Republic of the Philippines

MUNICIPAL TRIAL COURT IN CITIES

First Judicial Region
Branch 2
City of Baguio

THE PEOPLE OF THE

PHILIPPINES ,
Plaintiff, Criminal Case No:
417-20-CP-MTCC

- versus -
For:
Falsification of a Public
RICARTE A. GAPUZ, JR. Document by a Private
Accused. Individual
x - - - - - - - - - - - - - - - - - - - - - - - - -x

MOTION TO DEFER ARRAIGNMENT

AND SUSPEND PROCEEDINGS

COMES NOW, the Accused, through the undersigned counsel,

to this Honorable Court, respectfully states, to wit:

1. The arraignments of the accused in this case were set on July 20

at 8:30 in the morning. Copy of the Order setting the
arraignment was received on July 2, 2022;

2. For the information and guidance of this Honorable Court, on

July 13, 2022, a Petition for Review was filed by the accused
in this case. The said Petition is currently pending before the
Office of the Regional State Prosecutor of Region I. The
Petition for Review is attached to this motion as “Annex A”;

3. In accordance to Section 11 (c), Rule 116 of the Rules of Court,

which provides that upon motion by the proper party, the
arraignment shall be suspended in the following cases:
 “xxx
(b) There exists a prejudicial question; and

(c) A petition for review of the resolution of the

prosecutor is pending at either the Department of Justice,
or the Office of the President; Provided, that the period
of suspension shall not exceed sixty (60) days counted
from the filing of the petition with the reviewing office.
xxx”

4. That a perusal of the said petition would show that the issues
raised therein are prejudicial questions which must be resolved
first before this Honorable Court can proceed with the instant
case.

5. Verily, so as not to render moot the issues raised before the

Office of the Regional State Prosecutor in the petition for
review and for practical and ethical considerations, this
Honorable Court should wait for the final determination of the
said petition before taking cognizance of the case.

PRAYER

WHEREFORE, premises considered, it is respectfully prayed

that this Honorable Court suspend the proceedings in this case
including the arraignment of the accused and wait for the final
determination of the petition for review.

Other reliefs and remedies just and equitable under the premises
are likewise prayed for.

RESPECTFULLY SUBMITTED.
July 13, 2022, Baguio City, Philippines.

FELP LAW OFFICE

Counsel for Plaintiff #16, Room 102, Laperal Bldg.
Session Road, Baguio City
felplawoffice@gmail.com | (02) 981-2934
 By:

Mary Luz Ebez

Counsel for Defendant
ebesfelplawoffice@gmail.com | 0917 186 5342
Roll No. 75421; July 25, 2019
IBP No. 87634; July 30, 2019
PTR No. 856235; January 8, 2020, Baguio City
MCLE Compliance No. VII-0007412, issued April 15, 2020.

Nel John Famuleras

Counsel for Defendant
nelfelplawoffice@gmail.com | 0916 234 5342
Roll No. 86734; June 25, 2019
IBP No. 98134; July 30, 2019
PTR No. 643679; January 8, 2020, Baguio City
MCLE Compliance No. VII-0003451, issued April 15, 2020

Cleah Maryell Llamas

Counsel for Defendant
yayellamas@gmail.com | 0976 285 9319
Roll No. 76543; July 25, 2019
IBP No. 23486; July 30, 2019
PTR No. 676432; January 8, 2020, Baguio City
MCLE Compliance No. VII-0009235, issued April 15, 2020

Tanya Pakyo
Counsel for Defendant
pakyotanya@gmail.com | 0916 284 5398
Roll No. 867454; July 25, 2019
IBP No. 23455; July 30, 2019
PTR No. 643092; January 8, 2020, Baguio City
MCLE Compliance No. VII-0007861, issued April 15, 2020
Copy Furnished:

Atty. Elmer Manuel Sagsago

City Prosecutor
 “ANNEX A”

Republic of the Philippines

DEPARTMENT OF JUSTICE
OFFICE OF THE REGIONAL STATE PROSECUTOR
REGION I
San Fernando City , La Union

RICARTE A. GAPUZ JR.,

Accused-Appellant,

- versus -

THE PEOPLE OF THE PHILIPPINES

Plaintiff-Appellee.

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

PETITION FOR REVIEW

COMES NOW, the undersigned appellant, unto this Honorable

Office respectfully avers:

1. The accused-appellant, is of legal age and with residence at 54

Belmont Drive, Alabang 400, New Alabang Hills, Muntinlupa City.
He is the respondent in Crim. Case No. 417-20-CP-MTCC entitled
The People of the Philippines vs Ricarte A. Gapuz, Jr., which
plaintiff-appellee filed against the accused-appellant with the Office of
the City Prosecutor of Baguio City.

2. On June 29 2022, the City Prosecutor of Baguio City issued a

resolution in said NPS No. I-17-INV-20-0638 finding alleged
probable cause against accused-appellant Ricarte A. Gapuz, Jr. and
with the same address where the preliminary investigation was held.

3. For the information of the Honorable Secretary this case happened

as follows:
 3.1. On February 13, 1997, Ricarte A. Gapuz, Jr. and
Evangeline A. Gapuz formed and registered a partnership
which is R.A. GAPUZ REVIEW CENTER CO.

3.2. When Evangeline Gapuz was still alive, R.A. GAPUZ

REVIEW CENTER CO. obtained a land covered by TCT
no. 86049 and a four story building built on it subsequently.

3.3. On December 17, 2012, Evangeline A. Gapuz, one of

the partners, died.

3.4. On October 12, 2018, Ricarte A. Gapuz, Jr., acting on

behalf of R.A. GAPUZ REVIEW CENTER CO., executed a
Deed of Absolute Sale conveying the land covered by TCT
No. 86049 to BAVESCO, and such was done for the
purposes of the winding up and dissolution of R.A. GAPUZ
REVIEW CENTER.

4. That on July 1, 2022 in Baguio City, the undersigned received the

resolution of the Honourable Prosecutor, a copy of which is attached
as Annex “A” disposing the case as follows:

“WHEREFORE, premises duly considered, the

undersigned finds probable cause against the respondent
RICARTE A. GAPUZ, JR., and respectfully recommends that
he be indicted for Falsification of a Public Document by a
Private Individual, defined and penalized by Article 172 (par.
1) in relation to Article 171 (par. 4) of the Revised Penal
Code.”

5. That, pursuant to Section 3 of DOJ Department Circular no 70, the

instant petition for review is filed within 15 days from receipt of the
resolution herein marked as “Annex A”

6. That the undersigned erred in considering the basis of the complaint

filed.

7. That with due respect to the Honourable Prosecutor, the

undersigned believed that he committed error on the following:
 7.1 The City Fiscal gravely erred in finding sufficient and
corroborating evidence in the complaint to show probable
cause against the respondent; and

7.2 The City Fiscal gravely erred in applying the applicable

laws on the matter; and

7.3 The errors committed by the City Prosecutor calls for

correction and for the exoneration of accused Ricarte A.
Gapuz, Jr.

8. As averred in 7.1 and 7.2 of the previous paragraph, the Honourable

Prosecutor gravely erred in appreciating the facts and evidence, and
applying the applicable laws on the matter on the following grounds;

8.1 There is no falsification as there is no untruthful

statement made in a narration of facts.

Article 172 of the Revised Penal Code provides that:

Art. 172. Falsification by private individual and

use of falsified documents. — The penalty of
prision correccional in its medium and maximum
periods and a fine of not more than P5,000 pesos
shall be imposed upon:

(1)Any private individual who shall commit any of

the falsifications enumerated in the next preceding
article in any public or official document or letter
of exchange or any other kind of commercial
document xxx.

8.2 On the other hand, Article 171 enumerates the acts of

falsification referred to under Article 172 sub-paragraph 1,
to wit;

Art. 171. Falsification by public officer, employee

or notary or ecclesiastic minister. — The penalty of
 prision mayor and a fine not to exceed P5,000 pesos
shall be imposed upon any public officer, employee,
or notary who, taking advantage of his official
position, shall falsify a document by committing any
of the following acts:

xxx

4. Making untruthful statements in a narration of

facts;

xxx

8.3 In the case of DARIO CABIGAS Y CACHO v.

PEOPLE OF THE PHILIPPINES, G.R. No. L-67472. July
3, 1987, the Supreme Court enumerated the elements of
Falsification by making untruthful statements in a narration
of facts, to wit;

It is a settled doctrine that in falsification by an

employee under par. No. 4 of Article 171, which
reads — "by making untruthful statements in a
narration of facts," — the following elements must
concur —

(a) That the offender makes in a document

untruthful statements in a narration of facts;

(b) That he has a legal obligation to disclose the

truth of the facts narrated by him;

(c) That the facts narrated by the offender are

absolutely false; and
 (d) That the perversion of truth in the narration of
facts was made with the wrongful intent of injuring
a third person.

8.3 The last element (i.e. that the perversion of truth in the
narration of facts was made with the wrongful intent of
injuring a third person) is dispensed with in cases of
falsification of a public document. This has been decided by
the Supreme Court in the case of THE PEOPLE OF THE
PHILIPPINES vs. PO GIOK TO, G.R. No. L-7236, April
30, 1955, to Court stating that:

The distinction made by the law between falsification

by private persons, first, of public documents, and secondly
of private documents, is clear; the first is committed by the
mere performance of any of the acts of falsification
enumerated in Art. 171; while the second is committed not
only by the performance of any of the acts of falsification
enumerated in Art. 171; but it must likewise be shown that
such act of falsification was committed to the damage of a
third party or with intent to cause such damage.

The reason for the distinction is given in a decision of the

Supreme Court of Spain dated December 23, 1885, cited by
this Court in the case of People vs. Pacana, 47 Phil. 48; i.e.,
that in the falsification of public or official documents,
whether by public officials or by private persons, it is
unnecessary that there be present the idea of gain or the
intent to injure a third person, for the reason that, in
contradiction to private documents, the principal thing
punished is the violation of the public faith and the
destruction of the truth as therein solemnly proclaimed.
8.4 In this case where the accused is being charged of Falsification
under Par. 1 of Section 172 in relation to Par. 4 of Section 171, not
all the elements are present.

8.4.1 The accused did not make any untruthful

statement in a narration of facts; and

8.4.2 The facts narrated by the offender are not

absolutely false.

9. In case of death of a partner resulting to dissolution of

the partnership, any remaining partners or partner is
not absolutely unclothed of all rights or powers.

9.1 Art. 1832 is clear to this very matter. The

provision states that;

Except so far as may be necessary to wind up

partnership affairs or to complete transactions begun
but not then finished, dissolution terminates all
authority of any partner to act for the partnership:

(1) With respect to the partners:

(a) When the dissolution is not by the act, insolvency or

death of a partner; or

(b) When the dissolution is by such act, insolvency or

death of a partner, in cases where article 1833 so
requires;

(2) With respect to persons not partners, as declared in

article 1834.

9.3 As stated under Art. 1832, dissolution extinguishes the

right and power of the partners to represent one another to
pursue the partnership, “except so far as may be necessary
to wind up partnership affairs or to complete transactions
begun but not then finished.”

9.4 Art. 1829 of the Civil Code states that “on dissolution,
the partnership is not terminated but continues until the
winding up of partnership affairs is completed.”

9.5 The case of Primelink Properties and Development

Corporation vs. Ma. Clarita Lazatin-Magat, G.R. No.
167379, 27 June 2006, is also instructive anent this issue.
The High Court in this case held that:

“On dissolution, the partnership is not terminated but

continues until the winding up of partnership affairs is
completed. Winding up means the administration of the
assets of the partnership for the purpose of terminating
the business and discharging the obligations of the
partnership.”

xxx

“The transfer of the possession of the parcels of land

and the improvements thereon to respondents was only
for a specific purpose: the winding up of partnership
affairs, and the partition and distribution of the net
partnership assets as provided by law. After all, Article
1836 of the New Civil Code provides that unless
otherwise agreed by the parties in their JVA, respondents
have the right to wind up the partnership affairs”

9.6 Pursuant to the above-mentioned decided cases, it is

clear that dissolution of partnership – which is caused by
death of a partner in this instant case – does not absolutely
terminate the partnership and remove the remaining partner -
the accused - of his right and power to act for the partnership
most especially for winding up of partnership affairs. The
Civil Code allows the partnership to continue to wind up its
affairs or to complete transactions begun but not then
finished.
10. Therefore, the accused had the authority to represent R.A.
GAPUZ REVIEW CENTER CO. as stated in the Notarized Deed
of Sale.

10.1 From the foregoing premises, it is clear that the accused

had authority to represent R.A. GAPUZ REVIEW CENTER
CO, as the partnership still subsists and the sale of the subject
property was done for the purpose of the winding up of the
affairs of the partnership;

10.2 The prosecution lodged its conclusion that the accused

committed Falsification by making an untruthful statement in a
narration of facts due to the fact that it was stated that the
accused represents the partnership in the Deed of Sale;

10.3 The Deed of Sale reads; “ RA Gapuz Review Center xxx

xxx represented by MR RICARTE A. GAPUZ JR.,
hereinafter referred to as seller (the Special Power of
Attorney hereto attached and made integral part hereof);

10.4 Pursuant to the legal above-cited legal and jurisprudential

tenets, when the accused sold the subject-property acting on
behalf of the partnership, he had the authority to do so;

10.5 It is not untruthful or false that Mr Ricarte A. Gapuz Jr.

represented the partnership in the sale as what is stated in the
Deed of Sale because at the time of the sale, the property still
belonged to the partnership and Mr Ricarte A. Gapuz Jr. sold
the subject-property for purposes of winding up the partnership
affairs;

10.6 Therefore, the prosecution erred in arriving at a conclusion

that all elements of the crime are present, there being no false or
untruthful statement in a narration of facts and the statement by
the accused is not absolutely false.
 CONCLUSION

Accordingly, the insufficiency or lack of any of the essential

elements shall not constitute a crime;

PRAYER

WHEREFORE, accused-appellant prays that the questioned

resolution Annex “A” be set aside and nullified for lack of probable
cause against the respondent.

Other reliefs just and equitable are likewise prayed for.

Executed this 10th day of July 2022, at Baguio City

FELP LAW OFFICE

Counsel for Plaintiff #16, Room 102, Laperal Bldg.
Session Road, Baguio City
felplawoffice@gmail.com | (02) 981-2934

By:

Mary Luz Ebez

Counsel for Defendant
ebesfelplawoffice@gmail.com | 0917 186 5342
Roll No. 75421; July 25, 2019
IBP No. 87634; July 30, 2019
 PTR No. 856235; January 8, 2020, Baguio City
MCLE Compliance No. VII-0007412, issued April 15, 2020.

Nel John Famuleras

Counsel for Defendant
nelfelplawoffice@gmail.com | 0916 234 5342
Roll No. 86734; June 25, 2019
IBP No. 98134; July 30, 2019
PTR No. 643679; January 8, 2020, Baguio City
MCLE Compliance No. VII-0003451, issued April 15, 2020

Cleah Maryell Llamas

Counsel for Defendant
yayellamas@gmail.com | 0976 285 9319
Roll No. 76543; July 25, 2019
IBP No. 23486; July 30, 2019
PTR No. 676432; January 8, 2020, Baguio City
MCLE Compliance No. VII-0009235, issued April 15, 2020

Tanya Pakyo
Counsel for Defendant
pakyotanya@gmail.com | 0916 284 5398
Roll No. 867454; July 25, 2019
IBP No. 23455; July 30, 2019
PTR No. 643092; January 8, 2020, Baguio City
MCLE Compliance No. VII-0007861, issued April 15, 2020

VERIFICATION

I, RICARTE A. GAPUZ, JR., of legal age, after having been

duly sworn in accordance with law, depose and state that:

1.

I am the Accused-Appellant in the above-stated case;

 2. I have personally caused the preparation of the

foregoing petition;

3. I have read the contents thereof and the facts stated

therein are true and correct of my personal knowledge

or on the basis of copies of documents and records in
my possession.

RICARTE A. GAPUZ, JR.

Accused-appellant

SUBSCRIBED AND SWORN TO before me in the City of

Baguio on this 13th day of July 2022, affiant exhibiting before me his
Driver’s License with ID no. 123456 issued on February 8, 2020.

Noreen Lagmay
Notary Public
Until 31 December 2022
Commission No. 2-8802
Room 32, 3rd Floor, Laperal Building, Baguio City, 2600
aigarcia@.com | (02) 981-2934 | 0956 2830 576
Roll No. 63451; July 25, 2020
Copy Furnished:

Elmer Manuel Sagsago

City Prosecutor

Rosanne R. Galiste
Appellee
ANNEX “A”