REPUBLIC OF THE PHILIPPINES

DEPARTMENT OF JUSTICE

OFFICE OF THE CITY PROSECUTOR

X x x CITY

X x x,

Complainants,

IS No. x x x

- versus

Estafa

X x x,

Respondents.

x----------------------------x

JOINT COUNTER-AFFIDAVIT

OF THE RESPONDENTS X x x

THE UNDERSIGNED RESPONDENTS respectfully state:

1. ADMISSIONS AND DENIALS.

X x x. (omitted)

2. DISCUSSION

2.1. The relevant provisions of the Revised Penal Code on estafa

(deceit/swindling) are as follows:

Article 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. In such case, and in connection with the accessory
penalties which may be imposed and for the purpose of other the provisions of this
Code, the penalty shall be termed prision mayor or reclusion temporal, as the case
may be.

2nd. The penalty of prision correccional in its minimum and medium periods, if the
amount of the fraud is over 6,000 pesos but does not exceed 12,000 pesos;

3rd. The penalty of arresto mayor in its maximum period to prision correccional in
its minimum period, if such amount is over 200 pesos but does not exceed 6,000
pesos; and
4th. By arresto mayor in its medium and maximum periods, if such amount does not
exceed 200 pesos, 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) By altering the substance, quantity, or quality of anything of value which the
offender shall deliver by virtue of an obligation to do so, even though such
obligation be based on an immoral or illegal consideration.

(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) By taking undue advantage of the signature of the offended party in blank, and
by writing any document above such signature in blank, to the prejudice of the
offended party or of any third person.

2. By means of any of the following false pretenses or fraudulent acts executed 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.

(b) By altering the quality, fineness or weight of anything pertaining to his art or
business.

(c) By pretending to have bribed any Government employee, without prejudice to

the action for calumny which the offended party may deem proper to bring against
the offender. In this case, the offender shall be punished by the maximum period of
the penalty.

(d) By post-dating a check, or issuing a check in payment of an obligation when the

offender had no funds in the bank, or his funds deposited therein were not sufficient
to cover the amount of check. The failure of the drawer of the check to deposit the
amount necessary to cover his check within three (3) days from receipt of notice
from the bank and/or the payee or holder that said check has been dishonored for
lack of insufficiency of funds shall be prima facie evidence of deceit constituting
false pretense or fraudulent act. (As amended by Republic Act No. 4885, approved
June 17, 1967.)

(e) By obtaining any food, refreshment or accommodation at a hotel, inn,

restaurant, boarding house, lodging house, or apartment house and the like without
paying therefor, with intent to defraud the proprietor or manager thereof, or by
obtaining credit at a hotel, inn, restaurant, boarding house, lodging house, or
apartment house by the use of any false pretense, or by abandoning or
surreptitiously removing any part of his baggage from a hotel, inn, restaurant,
boarding house, lodging house or apartment house after obtaining credit, food,
refreshment or accommodation therein without paying for his food, refreshment or
accommodation. (As amended by Com. Act No. 157.)

3. Through any of the following fraudulent means:

(a) By inducing another, by means of deceit, to sign any document.

(b) By resorting to some fraudulent practice to insure success in a gambling game.

(c) By removing, concealing or destroying, in whole or in part, any court record,

office files, document or any other papers.

X x x.
2.2. In the case of DIONISIO AW a.k.a. TONY GO vs. PEOPLE OF THE
PHILIPPINES, GR No. 182276, March 29, 2010, the elements of Estafa were
discussed by the Supreme Court, thus:

Xxx.

The elements of Estafa under Article 315, Paragraph 1(B) of the Revised Penal Code
are:

(a) that money, goods or other personal property is 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.

(b) that there be misappropriation or conversion of such money or property by

the offender, or denial on his part of such receipt

(c) that such misappropriation or conversion or denial is to the prejudice of

another; and

(d) there is demand by the offended party to the offender.

The first element of Estafa under Article 315, Paragraph 1(B) is the receipt by the
offender of the money, goods, or other personal property 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.

X x x.
We next turn to the second element of Estafa under Article 315, Paragraph 1(B)
namely, prejudice and the third element, therein of misappropriation.

The essence of Estafa under Article 315, paragraph 1(b) is the appropriation or
conversion of money or property received to the prejudice of the owner. The words
convert and misappropriate connote an act of using or disposing of anothers
property as if it were ones own, or of devoting it to a purpose or use different from
that agreed upon. To misappropriate for ones own use includes not only conversion
to ones personal advantage, but also every attempt to dispose of the property of
another without right.

X x x.

2.3. In the case of ROSITA SY vs. PEOPLE OF THE PHILIPPINES, G.R. No.
183879, April 14, 2010 discussed the ways of committing the felony of estafa,
thus:

X x x.

The sole issue for resolution is whether Sy should be held liable for estafa, penalized
under Article 315, paragraph 2(a) of the Revised Penal Code (RPC).

Swindling or estafa is punishable under Article 315 of the RPC. There are three ways
of committing estafa, viz.: (1) with unfaithfulness or abuse of confidence; (2) by
means of false pretenses or fraudulent acts; or (3) through fraudulent means. The
three ways of committing estafa may be reduced to two, i.e., (1) by means of abuse
of confidence; or (2) by means of deceit.
The elements of estafa in general are the following: (a) that an accused defrauded
another by abuse of confidence, or by means of deceit; and (b) that damage and
prejudice capable of pecuniary estimation is caused the offended party or third
person.

The act complained of in the instant case is penalized under Article 315, paragraph
2(a) of the RPC, wherein estafa is 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.

The elements of estafa by means of deceit are the following, viz.: (a) that there
must be a false pretense or fraudulent representation as to his power, influence,
qualifications, property, credit, agency, business or imaginary transactions; (b) that
such false pretense or fraudulent representation was made or executed prior to or
simultaneously with the commission of the fraud; (c) 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 (d) that, as a result thereof, the offended party
suffered damage.

X x x.

2.4. In the case of FRANCISCO R. LLAMAS and CARMELITA C. LLAMAS vs.

THE HONORABLE COURT OF APPEALS, BRANCH 66 OF THE REGIONAL TRIAL
COURT OF MAKATI CITY and THE PEOPLE OF THE PHILIPPINES, GR No.
149588, August 16, 2010, it was held, among other things, that DAMAGE is an
element of estafa, thus:

X x x.

Article 316 (2) of the Revised Penal Code states:

ART. 316. Other forms of swindling. The penalty of arresto mayor in its minimum
and medium periods and a fine of not less than the value of the damage caused and
not more than three times such value, shall be imposed upon:

xxx

2. Any person who, knowing that real property is encumbered, shall dispose of the
same, although such encumbrance be not recorded;

xxx

In every criminal prosecution, the State must prove beyond reasonable doubt all the
elements of the crime charged and the complicity or participation of the accused.

For petitioners to be convicted of the crime of swindling under Article 316 (2) of the
Revised Penal Code, the prosecution had the burden to prove the confluence of the
following essential elements of the crime:

1. that the thing disposed of be real property;

2. that the offender knew that the real property was encumbered,

whether the encumbrance is recorded or not;

3. that there must be express representation by the offender that the real property
is free from encumbrance; and

4. that the act of disposing of the real property be made to the damage of another.
One of the essential elements of swindling under Article 316, paragraph 2, is that
the act of disposing the encumbered real property is made to the damage of
another. In this case, neither the trial court nor the CA made any finding of any
damage to the offended party. Nowhere in the Decision of the RTC or that of the CA
is there any discussion that there was damage suffered by complainant Avila, or any
finding that his rights over the property were prejudiced.

On the contrary, complainant had possession and control of the land even as the
cases were being heard. His possession and right to exercise dominion over the
property was not disturbed. Admittedly, there was delay in the delivery of the title.
This, however, was the subject of a separate case, which was eventually decided in
petitioners favor.

If no damage should result from the sale, no crime of estafa would have been
committed by the vendor, as the element of damage would then be lacking. The
inevitable conclusion, therefore, is that petitioners should be acquitted of the crime
charged.

X x x. (underscoring supplied)

2.5. There is no proof that the respondents intentionally, maliciously and

feloniously deceived the association. Respondents x x x and x xx signed the
questioned check as authorized bank signatories of the association.

(Note: Respondent x x x did not sign the check. He did not participate in the
questioned transactions in any manner).

2.5.1. There is no proof that the respondents damaged the association by using,
malversing or converting the questioned amount to their own personal use.

2.5.2. Respondents x x x and x x x simply transferred the amount to the name of

the new Cooperative IN GOOD FAITH in accord with the formal manifestation,
mandate, order, wish, and desire of the members of the association who had formed
a new Cooperative and who had mandated the association to transfer its funds,
assets, concessions, and contracts association to the new Cooperative.

2.5.3. GOOD FAITH is a defense in malum en se, such as estafa. This is too basic
and too elementary a doctrine that it does not require jurisprudential citations. At
any rate, the following cases are cited:

PEOPLE OF THE PHILIPPINES vs. CORA ABELLA OJEDA, G.R. Nos. 104238-
58, June 2004, on GOOD FIATH as a defense in estafa and mala en se.

X x x.

DECEIT AND DAMAGE AS ELEMENTS OF ESTAFA

Under paragraph 2 (d) of Article 315 of the RPC, as amended by RA 4885, the
elements of estafa are: (1) a check is postdated or issued in payment of an
obligation contracted at the time it is issued; (2) lack or insufficiency of funds to
cover the check; (3) damage to the payee thereof. Deceit and damage are
essential elements of the offense and must be established by satisfactory
proof to warrant conviction. Thus, the drawer of the dishonored check is given
three days from receipt of the notice of dishonor to cover the amount of the check.
Otherwise a prima facie presumption of deceit arises.

The prosecution failed to prove deceit in this case. The prima facie presumption of
deceit was successfully rebutted by appellants evidence of good faith, a defense
in estafa by postdating a check. Good faith may be demonstrated, for instance, by a
debtors offer to arrange a payment scheme with his creditor. In this case, the
debtor not only made arrangements for payment; as complainant herself
categorically stated, the debtor-appellant fully paid the entire amount of the
dishonored checks.
It must be noted that our Revised Penal Code was enacted to penalize unlawful acts
accompanied by evil intent denominated as crimes mala in se. The principal
consideration is the existence of malicious intent. There is a concurrence of
freedom, intelligence and intent which together make up the criminal mind behind
the criminal act. Thus, to constitute a crime, the act must, generally and in most
cases, be accompanied by a criminal intent. Actus non facit reum, nisi mens sit
rea. No crime is committed if the mind of the person performing the act
complained of is innocent. As we held in Tabuena vs. Sandiganbayan, 268 SCRA
332 [1997].:

The rule was reiterated in People v. Pacana, although this case involved falsification
of public documents and estafa:

Ordinarily, evil intent must unite with an unlawful act for there to be a
crime. Actus non facit reum, nisi mens sit rea. There can be no crime when the
criminal mind is wanting.

American jurisprudence echoes the same principle. It adheres to the view that
criminal intent in embezzlement is not based on technical mistakes as to the legal
effect of a transaction honestly entered into, and there can be no embezzlement if
the mind of the person doing the act is innocent or if there is no wrongful purpose.

X x x. (underscoring supplied).

By Analogy:

FRANCISCO M. LECAROZ and LENLIE LECAROZ, vs. SANDIGANBAYAN and

PEOPLE OF THE PHILIPPINES, G.R. No. 130872, March 25, 1999, re:
PRSUMPTION OF GOOD FAITH.

X x x.
The rule is that any mistake on a doubtful or difficult question of law may be the
basis of good faith. In Cabungcal v. Cordova, No. L-16934, 31 July, 1964, 11 SCRA
584, we affirmed the doctrine that an erroneous interpretation of the meaning of
the provisions of an ordinance by a city mayor does not amount to bad faith that
would entitle an aggrieved party to damages against that official. We reiterated this
principle in Mabutol v. Pascual which held that public officials may not be liable for
damages in the discharge of their official functions absent any bad faith. Sanders v.
Veridiano II expanded the concept by declaring that under the law on public officers,
acts done in the performance of official duty are protected by the presumption of
good faith.

X x x.

2.5.4. X x x.

2.5.5. X x x.

2.6. X x x.

2.7. In the case of PEOPLE OF THE PHILIPPINES vs. FELICIANO ANABE

y CAPILLAN, G.R. No. 179033 , September 6, 2010, where conspiracy was not
proved, the Supreme Court held, thus:

X x x. While conspiracy was alleged in the Informations, it was notestablished

during the trial.

Conspiracy as a basis for conviction must rest on nothing less than a moral
certainty. Considering the far-reaching consequences of a criminal conspiracy, the
same degree of proof necessary in establishing the crime is required to support the
attendance thereof, i.e., it must be shown to exist as clearly and convincingly as the
commission of the offense itself. While conspiracy need not be established by direct
evidence, it is nonetheless required that it be proved by clear and convincing
evidence by showing a series of acts done by each of the accused in concert and in
pursuance of the common unlawful purpose.

In the present case, there is want of evidence to show the concerted acts of
appellant, Conrada and Felicita (albeit already discharged) in pursuing a common
design to rob Uy. The prosecution in fact appears to have abandoned the theory
of conspiracy altogether, no evidence thereof having been presented. Absent proof
of conspiracy, appellant may only be held accountable for acts that are imputable to
him with moral certainty.

X x x.

2.8. IN THE CASE OF ROSIE QUIDET VS. PEOPLE OF THE PHILIPPINES,

G.R. NO. 170289, APRIL 8, 2010, IT WAS HELD, THUS:

Conspiracy must be proved as clearly and convincingly as the commission of the

offense itself for it is a facile device by which an accused may be ensnared and kept
within the penal fold. In case of reasonable doubt as to its existence, the balance
tips in favor of the milder form of criminal liability as what is at stake is the
accuseds liberty. We apply these principles in this case.

X x x.

Conspiracy exists when two or more persons come to an agreement concerning the
commission of a felony and decide to commit it. The essence of conspiracy is the
unity of action and purpose. Its elements, like the physical acts constituting the
crime itself, must be proved beyond reasonable doubt. When there is conspiracy,
the act of one is the act of all.
Conspiracy can be inferred from and established by the acts of the accused
themselves when said acts point to a joint purpose and design, concerted action
and community of interests. However, in determining whether conspiracy exists, it
is not sufficient that the attack be joint and simultaneous for simultaneousness does
not of itself demonstrate the concurrence of will or unity of action and purpose
which are the bases of the responsibility of the assailants. What is determinative is
proof establishing that the accused were animated by one and the same purpose.

X x x.

There is no question that "a person may be convicted for the criminal act of another
where, between them, there has been conspiracy or unity of purpose and intention
in the commission of the crime charged." It is, likewise, settled that "to establish
conspiracy, it is not necessary to prove previous agreement to commit a crime, if
there is proof that the malefactors have acted in consort and in pursuance of the
same objective." Nevertheless, "the evidence to prove the same must be positive
and

convincing. As a facile device by which an accused may be ensnared and kept

within the penal fold, conspiracy requires conclusive proof if we are to maintain in
full strength the substance of the time-honored principle in criminal law requiring
proof beyond reasonable doubt before conviction."

X x x.

Moreover, although the appellant and his co-accused acted with some degree of
simultaneity in attacking the deceased, nevertheless, the same is insufficient to
prove conspiracy. The rule is well-settled that "simultaneousness does not of itself
demonstrate the concurrence of will nor the unity of action and purpose which are
the basis of the responsibility of two or more individuals." To establish common
responsibility it is not sufficient that the attack be joint and simultaneous; it is
necessary that the assailants be animated by one and the same purpose. In the
case at bar, the appellant Raymundo Vistido and the accused Pepito Montao, did
not act pursuant to the same objective. Thus, the purpose of the latter was to kill as
shown by the fact that he inflicted a mortal wound below the abdomen of the
deceased which caused his death. On the other hand, the act of the appellant in
giving the deceased one fist blow after the latter was stabbed by the accused Pepito
Montao an act which is certainly unnecessary and not indispensable for the
consummation of the criminal assault does not indicate a purpose to kill the
deceased, but merely to "show off" or express his sympathy or feeling of
camaraderie with the accused Pepito Montao. Thus, in People vs. Portugueza, this
Court held that:

X x x.

By and large, the evidence for the prosecution failed to show the existence of
conspiracy which, according to the settled rule, must be shown to exist as clearly
and convincingly as the crime itself. In the absence of conspiracy, the liability of the
defendants is separate and individual, each is liable for his own acts, the damage
caused thereby, and the consequences thereof. While the evidence shows that the
appellant boxed the deceased, it is, however, silent as to the extent of the injuries,
in which case, the appellant should be held liable only for slight physical injuries.

We reach the same conclusion here. For failure of the prosecution to prove
conspiracy beyond reasonable doubt, petitioners liability is separate and individual.
X x x.

2.9. X x x..

2.10. The respondents reserve the right to file a SUPPLEMENTAL AFFIDAVIT x x x.

2.11. The respondents reserve the right to file a REJOINDER-AFFIDAVIT.

PRAYER

WHEREFORE, premises considered, it is respectfully prayed that the instant

criminal complaint be DISMISSED for lack of merit.
Further, the respondents respectfully pray for such and other reliefs as may be
deemed just and equitable in the premises.

X x x City, x x x.

Xxx xxx

Respondent Respondent

Xxx

Respondent

SUBSCRIBED and sworn to before me on x x x in x x x City.

Assistant City Prosecutor