Sample motion for reconsideration prepared by our law office in a criminal complaint for falsification that was dismissed by an investigating prosecutor. For legal research purposes of our readers/followers.
MOTION FOR RECONSIDERATION
THE UNDERSIGNED COMPLAINANT respectfully states:
The subject matter of this motion for reconsideration is the Resolution, dated 11 September 2015, issued by Investigating Assistant City Prosecutor xxx, reviewed by Senior Assistant City Prosecutor xxx, and approved by Chief City Prosecutor xxx.
2. MATERIAL DATES.
The complainant received via registered mail a copy of the aforecited Resolution on 4 January 2016.
Her 15th day to file this motion for reconsideration expires on January 19, 2016.
The complainant assigns the following error/ground for this motion for reconsideration:
The questioned Resolution erred in holding, as its sole basis in dismissing the Complaint, that the proper party-complainant should have been xxx (the employer of the herein complainant) and not the complainant herself because the Complainant was not the actual issuer of the falsified Certificate of Employment subject matter of the Complaint but her employer xxx.
The complainant submits that the questioned Resolution should be reconsidered and set aside and a new one be issued indicting the respondent for the crime of Falsification of Private Commercial Document as charged in the Complaint.
4.1. Complaint. – As a refresher, the Complaint for FALSIFICATION AND FORGERY is reproduced hereinbelow:
“x x x.
1. This is a case for FALSIFICATION and FORGERY against the respondent x x x of legal age and with business address at x x x City, where summons may be served.
2. Respondent x x x is a Sales Executive of x x xx..
She handled the account of my sister-in-law x x xx who wanted to buy a xxx car.
3. Upon advice of xxx, xxx made me and my husband xxx, a younger brother of xxx, as the latter’s co-makers in the car loan application of xxx with XXX BANK, the financing arm of xxx.
4. In April 2015, my husband xxx and I submitted to respondent xxx our Identification documents, Marriage Contract, and Pay Slips.
Because it was Holy Week, we were unable at that time to submit our Certificates of Employment and Tax Identification Numbers.
5. I later found out that a fake, falsified and forged Certificate of Employment was submitted by respondent xxx to XXX BANK as part of the car loan application of xxx.
The XXX BANK verified the document with my employer, xxx, which denied having issued the Certificate of Employment.
6. Later my employer filed an internal administrative case against me for Falsification, Dishonesty, and the like on the theory that I caused the issuance of the fake, forged and falsified Certificate of Employment.
7. I know nothing about such document. The only person who was in a position and who had the vested interest to prepare the same was the respondent xxx to insure the approval of the car loan application of xxx, thus, likewise insuring the commissions and other perks due and owing to respondent xxx by reason of such approval.
8. The criminal act of xxx has endangered my security of tenure in my company and my name and honor as a citizen.
I now have to face and defend myself against the administrative case filed against me.
9. Enclosed are copies of the following supporting documents:
9.1. Annex “A” - Affidavit, dated April 18, 2015, of xxx.
She is scheduled to leave abroad this month as an overseas Filipino worker in xxx.
9.2. Annex “B” - MEMORANDUM, dated April 14, 2015, issued by xxx to me.
It orders me to explain why I should not be dismissed from the service.
It contains as an annex thereof a copy of the fake, forged and falsified Certificate of Employment.
9.3. Annex “C” - My Demand Letter, dated April 18. 2015, to respondent xxx.
It demands a formal apology from respondent xxx, for the record.
10. In conclusion, I pray that respondent xxx be indicted for FALSIFICATION AND FORGERY OF PRIVATE COMMERICAL DOCUMENT, in the interest of justice.
X x x.”
4.2. By way of refresher, the REPLY-AFFIDAVIT of the Complainant is reproduced hereinbelow:
“x x x.
1. This is a REPLY to the Counter-Affidavit, dated May 20, 2015, of the Respondent.
2. At the outset, I stress that my criminal complaint is based on PERSONAL KNOWLEDGE, CREDIBLE CIRCUMSTANTIAL EVIDENCE, and COMMON SENSE.
2.1. It is not based on INSINUATION or SPECULATION.
3. X x x.
4. X x x.
5. The convenient defense of Respondent, aside from DENIAL, is that as an Sales Executive/Agent of xxx her routine duty was to simply that of a non-thinking ROBOT, i.e., to receive the documents from the car loan applicant xxx and to forward the same to XXX BANK for processing and approval.
6.1. This is not true.
6.2. Respondent was in FULL CONTROL of the different xxx in-house processes, to wit:
6.2.1. Consolidation of all loan documents
6.2.2. Review of the completeness thereof
6.2.3. Consultations with her Supervisor in case of issues Respondent could not handle/resolve alone
6.2.4. Safekeeping of the documents
6.2.5. Control of the documents and the in-house process of assessment thereof prior to referral to XXX BANK
6.2.6. Transmittal of the consolidated and assessed documents to XXX BANK as approved by her Supervisor.
6. Annex “1” of the Counter-Affidavit allegedly written and sent via iPad by a certain xxx (alleged XXX BANK account officer) and allegedly addressed to a certain xxx is unauthenticated, if not spurious or manufactured, or at the least, self-serving.
6.1. It is not even under oath.
6.2. The unknown xxx was not even presented as a witness before this Office with his own Affidavit sworn to before the Investigating Prosecutor to affirm the alleged contents thereof.
6.3. His Company ID Card was not even photocopied and attached to the Counter-Affidavit.
7. In fact, if I recall right, sometime on April 1, 2015, Holy Wednesday, when the Respondent received from me my Identification Card, Marriage Contract, and Pay Slips, the Respondent even had the temerity to ask me to sign some blank documents.
7.1. She said they were needed by her to insure the speedy approval by XXX BANK of the car loan of xxx.
7.2. I trusted her, and so I complied with her wishes as a professional sales agent of xxx, even without scrutinizing them.
8. The record of the administrative complaint that was commenced by our Company against me and which was attached by me to my Complaint-Affidavit was intended by me as a proof of the painful consequences of the unlawful acts of the Respondent.
8.1. Yes, it is not a proof of Falsification.
8.2. But it is a corroborating proof of my truthful theory that because of the unlawful and wrongful act of the Respondent, my security of tenure and honor as a citizen has been placed in jeopardy.
8.3. I am now forced to face and suffer the shame, pain, expense, and tediousness of the administrative case against me -- all because of the said act of the Respondent.
9. The jurisprudence cited by the Respondent in her Counter-Affidavit are irrelevant or inapplicable. See Par. 4 thereof.
9.1. “Colorable truth” is not an issue here.
9.2. It is a matter of evidence or defense that is proper during the trial stage before the trial court and after an indictment.
9.3. The same foregoing reason applies to the other defenses raised in the Counter-Affidavit, to wit:
9.3.1. “Perversion of truth”
9.3.2. “Intent of injuring a third person”
9.3.3. “Animated by a desire to do wrong”
10. “Presumption of innocence” is not a defense to destroy “probable cause”, if one is present.
10.1. If there is probable cause, “presumption of innocence” is a matter of defense/evidence that is proper only during trial and after indictment.
11. The Respondent thus has no basis/reason to apply/invoke the Cabahug and the Salonga doctrines. See the Prayer Part of her Counter-Affidavit.
11.1. The Investigating Prosecutor has the full prerogative to determine probable cause based on the evidence, whether it be direct, indirect, physical, autoptic, documentary, circumstantial, of judicial notice, and backed up by common sense or the natural course of events.
12. In conclusion, I humbly pray that respondent xxx be indicted for FALSIFICATION AND FORGERY OF PRIVATE COMMERICAL DOCUMENT, or such other felonies or offenses as may be warranted by the record and the evidence, in the interest of justice.
X x x.”
4.3. Article 171 of the Revised Penal Code is reproduced hereinbelow for reference.
Article 171. Falsification by public officer, employee or notary or ecclesiastic minister. - The penalty of prision mayor and a fine not to exceed 5,000 pesos shall be imposed upon any public officer, employee, or notary who, taking advantage of his official position, shall falsify a document by committing any of the following acts:
1. Counterfeiting or imitating any handwriting, signature or rubric;
2. Causing it to appear that persons have participated in any act or proceeding when they did not in fact so participate;
3. Attributing to persons who have participated in an act or proceeding statements other than those in fact made by them;
4. Making untruthful statements in a narration of facts;
5. Altering true dates;
6. Making any alteration or intercalation in a genuine document which changes its meaning;
7. Issuing in an authenticated form a document purporting to be a copy of an original document when no such original exists, or including in such a copy a statement contrary to, or different from, that of the genuine original; or
8. Intercalating any instrument or note relative to the issuance thereof in a protocol, registry, or official book.
The same penalty shall be imposed upon any ecclesiastical minister who shall commit any of the offenses enumerated in the preceding paragraphs of this article, with respect to any record or document of such character that its falsification may affect the civil status of persons.
4.4. Article 172 of the same Code is reproduced hereinbelow, for reference:
Article 172. Falsification by private individuals and use of falsified documents. - The penalty of prision correccional in its medium and maximum periods and a fine of not more than 5,000 pesos shall be imposed upon:
1. Any private individual who shall commit any of the falsifications enumerated in the next preceding article in any public or official document or letter of exchange or any other kind of commercial document; and
2. Any person who, to the damage of a third party, or with the intent to cause such damage, shall in any private document commit any of the acts of falsification enumerated in the next preceding article.
Any person who shall knowingly introduce in evidence in any judicial proceeding or to the damage of another or who, with the intent to cause such damage, shall use any of the false documents embraced in the next preceding article, or in any of the foregoing subdivisions of this article, shall be punished by the penalty next lower in degree.
4.5. PROPER PARTY-COMPLAINANT in a criminal case for falsification and forgery is not limited to the locus standi or personality of the Employer (who was made by the respondent to appear as having issued the Certificate of Employment subject matter of the complaint).
The injured employee is a proper party-complainant, a real party in interest, and an indispensable party as a result of the commission by the respondent of the crime that caused such employee pain, injury, damage, and suffering.
4.6. It will be noted that under Article 4 of the Rev. Penal Code CRIMINAL LIABILITY is incurred:
(1) By any person committing a felony (delito) although the wrongful act done be different from that which he intended; and
(2) By any person performing an act which would be an offense against persons or property, were it not for the inherent impossibility of its accomplishment or on account of the employment of inadequate or ineffectual means.
4.7. Perhaps it is good to review at this juncture who are the persons liable in a criminal complaint by reproducing hereinbelow Articles 16 to 19 of the same Code.
“x x x.
Persons Criminally Liable for Felonies
Article 16. Who are criminally liable. - The following are criminally liable for grave and less grave felonies:
1. Who are criminally liable. - The following are criminally liable for grave and less grave felonies:
The following are criminally liable for light felonies:
Article 17. Principals. - The following are considered principals:
1. Those who take a direct part in the execution of the act;
2. Those who directly force or induce others to commit it;
3. Those who cooperate in the commission of the offense by another act without which it would not have been accomplished.
Article 18. Accomplices. - Accomplices are those persons who, not being included in article 17, cooperate in the execution of the offense by previous or simultaneous acts.
Article 19. Accessories. - Accessories are those who, having knowledge of the commission of the crime, and without having participated therein, either as principals or accomplices, take part subsequent to its commission in any of the following manners:
1. By profiting themselves or assisting the offender to profit by the effects of the crime.
2. By concealing or destroying the body of the crime, or the effects or instruments thereof, in order to prevent its discovery.
3. By harboring, concealing, or assisting in the escape of the principal of the crime, provided the accessory acts with abuse of his public functions or whenever the author of the crime is guilty of treason, parricide, murder, or an attempt to take the life of the Chief Executive, or is known to be habitually guilty of some other crime.
X x x.”
4.8. Is the victim (i.e., herein complainant) a proper party-complainant, a real party-in-interest-complainant, or an indispensable party-complainant in the commission of a felony which has resulted in her damage, injury, and suffering?
The answer thereto of the questioned Resolution was in the negative.
The complainant humbly submits that the questioned Resolution is in patent error on this procedural point.
Technical rules of procedures “shall be liberally construed in order to promote their objective of securing a just, speedy and inexpensive disposition of every action and proceeding.” (Sec. 6, Rule 1, Rev. Rules of Civil Procedure).
The Rules of Civil Procedure is applicable “by analogy or in a suppletory character and whenever practicable and convenient.” (Sec. 4, Rule 1, Rules of Civil Procedure).
4.9. Sec. 2, Rule 2, Rules of Civil Procedure provides:
SEC. 2. Parties in interest.—A real party in interest is the party who stands to be benefited or injured by the judgment in the suit, or the party entitled to the avails of the suit. Unless otherwise authorized by law or these Rules, every action must be prosecuted or defended in the name of the real party in interest.
4.10. Secs. 6 to 9 of the same Rules are relevant:
SEC. 6. Permissive joinder of parties.—All persons in whom or against whom any right to relief in respect to or arising out of the same transaction or series of transactions is alleged to exist, whether jointly, severally, or in the alternative, may except as otherwise provided in these Rules, join as plaintiffs or be joined as defendants in one complaint, where any question of law or fact common to all such plaintiffs or to all such defendants may arise in the action; but the court may make such orders as may be just to prevent any plaintiff or defendant from being embarrassed or put to expense in connection with any proceedings in which he may have no interest. (6)
SEC. 7. Compulsory joinder of indispensable parties.—Parties in interest without whom no final determination can be had of an action shall be joined either s plaintiffs or defendants. (7)
SEC. 8. Necessary party.—A necessary party is one who is not indispensable but who ought to be joined as a party if complete relief is to be accorded as to those already parties, or for a complete determination or settlement of the claim subject of the action. (8a)
SEC. 9. Non-joinder of necessary parties to be pleaded.—Whenever in any pleading in which a claim is asserted a necessary party is not joined, the pleader shall set forth his name, if known, and shall state why he is omitted. Should the court find the reason for the omission unmeritorious, it may order the inclusion of the omitted necessary party if jurisdiction over his person may be obtained.
The failure to comply with the order for his inclusion, without justifiable cause, shall be deemed a waiver of the claim against such party.
The non-inclusion of a necessary party does not prevent the court from proceeding in the action, and the judgment rendered therein shall be without prejudice to the rights of such necessary party. (8a, 9a)
X x x.”
5. An OFFENDED PARTY in a criminal case, like the herein complainant (who is a real and an actual aggrieved victim of the effects and results of the falsified Certificate of Employment subject matter of this case and who was administratively charged by her employer for the existence and use by the herein respondent xxx of such falsified Certificate of Employment), is a proper party-in-interest who has the right to file the criminal complaint and, in the interest of justice, the herein complainant may not be deprived by the investigating prosecutor of her right to commence a criminal case to seek relief and redress.
5.1. In the case of HILARIO P. SORIANO vs. HON. CAESAR A. CASANOVA, et. al., G.R. NO. 163400, March 31, 2006, it was held that a public crime (like falsification, forgery, estafa, and the like) may be commenced by the private offended party or by a victim of the crime or by any member of the general public or by “any competent person”.
“x x x.
Citing the ruling of this Court in Ebarle v. Sucaldito, G.R. Nos. L-33628 and L-34162,
29, 1987, 156 SCRA 803, the Court of Appeals correctly held that a complaint for purposes of preliminary
investigation by the
fiscal need not be filed by the offended party. The rule has been that, unless the offense subject thereof is one that cannot be prosecuted de oficio, the same may be filed, for preliminary investigation purposes, by any competent person. The crime of estafa is a public crime which can be initiated by “any competent person.” The witnesses who executed the affidavits based on their personal knowledge of the acts committed by the petitioner fall within the purview of “any competent person” who may institute the complaint for a public crime. X x x.
X x x.”
5.2. Sec. 3, Rule 110 (Prosecution of Offenses) provides that “a complaint is a sworn written statement charging a person with an offense, subscribed by the offended party, any peace officer, or other public officer charged with the enforcement of the law violated.”
The complainant has complied therewith.
5.3. Sec.6, Rule 110 (Sufficiency of complaint or information) provides that “a complaint or information is sufficient if it states the name of the accused; the designation of the offense given by the statute; the acts or omissions complained of as constituting the offense; the name of the offended party; the approximate date of the commission of the offense; and the place where the offense was committed.”
The complainant has complied therewith.
5.4. Sec. 12, Rule 110 (Name of the offended party) provides that “the complaint or information must state the name and surname of the person against whom or against whose property the offense was committed, or any appellation or nickname by which such person has been or is known.”
The complainant has complied therewith.
5.5. Sec. 1, Rule 111, (Institution of criminal and civil actions.—provides that “when a criminal action is instituted, the civil action for the recovery of civil liability arising from the offense charged shall be deemed instituted with the criminal action unless the offended party waives the civil action, reserves the right to institute it separately or institutes the civil action prior to the criminal action”.
This allows the classification of the herein complainant as a property party, being a private offended party.
There are two (2) private offended parties in a falsification, forgery, or estafa cases: the Employer (e.g., xxx ) and the injured Employee (e.g., herein complainant).
Hence, the herein complainant has the locus standi to commence the instant criminal case.
5.6. The recent case of LEE PUE LIONG A.K.A. PAUL LEE VS. CHUA PUE CHIN LEE, G.R. No. 181658, August 07, 2013 is instructive.
The Supreme Court in the said case held that the basis of civil liability arising from crime is the fundamental postulate of our law that “[e]very person criminally liable x x x is also civilly liable.”
It stated that “underlying this legal principle is the traditional theory that when a person commits a crime, he offends two entities, namely (1) the society in which he lives in or the political entity, called the State, whose law he has violated; and (2) the individual member of that society whose person, right, honor, chastity or property was actually or directly injured or damaged by the same punishable act or omission.”
The Supreme Court further held that “for the recovery of civil liability in the criminal action, the appearance of a private prosecutor is allowed under Section 16 of Rule 110 which provides that “where the civil action for recovery of civil liability is instituted in the criminal action pursuant to Rule 111, the offended party may intervene by counsel in the prosecution of the offense.”
Furthermore, defining who the “offended party” is and “what are the rights of the offended party”, the Supreme Court held therein:
“x x x.
Section 12, Rule 110 of the Revised Rules of Criminal Procedure, as amended, defines an offended party as “the person against whom or against whose property the offense was committed.” In Garcia v. Court of Appeals, this Court rejected petitioner’s theory that it is only the State which is the offended party in public offenses like bigamy. We explained that from the language of Section 12, Rule 10 of the Rules of Court, it is reasonable to assume that the offended party in the commission of a crime, public or private, is the party to whom the offender is civilly liable, and therefore the private individual to whom the offender is civilly liable is the offended party.
X x x.
Under Section 16, Rule 110 of the Revised Rules of Criminal Procedure, the offended party may also be a private individual whose person, right, house, liberty or property was actually or directly injured by the same punishable act or omission of the accused, or that corporate entity which is damaged or injured by the delictual acts complained of. Such party must be one who has a legal right; a substantial interest in the subject matter of the action as will entitle him to recourse under the substantive law, to recourse if the evidence is sufficient or that he has the legal right to the demand and the accused will be protected by the satisfaction of his civil liabilities. Such interest must not be a mere expectancy, subordinate or inconsequential. The interest of the party must be personal; and not one based on a desire to vindicate the constitutional right of some third and unrelated party. X x x.
X x x.
In Chua v. Court of Appeals, as a result of the complaint-affidavit filed by private respondent who is also the corporation’s Treasurer, four counts of falsification of public documents (Minutes of Annual Stockholder’s Meeting) was instituted by the City Prosecutor against petitioner and his wife. After private respondent’s testimony was heard during the trial, petitioner moved to exclude her counsels as private prosecutors on the ground that she failed to allege and prove any civil liability in the case. The MeTC granted the motion and ordered the exclusion of said private prosecutors. On certiorari to the RTC, said court reversed the MeTC and ordered the latter to allow the private prosecutors in the prosecution of the civil aspect of the criminal case. Petitioner filed a petition for certiorari in the CA which dismissed his petition and affirmed the assailed RTC ruling.
When the case was elevated to this Court, we sustained the CA in allowing the private prosecutors to actively participate in the trial of the criminal case. Thus:
X x x.
X x x. Generally, the basis of civil liability arising from crime is the fundamental postulate that every man criminally liable is also civilly liable. When a person commits a crime he offends two entities namely (1) the society in which he lives in or the political entity called the State whose law he has violated; and (2) the individual member of the society whose person, right, honor, chastity or property has been actually or directly injured or damaged by the same punishable act or omission. An act or omission is felonious because it is punishable by law, it gives rise to civil liability not so much because it is a crime but because it caused damage to another. Additionally, what gives rise to the civil liability is really the obligation and the moral duty of everyone to repair or make whole the damage caused to another by reason of his own act or omission, whether done intentionally or negligently. The indemnity which a person is sentenced to pay forms an integral part of the penalty imposed by law for the commission of the crime. The civil action involves the civil liability arising from the offense charged which includes restitution, reparation of the damage caused, and indemnification for consequential damages.
Under the Rules, where the civil action for recovery of civil liability is instituted in the criminal action pursuant to Rule 111, the offended party may intervene by counsel in the prosecution of the offense. Rule 111(a) of the Rules of Criminal Procedure provides that, “[w]hen a criminal action is instituted, the civil action arising from the offense charged shall be deemed instituted with the criminal action unless the offended party waives the civil action, reserves the right to institute it separately, or institutes the civil action prior to the criminal action.”
Private respondent did not waive the civil action, nor did she reserve the right to institute it separately, nor institute the civil action for damages arising from the offense charged. Thus, we find that the private prosecutors can intervene in the trial of the criminal action.
X x x.”
5.7. In fact, in the case of CRISTINA PEREZ vs. HAGONOY RURAL BANK, INC., and HON. COURT OF APPEALS, G.R. No. 126210. March 9, 2000, the Supreme Court further bolstered the locus standi of an offended party to file a Rule 65 special civil action for certiorari by holding that “the private respondent, as private complainant, had legal personality to assail the dismissal of the criminal case against the petitioner on the ground that the order of dismissal was issued with grave abuse of discretion amounting to lack or excess of jurisdiction.”
In the said case, the Supreme Court held that "in a special civil action for certiorari filed under Section 1, Rule 65 of the Rules of Court wherein it is alleged that the trial court committed grave abuse of discretion amounting to lack of jurisdiction or on other jurisdictional grounds, the rules state that the petition may be filed by the person aggrieved.”
The Supreme Court stated that “in such case, the aggrieved parties are the State and the private offended party or complainant.”
It added that “the complainant has an interest in the civil aspect of the case so he may file such special civil action questioning the decision or action of the respondent court on jurisdictional grounds” and that “in so doing, the complainant should not bring the action in the name of the People of the Philippines. The action may be prosecuted in (the) name of the said complainant."
It stressed that “the private offended party retains the right to bring a special civil action for certiorari in his own name in criminal proceedings before the courts of law” and that “it follows, therefore, that if the private respondent in this case may file a special civil action for certiorari, then with more reason does it have legal personality to move for a reconsideration of the order of the trial court dismissing the criminal charges against the petitioner. In fact, as a general rule, a special civil action will not lie unless a motion for reconsideration is first filed before the respondent tribunal, to allow it an opportunity to correct its assigned errors.”
6. PURE TECHNICALITY. - Please note that the questioned Resolution did not determine the existence or non-existence of PROBABLE CAUSE.
The questioned Resolution is mysteriously quiet on the matter.
It simply dismissed the Complaint for alleged lack of locus standi of the Complainant.
This is a glaring error of judgment, an abuse of discretion, and an act of gross negligence on the part of the Investigating Prosecutor.
He should have discussed, resolved and determine the merits or lack of merits (or the substance) of the Complaint, not only the alleged technical defect of alleged lack of locus standi of the complainant, considering the presence in the Complaint of substantial evidence to establish probable cause.
The Investigating Prosecutor did not discuss at all the weight and probative value of the evidence presented in the Complaint.
He evaded and escaped such legal duty by merely relying on the alleged lack of locus standi of the complainant to conveniently dismiss her Complaint.
WHEREFORE, premises considered and in the interest of justice, the complainant respectfully prays that the questioned Resolution, dated 11 September 2015, be reconsidered and set aside and a new one be issued indicting the respondent for the crime of Falsification and Forgery of Private Commercial Document as charged in the Complaint.
Further, it is respectfully prayed (a) that the Investigating Assistant City Prosecutor be disqualified from participating in any manner whatsoever in the resolution of this motion for reconsideration for reasons of delicadeza and legal ethics and (b) that the Case Record hereof be elevated to the Office of the Chief City Prosecutor for further review.
Finally, the complainant respectfully prays for such and other reliefs as may be deemed just and equitable in the premises.
xxx City, January 7, 2016.
X x x x x x x x