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Republic of the Philippines

Department of Justice
Office of the Prosecutor
Caloocan City

ANGEL E. TE
Complainant,

-versus- NPS Docket No. XV-02-


INV-16K-03494
MARVIN Y. ESPINOSA
Respondent.

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

COUNTER AFFIDAVIT

I, MARVIN Y. ESPINOSA, of legal age, single, and a natural


born Filipino citizen, with postal and residence address at No. 63
Oquendo Compound, Karuhatan, Valenzuela City, after having been
sworn to in accordance with law, do hereby depose and state: That…

1. I am the respondent in the above-entitled case;

2. I vehemently deny the accusations of the complainant Angel E.


Te against me for violation of RA 9262 or the Violence Against
Women and their Children Act of 2004 for being a product of her
exaggeration of truth and lack legal and factual bases and
therefore, is devoid of merit. This is nothing but a ploy of herein
complainant to harass me;

3. A careful scrutiny of the Sinumpaang Salaysay will readily show


that aside from the bare allegations of the Angel, there is no other
evidence that will prove nor show that I am guilty of the crime
being charged against me;

4. I admit par. 1, 2 and 3 of the Sinumpaang Salaysay of Angel Te;

5. However, par. 4, 5 and 6 of the Sinumpaang Salaysay are


extremely product of exaggerating truth of what happened on
October 12, 2016 to make it appear that I am the villain in this
case. Thus, what really happened on October 12, 2016 are as
follows:
a. On the abovementioned date, I, together with Angel, went to
the coffee shop of his brother located in Caloocan City to look
after it;

b. At around 3 o’ clock in the afternoon, my cousin called me if I


could fetch and drive him because it was raining. Thereafter,
I talked to Angel If I could use the car, which I used for Uber
services, to drive my cousin for a fee but she refused and
accused me of using their car for personal matter. I tried to
explain that my services to my cousin would be for a fee but
instead of listening to my explanation she got angry and
started cursing me and my family;

c. I was offended and upset that a woman I love would insult me


and my family for a simple favor that is why I stand up from
the chair I was seated and pushed her to stop insulting and
cursing my family but she responded by hitting me several
times at my neck and my shoulder;

d. So I suddenly, without thinking, slapped her and immediately


left the coffee shop even if she was preventing me to do so;

e. My emotion just clouded my reason that is why I did pushed


and slapped her but I regret doing it to her considering that
she is carrying our unborn twin;

f. This story can be validated by the video they took and attached
as Annex D of the Sinumpaang Salaysay of Angel;

ARGUMENTS AND DEFENSES

6. Paragraph 5 of the Sinumpaang Salaysay of Angel is her ground


for the filing of violation of Violence Against Women and their
Children Act of 2004 (R.A No. 9262) against me where she
claims that “Habang kinukuha ko ang susi sa kanya ay malakas
niya itong ibinato sa akin at sinimulan niya din akong saktan
kahit na ako ay nagdadalantao pa. Tinulak niya ako ng
malakas sa aking tiyan at sinipa at hinampas niya din ako sa
ulo. Habang sinasaktan niya ako ay sinasabi niya din ng
pasigaw na kahit mamatay ang anak namin ay wala siyang
pakialam”;

7. For physical violence Section 5(a) as a cause of action under R.A


No. 9262, the elements of the crime are derived as follows:
(a) The offended party is a woman and/or her child or
children;

(b) The woman is either the wife or former wife of the offender,
or is a woman with whom the offender has or had a sexual or
dating relationship, or is a woman with whom such offender has
a common child. As for the woman's child or children, they may
be legitimate or illegitimate, or living within or without the
family abode;

(c) The offender causes on the woman a bodily or physical harm;


8. Physical violence as defined under R.A no. 9262 should be done
deliberately with intent to cause suffering on the woman. Such
violation is not present in this case because the incident of
pushing and slapping were not done deliberately but out of
defense of the honor of mine and my family;

9. Her claim as stated in par. 5 of her Sinumpaang Salaysay is an


exaggeration of truth of what really happened. The video which
she attached as evidence will show that I never throw a key to her
nor inflicted injury to her by pushing and kicking her in the
stomach and hitting her in the head;

10. Also, I did not tell her that I do not care if our unborn twin
will die. I will never do such a thing to my unborn twin because I
love them as much as I love myself;

11. Moreover, those contusions which she claimed as I inflicted and


evidence by Annex B in the Sinumpaang Salaysay were self-
inflicted. The video which they attached as Annex D will show
that I never hit Angel below the legs;

12. Furthermore, the Medico Legal Certificate which shows that


Angel suffered injuries is not competent evidence. Medico Legal
Certificate to be competent evidence should be issued after a
patient seeks medical help immediately after the incident. Here,
Angel seeks medical help on October 13, 2016 or one day after
the incident and the Medico Legal Certificate was issued
thereafter;

13. Based on the foregoing, I submit that the instant complaint was
filed to harass me, and the complaint is without merit and should
be dismissed for lack of a probable cause for the filing of the
Information for the charge averred against me;

14. Again, the complainant failed to show that elements of the


alleged felonious and criminal act are present, thus, this instant
complaint against me should be dismissed outright;
15. All the foregoing considered, there is absolutely no probable
cause to support the charges against me. In the event that I was
hailed to court on this tentative charge, the State will be saddled
with unprovable case against an innocent person entailing waste
of time, money and effort-something which this Honorable
Office should protect against in the light of one of the purposes
of preliminary investigation, which is to protect the state from
useless and expensive trial1;

16.In fact the Supreme Court has consistently provided that-

“Although there is no general formula or


fixed rule in the determination of probable
cause since the same must be decided in the
light of the conditions obtained in given
situations and its existence depends to a
large degree on the finding or opinion of the
judge conducting the examination, such a
finding should not disregard the facts
before the judge or run counter to the
clear dictates of reason”2

“The judge or fiscal, therefore, should not


go on with the prosecution in the hope
that some credible evidence might
later turn up during the trial for this
would be a flagrant violation of the basic
right which the court are created to uphold.
The judiciary lives up to its mission by
vitalizing and not denigrating constitutional
rights.3

17. Not being supported by even an iota of evidence, the criminal


complaint fails to establish probable cause of guilt on my part to
form a basis for criminal prosecution;

18. Thus, “A preliminary investigation is in effect a


realistic judicial appraisal of the merits of the case -
sufficient proof of guilt of the accused must be adduced
so that when the case is tried, the trial court may not be
bound, as a matter of law, to order an acquittal”4;

1 Trocio vs. Manta, 118 SCRA 241


2 LA Chemiste Lacoste, S.A. vs. Fernandez, 129 SCRA 391.
3 Salonga vs. Cruz Pano, 134 SCRA 438, 461-462.
4 Cojuanco, Jr. vs. Presidential Commission onGood Government (PCGG) as
reiterated in Perez vs. Office of the Ombudsman 429 SCRA 357;
19. It should not be difficult to ascertain that there is actually no
crime that can be proved in court, especially when mere
“whisper of doubt” should result in an acquittal5. Without any
basis to support the charge, it is foreseeable that the court will,
as a matter of law, be compelled to order an acquittal. Hence, the
state should be saved the trouble of prosecuting innocent person
and the unnecessary use of government resources;

20. Consequently, the dismissal of the instant case against me


becomes imperative. The essential purpose of preliminary
investigation is express by the Supreme Court as follows:

“It is enough that the preliminary


investigation is conducted in the sense of
making sure that a transgressor shall not
escape with impunity. A preliminary
investigation serves not only the purposes of
the state. It is, therefore, imperative upon
the fiscal or judge as the case maybe,
to relieve the accused from the pain of
going through trial once it is
ascertained that the evidence is
insufficient to form a belief as to the
guilt of the accused.

“This is evident from the very purpose of


preliminary investigation which is to
secure the innocent against hasty,
malicious and oppressive prosecution
to protect the respondent from public
accusation of crime, from the trouble,
expense and anxiety of prosecution. It
is also intended to protect the accused
from the inconvenience, expense and
burden of defending himself in a
formal trial unless the reasonable
probability of his guilt shall have been
first ascertained in a fairly summary
proceeding by a competent officer6.”
(Emphasis supplied)

21.I hereby attest to the truth of the foregoing facts for the purpose
of refuting the charges against me and move for the
DISMISSAL of the instant case for lack of merit.

5 People vs. Tepongko, 144 SCRA 583;


6 Salonga vs. Cruz-Pano, supra, Cajucom vs. Sandiganbayan, G.R. No. 101594, 18
February 1992) also in (Okabe vs. Gutierrez, 429 SCRA 685).
IN WITNESS WHEREOF, I have hereunto affixed my
signature this 26th day of January 2017 in Caloocan City, Philippines.

MARVIN Y. ESPINOSA
Affiant

SUBSCRIBED AND SWORN to before me this 26th day of


January 2017 in Caloocan City. I hereby certify that I personally
examined the affiant and that I am satisfied that he voluntarily
executed and understood his Counter Affidavit.

Assistant City Prosecutor

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