of Enrique Go and with grave abuse of  confidence did then  and  there, willfully, unlawfully,  and  feloniously,  with intent to  gain  but without violence against or intimidation of persons  nor force upon things, without the consent of the owner Enrique Go alias Ngo Yat,  take and  carry away for his personal use and benefit  the sum of  eight hundred four pesos and seventy eentavos  (P804.70)  to the damages and prejudice of said Enrique Go altos  Ngo Yat, in the amount of  P804.70."   (Original Records p. 22.)

Article 315, paragraph 1, subparagraph  (6),  on  the other hand,  provides: 

"Surindling  (estafa). Any  person  who  shall  defraud  another by any of the means mentioned hereinbelow shall be punished by:

*           *           *           *           *           *           * 

(2) With unfaithfulness or abuse of confidence, namely:

*           *           *           *           *           *           *

(b) By 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, good, or other property;

Under the above definition of estafa, it is an  essential element of the crime that the money or goods misappropriated  or converted  by the accused  to the  prejudice of another was  received by him "in trust or on commission, or for administration, or under any  other obligation involving the duty to  make delivery of, or to retain  the same".   No such allegation appears in the above  information.  Consequently, we  agree with appellant that he  can not  be  convicted thereunder of the  crime of estafa as defined  by the  article above.

Wherefore, the decision appealed from is reversed,  and appellant Joaquin Guzman acquitted of the crime  of qualified theft.  Appellant should, however, be held in custody pending the  filing of  another  information  against him for estafa under Article 315,  paragraph 1, subparagraph (6),  of the Revised  Penal  Code.  Without costs in this instance.  So  ordered.

Paras, C.J., Bengzon, Padilla, Montemayor, Reyes, A., Bautista Angela,  Labrador, Concepcion,  Endencia, and Felix, JJ.,  concur.