Professional Documents
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Counter Affidavit
Counter Affidavit
DEPARTMENT OF JUSTICE
OFFICE OF THE CITY PROSECUTOR
X x x CITY
LIANA PRESZ
Complainant,
IS No. x x x
-
versus
Estafa
DANA PEREZ,
Respondents.
x----------------------------x
JOINT COUNTER-AFFIDAVIT
OF THE RESPONDENTS X x x
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.
(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)
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.
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
2.5.1.
2.5.2.
2.5.3.
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.
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.
2.11.
Xxx
Respondent
nt
xxx
Responde
Xxx
Respondent