Republic of the Philippines

DEPARTMENT OF JUSTICE
Office of the City Prosecutor
Taguig City

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MANUEL MARQUEZ,
Petitioner.
G.R. No. L-12345
- versus - ESTAFA

ROB RUGISTA,
Respondent.

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COUNTER-AFFIDAVIT OF THE RESPONDENT

The undersigned Respondent respectfully state:

1. ADMISSIONS AND DENIALS

Respondent contends the validity of the holographic will in court for the
reason that it was forged and maliciously obtained by Manuel Marquez
when their father, Mario Marquez, was on his death bed and is known to
be weak and could not fully comprehend ideas if it was not fully elaborated
to him.
Respondent posited that it was Manuels personal interest on the said
property and his unreasonable hate towards respondent that led to the
alleged forging of the said holographic will. This was further proved by the
criminal case filed against Manuel Marquez wherein respondent is his
counsel but due to the sufficiency of evidence presented by the
prosecution, he was made to pay pecuniary liabilities and even served
sentence in jail.
While it is true that Mario only promised Rob that they will get the house
and lot, respondent was able to obtain a special power of attorney before
the forging of the holographic will (Exhibit A). It purports that upon the
death of Mario Marquez, respondent can use the SPA to his own
advantage because at that time Mario was aware that the respondents
law firm is having a hard time managing its finances and its said
expansion in Cebu.
Respondent also claims that the proceeds of the said loan redounded to
the benefit of the Rugista family as what was stated in the Civil Case filed
against him.
Respondent avers that his wifes denial that she never knew of the
mortgaged property was due to the pending bigamy case she filed against
 respondent. Thus, out of revenge and extreme hate towards respondent,
she connived with her brother to file the said case.
That Leni Rugista knew the Agelto couple. They were her close friends
since college so it is impossible for her not to know that the said property
was mortgaged to them. also, in one instance she had paid the interest of
the said loan via Lenis BDO bank account when respondent was in an
overseas conference (Exhibit B).

2. 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 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:
(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.
 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) that such misappropriation or conversion or denial is to the
prejudice of another; and
(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.

There is no proof that the respondent intentionally, maliciously and

feloniously mortgaged the said property to defraud the Marquez siblings.
Respondent acted in his capacity as a person needing the money for his
family and the firm, hence the SPA he obtained from his father-in-law is a
representation that he can encumber said property.

Respondent simply mortgaged the said property to the Agelto couple IN

GOOD FAITH in accord with the formal SPA manifestation, mandate, order,
 wish, and desire of his father-in-law (i.e. to use the said property to
alleviate his firm to which must redound to his family)

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.
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.

We reach the same conclusion here. For failure of the prosecution to prove
that he indeed acted in BAD FAITH when he mortgaged the property
beyond reasonable doubt thereby, allegedly defrauding the Marquez
siblings.

Respondent reserves the right to file a SUPPLEMENTAL 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.

Taguig City, .

ROB RUGISTA
Respondent

SUBSCRIBED and sworn to before me on May 6, 2017 in Taguig City.

Assistant City Prosecutor