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Republic of the Philippines

DEPARTMENT OF JUSTICE
Manila

ANTOLETTE G. COLICO,
Complainant,
NPS Docket No.
III-12-INV-15K 01931

- versus

SPOUSES
ERMELIN
ARLENE ESGUERRA,

AND

For: Estafa

Respondents.

x-- -- -- -- -- -- -- -- -- -- -- x

PETITION FOR REVIEW


OF THE RESOLUTION DATED 10 JUNE 2016 OF THE OFFICE
OF THE PROVINCIAL PROSECUTOR, CITY OF SAN
FERNANDO, PAMPANGA

OMES NOW, Complainant-Appellant, through undersigned


counsel, unto this Honorable Office, most respectfully avers that:
I
STATEMENT OF THE CASE
1.1.

This is a Petition for Review of the Resolution dated 10 June 2016 1 of the
Office of the Provincial Prosecutor of the San Fernando City, Pampanga
which
dismissed
the
Complainant-Appellants
Motion
for
2
Reconsideration dated 24 May 2016 and Supplemental Motion for
Reconsideration dated 7 June 20163 and reiterated the ruling stated in
Resolution dated 7 January 20164. The dispositive part thereof is stated as
follows:
WHEREFORE,
complainants
Motion
for
Reconsideration dated May 24, 2016 is denied and the
Resolution dated January 7, 2016 is reiterated.

1.2.

Hence this Petition for Review.

1 Annex A- Copy of the Resolution dated 10 June 2016


2 Annex B- Copy of the Complainant-Appellants Motion for Reconsideration dated
24 May 2016
3 Annex C- Copy of the Complainant-Appellants Supplemental Motion for
Reconsideration dated 7 June 2016
4 Annex D- Copy of the Resolution dated 7 January 2016

II
TIMELINESS OF THE PETITION FOR REVIEW
2.1.

Section 3 of Department Circular No. 705 provides that the appeal shall be
taken within fifteen (15) days from receipt of the resolution, or of the
denial of the motion for reconsideration/reinvestigation if one has been
filed within fifteen (15) days from receipt of the assailed resolution. Only
one motion for reconsideration shall be allowed.

2.2.

On 4August 2016, the Complainant-Appellant through counsel obtained a


copy of the Resolution dated 10 June 2016. Hence, the filing of this
Petition is within the reglementary period provided in the above rule.
III
THE PARTIES

3.1.
Complainant-Appellant ANTOLETTE G. COLICO is of legal age,
Filipino and with residence address at San Miguel, Mexico, Pampanga.
3.2.
Respondents ERMELIN and ARLENE ESGUERRA, herein
referred as Spouses Esguerra, both of legal age, Filipino citizens and with
residence address at San Miguel, Mexico, Pampanga.
IV
STATEMENT OF FACTS
4.1.
A few years ago, Complainant-Appellant bought a residential land
from Spouses Esguerra where she constructed a residential house thereon;
4.2.
In the third quarter of 2014, Spouses Esguerra represented that they
owned a parcel of land with an area of Six Hundred Square Meters
(600sqm) covered by TCT No. 649199-R adjacent to the ComplainantAppellants residential land and that the Spouses Esguerra were selling the
aforesaid lot for Nine Hundred Thousand Pesos, Philippine Currency
(Php900,000.00);
4.3.
Upon the representation of Spouses Esguerra, ComplainantAppellant agreed to buy the aforesaid lot and the purchase agreement was
embodied in a Deed of Conditional Sale6 dated01 September 2014
whereby the terms and conditions stated were: (a) the vendee shall pay the
amount of Php450,000.00 as down payment upon signing the document,
and (b) the balance of Php450,000.00 shall be paid upon the release of the
title of the portion of 600sqm in the name of the vendee;
5 2000 NPS Rule on Appeal
6 Annex E- Copy of the Deed of Conditional Sale

4.4.
On the same date of the signing of the Deed of the Conditional
Sale, Complainant-Appellant paid the down payment of Php450,000.00to
the Spouses Esguerra as shown in the Acknowledgement Receipt 7 dated
01 September 2014;
4.5.
Believing that the title of Spouses Esguerra was authentic and
genuine, Complainant-Appellant paid the balance of Php450,000.00 ad
consequently, a Deed of Absolute Sale 8was executed in order to facilitate
the title of the subject property in her name;
4.6.
The Spouses Esguerra assumed the facilitation of the transfer of the
subject lot and they presented to the Complainant-Appellant an original
Owners Duplicate copy of Transfer Certificate of Title No. 04220140115969 showing that the title of the subject lot was already
transferred in her name;
4.7.
Believing in good faith that the purchase transaction was legitimate
and that the title presented was genuine and authentic, ComplainantAppellant accepted the said TCT No.042-2014011596 under her name;
4.8.
Sometime in June 2015, Complainant-Appellant heard that a case
was filed against the Spouses Esguerra regarding a lot with a fake title.
The news prompted the latter to make an inquiry from the Land
Registration Authority on the genuineness and authenticity of the title that
was handed to her by the Spouses Esguerra and found out that there is no
lot with TCT No. 042-201411596 located at Mexico, Pampanga;
4.9.
Thereafter, Complainant-Appellant confronted the Spouses
Esguerra about the fake title and they admitted that the said title was
indeed fake and spurious. Consequently, they offered to return the total
amount of Php900,000.00 that she paid to them by issuing four (4)
postdated checks;
4.10.
Complainant-Appellant refused to accept the instalment payment of
the Php900,000.00 thru postdated checks and demanded instead the full
payment thereof;
4.11.
Thus, a demand letter dated 18 August 2015 was prepared
demanding the full payment of the Php900,000.00 plus damages. The
demand letter was personally received by the Spouses Esguerra thru
Arlene Esguerra;10
7 Annex F- Copy of the Acknowledgment Receipt dated 1 September 2014
8 Annex G- Copy of the Deed of Absolute Sale
9 Annex H- Copy of Original Owners Duplicate copy of Transfer Certificate of
Title No. 042-2014011596
10 Annex I- Copy of the Demand Letter dated 18 August 2015

4.12.
Based on the foregoing facts, Complainant-Appellant filed a
Complaint-Affidavit11 dated 23 October 2015 before the Office of the
Provincial Prosecutor of San Fernando City, Pampanga against Spouses
Esguerra for conspiring with each other to carry out the crime of Estafa
through Falsification of Public Document. 12 Because of the
misrepresentation of the Spouses Esguerra that their title to the lot and the
title that was purportedly transferred in the Complainant-Appellants
name was genuine and authentic, she was induced to part with her money
and incurred a total actual damage of Php900,000.00 consideration.
4.13.
As a result of the commission of the crime of Estafa through
Falsification of Public Documents by the Spouses Esguerra, ComplainantAppellant was constrained to incur the services of a counsel and to pay
attorneys fees and litigation expenses in the initial amount of
Php150,000.00, more or less, and in the process, will further incur other
expenses and costs in relation to this case as cost of docket fees,
attorneys fees equivalent to 25% of the collectible amount, cost of suit,
and other incidental expenses.
4.14.
On 16 May 2016, a copy of the Resolution dated 07 January 2016 13,
dismissing the charge against Spouses Esguerra, was personally picked up
by the undersigned counsel when the latter went to the Office of the
Provincial Prosecutor in San Fernando City, Pampanga to follow-up the
case status. The dispositive portion of the said Resolution is as follows:
WHEREFORE, it is mostly recommended that the charge
against the respondents be dismissed for lack of probable
cause.

4.15.
Complainant-Appellant, through undersigned, filed a Motion for
Reconsideration dated 24 May 201614 and a Supplemental Motion for
Reconsideration dated 07 June 201615. However the same were denied by
the Office of the Provincial Prosecutor in its Resolution dated 10 June
201616 stating that the Motion has no merit and was filed beyond the
reglementary period, to wit:
Upon scrutiny of the Complainants Motion for
Reconsideration, dated May 24, 2016, the undersigned
finds that complainant just made it appear that a copy of the
11 Annex J- Copy of the Complaint-Affidavit dated 23 October 2015
12 Annex K- Copy of the Investigation Data Form
13 Ibid.
14 Ibid.
15 Ibid.
16 Ibid.

assailed Resolution dated January 7, 2016 was received by


her only last May 16, 2016. It appearing from records of
this case, specifically on page 3 of the Resolution, dated
January 7, 2016, that both complainant and respondents
were furnished copy of it, through mail, as early as January,
29, 2016. It was quite improbable that Complainant has just
received a copy of it on May 16, 2016 (or almost 4 months
from issuance of the Resolution), unless she has personally
secured the same before the Office of the Prosecutor, just to
make it appear that she has just recently received the same.
Thus, the undersigned finds that the instant Motion was
filed out of time.
In view of the foregoing, the undersigned finds no merit in
the complainants Motion for Reconsideration and hereby
denied the same.
WHEREFORE,
complainants
Motion
for
Reconsideration dated May 24, 2016 is denied and the
Resolution dated January 7, 2016 is reiterated.

4.16.
Correspondingly such copy of Resolution dated 10 June 2016 was
again obtained by the Complainant-Appellant through counsel when the
latter went to the Office of the Provincial Prosecutor on 04 August 2016
to check the status of the case.
4.17.
The said Office informed the undersigned that it already sent the
copy of Resolution dated 10 June 2016 to the Complainant-Appellant via
registered mail addressed to the Complainant-Appellant.
4.18.
The undersigned went San Fernando Pampanga Post Office where
he found out that the copy of Resolution dated 10 June 2016 sent via
registered mail did not reach to the Complainant-Appellant and was
returned to sender.
4.19.
Thus, the undersigned obtained a copy of the Certificate of Mailing
dated 17 June 201617 along with the copies of the Certification dated 4
August 201618 stating that the registered mail was returned to sender and
the Certification dated 4August 201619 stating that the copy of the mail
was already dispatched to the undersigned on that day.
4.20.
Under the questioned Resolutions, Associate Provincial Prosecutor
(APP) Kenneth J. Jusay erroneously dismissed the Complaint-Affidavit
dated 23 October 2015, Motion for Reconsideration dated 24 May 2016,
and the Supplemental Motion for Reconsideration dated 07 June 2016 for
lack of probable cause.
17 Annex L- Copy of the Certificate of Mailing dated 17 June 2016
18 Annex M- Copy of the Certification dated 04 August 2016 (Returned to Sender)
19 Annec N- Copy of the Certification dated 04 August 2016 (Dispatched)

V
ASSIGNMENT OF ERRORS
Associate Provincial Prosecutor Jusay committed the following
manifestly unjust and patent errors:
(A)

ASSOCIATE
PROVINCIAL PROSECUTOR
JUSAY COMMITTED AN ERROR IN RULING
THAT THE MOTION FOR RECONSIDERATION
DATED 24 MAY 2016 WAS FILED BEYOND THE
REGLEMENTARY PERIOD OF FIFTEEN (15)
DAYS UPON RECEIPT OF THE RESOLUTION.

(B)

ASSOCIATE
PROVINCIAL PROSECUTOR
JUSAY COMMITTED A GRAVE ABUSE OF
DISCRETION WHEN IT DISMISSED THE CASE
WITHOUT BASIS IN FACT AND IN LAW.
VI
ARGUMENTS AND DISCUSSIONS

(A)
ASSOCIATE PROVINCIAL PROSECUTOR JUSAY COMMITTED
AN ERROR IN RULING THAT THE MOTION FOR
RECONSIDERATION DATED 24 MAY 2016 WAS FILED BEYOND
THE REGLEMENTARY PERIOD OF FIFTEEN (15) DAYS UPON
RECEIPT OF THE RESOLUTION.
Neither Complainant-Appellant nor
undersigned counsel was furnished
a copy of the Resolution dated 07
January 2016 via registered mail
6.1.
In the Resolution dated 10 June 2016, it was stated that
the Motion for Reconsideration dated 24 May 2016 and a
Supplemental Motion for Reconsideration dated 07 June
2016 were filed out of time, to wit:
Upon scrutiny of the Complainants Motion for
Reconsideration, dated May 24, 2016, the undersigned
finds that complainant just made it ear that a copy of the
assailed Resolution dated January 7, 2016 was received by
her only last May 16, 2016. It appearing from records of
this case, specifically on page 3 of the Resolution, dated
January 7, 2016, that both complainant and respondents
were furnished copy of it, through mail, as early as January,
29, 2016. It was quite improbable that Complainant has just
received a copy of it on May 16, 2016 (or almost 4 months

from issuance of the Resolution), unless she has personally


secured the same before the Office of the Prosecutor, just to
make it appear that she has just recently received the same.
Thus, the undersigned finds that the instant Motion was
filed out of time.

6.2.
The above findings of Associate Provincial Prosecutor
Jusay are malicious and full of speculations. ComplainantAppellant through counsel obtained the copy of the
Resolution dated 07 January 2016 when the latter went to the
Office of the Provincial Prosecutor to follow up the status of
the case because of the fact that for almost four months since
the issuance of the Resolution dated 07 January 2016,
nothing was received neither by the Complainant-Appellant
nor the undersigned counsel.
6.3.
Associate Provincial Prosecutor Jusay alleged that
copy of the Resolution dated 07 January 2016 was sent via
registered mail. However when the undersigned went to the
City of San Fernando Postal Office to check the list of
mailing under the name of the Office of the Provincial
Prosecutor, the name of Complainant-Appellant did not
appear therein.
6.4.
The undersigned obtained a copy of the Certificate of
Mailing20, San Fernando City, Pampanga. The second page21
thereof consist the list of the receiver.
6.5.
Therefore it is indeed unfeasible that ComplainantAppellant will receive a copy of the Resolution dated 07
January 2016 via registered mail when in the first place,
nothing was ever sent to her or to the undersigned. In fact
were it not for the inquiry made personally by the
undersigned counsel, the Complainant-Appellant would have
not been notified by the Resolution because of the
negligence of the Office of the Provincial Prosecutor.
6.6.
For the above stated reasons, the ComplainantAppellant should not be blamed and be faulted on the filing
of the Motion for Reconsideration, almost four months after
the issuance of Resolution dated 07 January 2016, because it
was the Office of the Prosecutor which faulted in the said
event.
(B)
20 Annex O- Copy of the Certificate of Mailing dated 02 February 2016
21 Annex O-1- Second Page of Copy of the Certificate of Mailing dated 02
February 2016

ASSOCIATE PROVINCIAL PROSECUTOR JUSAY COMMITTED


A GRAVE ABUSE OF DISCRETION WHEN IT DENIED THE
MOTION FOR RECONSIDERATION WITHOUT THE BASIS IN
FACT AND IN LAW.

Associate Provincial Prosecutor


Jusay did not exercise his duty to
investigate all throughout the
proceedings.
6.7.
Associate Provincial Prosecutor Jusay based his
Resolution dated 10 June 2016 on the premise that the
Complainant-Appellants additional evidence is not
admissible for being submitted for the first time during the
filing of Motion for Reconsideration and Supplemental
Motion for Reconsideration. This contention holds no water.
6.8.
There is no law or jurisprudence that prohibits the
submission of the additional evidence after the issuance of
the Resolution and during the filing of the Motion for
Reconsideration in the proceedings of Preliminary
Investigation. In fact, Associate Provincial Prosecutor Jusay
did not exercise his primary duty to investigate throughout
the course of the proceedings.
6.9.
Section 9 of Republic Act No. 1007122 provides for the
functions of the Office of Provincial Prosecutors, to wit:
Section 9. Powers and Functions of the Provincial
Prosecutor or City Prosecutor. - The provincial prosecutor
shall:
(a) Be the law officer of the province or city, as the case
may be:
(b) Investigate and/or cause to be investigated all charges
of crimes, misdemeanors and violations of penal laws and
ordinances within their respective jurisdictions, and have
the necessary information or complaint prepared or
made and filed against the persons accused. In the
conduct of such investigations he or any of his/her
assistants shall receive the statements under oath or take
oral evidence of witnesses, and for this purpose may by
subpoena summon witnesses to appear and testify under
22 AN ACT STRENGTHENING AND RATIONALIZED THE NATIONAL
PROSECUTION SERVICE

oath before him/her, and the attendance or evidence of an


absent or recalcitrant witness may be enforced by
application to any trial court;
(c) Have charge of the prosecution of all crimes,
misdemeanors and violations of city or municipal
ordinances in the courts at the province or city and therein
discharge all the duties incident to the institution of
criminal actions, subject to the provisions of second
paragraph of Section 5 hereof. (Emphasis supplied)

6.10.
Records of the case would show that on 16 November
2015, the Office of the Provincial Prosecutor, City of San
Fernando Pampanga received the Complaint-Affidavit23. On
07 January 2016, a Resolution was issued by Associate
Provincial Prosecutor Jusay on the basis of the ComplaintAffidavit and the attached Annexes therein. On 25 May
2016, the Complainant-Appellant filed a Motion for
Reconsideration24. On 07 June 2016, the Supplemental
Motion for Reconsideration25 was also filed. Finally on 10
June 2016, a Resolution was issued by Associate Provincial
Prosecutor Jusay based of the foregoing Motions and its
Annexes.
6.11.
Hence, it is conspicuous that Associate Provincial
Prosecutor Jusay did not conduct an investigation on the case
but merely based his Resolutions on the documents presented
to him. This is contrary to his primary duties as stated in the
above provision of the law. The law expressly states that it is
the primary functions of the Provincial Prosecutors and their
Assistants to investigate all charges of crimes and to prepare
necessary information or complaint against the persons
accused upon determination of probable cause. Conversely
this was not done by Associate Provincial Prosecutor Jusay.
Certification
from
Land
Registration Authority and the
Cancelled Transfer Certificate Title
No. 042-2014011596 should be
admissible.
6.12.
It is contended in the Resolution dated 10 June 2016
that the copies of the Certification furnished by the Land
Registration Authority and the Cancelled Transfer Certificate
23 Complaint-Affidavit dated 23 October 2015
24 Motion for Reconsideration dated 24 May 2016
25 Supplemental Motion for Reconsideration dated 07 June 2016

Title No. 042-2014011596 are inadmissible because they


were submitted in the Motion for Reconsideration and
Supplemental Motion for Reconsideration for the first time.
xxx Where it not of the said Resolution, specifically stating
that the evidence that should have been presented by the
complainant upon filing of the complaint, the complainants
additional pieces of evidence would have not been
submitted. xxx Complainant claimed that the Letter from
the register of Deeds attached in the Supplemental Motion
for Reconsideration, was just recently received by her.
However, there was no proof to that effect. The letter was
even undated.xxx

6.13.
It must be noted that the Preliminary Investigation is
an inquisitorial proceeding. Under Section 1, Rule 112 of the
Revised Rules of Criminal Procedure, Preliminary
investigation is an inquiry or proceeding to determine
whether there is sufficient ground to engender a wellfounded belief that a crime has been committed and the
respondent is probably guilty thereof, and should be held
for trial.
6.14.
In his resolution dated 07 January 2016, Associate
Provincial Prosecutor states that Complainant should have
asked for a copy of the Certification that Transfer Certificate
Title No. 042-2014011596 is fake and spurious. In
compliance thereof, Complainant-Appellant filed a Motion
for Reconsideration and Supplemental Motion for
Reconsideration, attaching the copies of the Certification and
Cancelled Transfer Certificate Title No. 042-2014011596 to
prove that the said TCT was indeed fake and spurious.
6.15.
Yet Associate Provincial Prosecutor Jusay held that
such additional evidence is inadmissible and should have
filed along with the Complaint-Affidavit.
6.16.
Associate Provincial Prosecutor Jusays argument has
no merit. Then again, there is no law or jurisprudence that
prohibits the submission of additional evidences to prove the
probability that a crime was committed by the accused.
6.17.
In the first place, having the power to investigate,
Associate Provincial Prosecutor Jusay should have conducted
an investigation on the case to determine the genuineness of
the contentions in the Complaint-Affidavit. When he believed
that such contentions in the Complaint-Affidavit are selfserving because of lack of Certification, he should have
investigated and inquired the Land Registration Authority

about the same because as a public Prosecutor, he has the


power to investigate under the law.
The presumption of regularity of
the Certification from Land
Registration
Authority
should
prevail.
6.18.
In connection to this, it is true that the Certification
was indeed undated, still, bearing in mind that
Prosecutors have the investigative power, Associate
Provincial Prosecutor Jusay should have confirmed the
authenticity of the Certification to the Land registration
Authority situated in San Fernando, Pampanga
considering the fact that the Land Registration Authority
is situated at Capitol Boulevard, Provincial Capitol
Compound, San Fernando, Pampanga which is literally
beside of the Office of the Provincial Prosecutor. The
Prosecutor should have confirmed the authenticity of the said
Certification. Otherwise the presumption of regularity should
prevail and the Certification should be given probative value.
And the burden of proof is to the one who assails the
authenticity of the document.
VII
PRAYER
WHEREFORE, it is most respectfully prayed that the Resolution
of Associate Provincial Prosecutor Kenneth J. Jusay be REVERSED and
SET ASIDE and that the Honorable Secretary of Justice direct that the
corresponding Information against Respondents for ESTAFA THROUGH
FALSIFICATION OF PUBLIC DOCUMENT be immediately filed in
court.
In the interest of justice and fair play, the Complainant-Appellant
most respectfully prays for other just and equitable relief as the Honorable
Secretary of Justice may find warranted in the premises.
Quezon City for City of San Fernando, Pampanga, 19 August 2016.

ERA & ASSOCIATES LAW OFFICE


Counsel for Plaintiff-Appellee
Units 9J, 9K, 9L & 8K 20 Lansbergh Place Condominium
170 Tomas Morato cor. Scout Castor, Quezon City
Email: era.associates@lawyer.com

Telefax No. 3746807

EDGARDO O. ERA
Roll No. 45792
IBP No. 1004805 / 08.04.15 / Quezon City
PTR No. 1768486 / 09.07.15 / Quezon City
MCLE Compliance No. V 0018946/ April 19, 2016

DIANE KAREN B. BRAGAS


Roll No. 55306
IBP No. 0996504 / 02.27.15 / Manila
PTR No. 0984095 / 02.26.15 / Quezon City
MCLE Compliance No. V- 0018947/ April 19, 2016

VERIFICATION
I, ANTOLETTE G. COLICO, of legal age, married and residing at
Mexico, Pampanga, after being duly sworn, depose and state: that I am
the Complainant-Appellant in the above-entitled case; that I have caused
the preparation and filing of the Petition for Review to the Honorable
Secretary of Justice; that I have read the same and all the allegations

therein, including the documents appended thereto; that the same are true
and correct based on my personal knowledge and copies of authentic
records of the case in my possession.

ANTOLETTE G. COLICO
SUBSCRIBED AND SWORN to before me this _____ day of
August at Makati City, affiant exhibiting to me her Comm. Tax Cert. No.
__________________ issued on ________________________ at
______________________________.
NOTARY PUBLIC
Doc. No. ____;
Page No. ____;
Book No. ___;
Series of 2004.

Copy Furnished:
APP Kenneth J. Jusay
Office of the Provincial Prosecutor
City of Sam Fernando, Pampanga
Spouses Ermelin and Arlene Esguerra

Brgy. San Manuel, Mexico,


Pampanga
EXPLANATION
Copies of the foregoing Petition for Review are filed before the
Honorable Office and served to the other parties via private courier, LBC,
personal service being difficult and impracticable due to the distance,
limited time and lack of messenger personnel.

DIANE KAREN B. BRAGAS