Patrick Swayze,: Joint Counter-Affidavit of Respondents

REPUBLIC OF THE PHILIPPINES
Department of Justice
Office of the City Prosecutor
Municipality of Panglao
PATRICK SWAYZE,
Complainant,
-versus- IS No. 0021

For: Estafa by Means of
EMMA WATSON, Abuse of Confidence under
GRETA BARRETO, Art. 315(1)(b) of the RPC
SHAYLA KUMAR and
WAYNE YU,
Respondents.
X————————————————x
JOINT COUNTER-AFFIDAVIT OF RESPONDENTS
We, EMMA WATSON, GRETA BARRETO, SHAYLA KUMAR,

and WAYNE YU, all of legal age, single and residents of 441ABC
Street, Brgy. Kamya, Tagbilaran City, Bohol, after being sworn to in
accordance with law, do hereby depose and state that:
1. We are the respondents in the above-captioned proceeding,

initiated through a Complaint-Affidavit by a certain Patrick
Swayze with the Prosecutor’s office dated March 27, 2020.
2. We vehemently deny the Formal Charges against us for such

Complaint-Affidavit has no basis in law and in fact;
3. The herein Respondents categorically states that they have no

obligation to remit the revenues/profits to the Complainant.
4. The truth of the matter herein this case, is that, Respondents are
the incorporators of Hayahay Beach Resort Corporation,
conducting business in Alona Beach Resort Panglao, Bohol.
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5. That Emma Watsons, first met Complainant in 1999 where the
Emma offered the latter to invest for the development of a
beach front-property located in Panglao.
6. Complainant agreed to invest to the said proposal and

incorporated Hayahay Beach Resort Corporation together with
the Respondents.
7. Complainant, in addition to his paid-up capital, also paid for all

the expenses for the construction the Hayahay Beach Resort
and all the equipment and the facilities of the dive center;
8. There was no agreement made orally or in writing that the

complainant would receive all profits derived from the
business.
9. The profits that the Complainant received on December to

March 2018 were actually the dividends declared and paid by
Hayahay Beach Resort.
10. We therefore deny subparagraph 8 of Paragraph 3 which states

that “ There was agreement with Emma and the other
incorporators of the Corporation that since revenues and profits
from the dive center would totally redound to me since I
purchased all the equipment and the facilities of the dive center
using my personal funds” for such has no factual basis.
11.Estafa through misappropriation is defined and penalized

under Article 315(1)(b) of the Revised Penal Code, which states
that:
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 correccionalin its maximum

period to prision mayorin 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
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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 under the provisions
of this Code, the penalty shall be termed prision mayor
orreclusion temporal, as the case may be.
xxxx
1. With unfaithfulness or abuse of confidence, namely:
xxxx
(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.
12. In the case of DIONISIO AW vs. PEOPLE OF THE

PHILIPPINES, GR No. 182276, March 29, 2010, the elements of
Estafa were discussed by the Supreme Court:
a. That the money, good 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. That there is demand by the offended party to the

offender.
13.The first element of Estafa under Article 315, Paragraph 1(B) is

the receipt by the offender of the money, goods, or other
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personal property in rust or on commission, or administration,
or under any other obligation involving the duty to make
delivery of or to return the same.
14. Here, respondents and the complainants never made an

agreement orally or in writing that complainant would be
entitled to all the profits from their business. And their was no
agreement that it would likewise be remitted to the
complainant.
15. To continue complainant never presented any proof of

evidence that would show that there exist an obligation on the
part of the respondents to to make delivery of or to return any
profit to the complainant.
16.In Tria vs Peopl, the Supreme Court defined “convert” and

“misappropriate” as the act of using or disposing of another's
property as if it were one's own, or of devoting it to a purpose
or use different from that agreed upon. To misappropriate for
one's own use includes not only conversion to one's personal
advantage, but also every attempt to dispose of the property of
another without right. In proving the element of conversion or
misappropriation, a legal presumption of misappropriation
arises when the accused fails to deliver the proceeds of the sale
or to return the items to be sold and fails to give an account of
their whereabouts.
17. Thus, to convert or to misappropriate requires that the accused

used or disposed the property as if it were his own or devoted
the same to an entirely different purpose than that agreed
upon.
18. Clearly the complainant failed to prove that existence of the

first element as the Respondents have no legal obligation to
remit the profits it derived from their business to the
complainant as no agreement was actually made.
19. Lastly, There is no damage to the Complainant because there is

no misappropriation or conversion to speak of.
20. From the foregoing, it is clear that a case for Estafa cannot
prosper. And so, Respondents, pray that this case be dismissed
for utter lack of basis, and all other equitable reliefs prayed for.
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IN WITNESS WHEREOF, we have hereunto set my hand on
April 2, 2020 in Brgy. Santan, Tagbilaran City, Bohol, Philippines.
EMMA WATSON
Affiant
Passport No. JJE9876
GRETA BARRETO
Affiant
Passport No. PPO12321
SHAYLA KUMAR
Affiant
Passport No. KKS12313
WAYNE YU
Affiant
Passport No. IIO99321
SUBSCRIBED AND SWORN to before me on the date and at

the place above stated, the foregoing affiant personally appearing
before me and personally identified through the above-indicated
competent evidence of identity.
ATTY. EUGENE A. SALVACION

Notary Public of Bohol
IBP No. 8723823-Lifetime Member
MCLE Compliance No. VI-009872
Appointment No. M-38-(2019-2020)
PTR No. 772323, Jan 4, 2019, Tagbilaran City
Roll of Attorneys Number 50002
EX Building, Santan St., Tagbilaran City, Bohol
Telephone Number: 231-98232/ 0917 9888232
Email Address: EDS123@gmail.com
5
6
Republic of the Philippines …)
City of Tagbilaran…….………)
AFFIANT’S OATH AND ATTESTATION
I, EMMA WATSON, Filipino, of legal capacity and competence

to comprehend without any vice of consent, hereby attest to have
voluntarily and truthfully made the answers to the foregoing
questions.
IN WITNESS WHEREOF, I have hereunto affixed my

signature this day, 2nd day of April 2020, in Unit 99, Brgy. Tambis,
Tagbilaran City, Bohol, Philippines.
EMMA WATSON
Affiant
Passport No. JJE9876
SUBSCRIBED AND SWORN to before me at the date and

place above stated, the foregoing affiant personally appearing before
me and personally identified through the above-indicated competent
evidence of identity.
Doc No. 245; ATTY. EUGENE A.

Page No. 35; SALVACION
Book No. 42; Notary Public of Bohol
IBP No. 8723823-Lifetime
Member
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I, GRETA BARRETO, Filipino, of legal capacity and

competence to comprehend without any vice of consent, hereby attest
to have voluntarily and truthfully made the answers to the foregoing
questions.

GRETA BARRETO
Affiant
Passport No. PPO12321


Member
8
I, SHAYLA KUMAR, Filipino, of legal capacity and

competence to comprehend without any vice of consent, hereby attest
to have voluntarily and truthfully made the answers to the foregoing
questions.

SHAYLA KUMAR
Affiant
Passport No. KKS12313


Member
9
I, WAYNE YU, Filipino, of legal capacity and competence to

comprehend without any vice of consent, hereby attest to have
voluntarily and truthfully made the answers to the foregoing
questions.

WAYNE YU
Affiant
Passport No. IIO99321


Member
10
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REPUBLIC OF THE PHILIPPINES

-versus- IS No. 0021

JOINT COUNTER-AFFIDAVIT OF RESPONDENTS

We, EMMA WATSON, GRETA BARRETO, SHAYLA KUMAR,

1. We are the respondents in the above-captioned proceeding,

2. We vehemently deny the Formal Charges against us for such

3. The herein Respondents categorically states that they have no

6. Complainant agreed to invest to the said proposal and

7. Complainant, in addition to his paid-up capital, also paid for all

8. There was no agreement made orally or in writing that the

9. The profits that the Complainant received on December to

10. We therefore deny subparagraph 8 of Paragraph 3 which states

11.Estafa through misappropriation is defined and penalized

Art. 315. Swindling (estafa). - Any person who shall

1st. The penalty of prision correccionalin its maximum

1. With unfaithfulness or abuse of confidence, namely:

(b) By misappropriating or converting, to the prejudice

12. In the case of DIONISIO AW vs. PEOPLE OF THE

a. That the money, good or other personal property is

b. That there be misappropriation or conversion of such

c. That such misappropriation or conversion or denial is to

d. That there is demand by the offended party to the

13.The first element of Estafa under Article 315, Paragraph 1(B) is

14. Here, respondents and the complainants never made an

15. To continue complainant never presented any proof of

16.In Tria vs Peopl, the Supreme Court defined “convert” and

17. Thus, to convert or to misappropriate requires that the accused

18. Clearly the complainant failed to prove that existence of the

19. Lastly, There is no damage to the Complainant because there is

SUBSCRIBED AND SWORN to before me on the date and at

ATTY. EUGENE A. SALVACION

AFFIANT’S OATH AND ATTESTATION

I, EMMA WATSON, Filipino, of legal capacity and competence

IN WITNESS WHEREOF, I have hereunto affixed my

SUBSCRIBED AND SWORN to before me at the date and

Doc No. 245; ATTY. EUGENE A.

AFFIANT’S OATH AND ATTESTATION

I, GRETA BARRETO, Filipino, of legal capacity and

IN WITNESS WHEREOF, I have hereunto affixed my

SUBSCRIBED AND SWORN to before me at the date and

Doc No. 246; ATTY. EUGENE A.

AFFIANT’S OATH AND ATTESTATION

I, SHAYLA KUMAR, Filipino, of legal capacity and

IN WITNESS WHEREOF, I have hereunto affixed my

SUBSCRIBED AND SWORN to before me at the date and

Doc No. 247; ATTY. EUGENE A.

AFFIANT’S OATH AND ATTESTATION

I, WAYNE YU, Filipino, of legal capacity and competence to

IN WITNESS WHEREOF, I have hereunto affixed my

SUBSCRIBED AND SWORN to before me at the date and

Doc No. 248; ATTY. EUGENE A.

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