Republic of the Philippines

Department of Justice
OFFICE OF THE CITY PROSECUTOR
Davao City

FELCRIS SUPERMARKET, INC. NPS Docket No.XI-02-INV-G-

represented by Uldaricco 2397
Resurreccion,
Complainant, For: Qualified Theft

-versus-

MELISSA SEGUIZA,
Respondent.
x----------------------------------------------x

MOTION FOR RECONSIDERATION

(on the Resolution dated December 19, 2017)

COMES NOW, RESPONDENT, thru the undersigned, and unto this

Honorable Office most respectfully states that:

1. The undersigned received the Resolution (hereby attached

as Annex “1” for easy reference) of the Honorable Prosecutor on
January 12, 2018. As a result, the undersigned has 15 days or
until January 27, 2018 from receipt of such to file this motion.
Since January 27, 2018 falls on a Saturday, the time shall not run
until the next working day, which is January 29, 2018. In light of
this, this motion is deemed filed on time;

2. The Office of the Prosecutor, in its Resolution dated

December 19, 2017, found probable cause to indict the
respondent for the crime of qualified theft, the pertinent decision
states:

“It appears that she took away and/or conceal

the above-mentioned items without the
knowledge and consent of the complainant. It
is opined that respondent acted with grave
abuse of confidence when she took the said
articles being a lane-in-charge who had access
to the merchandise being kept and sold by the
complainant at its premises.”

3. With all due respect to the Honorable Prosecutor, the

above-mentioned Resolution should be reconsidered on

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the ground of error of law and fact as discussed in the
following arguments:

First, the elements of qualified theft were

not established.

a. For theft to be considered as qualified, the following

elements must be present: (i) taking of personal property;
(ii) that said property belongs to another; (iii) that the said
taking was done with intent to gain; (iv) that it was done
without the owner’s consent; (v) that it was accomplished
without the use of violence or intimidation against persons,
or force upon things; and (vi) that it was done with grave
abuse of confidence;

b. With all due respect, the first, third and the sixth
elements are not present in the instant case;

c. To emphasize, Felcris Supermarket Inc. was never

deprived of the possession and dominion over the said
subject items. In the aforementioned Resolution, paragraph
three thereof states in part that:

“During ocular inspection, one Jessica Cortez,

supervisor of the respondent, FOUND IN THE
LOCKER OF THE RESPONDENT the following
items”

d. Such finding is misplaced because the same was

never her personal locker, but a shelf with a built-in drawer
where Maybelline products were displayed. For reference of
such drawer, a picture thereof is hereby attached as Annex
“2”;

e. Since the same was never her personal locker, Felcris

was never deprived of the possession and dominion over
the said enumerated items. Hence, there was no taking,
nor any intention of withholding the same with some
character of permanency;

f. As to the element of intent to gain, the mere

safekeeping of the items inside the drawer does not
conclusively nor presumably follow that there was
intent to gain;

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 g. The mere safekeeping of the items inside the drawer
does not conclusively follow that there was intent to gain.
In one case1, the Supreme Court held that the use of
the thing unlawfully taken constitutes gain. In the
case before us, the Complainant failed to establish
that there was use of the items in the drawer. There
was no direct evidence showing that the items inside
the drawer were unlawfully taken and used for their
respective consumption. Strictly speaking, it was
precisely placed there because of Ms. Jessica Cortez’
instruction and for the purpose of safekeeping. The fictitious
allegation of Ms. Cortez stating that she received a report2
from Ms. Mary Joy Saren alleging that the respondent used
or gave cosmetic products, should be struck down for being
merely hearsay and should not be given any probative
value. Consequently, the principle of Actus non facit
reum, nisi mens sit rea applies – the act cannot be
criminal where the mind is not criminal;

h. The designation of the offender as a lane in-charge

and promodizer does not by itself, without more, create the
relation of confidence and intimacy required by law for the
crime of qualified theft. Moreover, mere possession of a key
by itself, does not support the premise that she is holding a
position of trust and confidence. The Court in one case
held:

“Abuse of confidence is determined from the

trust entrusted by the offended party to the
offender, or the nature of the work of the
offender, which must involve trust and
confidence. The grave abuse of confidence
must arise out of the relation by reason of
dependence, guardianship, or
vigilance, between the appellant and the
offended party that might create a high
degree of confidence between them which the
accused abused. [People v. Koc Song, 63 Phil.
369 (1936)].”

i. Simply put, the mere possession of the alleged “key” nor

being a promodizer does not render her an employee
vested with trust and confidence. It has been admitted in
the affidavit of Jessica Cortez that they were able to open
the said drawer without necessarily using the key held by
1
People vs. Asamuddin, 769 SCRA 152.
2
Paragraph 8 of the Supplemental Affidavit of Jessica Cortez.

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 the respondent. Hence, anyone with a duplicate, including
the supervisor could have opened the said drawer;

j. Finally, absent the first, second, and third elements,

the crime of Qualified Theft could not have been
committed;

Second, the Honorable Prosecutor failed to consider the affidavit of

Endy Perobillo, witness for the respondent.

k. Had the affidavit (Annex “2” of the Counter-Affidavit)

of Endy Perobillo been considered by the Honorable
Prosecutor, it would have led to a fair and reasonable
conclusion that the petitioner placed those items inside the
drawer without intent to gain, especially considering that it
has already been a company practice to pull out and place
items that are close to their expiry date inside the
Maybelline drawer.

PRAYER

WHEREFORE, premises considered, it is most respectfully prayed

that:
a. The Resolution dated December 19, 2017 be
reconsidered; and
b. The instant case be dismissed for lack of merit and
probable cause.

Further, the herein respondent respectfully pray for such and

other reliefs as may be deemed just and equitable under the premises.

Davao City, Philippines, January 27, 2018.

Conforme:

Melissa Seguiza
Respondent

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 MONDAY LAW OFFICE
Counsel for the Respondent
Unit 10 ATU Plaza, Gov. V. Duterte St., Davao City
Tel No. 215-4168

LYNDON EVANS P. MONDAY

Roll No. 67143
PTR No. 9904772B; 01/05/18; Davao City
IBP No. 005297-Davao Oriental-05.18.2017
MCLE Compliance No. VI-0002742-Valid until
4/22/22

NOTICE OF SUBMISSION

THE CLERK OF THE OFFICE OF THE CITY PROSECUTOR

Department of Justice
Ecoland, Davao City

Greetings:

Please take notice that the undersigned counsel will submit the
foregoing motion for reconsideration for the deliberation and approval
immediately upon receipt hereof, sans appearance and oral arguments.

Davao City, Philippines, January 27, 2018.

LYNDON EVANS P. MONDAY

Copy furnished:

FELCRIS SUPERMARKET INC. (CENTRALE)

Represented by Uldarico B. Resurreccion
3F Coronet Building., 86 Anda St.,
Davao City
D.C.P.O. Registered Receipt No.__________ Date:__________

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 EXPLANATION
(Service by Registered Mail)

Copies of the foregoing shall be served by Registered Mail to the

aforementioned addressees because of impracticability of personal
service due to distance and manpower constraints.

Davao City, Philippines, January 27, 2018.

LYNDON EVANS P. MONDAY

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