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Estafa under Article 315, Par. 1(b), Rev. Penal Code; elements of

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VICIA D. PASCUAL vs. PEOPLE OF THE PHILIPPINES, G.R. No. 160540, March 22, 2007


“x x x.

PETITIONER COMMITTED ESTAFA UNDER ARTICLE 315, PARAGRAPH 1(B) OF THE RPC

In estafa through misappropriation under Article 315, paragraph 1 (b) of the RPC, the following essential elements must be present: (1) that money, goods, or other personal property is received by the accused in trust or on commission or for administration or under any obligation involving the duty to make delivery of or to return the same; (2) that there is misappropriation or conversion of such money or property by the accused or denial on his part of such receipt; (3) that such misappropriation or conversion or denial is to the prejudice of another and (4) that there is a demand made by the offended party on the accused.[19]

All the elements concur in this case. First, petitioner received the money in trust or for administration as the council’s acting president; second, she failed to substantiate her claim that she did not misappropriate the money; third, the council was prejudiced by such misappropriation and fourth, she failed to return the money to the council despite repeated demands to do so.

Finally, we find no conflict in the findings of fact of the lower courts. Well-settled is the rule that factual findings of the trial court, especially when affirmed by the CA, are conclusive on us.[20]Without any cogent or compelling proof that the lower courts committed reversible error in their decisions, we shall not deviate from the rule. We therefore affirm the findings of both the trial court and the CA that petitioner committed estafa punishable under Article 315, paragraph 1(b) of the RPC.

x x x.”


Footnotes:

[1] Penned by Associate Justice Ruben T. Reyes (now Presiding Justice of the Court of Appeals), and concurred in by Associate Justices Remedios Salazar-Fernando and Edgardo F. Sundiam of the Seventh Division of the Court of Appeals. Rollo, pp. 72-88.
[2] Id., p. 100.
[3] Id., pp. 33-34.
[4] ART. 315. Swindling (estafa). − Any person who shall defraud another by any of the means mentioned hereinbelow
xxx
1.        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, goods, or other property. xxx
[5] Decided by Judge Francisco B. Ibay, RTC, Makati City, Branch 135. Rollo, pp. 31-37.
[6] Id., p. 82.
[7] Id., pp. 83-88.
[8] Supra note 2.
[9] Rollo, pp. 17-18.
[10] Roxas v. Vasquez, 432 Phil. 148 (2002).
[11] Dayrit v. Philippine Bank of Communications, 435 Phil. 120 (2002); Development Bank of the Philippines v. Court of Appeals, 362 Phil. 1 (1999).
[12] Sps. Friend, et al. v. Union Bank of the Philippines, G.R. No. 165767, 29 November 2005, 476 SCRA 453; Salonga v. Court of Appeals,G.R. No. 111478, 13 March 1997, 269 SCRA 534; Bacelonia v. Court of Appeals, 445 Phil. 300 (2003).
[13] Rollo, p. 80.
[14] Salva v. CA, 364 Phil. 281 (1997); Alabanzas v. Intermediate Appellate Court, 29 November 1991, 204 SCRA 304; Sps. Friend, et al. v. Union Bank of the Philippinessupra.
[15] Villanueva v. Sps. Alejo and Virginia Salvador, G.R. No. 139436, 25 January 2006; People v. Chua, G.R. No. 128280, 4 April 2001, 356 SCRA 225; Ayson v. Enriquez Vda. De Carpio, G.R. No. 15243817 June 2004, 432 SCRA 449; Reburiano v. Court of Appeals, 361 Phil. 294 (1999).
[16] Velasquez v. Court of Appeals, G.R. No. 138480, 25 March 2004, 426 SCRA 309; L.T. Datu & Co., Inc. v. Sy, G.R. No. 143701, 23 March 2004, 426 SCRA 189.
[17] San Agustin v. People, G.R. No. 158211, 31 August 2004, 437 SCRA 392.
[18] Id.; Villaflor v. Vivar, 402 Phil. 222 (2001).
[19] Filadams Pharma, Inc. v. Court of Appeals, G.R. No. 132422, 30 March 2004, 426 SCRA 460.
[20] Velasco v. People, G.R. No. 166479, 28 February 2006.



Estafa; form of demand

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ERLINDA ASEJO vs. PEOPLE OF THE PHILIPPINES, G.R. No. 157433, July 24, 2007


“x x x.

With regard to the necessity of demand, we agree with the CA that demand under this kind of estafa need not be formal or written. The appellate court observed that the law is silent with regard to the form of demand in estafa under Art. 315 1(b), thus:

When the law does not qualify, We should not qualify. Should a written demand be necessary, the law would have stated so. Otherwise, the word demand should be interpreted in its general meaning as to include both written and oral demand. Thus, the failure of the prosecution to present a written demand as evidence is not fatal.[19]

In Tubb v. People, 101 Phil. 114, 119 (1957), where the complainant merely verbally inquiredabout the money entrusted to the accused, we held that the query was tantamount to a demand, thus:

[T]he law does not require a demand as a condition precedent to the existence of the crime of embezzlement. It so happens only that failure to account, upon demand for funds or property held in trust, is circumstantial evidence of misappropriation. The same way, however, be established by other proof, such as that introduced in the case at bar.[20]

Similarly in this case, there was a demand for petitioner to pay private complainant. This was admitted by petitioner and the private complainant in their testimonies. Castro stated that she went to the house of petitioner in Pangasinan to demand the return of the money, while petitioner stated that Castro demanded the return of the down payment because allegedly, the sale did not materialize. In both versions, the fact remains that demand was made upon petitioner.

X x x.”

Read also:
 REVISED RULES ON EVIDENCE, Rule 130, Sec. 9.
Tubb v. People,  101 Phil. 114, 119 (1957).



Estafa; elements of estafa with abuse of confidence

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ERLINDA ASEJO vs. PEOPLE OF THE PHILIPPINES, G.R. No. 157433, July 24, 2007

“x x x. 
The foregoing findings clearly support private complainant's claim regarding the purpose of the money, that is, that petitioner received the money in trust to be used as proof of her financial liquidity. The Trust Undertaking, which was regularly executed, shows that the agreement was not a loan. This places the transaction within the purview of Art. 315, the relevant paragraphs of which read:

Art. 315Swindling (estafa).Any person who shall defraud another by any of the means mentioned hereinbelow shall be punished by:
1st. The penalty of prisiόn correccional in its maximum period to prisiόn mayor in its minimum period, if the amount of the fraud is over 12,000 pesos but does not exceed 22,000 pesos; and if such amount exceeds the latter sum, the penalty provided in this paragraph shall be imposed in its maximum period, adding one year for each additional 10,000 pesos; but the total penalty which may be imposed shall not exceed twenty years. In such cases, and in connection with the accessory penalties which may be imposed and for the purpose of the other provisions of this Code, the penalty shall be termed prisiόn mayor or reclusiόn temporal, as the case may be;

x x x provided that in the x x x cases mentioned, the fraud be committed by any of the following means:

1. With unfaithfulness or abuse of confidence, namely:

x x x x

(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, goods, or other property

 The elements of estafa with abuse of confidence under Art. 315 1(b) are:

1. That the money, goods or other personal property be 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;
2. That there be misappropriation or conversion of such money or property by the offender, or denial on his part of such receipt;
3. That such misappropriation or conversion or denial is to the prejudice of another; and
4. That there is a demand made by the offended party to the offender.

All these elements are present in the case at bar. Petitioner admitted having received in trust the amount of PhP 100,000 from Castro; the amount was misappropriated or converted; such misappropriation or conversion was to the prejudice of Castro; and Castro demanded payment from petitioner.

Petitioner asserts that upon receipt of the amount, it was transferred to her and she was not prohibited to use or spend the same.[16] The very same money cannot be returned but only the same amount. This makes the transaction a loan and not a trust agreement; thus, her liability is merely civil and not criminal.

Petitioners arguments are not meritorious. Art. 315 1(b) explicitly includes money in its scope. The nature of money, that is, the exact bills and coins received in trust cannot be returned, was already considered by the law. As long as the money was received in trust, on commission, for administration, or under an obligation to return, failure to account for it upon demand is punishable under Art. 315 1(b). The Solicitor General added:

In a trust agreement, the transfer of the property to the trustee is mere physical possession and not juridical possession. Unlike in a contract of loan where the debtor acquires juridical possession and is technically the owner of the amount, in a trust, the obligation of the trustee is fiduciary in nature, i.e. to take care of the thing strictly for the benefit of the trustee in accordance with the purpose of the express trust.[17]


In the case at bar, the amount was received by the petitioner for the sole purpose of using it as show money to the bank. The money was entrusted to her for a particular purpose. Hence, she did not acquire the right to dispose or spend the amount as she sees fit; she had the obligation to account for said amount.

Furthermore, the Trust Undertaking expressly states that the amount was received by the petitioner not as a loan or credit. Under the parol evidence rule,[18] petitioner cannot vary the terms of the written agreement by claiming that the amount was received pursuant to a contract of sale of their lot.
X x x.”



Pacquiao cannot be disqualified from Senate bid over fight – lawyer | News | GMA News Online

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"x x x.

An election lawyer said on Friday that senatorial candidate and incumbent Sarangani Representative Manny Pacquiao cannot be disqualified from the May 9 elections because of his April boxing match with Timothy Bradley Jr.

“There is no provision in election laws that would justify any complaint to disqualify him just because of the said boxing event,” lawyer Romulo Macalintal said in a statement, countering former Akbayan party-list Representative Walden Bello claim that Pacquiao could be disqualified because of the fight.

Bello, who is also running for Senate, pointed out that under the Commission on Elections' (Comelec's) Resolution 9615 issued in 2013, the definition of "political advertisement" included media appearances in shows that were not covered by the “Comelec hour,” or the television airtime networks are asked to provide candidates for the sake of equal exposure.

“There are limits to political advertising. This globally and nationally televised fight a month before the elections would mean hours and hours of coverage before, during and after the fight. This media attention, supplemented by national pay-per-view television coverage during the fight, would be massive free advertising,” Bello argued.

Bello also warned that if Pacquiao refuses voluntarily to move the fight schedule to after the elections, he might be forced to file a disqualification case against the boxer.

Macalintal, however, countered that there was no provision in the election laws that prohibited a candidate from participating in any sport.

Macalintal further said that “Pacquiao cannot be held liable for media coverage because it is a matter between the media entity and the promoter of the fight of which Pacquiao has nothing to do.”

Macalintal also pointed out that if there is indeed any violation of election law, a criminal complaint has to be filed and go through the legal proceedings. “[I]t is only after conviction of said offense that a candidate could be disqualified to seek public office either by election or appointment,” he argued.

Macalintal added that if there was any offense under Philippine laws, the same cannot be applied against Pacquiao as the fight will be held in Las Vegas. “[O]ur courts, under the doctrine of territoriality, have no jurisdiction over offenses committed by a person outside the territory of the Philippines, except if it involves national security of the country. For sure, the Pacquiao-Bradley fight is not covered by such exception,” Macalintal said.

Media entities covering the pre-fight as well as the actual fight could not also be held liable as Section 86 of the Omnibus Election Code recognized “the right of media entities to broadcast accounts of significant or newsworthy events and views on matters of public interest.” 

“Surely, the said boxing event is a newsworthy event and a historical one as it will feature the last or final fight of Pacquiao who is considered as pride of the Filipino people as a world class fighter,” Macalintal said. — Elizabeth Marcelo/DVM, GMA News

x x x."

- See more at: http://www.gmanetwork.com/news/story/555972/news/nation/pacquiao-cannot-be-disqualified-from-senate-bid-over-fight-lawyer#sthash.YIF0k7hN.dpuf

Preliminary investigation; Estafa; sample URGENT OMNIBUS MOTION: 1. FOR REINVESTIGATION, RECONSIDERATION, AND RE-OPENING OF PRELIMINARY INVESTIGATION; AND 2. TO ADMIT SUPPLEMETAL EVIDENCE CONSISTING OF FINANCIAL RECORDS AND OTHER DOCUMENTS.

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This is a sample omnibus "motion for reinvestigation, reconsideration and to re-open a preliminary investigation and admit supplemental evidence"in re a case for Estafa. For legal research purposes of our readers. The motion was prepared by our law office.


URGENT OMNIBUS MOTION:

1.              FOR REINVESTIGATION,
RECONSIDERATION, AND
RE-OPENING OF  PRELIMINARY
INVESTIGATION; AND

2.                TO ADMIT SUPPLEMETAL EVIDENCE CONSISTING OF FINANCIAL RECORDS AND OTHER DOCUMENTS.


          THE UNDERSIGNED RESPONDENT, xxx, 65 years old, married, Filipino, and residing at xxx, xxx City, under oath, respectfully states:




I.                PREFATORY STATEMENT;
SUBJECT MATTER OF THIS PLEADING.

1.      The subject matter of this pleading is the RESOLUTION, dated 18 December 2015, of this Honorable Office.

2.    This pleading respectfully seeks (a) the reinvestigation, reconsideration and re-opening of the preliminary investigation of the instant case, as well as (b) the admission of supplemental evidence for the Respondent, consisting of financial records and other documents, in the interest of truth and justice.


II.               MATERIAL DATES.

3.    The Respondent received a copy of the questioned Resolution on February 11, 2016.

4.    Her 10th day to file this pleading ends on February 21, 2016, a Sunday.

5.     Hence, this pleading will be filed with this Honorable Office the following working day, February 22, 2016, Monday.


III.           THE QUESTIONED RESOLUTION.

6.    The questioned Resolution indicted the herein Respondent for the felony of Estafa under Art. 315 (b) of the Rev. Penal Code.

7.     The sole ground for the Estafa indictment against the Respondent, as appearing in Par. 3, Page 2, of the questioned Resolution is the alleged “failure” of the Respondent “to account for” the alleged “advances” that she had allegedly received from the complainant Association; hence, raising the “presumption” that the Respondent allegedly “misappropriated” the said amounts.

8.    It will be noted that the Resolution contains internal inconsistencies.  Taken together, the inconsistencies should lead to the dismissal of the instant complaint forlack of probable cause.

9.    Par. 1, Page 2 of the questioned Resolution expressly states that there is no probable cause to indict the Respondent for Estafa under Art. 315 (b) of the Rev. Penal Code. Thus:

“x x x.

After a careful analysis of the pieces of evidence filed by the parties, the undersigned failed to find probable cause to indict the respondentfor the crime of Estafa as defined under Article 315, Paragraph 1 (b) of the Revised Penal Code.

X x x.


10.                        Notwithstanding the foregoing express declaration of lack of probable cause stated in Par.1, Page 2 of the Resolution, the Resolution contradicted itself by concluding in the following Par. 3, of the very same Page 2 thereof that the Respondent was allegedly guilty of Estafa under the same Art. 315, Par. 1(b) for her alleged “failure to account for” or liquidate the advances that she had allegedly received from the complainant Association; hence, her indictment by the said Resolution.

11.   It will be noted that the real total amount allegedly received by the Respondent from the complainant Association is not determined with accuracy in the pleadings of the complainant and in the questioned Resolution.

11.1.       Par. 1, Page 1 of the Resolution speaks of two (2) conflicting figures: (a) P173, 642.07 (alleged in the Complaint); and (b) P137, 606.20 (alleged in the Demand Letter).

11.2.      The position of the complainant on this matter is inconsistent, raising doubts as to the veracity of her claim.


IV.            GROUNDS FOR THIS PLEADING.

12.The issues presented in this pleading are as follows:

(a)           Should the questioned Resolution be reconsidered and set aside in the interest of justice?

(b)          Should the preliminary investigation of the instant case be re-opened in the interest of due process and justice?

(c)             Should the supplemental evidencesought to be introduced by the Respondent be admitted in the interest of truth and justice?


V.             SUPPLEMENTAL EVIDENCE:
FINANCIAL RECORDS AND
PROOF OF GOOD MORAL CHARACTER.

13.The respondent seeks to introduce the following supplemental evidence to prove her innocence and good moral character (which exculpating supplemental documentary evidence were neglected to be presented by the former counsel for the Respondent who prepared her past pleadings for purposes of the original preliminary investigation)[1]:

(a)          LIQUIDATION REPORTS with SUPPORTING RECEIPTS in re: the amounts received by the Respondent from June 2004 to March 2014from the president and/or treasurer of the complainant Association (xxx), proving the various amounts received by the Respondent from the said Association for the aforecited period/s and the full and truthful application and liquidation thereof, broken down as follows.

The said Reports are signed by two (2) Accountants who are willing to appear before this Honorable Office in due time during the re-opening of the Preliminary Investigation of this case to affirm and confirm the veracity of the Financial Records or Liquidation Reports of the Respondent (namely, xxx, Bookkeeper; and xxx, Accountant) and attested by the Respondent. THUS:

Annexes “1” to “1-G”. – LIQUIDATION REPORT for the years 2004 to 2005.

Annexes “2” to “2-MM”. - LIQUIDATION REPORT for the year 2007.

Annexes “3” to “3- SS”. - LIQUIDATION REPORT for the year 2008.

Annexes “4” to “4- O”. - LIQUIDATION REPORT for the year 2009.

Annexes “5” to “5- P”. - LIQUIDATION REPORT for the year 2010.

Annexes “6” to “6- NN”. - LIQUIDATION REPORT for the year 2011.

Annexes “7” to “7 - X”. -  LIQUIDATION REPORT for the year 2012.

Annexes “8” to “8 - G”. - LIQUIDATION REPORT for the year 2013 to 2014.

Annexes “9” to “9- BBB”. - LIQUIDATION REPORT (“Payment to Social Housing Finance Corp.”) for the year 2011 to   2014.


(b)            Annex “10”. - BARANGAY CERTIFICATE OF RESIDENCY AND GOOD MORAL CHARACTER issued by the Barangay Office of Barangay xxx, xxx Village, xxx City, proving the good moral character of the Respondent, who, incidentally, as a senior citizen, will soon turn 66 years old on May 2, 2016 (having been born on May 2, 1950).


VI.            DISCUSSION.

14. For brevity, the Respondent hereby adopts into this section, by incorporation and reference, and reiterates all her foregoing statements and arguments appearing in Part III, Pars. 8 to 11.1,supra, and in Part V, Par. 13, Sub-Pars. (a) to (b), supra.

15. Further, for the record, the Respondent hereby adopts into this section, by incorporation and reference, and reiterates all her statements, arguments, and documentary evidence stated in and attached to her following previous pleadings filed with this Honorable Office during the original preliminary investigation of this case:

(a)             KONTRA SALAYSAY (Counter-Affidavit), dated June 19, 2015, which raised the following issues and defenses:

·       The lack of formal and genuine authority of xxx to commence and file the instant case in behalf of the complainant Association, a juridical entity with a separate legal personality;

·       The falsification by xxx of some of the Receipts signed by the Respondent (to bloat the figures in the Receiptspresumably by way of kickbacks);

Notes:

An example of this bloated/falsified figure is the document marked as Annex “C-8” of the “Summary of Amounts Received By Respondent xxx But Was Not Accounted/Misappropriated” (undated), which said Summary was attached to the complainant’s “Supplemental Complaint-Affidavit”, dated May 29, 2015.  

(The said Summary did not undergo a dependable external audit by a Certified Public Accountant. Nor did it undergo a mutually acceptable Reconciliation of Account between the parties).

The said Annex “C-8” (a Receipt, dated September 11, 2011 in the alleged amount of P40,000.00 intended allegedly for “Print picture mosque”).

This document is unworthy of belief, contrary to human experience, and unsupported by going market photo developing prices.

No picture of a small mosque in a depressed area, like xxx, xxx, xxx City, is worth P40, 000.00.

The Respondent was made to sign the said questionable Receipt for a much lower amount of Forty Pesos (P40.00).

Thereafter, the figure was bloated/falsified to make it appear that the Respondent received P40, 000.00.

The complainant Xxx Xxx must explain the foregoing suspicious amount.

·       The complaint is an afterthought; and that the silence of xxx from 2010 to April 2014 renders her complaint suspicious and unworthy of credence. considering that xxx sued the Respondent only in May 2015 whereas the felony allegedly started in 2010;

·       The failure of xxx to cause a reliable Financial Audit and a mutual Reconciliation of Accounts of the alleged amounts received by the Respondent from 2010 to 2014; and the failure of the complainant to initiate a consultation meeting/s between the parties to amicably resolve their respective financial claims and counterclaims and to reconcile their respective accountings of the amounts involved;and

Notes:

The Respondent respectfully submits that the cause of action of the complainant is PURELY CIVIL IN NATURE, considering that her alleged claim arose out of (a) the failure of the parties to cause a formal and mutually agreed
JOINT EXTERNAL FINANCIAL AUDIT of the funds involved and (b) the failure of the parties to cause a formal and mutually acceptable RECONCILIATION OF ACCOUNTS of the parties. 

And such two failures can be attributed to the negligence of the complainant, who claims to be a dedicated and top-ranking responsible officer (vice president) of the Association.

The complainant PREMATURELY and IN BAD FAITH immediately filed the instant case (a) without allowing the parties to first undergo the a preparatory and confirmatory  “joint external financial audit and reconciliation of accounts” and (b) without first initiating an amicable out-of-court “alternative dispute resolution” mechanisms, like mutual consultation, conciliation and mediation.

·       The Respondent, if given the fair opportunity to be heard and to submit all the relevant financial records or liquidation reports and receipts in support thereof,  was ready, willing, and able at any time to prove the proper utilizations (e.g., liquidation reports with the relevant receipts) of the funds she had allegedly received from the complainant Association.

(b)            REJOINDER TO COMPLAINANT’S REPLY, dated July 24, 2015, which raised the following issues and defenses:

·       The President of the Association (xxx) had executed a Sworn Statement, dated May 26, 2015, showing the nullity of Board Resolution No. 19, dated February 2015, the alleged board resolution relied upon by the complainant as her alleged authority to represent the Association in initiating the instant case against the Respondent, marked as Annex “A” of her Complaint.


·       The aforecited sworn statement of Mr. xxx (president) stated that out of the eleven (11) signatories to the null and void Board Resolution No. 19, dated February 22, 2015, only three (3) were legitimate directors of the Association, i.e., xxx, xxx, and xxx.

·       Thus, there was no valid quorum when Board Resolution No. 19, dated February 22, 2015, was allegedly adoptedby the board of directors of the Association.

In fact, the complainant xxx did not present to during the original preliminary investigation any Minutes of Board Meeting/sshowing the discussion and adoption of the suspicious Board Resolution No. 19, marked as Annex “A” of her complaint.

Note:

The aforecited Rejoinder referred to Sec. 2, Corporation Code(the separate legal personality of a corporation as a juridical entity); Sec. 54, Implementing Rules and Regulations of R.A. No. 9904, or the “Magna Carta for Homeowners and Homeowners Association” (all homeowners associations shall act only through the board of directors to bind the association); and Art. 19, New Civil Code (duty of every person to act with justice, fairness, honesty, and good faith).

·       The complainant xxx was not the Treasurer of the Association.

xxx had no direct and competent knowledge of the funds of the Association and the disposition, releases, safekeeping, and accounting thereof.

·       The Financial Statements of the Association, marked as Annex “2” of the Respondent’s aforecited Rejoinder, shows that the funds, receipts, disbursements, and expenditures of the Association were all duly accounted for.


16.  Adding up the Liquidation Reports for the years June 2004 to March 2014, supra, the total amount received by the Respondent amounted to P558, 798.84.

16.1.      The said Liquidation Reports fully explained and justified via the relevant Receipts the utilizations or disbursements thereof.

17.  It will be recalled that, after the filing by the Respondent of her Rejoinder (which was supposed to be the last stage of the preliminary investigation), the complainant, by counsel, unilaterally filed an (undated) OMNIBUS MOTION TO RE-OPEN PRELIMINARY INVESTIGATION AND TO ADMIT SUR-REJOINDER. 

·       The aforecited Omnibus Motion claims that the Sworn Statement, dated May 26, 2015, of the President of the Association (Mr. xxx) was allegedly hearsay because he did not affirm it before the Investigating Prosecutor.

Notes:

It should be noted that, although the general rule is that a witness must appear in person before the Investigating Prosecutor to affirm under oath his Affidavit, there is nothing in the Rules of Court which nullifies an Affidavit that had already been executed and notarized or the probative value thereof.

An Affidavit that is duly notarized is a PUBLIC DOCUMENT under the RULES OF EVIDENCE whether or not the affiant appears in a preliminary investigation.

It is entitled to the PRESUMPTION OF REGULARITY under the Rules of Evidence.

At any rate, the complainant was given a fair opportunity to controvert the said sworn statement of Mr. xxx by filing her Sur-Rejoinder, which was attached to the aforecited Omnibus Motion of her counsel.

It cannot be said that the complainant was absolutely deprived of her right to be heard thereon.

Due process means a “fair opportunity to be heard”, e.g., in the case of the complainant her right to due process was fulfilled when she unilaterally submitted to this Honorable Office her Omnibus Motion and her Sur-Rejoinder attached thereto.

Hence, the Affidavit of Mr. xxx is ADMISSIBLE in evidence.

A preliminary investigation should not be  bound by strict technical rules of procedure and technical rules of evidence in ascertaining the presence or absence of probable cause.

·       The aforecited Omnibus Motion of the complainant claims that Mr. xxx was no longer the President of the Association as of the calendar term 2014.

It relied on an alleged General Information Sheet (GIS) allegedly filed by the Association with the Housing and Land Use Regulatory Board (HLURB) on November 24, 2014, which was attached to the Sur-Rejoinder of the complainant.

Notes:

A General Information Sheet (GIS) is not the best available evidence of the legitimate election of a certain set of officers of a homeowners association.
         


The best available evidence are (a) the MINUTES OF THE GENERAL MEMBERSHIP MEETING AND REGULAR ELECTION held during such general assembly, per the By-Laws of the Association and (b) their supporting ATTENDANCE SHEETS or authenticated LIST OF VOTERS showing the names of the “members in good standing who are entitled to vote and be voted upon”, as defined by the By-Laws.

18.Please note that the Respondent was not given a fair opportunity to rebut and controvert the Omnibus Motion and the Sur-Rejoinder of the complainant.

The Respondent was thus unfairly deprived of her right to be formally heard thereon, to formally oppose the same, and to formally expose the falsity of the contents thereof.

VII.        APPLICABLE LAWS AND JURISPRUDENCE.


ESTAFA: LAW AND JURISPRUDENCE.

19.The relevant provision of the Revised Penal Code on deceit and swindling (estafa) is quoted below for reference:

“Art. 315. Swindling (estafa). — Any person who shall defraud another by any of the means mentioned hereinbelow shall be punished by:
1st. The penalty of prision correccional in its maximum period to prision mayor in its minimum period, if the amount of the fraud is over 12,000 pesos but does not exceed 22,000 pesos, and if such amount exceeds the latter sum, the penalty provided in this paragraph shall be imposed in its maximum period, adding one year for each additional 10,000 pesos; but the total penalty which may be imposed shall not exceed twenty years. X x x.
2nd. X x x;
3rd. x x x; and

4th. X x x provided that in the four cases mentioned, the fraud be committed by any of the following means:
1. With unfaithfulness or abuse of confidence, namely:
 

(a) x x x.
(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, goods, or other property.
(c) x x x.
2. By means of any of the following false pretenses or fraudulent actsexecuted prior to or simultaneously with the commission of the 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.
                                    X x x.”

20.                      Nothing in the Record shows that the Respondent misappropriated” or “converted”, to the prejudice of the Complainant, the “money” of the Complainant; or that the Respondent “received” any money from the Complainant “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”; or that the Respondent “denied having received such money”.

21.Nothing in the Record shows that the Respondent committed FRAUD.

22.                       Nothing in the Record shows that the Respondent, “by means of false pretenses or fraudulent acts”  used “fictitious name”; that the Respondent “falsely pretended to possess power, influence, qualifications, property, credit, agency, business or imaginary transactions”; or that the Respondent committed “means of other similar deceits”.

23.                       In the case of ROSITA SY vs. PEOPLE OF THE PHILIPPINES, G.R. No. 183879, April 14, 2010, where the sole issue was whether the accused should be held liable for Estafa penalized under Article 315, paragraph 2(a) of the Revised Penal Code (RPC), the Supreme Court held that:

(a)             There are three ways of committing estafa, viz.:

·        With unfaithfulness or abuse of confidence;
·        By means of false pretenses or fraudulent acts; or
·        Through fraudulent means.

(b)            The ways of committing estafa may be reduced to two, i.e.,

·        By means of abuse of confidence; or
·        By means of deceit.

(c)             The elements of estafa in general are the following:

·        That an accused defrauded another by abuse of confidence, or by means of deceit; and
·        That damage and prejudice capable of pecuniary estimation is caused the offended party or third person.

(d)            The act complained penalized by Article 315, paragraph 2(a) of the RPC is estafa committed by any person who shall “defraud another by false pretenses or fraudulent acts executed prior to or simultaneously with the commission of the fraud”.

It is committed by “using fictitious name, or by pretending to possess power, influence, qualifications, property, credit, agency, business or imaginary transactions, or by means of other similar deceits”.

(e)             The elements of estafa by means of deceit are the following, viz.:

·        That there must be a false pretense or fraudulent representation as to his power, influence, qualifications, property, credit, agency, business or imaginary transactions;


·        That such false pretense or fraudulent representation was made or executed prior to or simultaneously with the commission of the fraud;

·        That the offended party relied on the false pretense, fraudulent act, or fraudulent means and was induced to part with his money or property; and

·        That, as a result thereof, the offended party suffered damage.

24.                       Nothing in the Record proves that the herein Respondent committed any of the essential elements of Estafa as defined by the Revised Penal Code.

25.                       The claim of the Complainant is purely CIVIL IN NATURE, if at all the Respondent owes it anything.


MISUNDERTANDING AND LACK OF EFFECTIVE COMMUNICATION BETWEEN THE PARTIES AND THE ABSENCE OF FORMAL EXTERNAL AUDIT AND RECONCILIATION OF ACCOUNTS BETWEEN THE PARTIES.

25.1.     It appears that the financial claim of the Complainant arose from a mere MISUNDERSTANDING and failure of the parties to conduct a prior formal EXTERNAL AUDIT and prior formal RECONCILIATION OF ACCOUNTS.



CIVIL LIABILITY ONLY,
IF AT ALL.

26.                       In the case of PEOPLE OF THE PHILIPPINES vs. RICA G. CUYUGANG.R. Nos. 146641-43, November 18, 2002, it was held, inter alia, that when an obligation“is civil in character and in the absence of fraud, no criminal liability under the Revised Penal Code arises from the mere issuance of postdated checks as a guarantee of repayment.” 

“x x x.

The transaction between appellant and the Abagat spouses, in our view, was one for a loan of money to be used by appellant in her business and she issued checks to guarantee the payment of the loan. As such, she has the obligation to make good the payment of the money borrowed by her. But such obligation is civil in character and in the absence of fraud, no criminal liability under the Revised Penal Code arises from the mere issuance of postdated checks as a guarantee of repayment. We find appellants allegation, that the Abagat spouses entered into ajoint venture agreement with her for the supply of materials with the AFP, is self-serving. But we also note that the trial court convicted appellant on a general allegation that all the elements of estafa under Article 315, 2 (d) of the Revised Penal Code had been proved by the prosecution without making any reference to or giving any proof of the actual fraud that appellant allegedly committed to make her liable for estafa. It is elementary that where an allegation in the information is an essential element of the crime, the same must be proved beyond reasonable doubt to sustain a conviction. In this case, the prosecution did not establish specifically and conclusively the fraud alleged as an element of the offenses charged.

X x x.”

 

THE CONCEPT OF FRAUD.

27.                      The case of ELVIRA LATEO y ELEAZAR, FRANCISCO ELCA y ARCAS, and BARTOLOME BALDEMOR y MADRIGAL vs.  PEOPLE OF THE PHILIPPINES,G.R. No. 161651, June 8, 2o11, defines FRAUD as follows:



“In Alcantara v. Court of Appeals, 462 Phil. 72, 88-89 (2003), this Court, citing People v. Balasa, G.R. Nos. 106357 & 108601-02, September 3, 1998, 295 SCRA 49. explained the meaning of fraud and deceitviz.:

[F]raud in its general sense is deemed to comprise anything calculated to deceive, including all acts, omissions, and concealment involving a breach of legal or equitable duty, trust, or confidence justly reposed, resulting in damage to another, or by which an undue and unconscientious advantage is taken of another. It is a generic term embracing all multifarious means which human ingenuity can device, and which are resorted to by one individual to secure an advantage over another by false suggestions or by suppression of truth and includes all surprise, trick, cunning,

dissembling and any unfair way by which another is cheated. And deceit is the false representation of a matter of fact whether by words or conduct, by false or misleading allegations, or by concealment of that which should have been disclosed which deceives or is intended to deceive another so that he shall act upon it to his legal injury.

X x x.



GOOD FAITH AS A DEFENSE
IN ESTAFA.

28.                       The case ofJOY LEE RECUERDO vs. PEOPLE OF THE PHILIPPINES, G.R. No. 168217, June 27, 2006, held that “there can be no estafa if the accused acted in good faith because good faith negates malice and deceit (People vs. Ojeda, G.R. Nos. 104238-58, June 3, 2004, 430 SCRA 436).” 

“x x x.

There can be no estafa if the accused acted in good faith because good faith negates malice and deceit (People vs. Ojeda, G.R. Nos. 104238-58, June 3, 2004, 430 SCRA 436). Good faith is an intangible and abstract quality with no technical meaning or statutory definition, and it encompasses, among other things, an honest belief, the absence of malice and the absence of design to defraud or to seek an unconscionable advantage.  X x x. It implies honesty of intention and freedom from knowledge of circumstances which ought to put the holder upon inquiry. The essence of good faith lies in an honest belief in the validity of ones right, ignorance of a superior claim, and absence of intention to overreach another (Philippine National Bank v. De Jesus, G.R. No. 149295, September 23, 2003, 411 SCRA 557, 561). In People v. Gulion,402 Phil. 653 (2001), the Court held that:

Good faith is a defense to a charge of Estafa by postdating a check. This may be manifested by the accused’s offering to make arrangements with his creditor as to the manner of payment or, as in the present case, averring that his placing his signature on the questioned checks was purely a result of his gullibility and inadvertence, with the unfortunate result that he himself became a victim of the trickery and manipulations of accused-at-large.

X x x.


MOTION TO REOPEN
THE PRELIMINARY INVESTIGATION.

29.                       The Respondent submits that the Preliminary Investigation of the instant case should RE-OPENED in the interest of truth and justice to enable her to present crucial exculpating supplemental evidence,which, if admitted by this Honorable Office , would result in the dismissal of the instant complaint against her.

30.                      The Respondent respectfully states that the lawyer who prepared her past pleading/s during the original preliminary investigation of this case failed, for reasons not explained to the Respondent, to present the crucial exculpating supplemental evidence herein being sought to be introduced by the Respondent.

31.The procedural error of said counsel was tantamount to gross negligence.

32.                       It exposed the Respondent to the fearsome possibility of a 20-year imprisonmentbased on an unfounded complaint.


THE GROSS NEGLIGENCE OF
FORMER COUNSEL WARRANTS THE REOPENING
OF THE CASE.

33.                                                                                                                                                                              The Respondent respectfully submits that the failure of  her former counsel to introduced in the past pleadings prepared by him the exculpating supplemental evidence that are now being sought by the Respondent in this pleading to be admitted by this Honorable Office constituted gross negligence resulting in a grave miscarriage of justice and in a grave violation of the fundamental constitutional rights of the Respondent:

(a)    the right to procedural and substantive due process    of law,
(b)    the right to equal protection of the law, and
(c)    the right to competent and independent counsel 

-- which warrant a RE-OPENING of the preliminary investigation of this case to enable the Respondent, in the interest of truth and justice, to present crucial exculpating supplemental evidence, with the assistance of her new counsel (LASERNA CUEVA-MERCADER LAW OFFICES, Las Pinas City) for purposes of filing this particular pleading with this Honorable Office.

34.                       The Respondent is aware of the jurisprudence that, as a general rule, “a client is bound by the mistakes of his counsel”.(Villa Rhecar Bus vs. Dela Cruz, No. L-78936, January 7, 1988, 157 SCRA 13). 

35.                       However, jurisprudence allows an exception, that is, “x x x when the negligence of the counsel is so gross, reckless and inexcusable that the client is deprived of his day in court”. 

36.                       In such instance, “the remedy is to reopen the case and allow the party who was denied his day in court to adduce evidence”. (Producers Bank of the Philippines vs. Court of Appeals, G.R. No. 126620, April 17, 2002, 381 SCRA 185, 192). 

37.                       In the case of CALLANGAN VS. PEOPLE, G.R. NO. 153414, June 27, 2006, it was held, inter alia, that “the rule that the negligence of counsel binds the client admits of exceptions, to wit:

(a)                         where reckless or gross negligence of counsel deprives the client of due process of law,
(b)                        when its application will result in outright deprivation of the client’s liberty or property or
(c)                         where the interests of justice so require.”


38.                        The aforecited case of CALANGAN further held:

“x x x.


However, in view of the circumstances of this case, outright deprivation of liberty will be the consequence of petitioner’s criminal conviction based solely on the evidence for the prosecution. Thus, to prevent a miscarriage of justice and to
give meaning to the due process clause of the Constitution, the Court deems it wise to allow petitioner to present evidence in her defense.

The rule that the negligence of counsel binds the client admits of exceptions. The recognized exceptions are: (1) where reckless or gross negligence of counsel deprives the client of due process of law, (2) when its application will result in outright deprivation of the client’s liberty or property or (3) where the interests of justice so require. In such cases, courts must step in and accord relief to a party-litigant.

The omissions of petitioner’s counsel amounted to an abandonment or total disregard of her case. They show conscious indifference to or utter disregard of the possible repercussions to his client. Thus, the chronic inaction of petitioner’s counsel on important incidents and stages of the criminal proceedings constituted gross negligence.  

X x x.

In criminal cases, the right of the accused to be assisted by counsel is immutable. Otherwise, there will be a grave denial of due process. The right to counsel proceeds from the fundamental principle of due process which basically means that a person must be heard before being condemned.

X x x.

Petitioner was accorded grossly insufficient legal assistance by a counsel who did not devote himself to the defense of her cause. Counsel’s utter lack of action after the prosecution rested its case revealed an extreme shortcoming on his part. Such inaction definitely proved infidelity to and abandonment of petitioner’s cause.

Considering that this case involved personal liberty, the gross negligence of counsel shocks our sense of justice. It should not be allowed to prejudice petitioner’s constitutional right to be heard. The Court’s pronouncement in Reyes v. Court of Appeals, applies strongly in this case:

The judicial conscience certainly cannot rest easy on a conviction based solely on the evidence of the prosecution just because the presentation of the defense evidence had been barred by technicality. Rigid application of rules must yield to the duty of courts to render justice where justice is due – to secure to every individual all possible legal means to prove his innocence of a crime with which he or she might be charged.

 Otherwise, the likelihood of convicting and punishing an innocent man and of inflicting a serious injustice on him becomes great.

X x x.

Therefore, in consonance with the demands of justice and to prevent any outright deprivation of liberty, the Court deems it best to give petitioner a chance to present evidence in her defense. The case should be remanded to the MTC for acceptance and appraisal of petitioner’s evidence.

Petitioner does not seek her exoneration but the opportunity to present evidence in her defense. Considering the gross negligence of her counsel on whom she reposed her trust to protect her rights, justice demands that she be given that chance.

In sum, it is better to allow petitioner another occasion to present her evidence than to let her conviction stand based solely on the evidence of the prosecution. In accordance with Rule 121, Section 6 of the Rules of Court, the evidence of the prosecution shall be understood preserved, subject to the right of the prosecution to supplement it and/or to rebut the evidence which petitioner may present.

X x x.”


39.                       Finally, by analogy, the Respondent hereby cites the spirit of Sec. 24, Rule 119 of the Rules of Criminal Procedure, which provides that:

“x x x (A)t any time before finality of the judgment of conviction, the judge may, motu proprio or upon motion, with hearing in either case, REOPEN the proceedings to avoid a MISCARRIAGE OF JUSTICE x x x x”.


THE PRESUMPTION OF INNOCENCE
OF THE RESPONDENT HAS NOT BEEN OVERTURNED.

40.                      The EQUIPOISE RULE provides that when there is equilibrium in the evidence presented by both sides, the CONSTITUTIONAL PRESUMPTIOM OF INNOCENCE should tilt the balance of the scale in favor of the acquittal of the accused, for, in such a situation, the offense has not been proven beyond reasonable doubt,which is the quantum of evidence required to convict an accused.

41.Suspicion alone is insufficient, the required quantum of evidence being proof beyond reasonable doubt. [People v. Gargar, 300 SCRA 542 (1998). [See also: En Banc, Justice Mendoza, THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. FIDEL ABRENICA CUBCUBIN, JR., accused-appellant, G.R. No. 136267.  July 10, 2001].

42.                       All Trial Courts and the various Offices of the Prosecutors under the Department of Justice should be guided by the principle that it would be better to set free ten men who might be probably guilty of the crime charged than to convict one innocent man for a crime he did not commit. [En Banc, Melo, People v. Tagudar [G.R. No. 130588. June 8, 2000].

COMPASSIONATE JUSTICE.

43.                     The Respondent is a senior citizen, turning 66 years old on May 2, 2016 (having been born on May 2, 1950).

44.                     The Respondent humbly invokes the sense of COMPASSIONATE JUSTICE of this Honorable Office to revisit its questioned Resolution, in the interest of compassionate justice.

45.                      By analogy, the Respondent hereby invokes the analogous spirit of the ruling of the Supreme Court in the case of PEOPLE OF THE PHILIPPINES vs. CORDENCIO CHATTO alias "DENDEN," SATURNINO DAGAYANON, AND SIX (6) OTHER JOHN DOES, CORDENCIO CHATTO, G.R. No. 102704, March 10, 1993, where it was held that  it is a basic rule in our criminal justice system that penal laws should be liberally construed in favor of the offender.  The said case stressed the doctrine of “compassionate liberality” in favor of  minors involved in serious crimes, which doctrine may be applied to senior citizens, too, such as the Respondent.

46.                     In aforecited case, the Supreme Court, considering the gravity of the offenses and in the interest of justice, “allowed the presentation of and admitted the birth certificates of the accused to prove the mitigating circumstance of minority although said birth certificates were not presented or offered in the trial court”.

47.                      The foregoing analogous decision of the Supreme Court should be applied to the herein Accused in the interest of compassionate natural justice and equity.


THE DUTY OF THE INVESTIGATING PROSECUTOR TO PROTECT AN INNOCENT RESPONDENT FROM THE PAIN, COSTS, AND TEDIOUSNESS OF A BASELESS CIRMINAL TRIAL.

48.                        When the Record clearly shows that there is no probable cause, the fair, just and proper action required by law of the investigating prosecutor is to dismiss the baseless harassment case.

49.                       In the case of JOSE BERNARDO vs. RAFAEL T. MENDOZA, G.R. No. L-37876, May  25, 1979, the Supreme Court held that although “prosecutors are endowed with ample powers in order that they may properly fulfill their assigned role in the administration of justice x x x, (it) should be realized, however, that when a man is haled to court on a criminal charge, it brings in its wake problems not only for the accused but for his family as well” and that “therefore, it behooves a prosecutor to weigh the evidence carefully and to deliberate thereon to determine the existence of a prima facie case before filing the information in court”, otherwise, it, held that, it “would be a dereliction of duty”.


50.                       In the case of SUSANA B. CABAHUG vs. PEOPLE OF THE PHILIPPINES, SANXXXNBAYAN, 3rd Division, and OFFICE OF THE SPECIAL PROSECUTOR, G.R. No. 132816, February 5, 2002,  the Supreme Court ”(admonished) agencies tasked with the preliminary investigation and prosecution of crimes that the very purpose of a preliminary investigation is to shield the innocent from precipitate, spiteful and burdensome prosecution”.

50.1.    It added that such investigating agencies were “duty-bound to avoid, unless absolutely necessary, open and public accusation of crime not only to spare the innocentthe trouble, expense and torment of a public trial, but also to prevent unnecessary expense on the part of the State for useless and expensive trials”.

50.2.   It held that “when at the outset the evidence cannot sustain a prima facie case or that the existence of probable cause to form a sufficient belief as to the guilt of the accused cannot be ascertained, the prosecution must desist from inflicting on any person the trauma of going through a trial”. Thus:

We cannot overemphasize the admonition to agencies tasked with the preliminary investigation and prosecution of crimes that the very purpose of a preliminary investigation is to shield the innocent from precipitate, spiteful and burdensome prosecution. They are duty-bound to avoid, unless absolutely necessary, open and public accusation of crime not only to

spare the innocent the trouble, expense and torment of a public trial, but also to prevent unnecessary expense on the part of the State for useless and expensive trials. Thus, when at the outset the evidence cannot sustain a prima facie case or that the existence of probable cause to form a sufficient belief as to the guilt of the accused cannot be ascertained, the prosecution must desist from inflicting on any person the trauma of going through a trial.



51.Further, in the aforecited case of Cabahug v. People, GR No. 132816, February 5, 2002, the Supreme Court held that “good faith is always presumed”. Thus:


 “X x x.

Contrary to the Ombudsman’s ruling that bad faith on the part of petitioner was deducible, good faith is always presumed. Therefore, he who charges another with bad faith must prove it. In other words, the Office of the Ombudsman should determine with certainty the facts indicative of bad faith. However, the records show that the Office of the Ombudsman was clearly uncertain of its position on the matter of existence of bad faith on the part of petitioner Cabahug. X x x.

X x x.

Clearly, any further prosecution of petitioner is pure and simple harassment. It is imperative that she be spared from the trauma of having to go to trial on such a baseless complaint. The evidence is insufficient to sustain a prima facie case and it is evident that no probable cause exists to form a sufficient belief as to the petitioner’s guilt.

X x x. Judicial power of review includes the determination of whether there was grave abuse of discretion amounting to lack or excess of jurisdiction on the part of any branch or instrumentality of the government. Under this definition, the Sanxxxnbayan should have, considering the divergent positions in the Office of the Ombudsman, granted the motion for redetermination of probable cause after reviewing the evidence thus far submitted, and dismissed the case against petitioner. Thus, respondent court committed grave abuse of discretion in allowing the case to proceed.

X x x.


THE TECHNICAL RULES OF EVIDENCE SHOULD BE LIBERALLY CONSTRUED DURING THE PRELIMINARY INVESTIGATION.
  
IT INCLUDES THE LIBERALITY IN THE ADMISSION OF ALL EXCULPATING SUPPLEMENTAL EVIDENCE FOR THE RESPONDENT, IN THE INTEREST OF TRUTH AND JUSTICE.


52.                      In the case of  WILFREDO M. TRINIDAD vs. OFFICE OF THE OMBUDSMAN THRU THE OMBUDSMAN SIMEON V. MARCELO AND DEPUTY OMBUDSMAN VICTOR C. FERNANDEZ, ASIA’S EMERGING DRAGON CORPORATION, AND THE SANXXXNBAYAN PEOPLE OF THE PHILIPPINES, En Banc, G.R. No. 166038, November 4, 2007, the Supreme Court, among other things, held that “at the preliminary investigation, determination of probable cause merely entails weighing of facts and circumstances, relying on the calculus of common sense, without resorting to the calibrations of technical rules of evidence.”  THUS:

 “x x x.

As for petitioner’s objection to the admissibility of documents culled from various proceedings like the legislative hearings before the Senate Blue Ribbon Committee and the arbitration proceedings before the International Chamber of Commerce (ICC) International Court of Arbitration in ICC Case No. 12610/TE/MW, it is premature to raise the same.

First, there is no showing from the above-quoted pertinent portion of its assailed Resolution that the Office of the Ombudsman relied on those documents in support of its findings.  At the preliminary investigation, determination of probable cause merely entails weighing of facts and circumstances, relying on the calculus of common sense, without resorting to the calibrations of technical rules of evidence.  It is not the proper forum to determine the alleged breach by the OSG of the rule on confidentiality of arbitration proceedings as provided under the ICC Internal Rules and Republic Act No. 9285 (Alternative Dispute Resolution Act of 2004).

X x x.


OBSERVING THE INTEREST OF
JUSTICE EVENHANDEDLY.

53.                       In the case of  VICENTE P. LADLAD, et. al. vs.  SENIOR STATE PROSECUTOR EMMANUEL Y. VELASCO, G.R. Nos. 172070-72,  June 1, 2007LIZA L. MAZA, et. al. vs. RAUL M. GONZALEZ, in his capacity as Secretary of the Department of Justice, G.R. Nos. 172074-76, June 1, 2007; CRISPIN B. BELTRAN vs. PEOPLE OF THE PHILIPPINES, et. al., G.R. No. 175013, June 1, 2007, the Supreme Court stressed the “basic and fundamental objective of observing the interest of justice
evenhandedly, without fear or favor to any and all litigants alike, whether rich or poor, weak or strong, powerless or mighty”.

“x x x.

The obvious involvement of political considerations in the actuations of respondent Secretary of Justice and respondent prosecutors brings to mind an observation we made in another equally politically charged case. We reiterate what we stated then, if only to emphasize the importance of maintaining the integrity of criminal prosecutions in general and preliminary investigations in particular, thus:

[W]e cannot emphasize too strongly that prosecutors should not allow, and should avoid, giving the impression that their noble office is being used or prostituted, wittingly or unwittingly, for political ends, or other purposes alien to, or subversive of, the basic and fundamental objective of observing the interest of justice evenhandedly, without fear or favor to any and all litigants alike, whether rich or poor, weak or strong, powerless or mighty. Only by strict adherence to the established procedure may be public’s perception of the impartiality of the prosecutor be enhanced.

X x x.


VIII.     RELIEF.

WHEREFORE, in the interest of truth and justice, it is respectfully prayed (a) that the questioned RESOLUTION, dated 18 December  2015, be RECONSIDERED and SET ASIDE; (b) that the Preliminary Investigation of the instant case be RE-OPENED for purposes of admitting the SUPPLEMENTAL EVIDENCE of the Respondent, as discussed above; and (c) upon termination of the re-opened preliminary investigation, a new Resolution be issued DISMISSING the instant complaint for lack of merit.

FURTHER, the Respondent respectfully prays for such and other reliefs as may be deemed just and equitable in the premises.

xxx City, February 19, 2016.


XXX
Respondent/Affiant
(Address)


          SUBSCRIBED and sworn to before me in xxx City on February 22, 2016.


                                                Administering Assistant City Prosecutor


Copy Furnished:

Atty. xxx
Counsel for Complainant
(Address)                                                   Reg. Rec. __________
                                                                    February 22, 2016
                                                                    xxx Post Office

XXX XXX         
Complainant                                              Reg. Rec. __________
(Address)                                                    February 22, 2016
                                                                     xxx Post Office


EXPLANATION

          Individual copies of this pleading are separately served on the adverse counsel and the complainant via registered mail, and not via personal service, due to the urgency of filing the same.


XXX
Respondent/Affiant





[1]See Par. 30 hereof, infra:

“30. The Respondent respectfully argues that the lawyer who prepared her past pleading/s during the original preliminary investigation of this case failed, for reasons not explained to the Respondent, to present the crucial exculpating supplemental evidence herein being sought to be introduced by the Respondent.”

The ways of committing estafa may be reduced to two, i.e., By means of abuse of confidence; or ·By means of deceit.

$
0
0

In the case of ROSITA SY vs. PEOPLE OF THE PHILIPPINES, G.R. No. 183879, April 14, 2010, where the sole issue was whether the accused should be held liable for Estafa penalized under Article 315, paragraph 2(a) of the Revised Penal Code (RPC), the Supreme Court held that:

(a)             There are three ways of committing estafa, viz.:

·        With unfaithfulness or abuse of confidence;
·        By means of false pretenses or fraudulent acts; or
·        Through fraudulent means.

(b)            The ways of committing estafa may be reduced to two, i.e.,

·        By means of abuse of confidence; or
·        By means of deceit.

(c)             The elements of estafa in general are the following:

·        That an accused defrauded another by abuse of confidence, or by means of deceit; and
·        That damage and prejudice capable of pecuniary estimation is caused the offended party or third person.

(d)            The act complained penalized by Article 315, paragraph 2(a) of the RPC is estafa committed by any person who shall “defraud another by false pretenses or fraudulent acts executed prior to or simultaneously with the commission of the fraud”.

It is committed by “using fictitious name, or by pretending to possess power, influence, qualifications, property, credit, agency, business or imaginary transactions, or by means of other similar deceits”.

(e)             The elements of estafa by means of deceit are the following, viz.:

·        That there must be a false pretense or fraudulent representation as to his power, influence, qualifications, property, credit, agency, business or imaginary transactions;


·        That such false pretense or fraudulent representation was made or executed prior to or simultaneously with the commission of the fraud;

·        That the offended party relied on the false pretense, fraudulent act, or fraudulent means and was induced to part with his money or property; and

·        That, as a result thereof, the offended party suffered damage.


Loan of money is civil in nature; no Estafa.

$
0
0

In the case of PEOPLE OF THE PHILIPPINES vs. RICA G. CUYUGANG.R. Nos. 146641-43, November 18, 2002, it was held, inter alia, that when an obligation“is civil in character and in the absence of fraud, no criminal liability under the Revised Penal Code arises from the mere issuance of postdated checks as a guarantee of repayment.” 

“x x x.

The transaction between appellant and the Abagat spouses, in our view, was one for a loan of money to be used by appellant in her business and she issued checks to guarantee the payment of the loan. As such, she has the obligation to make good the payment of the money borrowed by her. But such obligation is civil in character and in the absence of fraud, no criminal liability under the Revised Penal Code arises from the mere issuance of postdated checks as a guarantee of repayment. We find appellants allegation, that the Abagat spouses entered into ajoint venture agreement with her for the supply of materials with the AFP, is self-serving. But we also note that the trial court convicted appellant on a general allegation that all the elements of estafa under Article 315, 2 (d) of the Revised Penal Code had been proved by the prosecution without making any reference to or giving any proof of the actual fraud that appellant allegedly committed to make her liable for estafa. It is elementary that where an allegation in the information is an essential element of the crime, the same must be proved beyond reasonable doubt to sustain a conviction. In this case, the prosecution did not establish specifically and conclusively the fraud alleged as an element of the offenses charged.


X x x.”

Fraud

$
0
0

The case of ELVIRA LATEO y ELEAZAR, FRANCISCO ELCA y ARCAS, and BARTOLOME BALDEMOR y MADRIGALvs.  PEOPLE OF THE PHILIPPINES,G.R. No. 161651, June 8, 2o11, defines FRAUD as follows:



“In Alcantara v. Court of Appeals, 462 Phil. 72, 88-89 (2003), this Court, citing People v. Balasa, G.R. Nos. 106357 & 108601-02, September 3, 1998, 295 SCRA 49. explained the meaning of fraud and deceitviz.:

[F]raud in its general sense is deemed to comprise anything calculated to deceive, including all acts, omissions, and concealment involving a breach of legal or equitable duty, trust, or confidence justly reposed, resulting in damage to another, or by which an undue and unconscientious advantage is taken of another. It is a generic term embracing all multifarious means which human ingenuity can device, and which are resorted to by one individual to secure an advantage over another by false suggestions or by suppression of truth and includes all surprise, trick, cunning, dissembling and any unfair way by which another is cheated. And deceit is the false representation of a matter of fact whether by words or conduct, by false or misleading allegations, or by concealment of that which should have been disclosed which deceives or is intended to deceive another so that he shall act upon it to his legal injury.


X x x.”

Estafa; there can be no estafa if the accused acted in good faith because good faith negates malice and deceit

$
0
0


The case ofJOY LEE RECUERDO vs. PEOPLE OF THE PHILIPPINES, G.R. No. 168217, June 27, 2006, held that “there can be no estafa if the accused acted in good faith because good faith negates malice and deceit (People vs. Ojeda, G.R. Nos. 104238-58, June 3, 2004, 430 SCRA 436).” 

“x x x.

There can be no estafa if the accused acted in good faith because good faith negates malice and deceit (People vs. Ojeda, G.R. Nos. 104238-58, June 3, 2004, 430 SCRA 436). Good faith is an intangible and abstract quality with no technical meaning or statutory definition, and it encompasses, among other things, an honest belief, the absence of malice and the absence of design to defraud or to seek an unconscionable advantage.  X x x. It implies honesty of intention and freedom from knowledge of circumstances which ought to put the holder upon inquiry. The essence of good faith lies in an honest belief in the validity of ones right, ignorance of a superior claim, and absence of intention to overreach another (Philippine National Bank v. De Jesus, G.R. No. 149295, September 23, 2003, 411 SCRA 557, 561). In People v. Gulion,402 Phil. 653 (2001), the Court held that:

Good faith is a defense to a charge of Estafa by postdating a check. This may be manifested by the accused’s offering to make arrangements with his creditor as to the manner of payment or, as in the present case, averring that his placing his signature on the questioned checks was purely a result of his gullibility and inadvertence, with the unfortunate result that he himself became a victim of the trickery and manipulations of accused-at-large.


X x x.

THE GROSS NEGLIGENCE OF FORMER COUNSEL WARRANTS THE REOPENING OF THE CASE.

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"x x x.

The Respondent respectfully submits that the failure of  her former counsel to introduced in the past pleadings prepared by him the exculpating supplemental evidence that are now being sought by the Respondent in this pleading to be admitted by this Honorable Office constituted gross negligence resulting in a grave miscarriage of justice and in a grave violation of the fundamental constitutional rights of the Respondent:

(a)    the right to procedural and substantive due process    of law,
(b)    the right to equal protection of the law, and
(c)    the right to competent and independent counsel 

-- which warrant a RE-OPENING of the preliminary investigation of this case to enable the Respondent, in the interest of truth and justice, to present crucial exculpating supplemental evidence, with the assistance of her new counsel (LASERNA CUEVA-MERCADER LAW OFFICES, Las Pinas City) for purposes of filing this particular pleading with this Honorable Office.

The Respondent is aware of the jurisprudence that, as a general rule, “a client is bound by the mistakes of his counsel”.(Villa Rhecar Bus vs. Dela Cruz, No. L-78936, January 7, 1988, 157 SCRA 13). 

However, jurisprudence allows an exception, that is, “x x x when the negligence of the counsel is so gross, reckless and inexcusable that the client is deprived of his day in court”. 

In such instance, “the remedy is to reopen the case and allow the party who was denied his day in court to adduce evidence”. (Producers Bank of the Philippines vs. Court of Appeals, G.R. No. 126620, April 17, 2002, 381 SCRA 185, 192). 

In the case of CALLANGAN VS. PEOPLE, G.R. NO. 153414, June 27, 2006, it was held, inter alia, that “the rule that the negligence of counsel binds the client admits of exceptions, to wit:

(a)                         where reckless or gross negligence of counsel deprives the client of due process of law,
(b)                        when its application will result in outright deprivation of the client’s liberty or property or
(c)                         where the interests of justice so require.”


The aforecited case of CALANGAN further held:

“x x x.


However, in view of the circumstances of this case, outright deprivation of liberty will be the consequence of petitioner’s criminal conviction based solely on the evidence for the prosecution. Thus, to prevent a miscarriage of justice and to
give meaning to the due process clause of the Constitution, the Court deems it wise to allow petitioner to present evidence in her defense.

The rule that the negligence of counsel binds the client admits of exceptions. The recognized exceptions are: (1) where reckless or gross negligence of counsel deprives the client of due process of law, (2) when its application will result in outright deprivation of the client’s liberty or property or (3) where the interests of justice so require. In such cases, courts must step in and accord relief to a party-litigant.

The omissions of petitioner’s counsel amounted to an abandonment or total disregard of her case. They show conscious indifference to or utter disregard of the possible repercussions to his client. Thus, the chronic inaction of petitioner’s counsel on important incidents and stages of the criminal proceedings constituted gross negligence.  

X x x.

In criminal cases, the right of the accused to be assisted by counsel is immutable. Otherwise, there will be a grave denial of due process. The right to counsel proceeds from the fundamental principle of due process which basically means that a person must be heard before being condemned.

X x x.

Petitioner was accorded grossly insufficient legal assistance by a counsel who did not devote himself to the defense of her cause. Counsel’s utter lack of action after the prosecution rested its case revealed an extreme shortcoming on his part. Such inaction definitely proved infidelity to and abandonment of petitioner’s cause.

Considering that this case involved personal liberty, the gross negligence of counsel shocks our sense of justice. It should not be allowed to prejudice petitioner’s constitutional right to be heard. The Court’s pronouncement in Reyes v. Court of Appeals, applies strongly in this case:

The judicial conscience certainly cannot rest easy on a conviction based solely on the evidence of the prosecution just because the presentation of the defense evidence had been barred by technicality. Rigid application of rules must yield to the duty of courts to render justice where justice is due – to secure to every individual all possible legal means to prove his innocence of a crime with which he or she might be charged.

 Otherwise, the likelihood of convicting and punishing an innocent man and of inflicting a serious injustice on him becomes great.

X x x.

Therefore, in consonance with the demands of justice and to prevent any outright deprivation of liberty, the Court deems it best to give petitioner a chance to present evidence in her defense. The case should be remanded to the MTC for acceptance and appraisal of petitioner’s evidence.

Petitioner does not seek her exoneration but the opportunity to present evidence in her defense. Considering the gross negligence of her counsel on whom she reposed her trust to protect her rights, justice demands that she be given that chance.

In sum, it is better to allow petitioner another occasion to present her evidence than to let her conviction stand based solely on the evidence of the prosecution. In accordance with Rule 121, Section 6 of the Rules of Court, the evidence of the prosecution shall be understood preserved, subject to the right of the prosecution to supplement it and/or to rebut the evidence which petitioner may present.

X x x.”


Finally, by analogy, the Respondent hereby cites the spirit of Sec. 24, Rule 119 of the Rules of Criminal Procedure, which provides that:

“x x x (A)t any time before finality of the judgment of conviction, the judge may, motu proprio or upon motion, with hearing in either case, REOPEN the proceedings to avoid a MISCARRIAGE OF JUSTICE x x x x”.

x x x."

THE PRESUMPTION OF INNOCENCE OF THE RESPONDENT HAS NOT BEEN OVERTURNED.

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1.    The EQUIPOISE RULE provides that when there is equilibrium in the evidence presented by both sides, the CONSTITUTIONAL PRESUMPTIOM OF INNOCENCE should tilt the balance of the scale in favor of the acquittal of the accused, for, in such a situation, the offense has not been proven beyond reasonable doubt,which is the quantum of evidence required to convict an accused.

2.    Suspicion alone is insufficient, the required quantum of evidence being proof beyond reasonable doubt. [People v. Gargar, 300 SCRA 542 (1998). [See also: En Banc, Justice Mendoza, THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. FIDEL ABRENICA CUBCUBIN, JR., accused-appellant, G.R. No. 136267.  July 10, 2001].


3.    All Trial Courts and the various Offices of the Prosecutors under the Department of Justice should be guided by the principle that it would be better to set free ten men who might be probably guilty of the crime charged than to convict one innocent man for a crime he did not commit. [En Banc, Melo, People v. Tagudar [G.R. No. 130588. June 8, 2000].

COMPASSIONATE JUSTICE.

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 "x x x.

1.     The Respondent is a senior citizen, turning 66 years old on May 2, 2016 (having been born on May 2, 1950).

2.   The Respondent humbly invokes the sense of COMPASSIONATE JUSTICE of this Honorable Office to revisit its questioned Resolution, in the interest of compassionate justice.

3.   By analogy, the Respondent hereby invokes the analogous spirit of the ruling of the Supreme Court in the case of PEOPLE OF THE PHILIPPINES vs. CORDENCIO CHATTO alias "DENDEN," SATURNINO DAGAYANON, AND SIX (6) OTHER JOHN DOES, CORDENCIO CHATTO, G.R. No. 102704, March 10, 1993, where it was held that  it is a basic rule in our criminal justice system that penal laws should be liberally construed in favor of the offender.  The said case stressed the doctrine of “compassionate liberality” in favor of  minors involved in serious crimes, which doctrine may be applied to senior citizens, too, such as the Respondent.

4.   In aforecited case, the Supreme Court, considering the gravity of the offenses and in the interest of justice, “allowed the presentation of and admitted the birth certificates of the accused to prove the mitigating circumstance of minority although said birth certificates were not presented or offered in the trial court”.

5.    The foregoing analogous decision of the Supreme Court should be applied to the herein Accused in the interest of compassionate natural justice and equity.


                                                                 x x x."

THE DUTY OF THE INVESTIGATING PROSECUTOR TO PROTECT AN INNOCENT RESPONDENT FROM THE PAIN, COSTS, AND TEDIOUSNESS OF A BASELESS CRIMINAL TRIAL.

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                                           "x x x.

1.       When the Record clearly shows that there is no probable cause, the fair, just and proper action required by law of the investigating prosecutor is to dismiss the baseless harassment case.

2.    In the case of JOSE BERNARDO vs. RAFAEL T. MENDOZA, G.R. No. L-37876, May  25, 1979, the Supreme Court held that although “prosecutors are endowed with ample powers in order that they may properly fulfill their assigned role in the administration of justice x x x, (it) should be realized, however, that when a man is haled to court on a criminal charge, it brings in its wake problems not only for the accused but for his family as well” and that “therefore, it behooves a prosecutor to weigh the evidence carefully and to deliberate thereon to determine the existence of a prima facie case before filing the information in court”, otherwise, it, held that, it “would be a dereliction of duty”.


3.    In the case of SUSANA B. CABAHUG vs. PEOPLE OF THE PHILIPPINES, SANXXXNBAYAN, 3rd Division, and OFFICE OF THE SPECIAL PROSECUTOR, G.R. No. 132816, February 5, 2002,  the Supreme Court ”(admonished) agencies tasked with the preliminary investigation and prosecution of crimes that the very purpose of a preliminary investigation is to shield the innocent from precipitate, spiteful and burdensome prosecution”.

3.1.          It added that such investigating agencies were “duty-bound to avoid, unless absolutely necessary, open and public accusation of crime not only to spare the innocentthe trouble, expense and torment of a public trial, but also to prevent unnecessary expense on the part of the State for useless and expensive trials”.

3.2.        It held that “when at the outset the evidence cannot sustain a prima facie case or that the existence of probable cause to form a sufficient belief as to the guilt of the accused cannot be ascertained, the prosecution must desist from inflicting on any person the trauma of going through a trial”. Thus:

We cannot overemphasize the admonition to agencies tasked with the preliminary investigation and prosecution of crimes that the very purpose of a preliminary investigation is to shield the innocent from precipitate, spiteful and burdensome prosecution. They are duty-bound to avoid, unless absolutely necessary, open and public accusation of crime not only to

spare the innocent the trouble, expense and torment of a public trial, but also to prevent unnecessary expense on the part of the State for useless and expensive trials. Thus, when at the outset the evidence cannot sustain a prima facie case or that the existence of probable cause to form a sufficient belief as to the guilt of the accused cannot be ascertained, the prosecution must desist from inflicting on any person the trauma of going through a trial.


4.    Further, in the aforecited case of Cabahug v. People, GR No. 132816, February 5, 2002, the Supreme Court held that “good faith is always presumed”. Thus:


 “X x x.

Contrary to the Ombudsman’s ruling that bad faith on the part of petitioner was deducible, good faith is always presumed. Therefore, he who charges another with bad faith must prove it. In other words, the Office of the Ombudsman should determine with certainty the facts indicative of bad faith. However, the records show that the Office of the Ombudsman was clearly uncertain of its position on the matter of existence of bad faith on the part of petitioner Cabahug. X x x.

X x x.

Clearly, any further prosecution of petitioner is pure and simple harassment. It is imperative that she be spared from the trauma of having to go to trial on such a baseless complaint. The evidence is insufficient to sustain a prima facie case and it is evident that no probable cause exists to form a sufficient belief as to the petitioner’s guilt.

X x x. Judicial power of review includes the determination of whether there was grave abuse of discretion amounting to lack or excess of jurisdiction on the part of any branch or instrumentality of the government. Under this definition, the Sanxxxnbayan should have, considering the divergent positions in the Office of the Ombudsman, granted the motion for redetermination of probable cause after reviewing the evidence thus far submitted, and dismissed the case against petitioner. Thus, respondent court committed grave abuse of discretion in allowing the case to proceed.


X x x.

THE TECHNICAL RULES OF EVIDENCE SHOULD BE LIBERALLY CONSTRUED DURING THE PRELIMINARY INVESTIGATION.

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In the case of  WILFREDO M. TRINIDAD vs. OFFICE OF THE OMBUDSMAN THRU THE OMBUDSMAN SIMEON V. MARCELO AND DEPUTY OMBUDSMAN VICTOR C. FERNANDEZ, ASIA’S EMERGING DRAGON CORPORATION, AND THE SANXXXNBAYAN PEOPLE OF THE PHILIPPINES, En Banc, G.R. No. 166038, November 4, 2007, the Supreme Court, among other things, held that “at the preliminary investigation, determination of probable cause merely entails weighing of facts and circumstances, relying on the calculus of common sense, without resorting to the calibrations of technical rules of evidence.”  THUS:

 “x x x.

As for petitioner’s objection to the admissibility of documents culled from various proceedings like the legislative hearings before the Senate Blue Ribbon Committee and the arbitration proceedings before the International Chamber of Commerce (ICC) International Court of Arbitration in ICC Case No. 12610/TE/MW, it is premature to raise the same.

First, there is no showing from the above-quoted pertinent portion of its assailed Resolution that the Office of the Ombudsman relied on those documents in support of its findings.  At the preliminary investigation, determination of probable cause merely entails weighing of facts and circumstances, relying on the calculus of common sense, without resorting to the calibrations of technical rules of evidence.  It is not the proper forum to determine the alleged breach by the OSG of the rule on confidentiality of arbitration proceedings as provided under the ICC Internal Rules and Republic Act No. 9285 (Alternative Dispute Resolution Act of 2004).

X x x.


OBSERVING THE INTEREST OF JUSTICE EVENHANDEDLY.

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1.      In the case of  VICENTE P. LADLAD, et. al. vs.  SENIOR STATE PROSECUTOR EMMANUEL Y. VELASCO, G.R. Nos. 172070-72,  June 1, 2007LIZA L. MAZA, et. al. vs. RAUL M. GONZALEZ, in his capacity as Secretary of the Department of Justice, G.R. Nos. 172074-76, June 1, 2007; CRISPIN B. BELTRAN vs. PEOPLE OF THE PHILIPPINES, et. al., G.R. No. 175013, June 1, 2007, the Supreme Court stressed the “basic and fundamental objective of observing the interest of justice evenhandedly, without fear or favor to any and all litigants alike, whether rich or poor, weak or strong, powerless or mighty”.

“x x x.

The obvious involvement of political considerations in the actuations of respondent Secretary of Justice and respondent prosecutors brings to mind an observation we made in another equally politically charged case. We reiterate what we stated then, if only to emphasize the importance of maintaining the integrity of criminal prosecutions in general and preliminary investigations in particular, thus:

[W]e cannot emphasize too strongly that prosecutors should not allow, and should avoid, giving the impression that their noble office is being used or prostituted, wittingly or unwittingly, for political ends, or other purposes alien to, or subversive of, the basic and fundamental objective of observing the interest of justice evenhandedly, without fear or favor to any and all litigants alike, whether rich or poor, weak or strong, powerless or mighty. Only by strict adherence to the established procedure may be public’s perception of the impartiality of the prosecutor be enhanced.


X x x.

Commotion in Caloocan court as lawyer acts vs ‘fake lawyer’ | Inquirer News

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"x x x.

A man claiming to have a 30-year experience in the law profession—and whose latest clients included a rape suspect—ended up in detention after a lawyer filed a complaint alleging that he was a fraud.

Joaquin Lorenzo Misa Jr. of Immaculate Concepcion, Cubao, Quezon City, was arrested by the Caloocan City police on Wednesday on a complaint from lawyer Roderick Manzano.

Chief Insp. Ilustre Mendoza, investigation chief of the Caloocan police, said Misa was arrested by the police officers who were on court duty at the Metropolitan Trial Court-Branch 84 at the North Caloocan Judicial Complex.

This was after Manzano presented a certification from the Office of the Bar Confidant of the Supreme Court saying Misa is not a member of the Integrated Bar of the Philippines, among other documents supporting his complaint, Mendoza said.

Manzano asked for police assistance in entrapping Misa, the officer added.

The 64-year-old Misa, who was in court that day as a defense counsel for rape suspect Jose Norilito Fruto, had a law office in Pasig City and claimed that he had been a lawyer for the last 30 years, said PO3 Rommel Bautista, the investigator on the case.

When accosted, Misa resisted arrest and caused a commotion. “What are you doing? Are you stupid? Why are you arresting me? I will sue all of you and have you dismissed. Don’t you know I’m a lawyer?” a police report on the incident quoted him as saying.

Misa was subjected to inquest proceedings on Thursday for falsification of public documents and resisting arrest. He remained in detention at the Caloocan police headquarters at press time.

x x x."



Art. 365, Rev. Penal Code - Imprudence and negligence

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REPUBLIC ACT NO. 1790 - AN ACT TO AMEND ARTICLE THREE HUNDRED AND SIXTY-FIVE OF THE REVISED PENAL CODE 
(RE: PENALTY FOR RECKLESS IMPRUDENCE) 

Section 1. Article three hundred and sixty-five of the Revised Penal Code is hereby amended, to read as follows: 

"Art. 365. Imprudence and negligence. — Any person who, by reckless imprudence, shall commit any act which, had it been intentional, would constitute a grave felony, shall suffer the penalty of arresto mayor in its maximum period to prision correccional in its medium period; if it would have constituted a less grave felony, the penalty of arresto mayor in its minimum and medium periods shall be imposed; if it would have constituted a light felony, the penalty of arresto menor in its maximum periodical shall be imposed. 

"Any person who, by simple imprudence or negligence, shall commit an act which would otherwise constitute a grave felony, shall suffer the penalty of arresto mayor in its medium and maximum periods; if it would have constituted a less serious felony, the penalty of arresto mayor in its minimum period shall be imposed. 

"When the execution of the act covered by this article shall have only resulted in damage to the property of another, the offender shall be punished by a fine ranging from an amount equal to the value of said damages to three times such value, but which shall in no case be less than twenty-five pesos. 

"A fine not exceeding two-hundred pesos and censure shall be imposed upon any person who, by simple imprudence or negligence, shall cause some wrong which, if done maliciously, would have constituted a light felony. 

"In the imposition of these penalties, the courts shall exercise their sound discretion, without regard to the rules prescribed in article sixty-four. 

"The provisions contained in this article shall not be applicable: 

"1. When the penalty provided for the offense is equal to or lower than those provided in the first two paragraphs of this article, in which case the courts shall impose the penalty next lower in degree than that which should be imposed in the period which they may deem proper to apply. 

"2. When, by imprudence or negligence and with violations of the Automobile Law, the death of a person shall be caused, in which case the defendant shall be punished by prision correccional in its medium and maximum periods. 

"Reckless imprudence consists in voluntarily, but without malice, doing or failing to do an act from which material damage results by reason of inexcusable lack of precaution on the part of the person performing or failing to perform such act, taking into consideration his employment or occupation, degree of intelligence, physical condition and other circumstances regarding persons, time and place. 

"Simple imprudence consists in the lack of precaution displayed in those cases in which the damage impending to be caused is not immediate nor the danger clearly manifest. 

"The penalty next higher in degree to those provided for in this article shall be imposed upon the offender who fails to lend on the spot to the injured parties such help as may be in his hands to give." 

Sec. 2. This Act shall take effect upon its approval. 

Approved: June 21, 1957 




Reckless imprudence; proximate cause; contributory negligence

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SABINIANO DUMAYAG vs. PEOPLE OF THE PHILIPPINES, G.R. No. 172778,  November 26, 2012

“x x x.

Reckless imprudence,as defined by our penal law, consists in voluntarily, but without malice, doing or failing to do an act from which material damage results by reason of inexcusable lack of precaution on the part of the person performing or failing to perform such act, taking into consideration his employment or occupation, degree of intelligence, physical condition and other circumstances regarding persons, time and place.22 In order to establish a motorist’s liability for the negligent operation of a vehicle, it must be shown that there was a direct causal connection between such negligence and the injuries or damages complained of.23 Thus, to constitute the offense of reckless driving, the act must be something more than a mere negligence in the operation of a motor vehicle, and a willful and wanton disregard of the consequences is required.24

After going over the records of this case, the Court is unable to sustain the findings of fact and conclusion reached by the courts below. The totality of the evidence shows that the proximate cause of the collision was the reckless negligence of the tricycle driver, who hastily overtook another vehicle while approaching a blind curve, in violation of traffic laws.

Proximate causeis defined as that cause, which, in natural and continuous sequence, unbroken by any efficient intervening cause, produces the injury, and without which the result would not have occurred. And more comprehensively, the proximate legal cause is that acting first and producing the injury, either immediately or by setting other events in motion, all constituting a natural and continuous chain of events, each having a close causal connection with its immediate predecessor, the final event in the chain immediately effecting the injury as a natural and probable result of the cause which first acted, under such circumstances that the person responsible for the first event should, as an ordinary prudent and intelligent person, have reasonable ground to expect at the moment of his act or default that an injury to some person might probably result therefrom.25

The evidence indubitably shows that before the collision, the passenger bus was cruising along its rightful lane when the tricycle coming from the opposite direction suddenly swerved and encroached on its lane. The accident would not have happened had Genayas, the tricycle driver, stayed on his lane and did not recklessly try to overtake another vehicle while approaching a blind curve. Section 37 of R.A. No. 4136, as amended, mandates all motorists to drive and operate vehicles on the right side of the road or highway. When overtaking another, it should be made only if the highway is clearly visible and is free from oncoming vehicle. Overtaking while approaching a curve in the highway, where the driver’s view is obstructed, is not allowed.26 Corollarily, drivers of automobiles, when overtaking another vehicle, are charged with a high degree of care and diligence to avoid collision. The obligation rests upon him to see to it that vehicles coming from the opposite direction are not taken unaware by his presence on the side of the road upon which they have the right to pass.27

The MTC opined that the accident could have been avoided or damage or injuries could only be slight and manageable, if the speed of the passenger bus was commensurate with the demands of the circumstances and the condition of the road. The Court, however, cannot subscribe to the conclusion that petitioner was driving fast and without regard to the condition of the road at the time of the collision.

The testimony of Cagakit that the passenger bus was running fast at the time of the collision lacks probative value. The actual speed of the bus was not established because he merely stated that when the tricycle was trying to overtake the Mitsubishi pick-up, a fast moving vehicle hit it. Also, it was not indubitably shown that petitioner was driving at a speed beyond the rate allowed by law.28 In a similar case, Vallacar Transit, Inc. v. Catubig,29 the Court, in adopting the conclusion of the RTC, wrote:

Based on the evidence on record, it is crystal clear that the immediate and proximate cause of the collision is the reckless and negligent act of Quintin Catubig, Jr. and not because the Ceres Bus was running very fast. Even if Ceres Bus is running very fast on its lane, it could not have caused the collision if not for the fact that Quintin Catubig, Jr. tried to overtake a cargo truck and encroached on the lane traversed by the Ceres Bus while approaching a curve. As the driver of the motorcycle, Quintin Catubig, Jr. has not observed reasonable care and caution in driving his motorcycle which an ordinary prudent driver would have done under the circumstances. Recklessness on the part of Quintin Catubig, Jr. is evident when he tried to overtake a cargo truck while approaching a curve in Barangay Donggo-an, Bolisong, Manjuyod, Negros Oriental.

x x x.

Furthermore, it was undisputed that the tricycle was overloaded, with a total of eight (8) passengers (excluding the driver), which is a clear violation of traffic rules and regulation. It was likewise admitted by the owner of the tricycle, Beethoven Bernabe (Bernabe), that his driver violated the conditions specified in the tricycle franchise which prohibited all tricycles to travel along the national highway. In fact, he admitted that Genayas was only the alternate driver of his son and that he did not interview him anymore when he applied as a company driver because he was a neighbor and a nephew of his wife. For said reason, the award of damages to Bernabe by the courts below has no justifiable basis.
The immediate and proximate cause being the reckless and imprudent act of the tricycle driver, petitioner should be acquitted. Nevertheless, he is civilly liable. The rule is that an "acquittal of the accused, even if based on a finding that he is not guilty, does not carry with it the extinction of the civil liability based on quasi delict."30

Under the proven circumstances, there was contributory negligence on the part of petitioner. It is to be noted that there were two blind curves along the national highway. Having travelled along it for the past 20 years, he was aware of the blind curves and should have taken precaution in operating the passenger bus as it approached them. In the situation at hand, he did not exercise the necessary precaution. After negotiating the first curve, he claimed to have stepped on the accelerator pedal because his lane was clear. According to SPO2 Patalinghug, he found skid marks produced by the passenger bus. It could only mean that petitioner had slammed on the brake brought about by the sudden emergence of the tricycle in front of him. Notwithstanding, it was still short of reckless or criminal negligence as he was driving along his rightful lane.

Considering that the proximate cause was the negligence of the tricycle driver and that negligence on the part of petitioner was only contributory, there is a need to mitigate the amounts of the civil liability imposed on the latter. The determination of the mitigation of the civil liability varies depending on the circumstances of each case.31 The Court allowed the reduction of 50% in Rakes v. Atlantic Gulf & Pacific Co.,32 20% in Phoenix Construction, Inc. v. IAC33 and LBC Air Cargo, Inc. v. CA, 34 and 40% in Bank of the Philippine Islands v. CA 35 and Philippine Bank of Commerce v. CA.36

In this case, a reduction of 50% of the actual damages is deemed equitable considering that the negligence of the tricycle driver was the proximate cause of the accident and that of petitioner was merely contributory. Moreover, under the circumstances, petitioner cannot be made liable for moral and exemplary damages for lack of basis. The award of attorney's fees is not warranted either.

X x x.”


Footnotes
18 Section 41. Restrictions on overtaking and passing.
(a) The driver of a vehicle shall not drive to the left side of the center line of a highway in overtaking or passing another vehicle proceeding in the same direction, unless such left side is clearly visible, and is free of oncoming traffic for a sufficient distance ahead to permit such overtaking or passing to be made in safety.
(b) The driver of a vehicle shall not overtake or pass another vehicle proceeding in the same direction, when approaching the crest of a grade, not upon a curve in the highway, where the driver's view along the highway is obstructed within a distance of five hundred feet ahead, except on a highway having two or more lanes for movement of traffic in one direction where the driver of a vehicle may overtake or pass another vehicle: Provided, That on a highway within a business or residential district, having two or more lanes for movement of traffic in one direction, the driver of a vehicle may overtake or pass another vehicle on the right.
20 Lambert v. Heirs of Ray Castillon, 492 Phil. 384, 389 (2005).
21 Estacion v. Bernardo, 518 Phil. 388, 398-399 (2006).
22 Art. 365, Revised Penal Code.
23 Gaid v. People, G.R. No. 171636, April 7, 2009, 584 SCRA 489, 498-499.
24 Caminos, Jr. v. People, G.R. No. 147437, May 8, 2009, 587 SCRA 348, 357.
25 Vallacar Transit v. Catubig, G.R. No. 175512, May 30, 2011, 649 SCRA 281, 295-296.
26 Section 41 (a) (b) of Republic Act No. 4136.
27 United States v. Crame, Separate Opinion, 30 Phil. 2, 21-22 (1915).
28 Republic Act No. 4136, Section 35. Restriction as to speed. -
(a) Any person driving a motor vehicle on a highway shall drive the same at a careful and prudent speed, not greater nor less than is reasonable and proper, having due regard for the traffic, the width of the highway, and of any other condition then and there existing; and no person shall drive any motor vehicle upon a highway at such a speed as to endanger the life, limb and property of any person, nor at a speed greater than will permit him to bring the vehicle to a stop within the assured clear distance ahead.
(b) Subject to the provisions of the preceding paragraph, the rate of speed of any motor vehicle shall not exceed the following:

MAXIMUM ALLOWABLE SPEEDS
Passengers
Cars and Motorcycle

Motor trucks and buses
1. On open country roads, with no
"blinds corners" not closely bordered by
habitations.
80 km. per hour
50 km. per hour
2. On "through streets" or boulevards,
clear of traffic, with no " blind corners,"
when so designated.
40 km. per hour
30 km. per hour
3. On city and municipal streets, with
light traffic, when not designated
"through streets".
30 km. per hour
30 km. per hour
4. Through crowded streets,
approaching intersections at "blind
corners," passing school zones, passing
other vehicles which are stationery, or
for similar dangerous circumstances.
20 km. per hour
20 km. per hour

30 Heirs of Late Guaring, Jr. v. Court of Appeals, 336 Phil. 274, 279 (1997).
31 Lambert v. Heirs of Ray Castillon, supra note 17, at 392.
32 7 Phil. 359 (1907).
33 232 Phil. 327 (1987).
34 311 Phil. 715 (1995).
35 G.R. No. 102383, November 26, 1992, 216 SCRA 51,
36 336 Phil. 667 (1997).


Contributory negligence

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SABINIANO DUMAYAG vs. PEOPLE OF THE PHILIPPINES, G.R. No. 172778,  November 26, 2012


“ x x x.

Under the proven circumstances, there was contributory negligence on the part of petitioner. It is to be noted that there were two blind curves along the national highway. Having travelled along it for the past 20 years, he was aware of the blind curves and should have taken precaution in operating the passenger bus as it approached them. In the situation at hand, he did not exercise the necessary precaution. After negotiating the first curve, he claimed to have stepped on the accelerator pedal because his lane was clear. According to SPO2 Patalinghug, he found skid marks produced by the passenger bus. It could only mean that petitioner had slammed on the brake brought about by the sudden emergence of the tricycle in front of him. Notwithstanding, it was still short of reckless or criminal negligence as he was driving along his rightful lane.

Considering that the proximate cause was the negligence of the tricycle driver and that negligence on the part of petitioner was only contributory, there is a need to mitigate the amounts of the civil liability imposed on the latter. The determination of the mitigation of the civil liability varies depending on the circumstances of each case.31 The Court allowed the reduction of 50% in Rakes v. Atlantic Gulf & Pacific Co.,32 20% in Phoenix Construction, Inc. v. IAC33 and LBC Air Cargo, Inc. v. CA, 34 and 40% in Bank of the Philippine Islands v. CA 35 and Philippine Bank of Commerce v. CA.36

In this case, a reduction of 50% of the actual damages is deemed equitable considering that the negligence of the tricycle driver was the proximate cause of the accident and that of petitioner was merely contributory. Moreover, under the circumstances, petitioner cannot be made liable for moral and exemplary damages for lack of basis. The award of attorney's fees is not warranted either.


X x x.”

Reckless imprudence; penalty when reckless imprudence in the use of a motor vehicle results in the death of a person

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ROGELIO J. GONZAGA vs. PEOPLE OF THE PHILIPPINES, G.R. No. 195671, January 21, 2015

“x x x.

Reckless imprudence, as defined in Article 36540 of the RPC, consists in voluntarily, but without malice, doing or failing to do an act from which material damage results by reason of inexcusable lack of precaution on the part of the person performing or failing to perform such act, taking into consideration his employment or occupation, degree of intelligence, physical condition and other circumstances regarding persons, time and place.

In order to establish a motorist’s liability for the negligent operation of a vehicle, 
it must be shown that there was a direct causal connection between such negligence and the injuries or damages complained of. To constitute the offense of reckless driving, the act must be something more than a mere negligence in the operation of a motor vehicle – a willful and wanton disregard of the consequences is required.41 Willful, wanton or reckless disregard for the safety of others within the meaning of reckless driving statutes has been held to involve a conscious choice of a course of action which injures another, either with knowledgeof serious danger to others involved, or with knowledge of facts which would disclose the danger to any reasonable person. Verily, it is the inexcusable lack of precaution or conscious indifference to the consequences of the conduct which supplies the criminal intent and brings an act of mere negligence and imprudence under the operation of the penal law, without regard to whether the private offended party may himself be considered likewise at fault.42

In the present case, the RTC and the CA uniformly found that Rogelio’s act of driving very fast on the wrong side of the road was the proximate cause of the collision, resulting to the death of Dionesio, Sr. and serious physical injuries to Dionesio, Jr. and Cherry. Notably, the road where the incident occurred was a curve sloping upwards towards Brgy. Bocboc where the Inguitos were bound and descending towards the opposite direction where Rogelio was going. Indeed, the very fact of speeding, under such circumstances, is indicative of imprudent behavior. As a motorist, Rogelio was bound to exercise ordinary care in such affair by driving at a reasonable rate of speed commensurate with the conditions encountered, as this would enable him to keep the vehicle under control and avoid injury to others using the highway.43 Moreover, it is elementary in traffic school that a driver slows down before negotiating a curve as it may be reasonably anticipated that another vehicle may appear from the opposite direction at any moment. Hence, excessive speed, combined with other circumstances such as the occurrence of the accident on or near a curve, as in this case, constitutes negligence.44 Consequently, the Court finds that Rogelio acted recklessly and imprudently in driving at a fast speed on the wrong side of the road while approaching the curve where the incident happened, thereby rendering him criminally liable, aswell as civilly accountable for the material damages resulting therefrom. Nonetheless, while the CA and the RTC concurred that the proximate cause of the collision was Rogelio’s reckless driving, the CA Decision made no mention as to the presence or absence of the limiting element in the last paragraph of Article 365 of the RPC, which imposes the penalty next higher in degreeupon the offender who "fails to lend on the spot to the injured parties such help as may be in his hands to give." Based on case law, the obligation under this paragraph: (a) is dependent on the means in the hands of the offender, i.e., the type and degree of assistance that he/she, at the time and place of the incident, is capable of giving; and (b) requires adequate proof.45

X x x.

Under Article 365 of the RPC, when reckless imprudence in the use of a motor vehicle results in the death of a person, as in this case, the accused shall be punished with the penalty of prision correccional in its medium and maximum periods, i.e., two (2) years, four (4) months and one (1) day to six (6) years. Applying the Indeterminate Sentence Law,51 the minimum of said penalty should be taken from arresto mayor in its maximum period to prision correccional in its minimum period, or four (4) months and one (1) day to two (2) years and four (4) months. Consequently, the Court finds a need to modify the penalty to be imposed on Rogelio and thus, sentences him to suffer an indeterminate penalty of two (2) years of prision correccional in its minimum, as minimum, to six years of prision correccional in its maximum, as maximum.

X x x.”



Footnotes
40 Art. 365. Imprudence and negligence.— Any person who, by reckless imprudence, shall commit any act which, had it been intentional, would constitute a grave felony, shall suffer the penalty of arresto mayorin its maximum period to prision correccional in its medium period; if it would have constituted a less grave felony, the penalty of arresto mayorin its minimum and medium periods shall be imposed; if it would have constituted a light felony, the penalty of arresto menorin its maximum period shall be imposed.

Any person who, by simple imprudence or negligence, shall commit an act which would, otherwise, constitute a grave felony, shall suffer the penalty of arresto mayorin its medium and maximum periods; if it would have constituted a less serious felony, the penalty of arresto mayor in its minimum period shall be imposed.
When the execution of the act covered by this article shall have only resulted in damage to the property of another, the offender shall be punished by a fine ranging from an amount equal to the value of said damages to three times such value, but which shall in no case be less than 25 pesos.
A fine not exceeding two hundred pesos and censure shall be imposed upon any person who, by simple imprudence or negligence, shall cause some wrong which, if done maliciously, would have constituted a light felony.

In the imposition of these penalties, the court shall exercise their sound discretion, without regard to the rules prescribed in Article 64.

The provisions contained in this article shall not be applicable:

1. When the penalty provided for the offense is equal to or lower than those provided in the first two paragraphs of this article, in which case the court shall impose the penalty next lower in degree than that which should be imposed, in the period which they may deem proper to apply.

2. When, by imprudence or negligence and with violation of the Automobile Law [Act No. 3992 entitled "An Act to Amend and Compile the Laws Relative to Motor Vehicles"], the death of a person shall be caused, in which case the defendant shall be punished by prision correccional in its medium and maximum periods.

Reckless imprudence consists in voluntarily, but without malice, doing or failing to do an act from which material damage results by reason of inexcusable lack of precaution on the part of the person performing or failing to perform such act, taking into consideration his employment or occupation, degree of intelligence, physical conditions and other circumstances regarding persons, time and place.

Simple imprudence consists in the lack of precaution displayed in those cases in which the damage impending to be caused is not immediate nor the danger clearly manifest.
The penalty next higher in degree to those provided for in this article shall be imposed upon the offender who fails to lend on the spot to the injured parties such help as may be in his hands to give. (Emphases supplied)

41 Dumayag v. People, G.R. No. 172778, November 26, 2012, 686 SCRA 347, 359.
42 Caminos,Jr. v. People, 605 Phil. 422, 434-435 (2009).
43 Id. at 437.
44 Gabriel v. CA, 483 Phil. 142, 157-158 (2004).
45 Abueva v. People, 438 Phil. 610, 623-624 (2002).
50 Art. 263. Serious physical injuries. — Any person who shall wound, beat, or assault another, shall be guilty of the crime of serious physical injuries and shall suffer:

1. The penalty of prision mayor, if in consequence of the physical injuries inflicted, the injured person shall become insane, imbecile, impotent, or blind;

2. The penalty of prision correccional in its medium and maximum period, if in consequence of the physical injuries inflicted, the person injured shall have lost the use of speech or the power to hear or to smell, or shall have lost an eye, a hand, a foot, an arm, or a leg, or shall have lost the use of any such member, or shall have become incapacitated for the work in which he was theretofore habitually engaged;

3. The penalty of prision correccional in its minimum and medium periods, if in consequence of the physical injuries inflicted, the person injured shall have become deformed, or shall have lost any other part of his body, or shall have lost the use thereof, or shall have been ill or incapacitated for the performance of the work in which he as habitually engaged for a period of more than ninety days;

4. The penalty of arresto mayor in its maximum period to prision correccional in its minimum period, if the physical injuries inflicted shall have caused the illness or incapacity for labor of the injured person for more than thirty days.

If the offense shall have been committed against any of the persons enumerated in Article 246, or with attendance of any of the circumstances mentioned in Article 248, the case covered by subdivision number 1 of this Article shall be punished by reclusion temporalin its medium and maximum periods; the case covered by subdivision number 2 by prision correccional in its maximum period to prision mayor in its minimum period; the case covered by subdivision number 3 by prision correccional in its medium and maximum periods; and the case covered by subdivision number 4 by prision correccional in its minimum and medium periods.

The provisions of the preceding paragraph shall not be applicable to a parent who shall inflict physical injuries upon his child by excessive chastisement.

51 Pertinently, Section 1 of the Indeterminate Sentence Law which provides:

Section 1. Hereafter, in imposing a prison sentence for an offense punished by the Revised Penal Code, or its amendments, the court shall sentence the accused to an indeterminate sentence the maximum term of which shall be that which, in view of the attending circumstances, could be properly imposed under the rules of the said Code, and the minimum shall be within the range of the penalty next lower to that prescribed by the Code for the offense; and if the offense is punished by any other law, the court shall sentence the accused to an indeterminate sentence, the maximum term of which shall not exceed the maximum fixed by said law and the minimum shall not be less than the minimum term prescribed by the same.

52 See Articles 2217 to 2220 of the Civil Code.
53 People v. Berondo, Jr., 601 Phil. 538, 546 (2009); citing People v. Whisenhunt, 420 Phil. 677, 701 (2001).
54 See People of the Philippines v. Torres, G.R. No. 189850, September 22, 2014.


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