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REPUBLIC OF THE PHILIPPINES DEPARTMENT OF JUSTICE NATIONAL PROSECUTION SERVICE OFFICE OF THE SECRETARY MANILA MACHETE KURACHA, Petitioner,

-versus-

I.S. No. XV-08-INV-12G-1111 For: Adultery

ASSISTANT CITY PROSECUTOR BIBIN TANG and BEN ANG, Respondents.


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PETITION FOR REVIEW


Petitioner, by counsel and to this Honorable Court, respectfully alleges that:

NATURE OF THE CASE


This is a petition for review pursuant to the Resolution issued by Assistant Prosecutor Bibin Tang of the Office of City Prosecutor of Muntinlupa City finding probable cause for seven (7) counts of Adultery against the petitioner Machete Kuracha.

PARTIES
1. Herein respondent, ASSISTANT CITY PROSECUTOR BIBIN TANG of the OFFICE OF THE CITY PROSECUTOR OF MUNTINLUPA CITY, with address at 3rd Floor TS Rau Business Centre, Alabang Road, Muntinlupa City issued a resolution dated 20 March 2013 pursuant to the complaint filed by private respondent BEN ANG of No. 58 Barcelon Street BF Resort Village Alabang, Muntinlupa City for Adultery docketed under I.S. No. XV-08-INV-12G-1111 against petitioner MACHETE KURACHA of No. 29 Flingstones Street, BF Homes Paranaque City and co-accused RUFFA MAE LANDI ANG (Co-Accused Ang) before the Office of the City Prosecutor in the City of Muntinlupa.

TIMELINESS OF PETITION
2. On March 25, 2013, petitioner received a copy of the Resolution I.S. No. XV-08INV-12G-1111 issued by the Office of the City Prosecutor of City of Muntinlupa. Certified true copy of the Resolution is attached hereto as Annex A.

3. On March 29, 2013, or within the 15 day period from the receipt of the decision Annex A, petitioner filed a motion for reconsideration of the said Resolution. On April 8, 2013, the Office of the City Prosecutor denied the said motion for reconsideration, copy of the denial was received by petitioner on April 21, 2013. Certified true copy of the order denying the motion for reconsideration is attached hereto as Annex B. 4. The instant petition is filed within the 15 days from receipt on May 2, 2013 of the order denying motion for reconsideration.

STATEMENT OF FACTS AND MATTERS INVOLVED


5. Complainant Ben Angs (Complainant) Complaint dated 5 November 2012, charging Complainants wife, Respondents Ruffa Mae Landi Ang (Respondent Ang) and Machete Kuracha (Respondent Kuracha) with adultery under Article 333 of the Revised Penal Code. 6. Complainant alleged that on 5 August 2012, he and Respondent Ang were married, despite of an existing marriage, Complainant suspected that Respondent Ang was engaging in extra-marital affairs. To confirm his suspicions, Complainant approached CHEATERS a private investigating company, and engaged the services of the latter. 7. Respondent Ang learned, that Respondents Ang and Kuracha were engaged in an affair in that they were seen together, holding hands while walking pa-swaysway pa (HHWWPSSP) on the following occasions:

A. On 15 August 2012, Respondents were seen together in the parking lot of Alabang Town Center, walking towards a blue Subaru BRZ with Plate Number BRZ-143, later learned to be registered under the name of Respondent Kuracha; B. On 16 August 2012, Respondents were seen together walking out from Omakase at Molito Alabang; and

C. On 17 August 2012, Respondents were seen outside No. 15 Landian Street, Ayala Alabang, later learned to be Respondent Kurachas residence. 8. With the help of CHEATERS, photographs of Respondents kissing lips to lips were likewise taken on the following occasions: a. On 18 August 2012, Respondent Kuracha kissed Respondent Ang on the cheek outside Vivant Flats, Respondent Angs former residence. It was learned that after marrying Complainant, instead of making good her promise that Respondent Ang would sell her condo unit at Vivant Flats, she still maintained the same; b. On 19 August 2012, Respondents were seen kissing lips-to-lips in Pure Gold, Molito Alabang, while in line for Cashier 5; and

c. On 20 August 2012, Respondents were again seen kissing lips-to-lips outside Vivant Flats, before both were seen entering the said premises. After an hour, Respondent Machete was seen leaving said premises alone. 9. Complainant then confided in his brother, Baw Ang, who confessed that on 21 August
2012, he saw Respondents enter the Marco Polo Hotel, where he was checked-in. He saw Respondents HHWWPSSP in the lobby of the Marco Polo Hotel.

10. Public Respondent Tang issued a resolution dated 20 March 2013 stating that there is sufficient ground to believe that probable cause exists against Petitioner for committing seven (7) counts of adultery under Article 333 of the Revised Penal Code. It is further recommended that Informations for seven (7) counts of adultery be filed against petitioner and co-accused; 11. On March 29, 2013, petitioner filed a motion for reconsideration before the Office of the City Prosecutor, seeking the Resolution based on the ground that the evidence presented in the complaint affidavit was insufficient to find probable cause for the issuance of Information for the crime of adultery. The said resolution was received by the counsel for petitioner on 21 April 2013. The 15th day of the petitioner to file this motion would end on 6 April 2013; thus, it was filed within the period required.

ASSIGNMENT OF ERRORS
12. With due respect to the Honorable City Prosecutor, the undersigned counsel believes that:

1. PUBLIC RESPONDENT ACTED WITH GRAVE ABUSE OF DISCRETION AMOUNTING TO LACK OR EXCESS OF JURISDICTION IN ISSUING THE ASSAILED RESOLUTIONS FINDING PROBABLE CAUSE AGAINST PETITIONER FOR ADULTERY. NOT ALL THE ELEMENTS OF THE CRIME ARE PRESENT. 2. PUBLIC RESPONDENT ACTED WITH GRAVE ABUSE OF DISCRETION AMOUNTING TO LACK OR EXCESS OF JURISDICTION IN ISSUING THE ASSAILED RESOLUTIONS FINDING PROBABLE CAUSE FOR ADULTERY. EVIDENCE PRESENTED WAS INSUFFICIENT TO FIND PROBABLE CAUSE AGAINST PETITONER. DISCUSSION I. PUBLIC RESPONDENT ACTED WITH GRAVE ABUSE OF DISCRETION AMOUNTING TO LACK OR EXCESS OF JURISDICTION IN ISSUING THE ASSAILED RESOLUTIONS

FINDING PROBABLE CAUSE FOR ADULTERY. NOT ALL THE ELEMENTS OF THE CRIME ARE PRESENT.
a. The Revised Penal Code, Article 333 enumerated the elements of the crime of Adultery to wit: (1) that the woman is married and that (2) she has carnal relations with a man not her husband. b. The pieces of evidence provided by herein complainant fails to establish the second element of adultery, that is, that the accused had carnal knowledge of the woman, knowing the latter to be married. Without a doubt, the respondent prosecutor could not have found probable cause that could warrant the institution of a criminal complaint against petitioner for adultery. c. The crime committed by a married woman who shall have sexual intercourse with a man not her husband, and by man who has carnal knowledge of her, knowing her to be married. Thus, the gist is the actual sexual intercourse and not mere kissing or petting or romantic dating. the Public Respondent clearly committed an error in finding probable cause based on the fact that allegedly someone had seen them kissing lips to lips.

II. PUBLIC RESPONDENT ACTED WITH GRAVE ABUSE OF DISCRETION AMOUNTING TO LACK OR EXCESS OF JURISDICTION IN ISSUING THE ASSAILED RESOLUTIONS FINDING PROBABLE CAUSE FOR ADULTERY. THE EVIDENCE PRESENTED WAS INSUFFICIENT TO FIND PROBABLE CAUSE AGAINST PETITIONER.
a. In finding probable cause against Petitioner, the Public Respondent

failed to appreciate the totality of circumstances and the unmistakable facts on record. The evidence presented by the complainant was not sufficient to form a belief that the petitioner has knowledge and intent to commit adultery.
b. Thus, the Public respondent gravely abused his discretion in

disregarding the good faith and lack of intent of the petitioner. It is well settled that in a commission of a crime there is an indispensable element of intent and absence of this will not result to criminal liability.
c. Thus, the Public respondent clearly acted in a whimsical and

capricious manner in shifting the burden of proving the commission of the offense or the probable cause thereof.
d. In light of the foregoing discussion on the actions without or in excess

of authority of the Public Respondent, it is clear that the Public Respondent acted, and continues to act, with grave abuse of discretion in refusing to: dismiss outright the Complaint Affidavit which is insufficient to commence the conduct of criminal proceedings; consider the overwhelming evidence on record that establish that there is no probable cause to charge Petitioner with any offense as the evidence on record, instead, indubitably show that Petitioner did not

commit any illegal or unlawful act; immediately dismiss or disapprove the recommendation of filing charges against the for palpable want of merit or insufficiency in substance.
e.

In this case, no way can Public Respondent find the Affidavit Complaint sufficient and find probable cause on the basis of overwhelming evidence which show that Petitioner did not commit any illegal/unlawful act. Thus, had Public Respondent considered the evidence on record, affidavit Complaint as well as the Assailed Resolutions will have no leg to stand on and the charges against Petitioner would have been dismissed for being bereft of legal and factual merit. It is clear that Public Respondent has chosen not to perform its positive duty required by law, and hence, committed grave abuse of discretion.

PRAYER
WHEREFORE, petitioner respectfully prays as follows: 1. That the petition be given due course; 2. That after due examination of the evidence presented, the Honorable City Prosecutor set aside the questioned Resolution against the petitioner for Adultery. 3. Petitioner further prays for such other reliefs as may be just and equitable in the premises.

City of Muntinlupa, May 20, 2013

MARHEN JASON P. SIMBRE IBP No. 080808/05 January 2013/Las Pinas City PTR No. 012987/08 January 2013/Makati City Attorneys Roll No. 88888 MCLE Compliance No. IV-000088, 29 January 2013 VERIFICATION and CERTIFICATION OF NON FORUM SHOPPING

I, Machete Kuracha, of legal age and a resident of No. 29 Flingstones Street, BF Homes Paranaque City, under oath declare that: 1. I am the petitioner in the above- entitled case; 2. I have caused the preparation of this petition; 3. I have read it and its contents are true and correct of my personal knowledge and/or based on authentic records. 4. I have not earlier commenced a similar petition for the same cause with any other court, tribunal or quasi- judicial agency; no such petition is pending with any court, tribunal or quasi- judicial agency and if I should learn that a

similar petition has been filed or is pending with any other court, tribunal or quasi- judicial agency, I hereby undertake to notify this Honorable Court within five (5) days from such notice.

(sgd.) Machete Kuracha

JURAT
SUBSCRIBED and sworn to before me, this 20th of May 2013 in the City of Muntinlupa by MACHETE KURACHA with Drivers License No. M26-49-080829 issued on 19 January 2013 at Manila. Doc. No. 1; Page No. 2; Book No. 1; Series of 2013. Notary Public Commission Serial No. 888 Roll of Attorney 88888 IBP No. 000088/05 Jan2013/Muntinlupa PTR No. 012987/08 Jan2013/Muntinlupa

Copy furnished: OFFICE OF THE CITY PROSECUTOR 3rd Floor, TS Rau Business Centre Alabang Road, Muntilupa City ATTY. RENATO SANTOS 8th Floor, Casimiro Corporate Center Alabang Hills Towers Alabang Road, Muntinlupa City.