This is a sample omnibus "motion for reinvestigation, reconsideration and to re-open a preliminary investigation and admit supplemental evidence" in re a case for Estafa. For legal research purposes of our readers. The motion was prepared by our law office.
URGENT OMNIBUS
MOTION:
1.
FOR REINVESTIGATION,
RECONSIDERATION,
AND
RE-OPENING OF PRELIMINARY
INVESTIGATION;
AND
2.
TO ADMIT SUPPLEMETAL EVIDENCE
CONSISTING OF FINANCIAL RECORDS AND OTHER DOCUMENTS.
THE
UNDERSIGNED RESPONDENT, xxx, 65 years old, married, Filipino, and
residing at xxx, xxx City, under
oath, respectfully states:
I.
PREFATORY STATEMENT;
SUBJECT MATTER OF THIS PLEADING.
1. The
subject matter of this pleading is the RESOLUTION,
dated 18 December 2015, of this Honorable Office.
2. This
pleading respectfully seeks (a) the reinvestigation,
reconsideration and re-opening of the preliminary investigation of the instant
case, as well as (b) the admission of
supplemental evidence for the Respondent, consisting of financial records and
other documents, in the interest of truth and justice.
II.
MATERIAL DATES.
3. The
Respondent received a copy of the questioned Resolution on February 11, 2016.
4. Her
10th day to file this pleading ends on February 21, 2016, a Sunday.
5. Hence,
this pleading will be filed with this Honorable Office the following working
day, February 22, 2016, Monday.
III.
THE QUESTIONED RESOLUTION.
6. The
questioned Resolution indicted the herein Respondent for the felony of Estafa under Art. 315 (b) of the Rev. Penal
Code.
7. The
sole ground for the Estafa indictment against the Respondent, as appearing in Par.
3, Page 2, of the questioned Resolution is the alleged “failure” of the
Respondent “to account for” the alleged “advances” that she had allegedly
received from the complainant Association; hence, raising the “presumption”
that the Respondent allegedly “misappropriated” the said amounts.
8. It
will be noted that the Resolution contains internal
inconsistencies. Taken together, the
inconsistencies should lead to the dismissal
of the instant complaint for lack of
probable cause.
9. Par. 1, Page 2 of the questioned
Resolution expressly states that there
is no probable cause to indict the Respondent for Estafa under Art. 315 (b) of
the Rev. Penal Code. Thus:
“x x x.
After a careful analysis of the pieces of evidence
filed by the parties, the undersigned
failed to find probable cause to indict the respondent for the crime of
Estafa as defined under Article 315, Paragraph 1 (b) of the Revised
Penal Code.
X x x.”
10.
Notwithstanding the foregoing express declaration
of lack of probable cause stated in Par.1, Page 2 of the Resolution, the
Resolution contradicted itself by concluding in the following Par. 3, of the very
same Page 2 thereof that the Respondent was allegedly guilty of Estafa under the
same Art. 315, Par. 1(b) for her alleged “failure to account for” or liquidate
the advances that she had allegedly received from the complainant Association;
hence, her indictment by the said Resolution.
11. It will be noted that the real total amount
allegedly received by the Respondent from the complainant Association is not
determined with accuracy in the pleadings of the complainant and in the
questioned Resolution.
11.1. Par.
1, Page 1 of the Resolution speaks of two (2) conflicting figures: (a) P173,
642.07 (alleged in the Complaint);
and (b) P137, 606.20 (alleged in the Demand Letter).
11.2. The
position of the complainant on this matter is inconsistent, raising doubts as
to the veracity of her claim.
IV.
GROUNDS FOR THIS PLEADING.
12.The
issues presented in this pleading are as follows:
(a)
Should the questioned Resolution be reconsidered and set aside in the interest of justice?
(b)
Should the preliminary investigation of the instant case be re-opened in the interest of due
process and justice?
(c)
Should the supplemental evidence
sought to be introduced by the Respondent be admitted in the interest of truth and justice?
V.
SUPPLEMENTAL EVIDENCE:
FINANCIAL RECORDS AND
PROOF OF GOOD MORAL CHARACTER.
13.The
respondent seeks to introduce the following supplemental evidence to prove her innocence and good moral character (which exculpating supplemental documentary evidence were neglected to be presented by the former
counsel for the Respondent who prepared her past pleadings for purposes of the
original preliminary investigation)[1]:
(a)
LIQUIDATION
REPORTS with SUPPORTING RECEIPTS in re: the amounts received by the
Respondent from June 2004 to March 2014
from the president and/or treasurer of the complainant Association (xxx), proving the various amounts received
by the Respondent from the said Association for the aforecited period/s and the
full and truthful application and liquidation thereof, broken down as follows.
The said Reports are signed
by two (2) Accountants who are willing
to appear before this Honorable Office in due time during the re-opening of
the Preliminary Investigation of this case to affirm and confirm the veracity
of the Financial Records or Liquidation Reports of the Respondent (namely, xxx, Bookkeeper; and xxx,
Accountant) and attested by the Respondent. THUS:
Annexes “1” to “1-G”. – LIQUIDATION REPORT for the years 2004 to 2005.
Annexes “2” to “2-MM”. - LIQUIDATION REPORT for the year 2007.
Annexes “3” to “3- SS”. - LIQUIDATION REPORT for the year 2008.
Annexes “4” to “4- O”. - LIQUIDATION REPORT for the year 2009.
Annexes “5” to “5- P”. - LIQUIDATION REPORT for the year 2010.
Annexes “6” to “6- NN”. - LIQUIDATION REPORT for the year 2011.
Annexes “7” to “7 - X”. - LIQUIDATION REPORT for the year 2012.
Annexes “8” to “8 - G”. - LIQUIDATION REPORT for the year 2013 to 2014.
Annexes “9” to “9- BBB”. - LIQUIDATION REPORT (“Payment to Social
Housing Finance Corp.”) for the year 2011 to 2014.
(b)
Annex “10”.
- BARANGAY CERTIFICATE OF RESIDENCY AND GOOD MORAL CHARACTER issued by the
Barangay Office of Barangay xxx, xxx Village, xxx City, proving the good moral
character of the Respondent, who,
incidentally, as a senior
citizen, will soon turn 66 years old on May 2, 2016 (having been born on May 2,
1950).
VI.
DISCUSSION.
14.
For
brevity, the Respondent hereby adopts into this section, by incorporation and reference, and reiterates all her foregoing statements
and arguments appearing in Part III,
Pars. 8 to 11.1, supra, and in Part V, Par. 13, Sub-Pars. (a) to (b), supra.
15. Further, for
the record, the Respondent hereby adopts into this section, by incorporation and reference, and reiterates all her statements,
arguments, and documentary evidence stated in and attached to her following
previous pleadings filed with this Honorable Office during the original
preliminary investigation of this case:
(a)
KONTRA SALAYSAY (Counter-Affidavit), dated June
19, 2015, which raised the following issues and defenses:
·
The lack of formal and genuine authority of xxx
to commence and file the instant case in behalf of the complainant Association,
a juridical entity with a separate legal personality;
·
The falsification by xxx of some of the Receipts
signed by the Respondent (to bloat the
figures in the Receipts presumably by
way of kickbacks);
Notes:
An example of this
bloated/falsified figure is the document marked as Annex “C-8” of the “Summary
of Amounts Received By Respondent xxx But Was Not Accounted/Misappropriated” (undated), which said Summary was attached to the
complainant’s “Supplemental Complaint-Affidavit”,
dated May 29, 2015.
(The said Summary did not
undergo a dependable external audit by a Certified Public Accountant. Nor did
it undergo a mutually acceptable Reconciliation of Account between the parties).
The said Annex “C-8” (a Receipt,
dated September 11, 2011 in the alleged amount of P40,000.00 intended
allegedly for “Print picture mosque”).
This document is unworthy of
belief, contrary to human experience, and unsupported by going market photo
developing prices.
No picture of a small mosque
in a depressed area, like xxx, xxx, xxx City, is worth P40, 000.00.
The Respondent was made to
sign the said questionable Receipt for a much lower amount of Forty Pesos
(P40.00).
Thereafter, the figure was
bloated/falsified to make it appear that the Respondent received P40, 000.00.
The complainant Xxx Xxx must
explain the foregoing suspicious amount.
·
The complaint is an afterthought; and that the silence
of xxx from 2010 to April 2014 renders her complaint suspicious and
unworthy of credence. considering that xxx sued the Respondent only in May 2015 whereas the felony allegedly started
in 2010;
·
The failure of xxx to cause a reliable Financial Audit and a mutual Reconciliation of Accounts of the
alleged amounts received by the Respondent from 2010 to 2014; and the failure of the complainant to initiate a
consultation meeting/s between the parties to amicably resolve their respective
financial claims and counterclaims and to reconcile their respective
accountings of the amounts involved;
and
Notes:
The Respondent respectfully
submits that the cause of action of the complainant is PURELY CIVIL
IN NATURE, considering that her alleged claim arose out of (a) the failure of the parties to cause a
formal and mutually agreed
JOINT EXTERNAL FINANCIAL
AUDIT of the funds involved and (b)
the failure of the parties to cause a formal and mutually acceptable
RECONCILIATION OF ACCOUNTS of the parties.
And such two failures can be
attributed to the negligence of the
complainant, who claims to be a dedicated and top-ranking responsible
officer (vice president) of the
Association.
The complainant PREMATURELY
and IN BAD FAITH immediately filed the instant case (a) without allowing the parties to first undergo the a preparatory
and confirmatory “joint external
financial audit and reconciliation of accounts” and (b) without first initiating an amicable out-of-court “alternative
dispute resolution” mechanisms, like mutual consultation, conciliation and
mediation.
·
The Respondent, if given the fair opportunity to
be heard and to submit all the relevant financial records or liquidation
reports and receipts in support thereof, was ready, willing, and able at any time to
prove the proper utilizations (e.g., liquidation
reports with the relevant receipts) of the funds she had allegedly received
from the complainant Association.
(b)
REJOINDER TO COMPLAINANT’S REPLY, dated July 24,
2015, which raised the following issues and defenses:
·
The President of the Association (xxx) had
executed a Sworn Statement, dated May 26, 2015, showing the nullity of
Board Resolution No. 19, dated February 2015, the alleged board resolution relied
upon by the complainant as her alleged authority to represent the Association
in initiating the instant case against the Respondent, marked as Annex “A” of her Complaint.
·
The aforecited sworn statement of Mr. xxx
(president) stated that out of the eleven (11) signatories to the null and void
Board Resolution No. 19, dated February
22, 2015, only three (3) were legitimate directors of the Association, i.e.,
xxx, xxx, and xxx.
·
Thus, there was no valid quorum when Board Resolution No. 19, dated February 22,
2015, was allegedly adopted by the board of directors of the
Association.
In fact, the complainant xxx
did not present to during the original preliminary investigation any Minutes of Board Meeting/s
showing the discussion and adoption of the suspicious Board Resolution No. 19,
marked as Annex “A” of her complaint.
Note:
The aforecited Rejoinder
referred to Sec. 2, Corporation Code
(the separate legal personality of a corporation as a juridical entity); Sec. 54, Implementing Rules and
Regulations of R.A. No. 9904, or the “Magna Carta for Homeowners and Homeowners Association” (all
homeowners associations shall act only through the board of directors to bind
the association); and Art. 19, New
Civil Code (duty of every person to act with justice, fairness,
honesty, and good faith).
·
The complainant xxx was not the Treasurer of the Association.
xxx had no direct and competent knowledge of the
funds of the Association and the disposition, releases, safekeeping, and accounting
thereof.
·
The Financial
Statements of the Association, marked as Annex “2” of the Respondent’s aforecited Rejoinder, shows that the funds, receipts, disbursements, and
expenditures of the Association were all duly accounted for.
16. Adding
up the Liquidation Reports for the years June
2004 to March 2014, supra, the
total amount received by the Respondent amounted to P558, 798.84.
16.1. The said Liquidation Reports fully
explained and justified via the relevant Receipts the utilizations or
disbursements thereof.
17. It will
be recalled that, after the filing by the Respondent of her Rejoinder (which
was supposed to be the last stage of the preliminary investigation), the
complainant, by counsel, unilaterally filed an (undated) OMNIBUS MOTION TO
RE-OPEN PRELIMINARY INVESTIGATION AND TO ADMIT SUR-REJOINDER.
·
The aforecited Omnibus Motion claims that the Sworn
Statement, dated May 26, 2015, of the President of the Association (Mr. xxx)
was allegedly hearsay because he did not affirm it before the Investigating
Prosecutor.
Notes:
It should be noted that,
although the general rule is that a witness must appear in person before the
Investigating Prosecutor to affirm under oath his Affidavit, there is nothing in the Rules of Court
which nullifies an Affidavit that had already been executed and notarized or
the probative value thereof.
An Affidavit that is duly
notarized is a PUBLIC DOCUMENT under the RULES OF EVIDENCE whether or not the
affiant appears in a preliminary investigation.
It is entitled to the PRESUMPTION OF REGULARITY under the Rules of
Evidence.
At any rate, the complainant
was given a fair opportunity to controvert the said sworn statement of Mr. xxx
by filing her Sur-Rejoinder, which was attached to the aforecited Omnibus
Motion of her counsel.
It cannot be said that the
complainant was absolutely deprived of her right to be heard thereon.
Due process means a “fair
opportunity to be heard”, e.g., in the case of the complainant her right to due
process was fulfilled when she unilaterally submitted to this Honorable
Office her Omnibus Motion and her Sur-Rejoinder attached thereto.
Hence, the Affidavit of Mr. xxx
is ADMISSIBLE in evidence.
A preliminary investigation should not be bound by strict technical rules of procedure and
technical rules of evidence in ascertaining the presence or absence of probable
cause.
·
The aforecited Omnibus Motion of the complainant
claims that Mr. xxx was no longer the President of the Association as of the
calendar term 2014.
It relied on an alleged General Information Sheet (GIS) allegedly
filed by the Association with the Housing and Land Use Regulatory Board (HLURB)
on November 24, 2014, which was
attached to the Sur-Rejoinder of the complainant.
Notes:
A General Information Sheet
(GIS) is not the best available
evidence of the legitimate election of a certain set of officers of a
homeowners association.
The best available evidence are
(a) the MINUTES OF THE GENERAL MEMBERSHIP MEETING AND REGULAR ELECTION held
during such general assembly, per the By-Laws of the Association and (b) their supporting
ATTENDANCE SHEETS or authenticated LIST OF VOTERS showing the names of the “members
in good standing who are entitled to vote and be voted upon”, as defined by the
By-Laws.
18.Please note that the Respondent was not
given a fair opportunity to rebut and controvert the Omnibus Motion and the
Sur-Rejoinder of the complainant.
The Respondent was thus unfairly deprived of her right to be formally
heard thereon, to formally oppose the same, and to formally expose the falsity of
the contents thereof.
VII.
APPLICABLE LAWS AND JURISPRUDENCE.
ESTAFA: LAW AND JURISPRUDENCE.
19.The
relevant provision of the Revised Penal Code on deceit and swindling (estafa) is quoted below for reference:
“Art. 315. Swindling (estafa). — Any person who shall defraud another by any of the
means mentioned hereinbelow shall be punished by:
1st. The penalty of prision correccional in its maximum period to prision
mayor in its minimum period, if the amount of the fraud is over 12,000 pesos
but does not exceed 22,000 pesos, and if such amount exceeds the latter sum,
the penalty provided in this paragraph shall be imposed in its maximum period,
adding one year for each additional 10,000 pesos; but the total penalty which
may be imposed shall not exceed twenty years. X x x.
2nd. X x x;
3rd. x x x; and
4th. X x x provided that in the four cases mentioned, the fraud be
committed by any of the following means:
1. With
unfaithfulness or abuse of confidence, namely:
(a) x x
x.
(b) By misappropriating
or converting, to the prejudice of another, money, goods, or any
other personal property received by the offender in trust or on
commission, or for administration, or under any other obligation involving the
duty to make delivery of or to return the same, even though such
obligation be totally or partially guaranteed by a bond; or by denying
having received such money, goods, or other property.
(c) x x x.
2. By
means of any of the following false pretenses or fraudulent acts
executed prior to or simultaneously with the commission of the fraud:
(a) By
using fictitious name, or falsely pretending to possess power, influence,
qualifications, property, credit, agency, business or imaginary transactions,
or by means of other similar deceits.
X
x x.”
20.
Nothing in the Record shows that the Respondent “misappropriated” or “converted”, to the prejudice of the Complainant, the
“money” of the Complainant; or that the Respondent “received” any money from
the Complainant “in trust or on commission”,
or “for administration”, or “under
any other obligation involving the duty to make delivery of or to return the
same”; or that the Respondent “denied
having received such money”.
21.Nothing in the Record shows that the Respondent committed FRAUD.
22.
Nothing
in the Record shows that the Respondent, “by means of false pretenses or
fraudulent acts” used “fictitious name”;
that the Respondent “falsely pretended to possess power, influence,
qualifications, property, credit, agency, business or imaginary transactions”;
or that the Respondent committed “means of other similar deceits”.
23.
In the
case of ROSITA SY vs. PEOPLE OF THE PHILIPPINES, G.R. No. 183879, April 14, 2010, where the sole issue was whether the accused should be
held liable for Estafa penalized under Article 315, paragraph 2(a) of the
Revised Penal Code (RPC), the Supreme Court held that:
(a)
There are three ways of committing estafa,
viz.:
·
With unfaithfulness or abuse of confidence;
·
By means of false pretenses or fraudulent acts;
or
·
Through fraudulent means.
(b)
The ways of committing estafa may be
reduced to two, i.e.,
·
By means of abuse of confidence; or
·
By means of deceit.
(c)
The elements of estafa in general are the
following:
·
That an accused defrauded another by abuse of
confidence, or by means of deceit; and
·
That damage and prejudice capable of pecuniary
estimation is caused the offended party or third person.
(d)
The act complained penalized by Article 315,
paragraph 2(a) of the RPC is estafa committed by any person who shall
“defraud another by false pretenses or fraudulent acts executed prior to or
simultaneously with the commission of the fraud”.
It is committed by
“using fictitious name, or by pretending to possess power, influence,
qualifications, property, credit, agency, business or imaginary transactions,
or by means of other similar deceits”.
(e)
The elements of estafa by means of deceit
are the following, viz.:
·
That there must be a false pretense or
fraudulent representation as to his power, influence, qualifications, property,
credit, agency, business or imaginary transactions;
·
That such false pretense or fraudulent
representation was made or executed prior to or simultaneously with the
commission of the fraud;
·
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
24.
Nothing in the Record proves that the herein
Respondent committed any of the essential elements of Estafa as defined by the
Revised Penal Code.
25.
The claim of the
Complainant is purely CIVIL IN NATURE, if at all the Respondent owes it
anything.
MISUNDERTANDING
AND LACK OF EFFECTIVE COMMUNICATION BETWEEN THE PARTIES AND THE ABSENCE OF FORMAL
EXTERNAL AUDIT AND RECONCILIATION OF ACCOUNTS BETWEEN THE PARTIES.
25.1.
It appears that the
financial claim of the Complainant arose from a mere MISUNDERSTANDING and
failure of the parties to conduct a prior formal EXTERNAL AUDIT and prior
formal RECONCILIATION OF ACCOUNTS.
CIVIL LIABILITY ONLY,
IF AT ALL.
26.
In the case of PEOPLE OF THE
PHILIPPINES vs. RICA G. CUYUGAN, G.R. Nos. 146641-43, November 18, 2002, it was held, inter alia, that when an obligation “is civil in character and in the absence of fraud, no criminal
liability under the Revised Penal Code arises from the mere issuance of
postdated checks as a guarantee of repayment.”
“x x x.
The transaction between
appellant and the Abagat spouses, in our view, was one for a loan of money to be used by
appellant in her business and she issued checks to guarantee the payment of the
loan. As such, she has the obligation to make good the payment of the
money borrowed by her. But such
obligation is civil in character and in the absence of fraud, no criminal
liability under the Revised Penal Code arises from the mere issuance of
postdated checks as a guarantee of repayment. We find appellants
allegation, that the Abagat spouses entered
into a joint venture
agreement with her for the supply of materials with the AFP, is self-serving. But we also
note that the trial court convicted appellant on a general allegation that all
the elements of estafa under Article 315, 2 (d) of the Revised Penal Code had
been proved by the prosecution without
making any reference to or giving any proof of the actual fraud that appellant
allegedly committed to make her liable for estafa. It is
elementary that where an allegation in the information is an essential element
of the crime, the same must be proved
beyond reasonable doubt to sustain a conviction. In this case, the
prosecution did not establish specifically and conclusively the fraud alleged
as an element of the offenses charged.
X x x.”
THE CONCEPT
OF FRAUD.
27.
The case of ELVIRA LATEO y ELEAZAR,
FRANCISCO ELCA y ARCAS, and BARTOLOME BALDEMOR y MADRIGAL vs. PEOPLE OF THE PHILIPPINES, G.R.
No. 161651, June 8, 2o11, defines FRAUD as follows:
“In Alcantara v.
Court of Appeals, 462 Phil. 72, 88-89 (2003), this Court, citing People
v. Balasa, G.R. Nos. 106357 & 108601-02, September 3, 1998, 295 SCRA
49. explained the meaning of fraud and deceit, viz.:
[F]raud in its general sense
is deemed to comprise anything calculated to deceive, including all acts,
omissions, and concealment involving a breach of legal or equitable duty,
trust, or confidence justly reposed, resulting in damage to another, or by
which an undue and unconscientious advantage is taken of another. It is a
generic term 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. And deceit is the false representation of a
matter of fact whether by words or conduct, by false or misleading allegations,
or by concealment of that which should have been disclosed which deceives or is
intended to deceive another so that he shall act upon it to his legal injury.
X x x.”
GOOD FAITH AS A DEFENSE
IN ESTAFA.
28.
The case of
JOY LEE RECUERDO vs. PEOPLE OF THE PHILIPPINES, G.R. No. 168217, June 27,
2006, held that “there can be no estafa if the accused acted in good faith because
good faith negates malice and deceit (People vs. Ojeda, G.R. Nos.
104238-58, June 3, 2004, 430 SCRA 436).”
“x x x.
There can be no estafa if the accused acted in
good faith because good faith negates malice and deceit (People vs. Ojeda, G.R.
Nos. 104238-58, June 3, 2004, 430 SCRA 436). Good faith is an
intangible and abstract quality with no technical meaning or statutory
definition, and it encompasses, among other things, an honest belief, the absence of malice and the absence of design to
defraud or to seek an unconscionable advantage. X x x. It implies honesty of intention and
freedom from knowledge of circumstances which ought to put the holder upon
inquiry. The essence of good faith lies in an honest belief in the
validity of ones right, ignorance of a superior claim, and absence of intention
to overreach another (Philippine National Bank v. De Jesus, G.R.
No. 149295, September 23, 2003, 411 SCRA 557, 561). In People v.
Gulion, 402 Phil. 653 (2001), the Court held that:
Good faith is a defense to a charge of Estafa by
postdating a check. This may be manifested by the accused’s offering to
make arrangements with his creditor as to the manner of payment or, as in the
present case, averring that his placing his signature on the questioned checks
was purely a result of his gullibility and inadvertence, with the unfortunate
result that he himself became a victim of the trickery and manipulations of
accused-at-large.
X x x.”
MOTION TO REOPEN
THE PRELIMINARY INVESTIGATION.
29.
The Respondent submits that the Preliminary
Investigation of the instant case should RE-OPENED in the interest of truth and
justice to enable her to present crucial exculpating supplemental evidence,
which, if admitted by this Honorable Office , would result in the dismissal of
the instant complaint against her.
30.
The Respondent respectfully states that the
lawyer who prepared her past pleading/s during the original preliminary
investigation of this case failed, for reasons not explained to the Respondent,
to present the crucial exculpating supplemental
evidence herein being sought to be introduced by the Respondent.
31.The procedural error of said
counsel was tantamount to gross negligence.
32.
It exposed the Respondent to the fearsome
possibility of a 20-year imprisonment
based on an unfounded complaint.
THE GROSS NEGLIGENCE OF
FORMER COUNSEL WARRANTS THE REOPENING
OF THE CASE.
33.
The
Respondent respectfully submits that the failure of her former counsel to introduced in the past
pleadings prepared by him the exculpating supplemental evidence that are now being
sought by the Respondent in this pleading to be admitted by this Honorable
Office constituted gross negligence
resulting in a grave miscarriage of justice and in a grave violation of the
fundamental constitutional rights of the Respondent:
(a) the
right to procedural and substantive due process of
law,
(b) the
right to equal protection of the law, and
(c) the
right to competent and independent counsel
-- which warrant a RE-OPENING of the preliminary
investigation of this case to enable the Respondent, in the interest of truth
and justice, to present crucial exculpating supplemental evidence, with the
assistance of her new counsel (LASERNA
CUEVA-MERCADER LAW OFFICES, Las Pinas City) for purposes of filing this particular
pleading with this Honorable Office.
34.
The
Respondent is aware of the jurisprudence that, as a general rule, “a client is
bound by the mistakes of his counsel”. (Villa Rhecar Bus vs.
Dela Cruz, No. L-78936, January 7, 1988, 157 SCRA 13).
35.
However,
jurisprudence allows an exception, that is, “x x x when the negligence of the counsel is so gross, reckless and
inexcusable that the client is deprived of his day in court”.
36.
In such
instance, “the remedy is to reopen the case and allow the
party who was denied his day in court to adduce evidence”. (Producers Bank of the Philippines vs. Court
of Appeals, G.R. No. 126620, April 17, 2002, 381 SCRA 185, 192).
37.
In the
case of CALLANGAN VS. PEOPLE, G.R. NO.
153414, June 27, 2006, it was held, inter
alia, that “the rule that the negligence of counsel binds the client admits of exceptions, to wit:
(a)
where reckless or gross negligence of counsel
deprives the client of due process of law,
(b)
when its application will result in outright deprivation
of the client’s liberty or property or
(c)
where the interests of justice so require.”
38.
The
aforecited case of CALANGAN further held:
“x x x.
However, in view of the circumstances of this case,
outright deprivation of liberty will be the consequence of petitioner’s
criminal conviction based solely on the evidence for the prosecution. Thus, to
prevent a miscarriage of justice and to
give meaning to the due process clause of the
Constitution, the Court deems it wise to allow petitioner to present evidence
in her defense.
The rule that the negligence of counsel binds the client
admits of exceptions. The recognized exceptions are: (1) where reckless or
gross negligence of counsel deprives the client of due process of law, (2) when
its application will result in outright deprivation of the client’s liberty or
property or (3) where the interests of justice so require. In such cases,
courts must step in and accord relief to a party-litigant.
The omissions of petitioner’s counsel amounted to an
abandonment or total disregard of her case. They show conscious indifference to
or utter disregard of the possible repercussions to his client. Thus, the chronic
inaction of petitioner’s counsel on important incidents and stages of the
criminal proceedings constituted gross negligence.
X x x.
In criminal cases, the right of the accused to be
assisted by counsel is immutable. Otherwise, there will be a grave denial
of due process. The right to counsel proceeds from the fundamental
principle of due process which basically means that a person must be heard
before being condemned.
X x x.
Petitioner was accorded grossly insufficient legal
assistance by a counsel who did not devote himself to the defense of her cause.
Counsel’s utter lack of action after the prosecution rested its case revealed
an extreme shortcoming on his part. Such
inaction definitely proved infidelity to and abandonment of petitioner’s cause.
Considering that this case involved personal liberty, the
gross negligence of counsel shocks our sense of justice. It should not be
allowed to prejudice petitioner’s constitutional right to be heard. The
Court’s pronouncement in Reyes v. Court of Appeals, applies
strongly in this case:
The judicial conscience certainly cannot rest easy on a
conviction based solely on the evidence of the prosecution just because the
presentation of the defense evidence had been barred by technicality. Rigid application
of rules must yield to the duty of courts to render justice where justice is
due – to secure to every individual all possible legal means to prove his
innocence of a crime with which he or she might be charged.
Otherwise, the likelihood of convicting and
punishing an innocent man and of inflicting a serious injustice on him becomes
great.
X x x.
Therefore, in consonance with the demands of justice and
to prevent any outright deprivation of liberty, the Court deems it best to give
petitioner a chance to present evidence in her defense. The case should
be remanded to the MTC for acceptance and appraisal of petitioner’s evidence.
Petitioner does not seek her exoneration but the opportunity to present evidence in her
defense. Considering the gross negligence of her counsel on whom she
reposed her trust to protect her rights, justice demands that she be given that
chance.
In sum, it is better to allow petitioner another occasion
to present her evidence than to let her conviction stand based solely on the
evidence of the prosecution. In accordance with Rule 121, Section 6 of the
Rules of Court, the evidence of the prosecution shall be understood preserved,
subject to the right of the prosecution to supplement it and/or to rebut the
evidence which petitioner may present.
X x x.”
39.
Finally, by analogy, the Respondent hereby cites
the spirit of Sec. 24, Rule 119 of
the Rules of Criminal Procedure, which provides that:
“x x x (A)t any
time before finality of the judgment of conviction, the judge may, motu proprio or upon motion, with
hearing in either case, REOPEN the proceedings to avoid a MISCARRIAGE OF
JUSTICE x x x x”.
THE PRESUMPTION OF INNOCENCE
OF THE RESPONDENT HAS NOT BEEN OVERTURNED.
40.
The
EQUIPOISE RULE provides that when there is equilibrium
in the evidence presented by both sides, the CONSTITUTIONAL PRESUMPTIOM OF
INNOCENCE should tilt the balance of the
scale in favor of the acquittal of the accused, for, in such a situation,
the offense has not been proven beyond
reasonable doubt, which is the
quantum of evidence required to convict an accused.
41.Suspicion alone is insufficient, the required
quantum of evidence being proof beyond reasonable doubt. [People v. Gargar, 300
SCRA 542 (1998). [See also: En Banc, Justice Mendoza, THE PEOPLE OF THE
PHILIPPINES, plaintiff-appellee, vs. FIDEL ABRENICA CUBCUBIN, JR.,
accused-appellant, G.R. No. 136267. July
10, 2001].
42.
All
Trial Courts and the various Offices of the Prosecutors under the Department of
Justice should be guided by the principle that it would be better to set free
ten men who might be probably guilty of the crime charged than to convict one
innocent man for a crime he did not commit. [En Banc, Melo, People v. Tagudar [G.R. No. 130588. June 8, 2000].
COMPASSIONATE
JUSTICE.
43.
The Respondent is a senior citizen, turning
66 years old on May 2, 2016 (having been born on May 2, 1950).
44.
The Respondent humbly invokes the sense of
COMPASSIONATE JUSTICE of this Honorable Office to revisit its questioned
Resolution, in the interest of compassionate justice.
45.
By analogy, the Respondent hereby invokes
the analogous spirit of the ruling of the Supreme Court in the case of PEOPLE
OF THE PHILIPPINES vs. CORDENCIO CHATTO alias "DENDEN," SATURNINO
DAGAYANON, AND SIX (6) OTHER JOHN DOES, CORDENCIO CHATTO, G.R. No. 102704,
March 10, 1993, where it was held that “it is a basic rule in our criminal
justice system that penal laws should be liberally construed in favor of the
offender”. The said case stressed the doctrine of “compassionate liberality” in
favor of minors involved in serious
crimes, which doctrine may be applied to senior citizens, too, such as the
Respondent.
46.
In aforecited case, the Supreme Court, considering
the gravity of the offenses and in the interest of justice, “allowed the
presentation of and admitted the birth certificates of the accused to prove the
mitigating circumstance of minority although said birth certificates were
not presented or offered in the trial court”.
47.
The foregoing analogous decision of the
Supreme Court should be applied to the herein Accused in the interest of
compassionate natural justice and equity.
THE DUTY OF
THE INVESTIGATING PROSECUTOR TO PROTECT AN INNOCENT RESPONDENT FROM THE PAIN,
COSTS, AND TEDIOUSNESS OF A BASELESS CIRMINAL TRIAL.
48.
When the
Record clearly shows that there is no
probable cause, the fair, just and proper action required by law of the
investigating prosecutor is to dismiss the baseless harassment case.
49.
In the case of JOSE BERNARDO vs. RAFAEL T. MENDOZA, G.R. No. L-37876, May 25, 1979, the Supreme Court held that
although “prosecutors are endowed with ample powers in order that they may
properly fulfill their assigned role in the administration of justice x x x,
(it) should be realized, however, that when a man is haled to court on a
criminal charge, it brings in its wake problems not only for the accused but
for his family as well” and that “therefore, it behooves a prosecutor to weigh
the evidence carefully and to deliberate thereon to determine the existence of
a prima facie case before filing the information in court”, otherwise, it, held
that, it “would be a dereliction of duty”.
50.
In the case of SUSANA B. CABAHUG vs. PEOPLE OF
THE PHILIPPINES, SANXXXNBAYAN, 3rd Division, and OFFICE OF THE
SPECIAL PROSECUTOR, G.R. No. 132816, February 5, 2002, the Supreme Court ”(admonished) agencies
tasked with the preliminary investigation and prosecution of crimes that the
very purpose of a preliminary investigation is to shield the innocent from
precipitate, spiteful and burdensome prosecution”.
50.1.
It added that such investigating agencies were
“duty-bound to avoid, unless absolutely necessary, open and public accusation
of crime not only to spare the innocent
the trouble, expense and torment of a public trial, but also to prevent unnecessary expense on the part of
the State for useless and expensive trials”.
50.2.
It held that “when at the outset the evidence
cannot sustain a prima facie case or
that the existence of probable cause to form a sufficient belief as to the
guilt of the accused cannot be ascertained, the prosecution must desist from
inflicting on any person the trauma of going through a trial”. Thus:
“We cannot overemphasize the admonition to agencies
tasked with the preliminary investigation and prosecution of crimes that the
very purpose of a preliminary investigation is to shield the innocent from
precipitate, spiteful and burdensome prosecution. They are duty-bound to avoid,
unless absolutely necessary, open and public accusation of crime not only to
spare the innocent the trouble, expense and torment
of a public trial, but also to prevent unnecessary expense on the part of the
State for useless and expensive trials. Thus, when at the outset the evidence
cannot sustain a prima facie case or that the existence of probable cause to
form a sufficient belief as to the guilt of the accused cannot be ascertained,
the prosecution must desist from inflicting on any person the trauma of going
through a trial. “
51. Further,
in the aforecited case of Cabahug v.
People, GR No. 132816, February 5, 2002, the Supreme Court held that “good faith is always presumed”. Thus:
“X x x.
Contrary to the Ombudsman’s ruling that bad faith on
the part of petitioner was deducible, good
faith is always presumed. Therefore, he who charges another with bad faith
must prove it. In other words, the Office of the Ombudsman should determine
with certainty the facts indicative of bad faith. However, the records show
that the Office of the Ombudsman was clearly uncertain of its position on the
matter of existence of bad faith on the part of petitioner Cabahug. X x x.
X x x.
Clearly, any further prosecution of petitioner is
pure and simple harassment. It is imperative that she be spared from the trauma
of having to go to trial on such a baseless complaint. The evidence is
insufficient to sustain a prima facie case and it is evident that no probable
cause exists to form a sufficient belief as to the petitioner’s guilt.
X x x. Judicial power of review includes the
determination of whether there was grave abuse of discretion amounting to lack
or excess of jurisdiction on the part of any branch or instrumentality of the
government. Under this definition, the Sanxxxnbayan should have, considering
the divergent positions in the Office of the Ombudsman, granted the motion for
redetermination of probable cause after reviewing the evidence thus far
submitted, and dismissed the case against petitioner. Thus, respondent court
committed grave abuse of discretion in allowing the case to proceed.
X x x.”
THE TECHNICAL
RULES OF EVIDENCE SHOULD BE LIBERALLY CONSTRUED DURING THE PRELIMINARY
INVESTIGATION.
IT INCLUDES
THE LIBERALITY IN THE ADMISSION OF ALL EXCULPATING SUPPLEMENTAL EVIDENCE FOR
THE RESPONDENT, IN THE INTEREST OF TRUTH AND JUSTICE.
52.
In the case of WILFREDO
M. TRINIDAD vs. OFFICE OF THE OMBUDSMAN THRU THE OMBUDSMAN SIMEON
V. MARCELO AND DEPUTY OMBUDSMAN VICTOR C. FERNANDEZ, ASIA’S EMERGING
DRAGON CORPORATION, AND THE SANXXXNBAYAN PEOPLE OF THE PHILIPPINES, En
Banc, G.R. No. 166038, November
4, 2007, the Supreme Court, among other things, held that “at the preliminary investigation,
determination of probable cause merely entails weighing of facts and
circumstances, relying on the calculus of common sense, without resorting to
the calibrations of technical rules of evidence.” THUS:
“x x x.
As for petitioner’s objection to the admissibility
of documents culled from various proceedings like the legislative hearings
before the Senate Blue Ribbon Committee and the arbitration proceedings before
the International Chamber of Commerce (ICC) International Court of Arbitration in
ICC Case No. 12610/TE/MW, it is premature to raise the same.
First, there is no showing from the above-quoted
pertinent portion of its assailed Resolution that the Office of the Ombudsman
relied on those documents in support of its findings. At the
preliminary investigation, determination of probable cause merely entails
weighing of facts and circumstances, relying on the calculus of common sense,
without resorting to the calibrations of technical rules of evidence. It
is not the proper forum to determine the alleged breach by the OSG of the rule
on confidentiality of arbitration proceedings as provided under the ICC
Internal Rules and Republic Act No. 9285 (Alternative Dispute Resolution Act of
2004).
X x x.”
OBSERVING THE
INTEREST OF
JUSTICE EVENHANDEDLY.
53.
In the case of
VICENTE P. LADLAD, et. al. vs.
SENIOR STATE PROSECUTOR EMMANUEL Y. VELASCO, G.R. Nos. 172070-72, June 1, 2007 ;
LIZA L. MAZA, et. al. vs. RAUL M. GONZALEZ,
in his capacity as Secretary of the Department of Justice, G.R. Nos. 172074-76, June 1, 2007 ; CRISPIN B. BELTRAN vs. PEOPLE OF THE PHILIPPINES,
et. al., G.R. No. 175013, June 1, 2007, the Supreme Court stressed the “basic and fundamental
objective of observing the interest of justice
evenhandedly, without fear
or favor to any and all litigants alike, whether rich or poor, weak or strong,
powerless or mighty”.
“x x x.
The obvious involvement of political considerations
in the actuations of respondent Secretary of Justice and respondent prosecutors
brings to mind an observation we made in another equally politically charged
case. We reiterate what we stated then, if only to emphasize the importance of
maintaining the integrity of criminal prosecutions in general and preliminary
investigations in particular, thus:
[W]e cannot emphasize too strongly that prosecutors
should not allow, and should avoid, giving the impression that their noble
office is being used or prostituted, wittingly or unwittingly, for political
ends, or other purposes alien to, or subversive of, the basic and fundamental objective of observing the interest of justice
evenhandedly, without fear or favor to any and all litigants alike, whether
rich or poor, weak or strong, powerless or mighty. Only by strict
adherence to the established procedure may be public’s perception of the
impartiality of the prosecutor be enhanced.
X x x.”
VIII. RELIEF.
WHEREFORE, in the interest of truth and justice, it is respectfully
prayed (a) that the questioned RESOLUTION, dated 18 December 2015, be RECONSIDERED and SET ASIDE; (b) that the Preliminary Investigation of
the instant case be RE-OPENED for purposes of admitting the SUPPLEMENTAL
EVIDENCE of the Respondent, as discussed above; and (c) upon termination of the re-opened preliminary investigation, a
new Resolution be issued DISMISSING the instant complaint for lack of merit.
FURTHER, the Respondent respectfully prays for such and other
reliefs as may be deemed just and equitable in the premises.
xxx City, February 19, 2016.
XXX
Respondent/Affiant
(Address)
SUBSCRIBED and sworn to before me in xxx
City on February 22, 2016.
Administering
Assistant City Prosecutor
Copy Furnished:
Atty. xxx
Counsel for Complainant
(Address) Reg.
Rec. __________
February
22, 2016
xxx
Post Office
XXX XXX
Complainant Reg.
Rec. __________
(Address) February 22, 2016
xxx
Post Office
EXPLANATION
Individual
copies of this pleading are separately served on the adverse counsel and the
complainant via registered mail, and not via personal service, due to the urgency of filing the same.
XXX
Respondent/Affiant
[1]
See Par. 30 hereof, infra:
“30. The Respondent respectfully argues that the
lawyer who prepared her past pleading/s during the original preliminary
investigation of this case failed, for reasons not explained to the Respondent,
to present the crucial exculpating supplemental
evidence herein being sought to be introduced by the Respondent.”
