6.

Sensing a brewing conflict as Complainant refused to listen to

Respondents
explanation, Respondent chose to leave
immediately;
7. When Respondent left Complainants house, she went directly
to the house of MRS. LUZ DAQUILOS and informed the latter
as to what transpired earlier;
8. When Respondent went back to BJMP that afternoon, she
also told RIGOR DAQUILOS of the reaction of the family of
BERNANDINO DELEJERO;
9. However, at around 5pm on same date, Respondent received
a text from BERNANDINO DELEJERO asking her if she could
come over to their place and as they want to discuss as to how
can they help RIGOR DAQUILOS;
10. Upon receiving the text, Respondent informed RIGOR
DAQUILOS and the latter asked me to go to BERNANDINO
DELEJERO as he was hopeful that latter might have decided
to help him after all;
11. When Respondent arrived in the house of BERNARDINO
DELEJERO, they asked her to tell RIGOR DAQUILOS that
they are willing to help FINANCIALLY on the condition that
RIGOR DAQUILOS would not anymore involve BERNANDINO
DELEJERO in the case filed against the former;
12. That Respondent explained to them that it was not the kind of
assistance that RIGOR DAQUILOS expected from
BERNANDINO DAQUILOS as the former expected the latter
to give a statement for RIGOR DAQUILOS defense;
13. However, as Respondent was still explaining to them,
Complainant MILAGROS DELEJERO handed her one (1) 500peso bill and one (1) 100-peso bill asking herein Respondent if
she could give it to RIGOR DAQUILOS as a financial help to
the latter. Respondent refused to accept the money but MRS.
MILAGROS DELEJERO kept on insisting that Respondent
give it to RIGOR DAQUILOS;
14. That after so much argument, Respondent finally agreed to
their request to give the money to RIGOR DAQUILOS.

Hence, thinking that it was just as harmless and non-malicious

request, Respondent accepted the money and placed/inserted
in the folder which I am carrying that time;
15. That much to her surprise, after she agreed to their request
to hand the money to RIGOR DAQUILOS, Binalbagan police
officers barged in immediately and arrested Respondent
without a warrant of arrest;
16. That it was only then that it dawned to Respondent that the
police officers were arresting her believing that she have been
asking money from Complainant in exchange for something.
Respondent tried to explain to the police officers what really
happened but to no avail;
17. Respondent was arrested immediately and was brought to
Binalbagan Police Station and was detained.
18. Respondent then found out that she was being charged for
Direct Bribery. However, the Provincial Prosecutor believed
that, on the basis of the Complaint, the proper charge should
have been Estafa by Means of Deceit under Article 315 (2)(a)
of the Revised Penal Code. Thus, this proceeding for
preliminary investigation;
19.
The relevant provisions of the Revised Penal Code on Estafa
By Means of Deceit can be found in Article 315 (2)(a) to wit:
Article 315. Swindling (estafa). - Any person who shall
defraud another by any of the means mentioned herein
below 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:
xxx
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.
In the case of ROSITA SY vs. PEOPLE OF THE
PHILIPPINES, G.R. No. 183879, April 14, 2010, the Supreme
Court established the elements for the felony of estafa in this wise:

The sole issue for resolution is whether Sy should be

held liable for estafa, 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. (Emphasis and
underscoring supplied)
21.
From the foregoing jurisprudential pronouncement, for a
crime of Estafa under Article 315 (2)(a) to be committed, deceit is
an indispensable element. In the case bar, there is no proof that
Respondent intentionally, maliciously and feloniously deceived
herein Complainants.
a. Right from the very start, Respondent have introduced herself
as a volunteer at Parole and Probation Office which is no less
than the truth. It is likewise true that Respondent was
presently assigned at Binalbagan, Negros Occidental and has
been assisting some detainees at BJMP, Binalbagan. This is
how Respondent got involved with the case of RIGOR
DAQUILOS.
b. To set the record straight, Respondent has neither direct
business nor any personal relations with herein Complainant
but has only been requested by RIGOR DAQUILOS to
approach BERNANDINO DELEJERO and asked the latter to
help him .

c. Also, contrary to Complainants allegation, Respondent did not

in any way misrepresent herself nor presented to offer any
help so as to exonerate Complainants son BERNANDINO
DELEJERO from any criminal liability. Respondent is aware,
as it was mentioned to her by RIGOR DAQUILOS, that
BERNANDINO DELEJEROs charge for violation of RA 9165
was recommended dismissed by the Provincial Prosecutor. It
was this very fact that prompted both RIGOR DAQUILOS and
Respondent to explore the possibility of asking the help of
BERNANDINO DELEJERO to possibly give his statement in
RIGOR DAQUILOS defense. Thus, it is impossible as how
Respondent could have promised something to the
Complainant considering that BERNANDINO DELEJEROs
case for violation of RA 9165 was already recommended
dismissed;
22.
From the foregoing, it is rather difficult to fathom as to what
circumstances did herein Respondent employed deceit for her to
be able to commit the crime being charged of;
23.
At this point, the pronouncement of the Supreme Court in
G.R. Nos. 17416811, (30 March 2009) and 17943822 (30 March
2009) finds significance:
In order that probable cause to file a criminal case
may be arrived at, or in order to engender the wellfounded belief that a crime has been committed, the
elements of the crime charged should be present.
This is based on the principle that every crime is
defined by its elements, without which there should
beat the mostno criminal offense. [Emphasis and
underscoring supplied]
24.
Applying the afore-quoted principle in the Complaint at bar,
there is no doubt that the dismissal of the instant Complaint is very
much warranted
25.
At this point, herein Respondent most respectfully invokes
the pronouncement of the Supreme Court in the case of Collantes
1 SY TIONG SHIOU, JUANITA TAN SY, JOLIE ROSS TAN, ROMER TAN, CHARLIE TAN, and JESSIE JAMES TAN
vs. SY CHIM and FELICIDAD CHAN SY.

2 SY CHIM and FELICIDAD CHAN SY vs. SY TIONG SHIOU and JUANITA TAN.

vs. Marcelo (530 SCRA 142 [2007]). In said case, the Supreme
Court had the occasion to declare that
Agencies tasked with the preliminary investigation and
prosecution of crimes should never forget that the
purpose of a preliminary investigation is to secure the
innocent against hasty, malicious and oppressive
prosecution, and to protect one from an open and public
accusation of crime, from the trouble, expense and
anxiety of a public trial, and also to protect the State from
useless and expensive trials. It is, therefore, imperative
upon such agencies to relieve any person from the trauma
of going through a trial once it is ascertained that the
evidence is insufficient to sustain a prima facie case or
that no probable cause exists to form a sufficient belief as
to the guilt of the accused.
26.
In view of all the foregoing factual and legal justifications,
herein Respondent most respectfully submit that the instant
Complaint be denied for utter lack of merit and, further, invoke the
authority of this Honorable Office to protect herein Respondent
against what appears to be a hasty, malicious and oppressive
prosecution initiated by Complainant.
12.
Respondent further reserves the right to present
additional evidence, both documentary and testimonial, as maybe
warranted.
13.Respondent executes this Counter-Affidavit to attest to the truth of
the foregoing and for whatever legal purpose it may serve.
IN WITNESS WHEREOF, I have hereunto set my hand this
___ day of September 2013 at Bacolod City, Philippines

MARLYN MENDIETA
Affiant

SUBSCRIBED and SWORN to before me this this ____ day

of September 2013 at Bacolod City, Philippines. I hereby certify
that I have personally examined the affiant and that I am satisfied

that she read and understood the contents of her counter-affidavit

and that she voluntarily executed the same.