REPUBLIC OF THE PHILIPPINES

DEPARTMENT OF JUSTICE
OFFICE OF THE CITY PROSECUTOR
X x x CITY

LIANA PRESMAN
Complainant,
IS No. x x x
-

versus
Estafa
PHOENIX CORDOVA,
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.
2.1.

DISCUSSION
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
forestafa, 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

faciepresumption 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. L16934, 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.
2.7.

X x x.
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 REJOINDERAFFIDAVIT.

PRAYE R

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
Respondent
nt

xxx
Responde

Xxx
Respondent

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

Assistant City
Prosecutor