Republic of the Philippines

Department of Justice
OFFICE OF THE PROVINCIAL PROSECUTOR
Cantilan, Surigao del Sur

JOVITA APAREJO, ET.AL., NPS XIII-01b-INV-24BC-00037

Complainants,

-versus- For: ESTAFA (Article 315, RPC)

LYREN C. ABIS ,
Respondents.

COUNTER-AFFIDAVIT

Republic of the Philippines ) S.S.

Province of Surigao del Sur )
Municipality of Cantilan )

I, LYREN C. ABIS, Filipino of legal age, married and a resident of

Brgy. Zone III, Poblacion, Municipality of Lanuza, Surigao del Sur, after
having been sworn to in accordance with law hereby deposes and says:

1. I am the person who is charged by the Lanuza Municipal Police

Station Chief, Police Lieutenant Jovie L. Alngog for violation of Article
315 of the Revised Penal Code, in the above-captioned case;

2. That the Criminal Charge is a result of the complaint filed by

complainants Jovita Aparejo, Razel de los Reyes, Leila Limguangco,
Princess Alas, Nelson Vete, Sydney Alas and Maurecia Alas charging my
person for the commission of the crime of Estafa, which said acts as
alleged I vehemently and specifically deny on reasons that the
allegations do not fall under the crime of Estafa as described under
Article 315 of the Revised Penal Code;

3. In People of the Philippines versus Ervin Y. Mateo1 citing People v.

Balasa, 356 Phil. 362, 382 (1998); People v. Menil, 394 Phil. 433, 450
(2000); Galvez, et al. v. Court of Appeals, et al., 704 Phil. 463, 469
(2013); People v. Tibayan, et al., 750 Phil. 910, 919 (2015) the Supreme
Court explained the elements in the crime of Estafa by means of deceit
under Article 315 (2)(a) of the Revised Penal Code and said, I quote,

“(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.”

As such, to constitute estafa, there must be evidence of using false

pretenses inorder for the complainants to part their money to me. This
was not in my case as the same was absolutely absent.

4. The allegation of estafa is basically negated by the statements of

the complainants in the Complaint-Affidavit. When asked why are they
filing a case of estafa against my person, complainant Jovita Aparejo
answered in question number 7 that “she [referring to me as
respondent] owed me (emphasis ours) an amount of Php 995,000.00
from bidding and her personal debt to me”; complainant Razel de los

1
G.R. No. 210612, October 09, 2017
Reyes on question number 29 answered “because she owed me
(emphasis ours) an amount of Php 79,000 from bidding”; complainant
Leila Limguangco on question number 42 answered, “[B]ecause she
owed me (emphasis ours) an amount of Php 236,000.00 from bidding
and her debt to me”; complainant Princess C. Alas on question number
60 maintains the same answer that “she owed me (emphasis ours) an
amount…”; similarly complainant Nelson L. Vete, Sydney L. Alas,
Maurecia E. Alas, echoed the same answer on the question why are they
filing the case, raising a similar answer raising a thought that that
respondent owed them money.2

5. The above-stated answers to the question why they filed a case

against my person basically states the fact that there was no false
pretenses that I did, or have committed when complainant parted their
money. I basically did not conceal the fact that the purpose of the giving
of the money by them was for the purpose of creating a group wherein
each one contributes and receives his or her proportionate amount
during the scheduled ‘bidding’ date and the other non-bidders received
their supposed ‘dividends’ counted from the balance of the bid amount.
Neither was there a false pretense on my part when the ‘bidding’ group
resources went ‘disorganized’ or ‘mismanaged’ arising from the non-
payment or non-contribution by the other members.

6. A case of simple debt or borrowing of money was created among

us when hereto complainants failed to secure their respective amount
2
Question 77 for complainant Nelson L. Vete, question 91 for complainant Sydney L. Alas, and question 105 for
complainant Maurecia E. Alas
for the supposed ‘bid’ resulting from the lack of funds to support the
respective ‘bid’. From the complainants’ different perspectives, they
raise a common view of indebtedness when they said I owed them
money at a time they were not able to secure their supposed ‘bid’. A “
‘debt’ means an obligation to pay a sum of money "arising from
contract", express or implied”3 is the contractual obligation created
between me as ‘bidding’ organizer and complainants as ‘bidding’
members.

7. Evaluating from the criminal complaint would show that there was
no element of fraud. In Virata v. Ng Wee4 as cited in Spouses Isidro
Dulay III, et.al. versus People5, the Supreme Court defined "fraud", I
quote, viz;
“Fraud is the “voluntary execution of a wrongful act, or a
willful omission, knowing and intending the effects which
naturally and necessarily arise from such act or omission. In
its general sense, fraud is deemed to comprise anything
calculated to deceive, including all acts and omissions and
concealment involving a breach of legal or ethical duty,
trust, or confidence justly reposed, resulting in damage to
another, or by which an undue and unconscientious
advantage is taken of another. Fraud is also described as
embracing all multifarious means which human ingenuity
can device, and which are resorted to by one individual to
secure an advantage over another by false suggestions or
by suppression of truth and includes all surprise, trick,
cunning, dissembling, and any unfair way by which
another is cheated.” (emphasis ours)

3
Rufo Quemuel versus Court of Appeals, [G.R. No. L-22794. January 16, 1968.]
4
813 Phil. 252, 355 (2017).
5
[ G.R. No. 215132, September 13, 2021 ]
8. In other words, as jurisprudence instructs in People v. Aquino6, the
“[T]he gravamen of the [crime of Estafa] is the employment of fraud or
deceit to the damage or prejudice of another.”

In view of such, based on the allegations of the Affidavit-

Complaint, there was no deception when complainants parted their
money and joined the ‘bidding’ group voluntarily and on their own
decision. Neither was there existent a means to “secure an advantage
over” their person in as much as the bidding group was organized
applying reasonable rules. The bidding went on until the members were
not able to pay anymore, thus making the other remaining members not
to claim their respective shares.

9. That further, considering the non-specification of the charge in the

Complaint, respondent hereto states that neither does the charge of
estafa neither fall under Article 315, paragraph 1(b) of the Revised Penal
Code. Under such provision, it mentioned of the following elements, “7(i)
the offender received money, goods or other personal property in trust,
or on commission, or for administration, or under any other obligation
involving the duty to deliver, or to return, the same; (ii) he/she
misappropriated or converted the money or property received, or
denies the receipt of the money or property; (iii) such misappropriation,
conversion or denial is to the prejudice of another; and (iv) the offended
party made a demand for the return of the money or property given to
the offender.”

6
G.R. No. 234818, November 5, 2018.
7
Lourdes Cheng versus People, G.R. No. 207373, March 23, 2022.
 Respondent vehemently, categorically and specifically deny to
have gain or receive any personal benefit from the money which was
delivered by the complainants; that the bidding has to stop since the
members already failed to pay their respective contribution and the
others who loaned were not able to pay their respective borrowings.
These all contributed to the non-payment of the shares of the non-
bidder members who were expecting to bid supposedly. There was no
misappropriation on the part of the respondent.

Respondent “did not misappropriate the funds as if they were her

own, or gain any personal advantage from said funds. Her failure to
return the money upon demand was due to the fact that the borrowers
failed to pay their loans.”8 Respondent is in a situation where she failed
to “collect payments from the borrowers [and the same] is not
tantamount to misappropriation.9

10. Based on the foregoing discussions, where the elements of

the crime of estafa is/are absent, it would lead to a conclusion to a level
of moral certainty that the crime of estafa was not committed;
however, respondent is liable but her civil liability is not arising “ex
delicto”. She has to return or refund the amount of money contributed
to the ‘bidding’, otherwise she can be charged with unjust enrichment.10
11. That, as such, given an interpretation of the provision of

8
Ibid.
9
Supra Note 7
10
Khitri v. People, 789 Phil. 109, 120 (2016)
Preliminary Investigation, as defined under Section 1, Rule 112 of the
Revised Rules of Criminal Procedure, it is an inquiry or proceeding to
determine whether there is sufficient ground to engender a well-
founded belief that a crime has been committed and the respondent is
probably guilty thereof, and should be held for trial.
As can be gleaned under Paragraph (a), Section 3 of Rule 112, the
quantum or amount of evidence required in preliminary investigation, is
probable cause, which according to Justice Isagani Cruz in his book
entitled Constitutional Law11,

"Probable Cause is the knowledge of facts, actual or apparent, strong enough to

justify a reasonable man in the belief that he has lawful grounds for prosecuting
defendants in the manner complained of, the occurrence of facts and
circumstances reasonably warranting the belief."

12. That under the circumstances, there is no evidence to

establish probable cause to warrant the filing of a case of estafa.
Not even the bare allegations of complainant could support the
commission of the crime of estafa as listed under Article 315 of
the Revised Penal Code.

In Preferred Home Specialties, Inc., et al. vs. Court of

Appeals, et al.12, the Supreme Court held that while probable
cause should be determined in a summary manner, there is a
need to examine the evidence with care to prevent material
damage to a potential accused’s constitutional right to liberty, the
guarantees of freedom and fair play, and to protect the State from

11
1995 edition, page 134
12
Marie Callo-Claridad versus Philip Roldan Esteban, et.al., G.R. No. 191567, March 20, 2013
the burden of unnecessary expenses in prosecuting alleged
offenses and holding trials arising from false, fraudulent or
groundless charges”. Applying the said principle, we say with all
due respect that the criminal charge could not prosper in the
instant case absent of any evince to support. The case then should
be dismissed;

12. That, in view of the foregoing, I am hereto submitting

my Counter-Affidavit duly prepared by my assisting Counsel,
which I fully understand and are based on facts known to me, and
submission hereof is made praying to the Handling Prosecutor
that there is no evidence to warrant the filing of a case of Estafa
under Article 315 of the Revised Penal Code, and thus the instant
case be dismissed.

13. That it is further manifested that the hereto prayer for

the dismissal of the case is in consonance with Department of
Justice (DOJ) Secretary Jesus Crispin Remulla’s directives in
Department Circular Nos. 008, 008-A, 016, and 020 series of 2023
to prosecutors that cases shall be carefully assessed and evaluated
such that they are determined to have reasonable “certainty of
conviction based on the evidence in hand, availability of witnesses
and continued interest of private complainants” and cause the
withdrawal if the same could not pass that evaluation, to
purposely achieve the intended reform to decongest court
dockets.