Preliminary investigation; Estafa; sample 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.

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

· That, as a result thereof, the offended party suffered damage.

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.”
Posted by Atty. Manuel J. Laserna Jr. at 4:01 PM
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