MOTION FOR RECONSIDERATION
(Re: Resolution, Dated xxx)
RESPONDENT xxx, by counsel, respectfully states:
X x x.
1. Mere allegations of fraud could not substitute for the full and convincing evidence that is required to prove it. (Republic vs. Court of Appeals, G. R. No. 116111, January 21, 1999; P. T. Cerna vs. Court of Appeals, 221 SCRA 19; Filinvest Credit Corporation vs. Relova, 117 SCRA 420]. A failure to adduce such required convincing evidence would not destroy the presumption of good faith and regularity in the performance of public duties. (
2. As to the argument of the respondent Xxx that she was deprived of an opportunity to controvert the affidavits and documents presented by respondents Xxx and Xxx, which this Honorable Office capitalized to indict the former, it must be noted that in the recent case of JOSE U. ONG and NELLY M. ONG vs. SANDIGANBAYAN and OFFICE OF THE OMBUDSMAN, G.R. No. 126858, September 16, 2005, it was held that a respondent is entitled to be notified of the proceedings and to be present thereat and that the fact that such respondent was not so notified is a denial of fundamental fairness which taints the preliminary investigation of the Ombudsman. Thus:
X x x.
However, Ong calls the Court’s attention to the fact that he was not notified of the subpoenas duces tecum ad testificandum apparently issued to SGV, Allied Bank and the BIR and the proceedings taken thereon. This objection was raised in his Motion, dated February 17, 1993, which was, unfortunately, perfunctorily denied.
The Rules of Procedure of the Office of the Ombudsman provides that the “preliminary investigation of cases falling under the jurisdiction of the Sandiganbayan and Regional Trial Court shall be conducted in the manner prescribed in Section 3, Rule 112 of the Rules of Court, subject to the following provisions:
…
(f) If, after the filing of the requisite affidavits and their supporting evidences, there are facts material to the case which the investigating officer may need to be clarified on, he may conduct a clarificatory hearing during which the parties shall be afforded the opportunity to be present but without the right to examine or cross-examine the witness being questioned. Where the appearance of the parties or witness is impracticable, the clarificatory questioning may be conducted in writing, whereby the questions desired to be asked by the investigating officer or a party shall be reduced into writing and served on the witness concerned who shall be required to answer the same in writing and under oath.”
Ong, therefore, should have been notified of the subpoenas duces tecum ad testificandum issued to SGV, Allied Bank and the BIR. Although there is no indication on record that clarificatory hearings were conducted pursuant to the subpoenas, Ong is entitled to be notified of the proceedings and to be present thereat. The fact that he was not so notified is a denial of fundamental fairness which taints the preliminary investigation.
X x x.
3. The questioned Deed of Sale is a public document. A public document is prepared in the regular performance of public duties are prima facie evidence of facts therein stated. (Revised Rules of Court, Rule 130, Sec. 44; People vs.
4. The respondent Xxx hereby respectfully invokes her constitutional right to be presumed innocent. Innocence, and not wrong-doing, is presumed. Good faith is presumed. The republican system of government will not survive unless a certain trust and confidence is reposed in each government department or agent. (People vs. De Guzman, GR 106025, Feb. 9, 1994).
5. The innocence of a defendant in a criminal case is always presumed until the contrary is proven. Where two probabilities arise from the evidence, the one compatible with the presumption of innocence will be adopted. Mere suspicion is not enough to take away one’s liberty and destroy one’s reputation. Guilt must be proven by proof as clear as daylight, evidence so airtight that no is left for any reasonable doubt. (PEOPLE vs. BARO, G.R. Nos. 146327-29, 5 June 2002).
6. The self-serving testimonial evidence of Xxx, et. al. deserve scant consideration because they were acts or declarations made by them in their own interests. This kind of evidence is excluded on the same ground as any hearsay evidence, that is, lack of opportunity for cross-examination by the adverse party and on the consideration that its admission would open the door to fraud and fabrication. (HEIRS OF PEDRO CLEMEÑA Y ZURBANO vs. HEIRS OF IRENE B. BIEN, G.R. No. 155508 September 11, 2006).
7. For failure of this Honorable Office to provide the respondent Xxx copies of the (self-serving and one-sided) affidavits of respondents Xxx and Xxx which ultimately became bases for her indictment, so that the former could controvert and contest the same, and considering that the Honorable Office failed to conduct clarificatory hearings on unsettled major factual issues or to conduct an ocular inspection of the questioned property to establish its true and real location, condition, and value, it is the humble submission of the respondent Xxx that she was deprived of her basic right to due process of law and to equal protection of the law as a result of such failures of the Honorable Office.
8. Applying by analogy the ruling made in the case of MONTEMAYOR vs. BUNDALIAN, et. al., G.R. No. 149335. July 1, 2003, on the doctrine of substantial evidence in order to hold a respondent liable for an act or omission, it was held that the burden is on the complainant to prove by substantial evidence the allegations in his complaint; that substantial evidence is more than a mere scintilla of evidence; that substantial evidence means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion, even if other minds equally reasonable might conceivably opine otherwise.
9. The Honorable Office, in supporting its indictment of the respondent Xxx, concluded that she conspired with some of her co- respondents in violating Section 3 (3), R. A. 3019, as amended, and Sub-Paragraphs 1, 4, and 7, Article 171, Revised Penal Code.
10. The evidence on record failed to show that the respondent Xxx conspired with the public and private respondents in the preparation, execution, issuance, delivery, annotation and registration of the questioned Deed of Sale, the Official Receipts, the Tax Returns, the CAR, the two Titles, and the two Tax Declarations.
11. All that the evidence show is that the respondent Xxx -- moved by kindness and compassion, upon prior review and recommendation of her examination and verification staff, and upon substantial compliance by the transacting with the payment of the required taxes as proved by the Official Receipts issued by the accredited Bank -- allowed the registration of the questioned Deed of Sale and the issuance of the new Title on the same date that the Deed of Sale was notarized and registered with the Office of the Register of Deeds.
12. No evidence exists proving that the respondent Xxx benefited financially from the registration of the questioned Deed of Sale and the issuance of the new Title. No testimony has been presented to support the conclusion that she gained an unwarranted benefit from such legal transaction. The finding in the Resolution that she received financial gains or that she defrauded the State was based purely on surmises and speculations, which cannot overturn the constitutional presumption of innocence in her favor.
13. The role of the respondent Xxx as the approving officer in the registration of the questioned Deed of Sale and in the issuance of the new Title, by itself, is not sufficient to establish the speculation that she conspired to defraud the State by falsifying the questioned documents. By analogy, “mere presence at the scene of a crime would not by itself establish conspiracy, absent any evidence that he, by an act of series of acts, participated in the commission of fraud to the damage of the complainant”. (Timbal v. CA, GR 136487, Dec. 14, 2001).
14. In the recent case of LADONGA VS. PEOPLE, GR 141066, February 17, 2005, it was held that, as provide in Article 8 of the Rev. Penal Code, “a conspiracy exists when two or more persons come to an agreement concerning the commission of a felony and decide to commit it”; that to be held guilty as a co-principal by reason of conspiracy, the accused must be shown to have performed an overt act in pursuance or furtherance of the complicity; that the overt act or acts of the accused may consist of active participation in the actual commission of the crime itself or may consist of moral assistance to his co-conspirators by moving them to execute or implement the criminal plan; and that conspiracy must be established, not by conjectures, but by positive and conclusive evidence. Thus:
X x x.
In the present case, the prosecution failed to prove that petitioner performed any overt act in furtherance of the alleged conspiracy. As testified to by the lone prosecution witness, complainant Alfredo Oculam, petitioner was merely present when her husband, Adronico, signed the check subject of Criminal Case No. 7068. With respect to Criminal Case Nos. 7069-7070, Oculam also did not describe the details of petitioner’s participation. He did not specify the nature of petitioner’s involvement in the commission of the crime, either by a direct act of participation, a direct inducement of her co-conspirator, or cooperating in the commission of the offense by another act without which it would not have been accomplished. Apparently, the only semblance of overt act that may be attributed to petitioner is that she was present when the first check was issued. However, this inference cannot be stretched to mean concurrence with the criminal design.
Conspiracy must be established, not by conjectures, but by positive and conclusive evidence. Conspiracy transcends mere companionship and mere presence at the scene of the crime does not in itself amount to conspiracy. Even knowledge, acquiescence in or agreement to cooperate, is not enough to constitute one as a party to a conspiracy, absent any active participation in the commission of the crime with a view to the furtherance of the common design and purpose.
As the Court eloquently pronounced in a case of recent vintage, People vs. Mandao:
To be sure, conspiracy is not a harmless innuendo to be taken lightly or accepted at every turn. It is a legal concept that imputes culpability under specific circumstances; as such, it must be established as clearly as any element of the crime. Evidence to prove it must be positive and convincing, considering that it is a convenient and simplistic device by which the accused may be ensnared and kept within the penal fold.
Criminal liability cannot be based on a general allegation of conspiracy, and a judgment of conviction must always be founded on the strength of the prosecution’s evidence. The Court ruled thus in People v. Legaspi, from which we quote:
At most, the prosecution, realizing the weakness of its evidence against accused-appellant Franco, merely relied and pegged the latter’s criminal liability on its sweeping theory of conspiracy, which to us, was not attendant in the commission of the crime.
The rule is firmly entrenched that a judgment of conviction must be predicated on the strength of the evidence for the prosecution and not on the weakness of the evidence for the defense. The proof against him must survive the test of reason; the strongest suspicion must not be permitted to sway judgment. The conscience must be satisfied that on the defense could be laid the responsibility for the offense charged; that not only did he perpetrate the act but that it amounted to a crime. What is required then is moral certainty.
Verily, it is the role of the prosecution to prove the guilt of the appellant beyond reasonable doubt in order to overcome the constitutional presumption of innocence.
In sum, conviction must rest on hard evidence showing that the accused is guilty beyond reasonable doubt of the crime charged. In criminal cases, moral certainty -- not mere possibility -- determines the guilt or the innocence of the accused. Even when the evidence for the defense is weak, the accused must be acquitted when the prosecution has not proven guilt with the requisite quantum of proof required in all criminal cases.
All told, the prosecution failed to establish the guilt of the petitioner with moral certainty. Its evidence falls short of the quantum of proof required for conviction. Accordingly, the constitutional presumption of the petitioner’s innocence must be upheld and she must be acquitted.
X x x.
15. In fine, it is the humble submission of the respondent Xxx that there is no evidence to justify (a) the finding of the existence of probable cause against her for violation of Section 3 (e), R. A. 3019, as amended, and Sub-Paragraphs 1, 4, and 7, Article 171, Revised Penal Code and (b) the existence of conspiracy among Xxx and some of her co-respondents.
She respectfully submits that, assuming that she committed operational lapses or errors of administrative discretion, the same were not sufficient to indict her for criminal violations of the aforementioned laws.
Further, Xxx respectfully submits that good faith and substantial compliance on her part warrants the dismissal of the instant criminal case as against her.
WHEREFORE, premises considered, it is respectfully prayed that the Resolution, dated xxx, as against the respondent Xxx, be reconsidered and that the instant criminal complaint as against her be dismissed, for lack of probable cause.
Further, the respondent Xxx prays for such and other reliefs as may be deemed just and equitable in the premises.
LASERNA CUEVA-MERCADER LAW OFFICES
Counsel for the Respondent xxx
Unit 15, Star Arcade,
Las
Tel. Nos. 872-5443; 874-2539
