REPUBLIC OF THE PHILIPINNES

DEPARTMENT OF JUSTICE
OFFICE OF THE CITY PROSECUTOR
Parañaque City

UNITOP GENERAL MECHANDISE

INC. as represented by
JEANETTE ZAFRA
Complainant,

-versus-

For: Qualified Theft through

Fasciation of Commercial
Documents

AIREN VOLCAN Y VIDIOT and

HAZEL FABI Y ABANTAO
Respondents,

X----------------------------------------X

COUNTER-AFFIDAVIT

I, HAZEL A. FABI, of legal age, Filipino residing at Brgy. 642 1057

Concepcion Aguila St. Quiapo Manila after having been sworn to in accordance
with hereby depose and state that:

1. I am one of the respondents in the above-entitled case for Qualified Theft

through Falsification.

2. I admit the allegations set forth in paragraph 1, 2, 3, 4, 5, 6, 7, 8, 9, 21,

22, 27, 28, 29 and 31 of complainant’s Complaint-Affidavit.

3. However, Paragraph 18 is admitted but only in so far as the signature

above my printed name belongs to me and the signature above the name
Emilia Chua is also my signature which I am authorized to sign when
Emilia Chua is not around. Attached here is as ANNEX “1” is a copy of
the office memo from Emily Chua dated July 19, 2016 address to Mr.
Ricardo L. Brito CEO/President of UNITOP Group of Companies,
authorizing me to sign in her behalf whenever she is not available or on a
business trip.
4. I specifically deny the allegations set forth in paragraph 10,11, 12, 13, 14,
15, 16, 17, 19, 20, 23, 24, 25, 26, 30 and 31 of complainant’s Complaint-
Affidavit for lack of knowledge as to their truthfulness.

5. The truth of the matter was that I was in good faith when I verified and
signed the documents. I relied on the documents PREPARED and
presented by Respondent VOLCAN and on its face the documents were
not anomalous as they were orders relative to the business of UNITOP.

6. Furthermore, I am authorized to sign those documents and to sign in

behalf of Emily Chua as shown in ANNEX “1”

Arguments and Discussion

The Crime of Qualified Theft

Through Falsfication of
Commerical Documents
cannot prosper.

7. In Philippine National Bank vs Amelio Trio and John Doe G.R No.
193250 April 25, 2012, the Supreme Court held that:

“xxx xxx qualified theft punishable under Article 310 in

relation to Articles 308 and 309 of the Revised Penal Code
(RPB) is committed when the following elements:

1. Taking of Personal Property;

2. That the said propery belongs to another;
3. That said taking be done with intent to gain;
4. That it be done without the owner’s consent;
5. That it accomplished without the use of violence or
intimidation against persons, nor of force upon things; and
6. That it be done with grave abuse of confidence.”

8. In the instant case, the first element is clearly not present. Complainant
failed to show that I took personally property from my employer, in fact
respondent VOLCAN already admitted to have taken the entire amount
for herself as per her Notice of Explain dated Septembe 04, 2019. For
lack of evidence of any taking of personal property belonging to
complainant, this case should outright be dismissed.

9. The third element , animus lucrandi cannot also be discerned from the
circumstances as the only overt act provided by Complainant was the
signing of the documents which is in fact part of my duties and
responsibilities. The complainant miserably failed to established intent to
gain on my part.

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10.Furthermore, in Carlos L. Taneggee vs People G.R No. 179448 June 26,
2013, the Supreme Court held that:

“xxx xxx Falsification of documents under paragraph 1,

Article 172 in relation to Article 171 of the Revised Penal Code
(RPC) refers to falsification by a private individual or a public officer
or employee, who did not take advantage of his official position, of
public, private or commercial document. The elements of falsification
of documents under paragraph 1, Article 172 of the RPC are: (1) that
the offender is a private individual or a public officer or employee
who did not take advantage of his official position; (2) that he
committed any of the acts of falsification enumerated in Article 171 of
the RPC; and, (3) that the falsification was committed in a public,
official or commercial document.”

11.In the instant case, the second element is not present. It must be
emphasized that signing the documents prepared by Respondent
VOLCA, is part of my duty and responsibility as and cannot therefore
constitute as falsification. Hence, no falsification was ever committed.

Even assuming arguendo that there was falsification, still

complainant failed to show any evidence relative thereto.

12.Therefore, it is clear from the above statements that herein complainant

failed to establish that I committed Qualified Theft through Falsification
as comtemplated under the law.

13.To reiterate, it was respondent VOLCAN who took the entire amount
from Complainant UNITOP and the one who FALSIFIED those
documents as a means to divert the flow of cash into her hands. It would
be a grave injustice if the blame would be placed on me an innocent
employee mere doing my job.

Hence, the complaint against me Hazel A. Fabi for Qualified Theft

through Falsification of a Commercial Document under Article 310 and
Article 172 par. 1 of the Revised Penal Code cannot prospers

14.Iam executing this CounterAffidavit for the purpose of att-esting to the
truth of the foregoing statements, to inform the proper authorities of the

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 above facts, to support my prayer for the dropping or dismissal of the
instant case against me and for whatever purpose this may serve best.

IN WITNESS WHEREOF, I have set my hand this 29 th day of November 2019 in

Paranaque City.

AFFIANT
HAZEL A. FABI

SUBSCRIBED AND SWORN to before me this . I hereby certify

that I certify that I personally examined the affiant and I am satisfied that she
voluntarilly executed and understood her counter-affidavit.

Copy Furnished:

JEANETTE ZAFRA
Lot 16 Block 2, Ri-Rance
Corporate Center I, Aseana Enclave,
Aseana City, Paranaque City.

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