REPUBLIC OF THE PHILIPPINES

DEPARTMENT OF JUSTICE
OFFICE OF THE CITY PROSECUTOR
X x x CITY

X x x,
Complainants,
IS No. x x x
-

versus
Estafa
X x x,
Respondents.
x----------------------------x
JOINT COUNTER-AFFIDAVIT
OF THE RESPONDENTS X x x

THE UNDERSIGNED RESPONDENTS respectfully state:

1.

ADMISSIONS AND DENIALS.

X x x. (omitted)

2.
2.1.

DISCUSSION
The relevant provisions of the Revised Penal Code on estafa (deceit/swindling) are as
follows:
Article 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.
In such case, and in connection with the accessory penalties which may be imposed and
for the purpose of other the provisions of this Code, the penalty shall be termed prision
mayor or reclusion temporal, as the case may be.

2nd. The penalty of prision correccional in its minimum and medium periods, if the
amount of the fraud is over 6,000 pesos but does not exceed 12,000 pesos;
3rd. The penalty of arresto mayor in its maximum period to prision correccional in its
minimum period, if such amount is over 200 pesos but does not exceed 6,000 pesos;
and
4th. By arresto mayor in its medium and maximum periods, if such amount does not
exceed 200 pesos, 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) By altering the substance, quantity, or quality of anything of value which the
offender shall deliver by virtue of an obligation to do so, even though such obligation be
based on an immoral or illegal consideration.
(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) By taking undue advantage of the signature of the offended party in blank, and by
writing any document above such signature in blank, to the prejudice of the offended
party or of any third person.
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.
(b) By altering the quality, fineness or weight of anything pertaining to his art or
business.
(c) By pretending to have bribed any Government employee, without prejudice to the
action for calumny which the offended party may deem proper to bring against the
offender. In this case, the offender shall be punished by the maximum period of the
penalty.
(d) By post-dating a check, or issuing a check in payment of an obligation when the
offender had no funds in the bank, or his funds deposited therein were not sufficient to
cover the amount of check. The failure of the drawer of the check to deposit the amount
necessary to cover his check within three (3) days from receipt of notice from the bank
and/or the payee or holder that said check has been dishonored for lack of insufficiency
of funds shall be prima facie evidence of deceit constituting false pretense or fraudulent
act. (As amended by Republic Act No. 4885, approved June 17, 1967.)
(e) By obtaining any food, refreshment or accommodation at a hotel, inn, restaurant,
boarding house, lodging house, or apartment house and the like without paying

therefor, with intent to defraud the proprietor or manager thereof, or by obtaining credit
at a hotel, inn, restaurant, boarding house, lodging house, or apartment house by the
use of any false pretense, or by abandoning or surreptitiously removing any part of his
baggage from a hotel, inn, restaurant, boarding house, lodging house or apartment
house after obtaining credit, food, refreshment or accommodation therein without
paying for his food, refreshment or accommodation. (As amended by Com. Act No. 157.)
3. Through any of the following fraudulent means:
(a) By inducing another, by means of deceit, to sign any document.
(b) By resorting to some fraudulent practice to insure success in a gambling game.
(c) By removing, concealing or destroying, in whole or in part, any court record, office
files, document or any other papers.
X x x.
2.2.

In the case of DIONISIO AW a.k.a. TONY GO vs. PEOPLE OF THE PHILIPPINES,

GR No. 182276, March 29, 2010, the elements of Estafa were discussed by the Supreme Court,
thus:
Xxx.
The elements of Estafa under Article 315, Paragraph 1(B) of the Revised Penal Code
are:
(a)
that money, goods or other personal property is 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.
(b)
that there be misappropriation or conversion of such money or property by the
offender, or denial on his part of such receipt
(c)
and

that such misappropriation or conversion or denial is to the prejudice of another;

(d)

there is demand by the offended party to the offender.

The first element of Estafa under Article 315, Paragraph 1(B) is the receipt by the
offender of the money, goods, or other personal property 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.
X x x.
We next turn to the second element of Estafa under Article 315, Paragraph 1(B) namely,
prejudice and the third element, therein of misappropriation.

The essence of Estafa under Article 315, paragraph 1(b) is the appropriation or
conversion of money or property received to the prejudice of the owner. The words
convert and misappropriate connote an act of using or disposing of anothers
property as if it were ones own, or of devoting it to a purpose or use different from that
agreed upon. To misappropriate for ones own use includes not only conversion to ones
personal advantage, but also every attempt to dispose of the property of another without
right.
X x x.
2.3.

In the case of ROSITA SY vs. PEOPLE OF THE PHILIPPINES, G.R. No. 183879,
April 14, 2010 discussed the ways of committing the felony of estafa, thus:
X x x.
The sole issue for resolution is whether Sy should be held liable forestafa, penalized
under Article 315, paragraph 2(a) of the Revised Penal Code (RPC).

Swindling or estafa is punishable under Article 315 of the RPC. There are three ways of
committing estafa, viz.: (1) with unfaithfulness or abuse of confidence; (2) by means of
false pretenses or fraudulent acts; or (3) through fraudulent means. The three ways of
committing estafa may be reduced to two, i.e., (1) by means of abuse of confidence; or
(2) by means of deceit.
The elements of estafa in general are the following: (a) that an accused defrauded
another by abuse of confidence, or by means of deceit; and (b) that damage and
prejudice capable of pecuniary estimation is caused the offended party or third person.
The act complained of in the instant case is penalized under Article 315, paragraph 2(a)
of the RPC, wherein estafa is 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.
The elements of estafa by means of deceit are the following, viz.: (a) that there must be
a false pretense or fraudulent representation as to his power, influence, qualifications,
property, credit, agency, business or imaginary transactions; (b) that such false pretense
or fraudulent representation was made or executed prior to or simultaneously with the
commission of the fraud; (c) that the offended party relied on the false pretense,
fraudulent act, or fraudulent means and was induced to part with his money or property;
and (d) that, as a result thereof, the offended party suffered damage.

X x x.
2.4.

In the case of FRANCISCO R. LLAMAS and CARMELITA C. LLAMAS vs. THE

HONORABLE COURT OF APPEALS, BRANCH 66 OF THE REGIONAL TRIAL
COURT OF MAKATI CITY and THE PEOPLE OF THE PHILIPPINES, GR No. 149588,
August 16, 2010, it was held, among other things, that DAMAGE is an element of
estafa, thus:
X x x.
Article 316 (2) of the Revised Penal Code states:
ART. 316. Other forms of swindling. The penalty of arresto mayor in its minimum and
medium periods and a fine of not less than the value of the damage caused and not
more than three times such value, shall be imposed upon:
xxx
2. Any person who, knowing that real property is encumbered, shall dispose of the
same, although such encumbrance be not recorded;
xxx
In every criminal prosecution, the State must prove beyond reasonable doubt all the
elements of the crime charged and the complicity or participation of the accused.
For petitioners to be convicted of the crime of swindling under Article 316 (2) of the
Revised Penal Code, the prosecution had the burden to prove the confluence of the
following essential elements of the crime:
1. that the thing disposed of be real property;
2. that the offender knew that the real property was encumbered,
whether the encumbrance is recorded or not;
3. that there must be express representation by the offender that the real property is
free from encumbrance; and
4. that the act of disposing of the real property be made to the damage of another.
One of the essential elements of swindling under Article 316, paragraph 2, is that the act
of disposing the encumbered real property is made to the damage of another. In this
case, neither the trial court nor the CA made any finding of any damage to the offended
party. Nowhere in the Decision of the RTC or that of the CA is there any discussion that

there was damage suffered by complainant Avila, or any finding that his rights over the
property were prejudiced.
On the contrary, complainant had possession and control of the land even as the cases
were being heard. His possession and right to exercise dominion over the property was
not disturbed. Admittedly, there was delay in the delivery of the title. This, however, was
the subject of a separate case, which was eventually decided in petitioners favor.
If no damage should result from the sale, no crime of estafa would have been
committed by the vendor, as the element of damage would then be lacking. The
inevitable conclusion, therefore, is that petitioners should be acquitted of the crime
charged.
X x x. (underscoring supplied)
2.5.

There is no proof that the respondents intentionally, maliciously and feloniously

deceived the association. Respondents x x x and x xx signed the questioned check as
authorized bank signatories of the association.
(Note: Respondent x x x did not sign the check. He did not participate in the questioned
transactions in any manner).

2.5.1.

There is no proof that the respondents damaged the association by using, malversing
or converting the questioned amount to their own personal use.

2.5.2.

Respondents x x x and x x x simply transferred the amount to the name of the new
Cooperative IN GOOD FAITH in accord with the formal manifestation, mandate, order,
wish, and desire of the members of the association who had formed a new Cooperative
and who had mandated the association to transfer its funds, assets, concessions, and
contracts association to the new Cooperative.

2.5.3.

GOOD FAITH is a defense in malum en se, such as estafa. This is too basic and too
elementary a doctrine that it does not require jurisprudential citations. At any rate, the
following cases are cited:
PEOPLE OF THE PHILIPPINES vs. CORA ABELLA OJEDA, G.R. Nos. 104238-58,
June 2004, on GOOD FIATH as a defense in estafa and mala en se.
X x x.
DECEIT AND DAMAGE AS ELEMENTS OF ESTAFA
Under paragraph 2 (d) of Article 315 of the RPC, as amended by RA 4885, the elements
of estafa are: (1) a check is postdated or issued in payment of an obligation contracted
at the time it is issued; (2) lack or insufficiency of funds to cover the check; (3) damage
to the payee thereof. Deceit and damage are essential elements of the offense and

must be established by satisfactory proof to warrant conviction. Thus, the drawer

of the dishonored check is given three days from receipt of the notice of dishonor to
cover the amount of the check. Otherwise a prima faciepresumption of deceit arises.
The prosecution failed to prove deceit in this case. The prima faciepresumption of
deceit was successfully rebutted by appellants evidence of good faith, a defense
in estafa by postdating a check. Good faith may be demonstrated, for instance, by a
debtors offer to arrange a payment scheme with his creditor. In this case, the debtor
not only made arrangements for payment; as complainant herself categorically stated,
the debtor-appellant fully paid the entire amount of the dishonored checks.
It must be noted that our Revised Penal Code was enacted to penalize unlawful acts
accompanied by evil intent denominated as crimes mala in se. The principal
consideration is the existence of malicious intent. There is a concurrence of
freedom, intelligence and intent which together make up the criminal mind behind the
criminal act. Thus, to constitute a crime, the act must, generally and in most cases, be
accompanied by a criminal intent.Actus non facit reum, nisi mens sit rea. No crime is
committed if the mind of the person performing the act complained of is
innocent. As we held in Tabuena vs. Sandiganbayan, 268 SCRA 332 [1997].:
The rule was reiterated in People v. Pacana, although this case involved falsification of
public documents and estafa:
Ordinarily, evil intent must unite with an unlawful act for there to be a crime. Actus non
facit reum, nisi mens sit rea. There can be no crime when the criminal mind is wanting.
American jurisprudence echoes the same principle. It adheres to the view that criminal
intent in embezzlement is not based on technical mistakes as to the legal effect of a
transaction honestly entered into, and there can be no embezzlement if the mind of the
person doing the act is innocent or if there is no wrongful purpose.
X x x. (underscoring supplied).
By Analogy:
FRANCISCO M. LECAROZ and LENLIE LECAROZ, vs.SANDIGANBAYAN
and PEOPLE OF THE PHILIPPINES, G.R. No. 130872, March 25, 1999, re:
PRSUMPTION OF GOOD FAITH.
X x x.
The rule is that any mistake on a doubtful or difficult question of law may be the basis of
good faith. In Cabungcal v. Cordova, No. L-16934, 31 July, 1964, 11 SCRA 584, we
affirmed the doctrine that an erroneous interpretation of the meaning of the provisions
of an ordinance by a city mayor does not amount to bad faith that would entitle an
aggrieved party to damages against that official. We reiterated this principle in Mabutol
v. Pascual which held that public officials may not be liable for damages in the discharge

of their official functions absent any bad faith. Sanders v. Veridiano IIexpanded the
concept by declaring that under the law on public officers, acts done in the performance
of official duty are protected by the presumption of good faith.
X x x.
2.5.4.

X x x.

2.5.5.

X x x.

2.6.
2.7.

X x x.
In the case of PEOPLE OF THE PHILIPPINES vs. FELICIANO ANABE y
CAPILLAN, G.R. No. 179033 , September 6, 2010, where conspiracy was not proved, the
Supreme Court held, thus:
X x x. While conspiracy was alleged in the Informations, it was notestablished during the trial.
Conspiracy as a basis for conviction must rest on nothing less than a moral certainty. Considering
the far-reaching consequences of a criminal conspiracy, the same degree of proof necessary in
establishing the crime is required to support the attendance thereof, i.e., it must be shown to exist
as clearly and convincingly as the commission of the offense itself. While conspiracy need not
be established by direct evidence, it is nonetheless required that it be proved by clear and
convincing evidence by showing a series of acts done by each of the accused in concert and in
pursuance of the common unlawful purpose.
In the present case, there is want of evidence to show the concerted acts of appellant, Conrada
and Felicita (albeit already discharged) in pursuing a common design to rob Uy. The
prosecution in fact appears to have abandoned the theory of conspiracy altogether, no evidence
thereof having been presented. Absent proof of conspiracy, appellant may only be held
accountable for acts that are imputable to him with moral certainty.
X x x.

2.8.

IN THE CASE OF ROSIE QUIDET VS. PEOPLE OF THE PHILIPPINES, G.R. NO. 170289,
APRIL 8, 2010, IT WAS HELD, THUS:
Conspiracy must be proved as clearly and convincingly as the commission of the
offense itself for it is a facile device by which an accused may be ensnared and kept
within the penal fold. In case of reasonable doubt as to its existence, the balance tips in
favor of the milder form of criminal liability as what is at stake is the accuseds liberty.
We apply these principles in this case.
X x x.

Conspiracy exists when two or more persons come to an agreement concerning the commission of a
felony and decide to commit it. The essence of conspiracy is the unity of action and purpose. Its elements,
like the physical acts constituting the crime itself, must be proved beyond reasonable doubt. When there is
conspiracy, the act of one is the act of all.
Conspiracy can be inferred from and established by the acts of the accused themselves when said acts
point to a joint purpose and design, concerted action and community of interests. However, in
determining whether conspiracy exists, it is not sufficient that the attack be joint and simultaneous for
simultaneousness does not of itself demonstrate the concurrence of will or unity of action and purpose
which are the bases of the responsibility of the assailants. What is determinative is proof establishing that
the accused were animated by one and the same purpose.
X x x.
There is no question that "a person may be convicted for the criminal act of another where, between them,
there has been conspiracy or unity of purpose and intention in the commission of the crime charged." It is,
likewise, settled that "to establish conspiracy, it is not necessary to prove previous agreement to commit a
crime, if there is proof that the malefactors have acted in consort and in pursuance of the same objective."
Nevertheless, "the evidence to prove the same must be positive and
convincing. As a facile device by which an accused may be ensnared and kept within the penal fold,
conspiracy requires conclusive proof if we are to maintain in full strength the substance of the timehonored principle in criminal law requiring proof beyond reasonable doubt before conviction."
X x x.
Moreover, although the appellant and his co-accused acted with some degree of simultaneity in attacking
the deceased, nevertheless, the same is insufficient to prove conspiracy. The rule is well-settled that
"simultaneousness does not of itself demonstrate the concurrence of will nor the unity of action and
purpose which are the basis of the responsibility of two or more individuals." To establish common
responsibility it is not sufficient that the attack be joint and simultaneous; it is necessary that the assailants
be animated by one and the same purpose. In the case at bar, the appellant Raymundo Vistido and the
accused Pepito Montao, did not act pursuant to the same objective. Thus, the purpose of the latter was to
kill as shown by the fact that he inflicted a mortal wound below the abdomen of the deceased which
caused his death. On the other hand, the act of the appellant in giving the deceased one fist blow after the
latter was stabbed by the accused Pepito Montao an act which is certainly unnecessary and not
indispensable for the consummation of the criminal assault does not indicate a purpose to kill the
deceased, but merely to "show off" or express his sympathy or feeling of camaraderie with the accused
Pepito Montao. Thus, in People vs. Portugueza, this Court held that:
X x x.
By and large, the evidence for the prosecution failed to show the existence of conspiracy which,
according to the settled rule, must be shown to exist as clearly and convincingly as the crime itself. In the
absence of conspiracy, the liability of the defendants is separate and individual, each is liable for his own
acts, the damage caused thereby, and the consequences thereof. While the evidence shows that the

appellant boxed the deceased, it is, however, silent as to the extent of the injuries, in which case, the
appellant should be held liable only for slight physical injuries.
We reach the same conclusion here. For failure of the prosecution to prove conspiracy beyond
reasonable doubt, petitioners liability is separate and individual. X x x.
2.9.
2.10.
2.11.

X x x..
The respondents reserve the right to file a SUPPLEMENTAL AFFIDAVIT x x x.
The respondents reserve the right to file a REJOINDER-AFFIDAVIT.
PRAYE R
WHEREFORE, premises considered, it is respectfully prayed that the instant
criminal complaint be DISMISSED for lack of merit.
Further, the respondents respectfully pray for such and other reliefs as may be
deemed just and equitable in the premises.
X x x City, x x x.

Xxx
Respondent

xxx
Respondent

Xxx
Respondent

SUBSCRIBED and sworn to before me on x x x in x x x City.

Assistant City Prosecutor