REPUBLIC OF THE PHILIPPINES

REGIONAL TRIAL COURT

10TH Judicial Region
Branch 5
Cagayan de Oro City

REPUBLIC OF THE PHILIPPINES

Complainant, Criminal Case No. 1234
-Versus - For: Estafa thru
PEDRO PENDUKO Falsification of Public
Accused Document
x------------------------------------------------------x

COUNTER AFFIDAVIT
ACCUSED Pedro Penduko, through the Public Attorney’s Office, by the
undersigned counsel, most respectfully file his Anser in response to the Complaint:

ADMISSIONS AND DENIALS

1. Paragraph 1 and 5 are admitted;
2. Paragraph 3 and 6 are denied. The reasons thereof shall form part of the
affirmative defense herein.

AFFIRMATIVE DEFENSES
3. 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.

4. In the case of ROSITA SY vs. PEOPLE OF THE PHILIPPINES, G.R. No.

183879, April 14, 2010 discussed the ways of committing the felony of estafa,
thus:
X x x.

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.
5. That the ACCUSED specifically denies the allegations made by the BANK
against him and instead it should be the SPOUSES PASCUAL who should be
held liable against the BANK;
6. That the ACCUSED disputes the claim of the BANK that the ACCUSED was
using fictitious name. But the true of the fact is that ACCUSED’s real name
was DON ANIQO and he was known to his place of residence as PEDRO
PENDUKO because his mother was a fan of a Filipino Movie PEDRO
PENDUKO. Herein attached is the Sworn Affidavit of the Barangay Chairman
which he resides attesting to the fact that he was known as PEDRO
PENDUKO as Annex “1”;
7. That the true of the fact was that the ACCUSED and spouses Pascual are
close friends as they were cousins from his mother side while his wife MRS.
PASCUAL was ACCUSED’s cousin from also her mother side and they have
been neighbors for 20 years in Vamenta, Carmen, Cagayan de Oro City;
8. That the SPOUSES entered into a venture which they have some difficulties
in complying and thereby opting to apply for a loan before the BANK;

9. That the participation of the ACCUSED in applying the LOAN APPLICATION

was due to the fact that Mr. Pascual was pre-occupied from running his family
business and from settling his debts; thereby the SPOUSES executed a
SPECIAL POWER OF ATTORNEY. A copy of the SPECIAL POWER OF
ATTORNEY is hereinto attached as Annex “3”;
10. That by virtue of such SPECIAL POWER OF ATTORNEY, the SPOUSES
authorized the ACCUSED to obtain a LOAN from the said BANK in behalf of
them and in return the SPOUSES agreed to MORTGAGE their conjugal land
as COLLATERAL for said loan. However, the SPOUSES found it difficult to
pay their debts to the bank;
11. That the case filed by the BANK was due to act of the SPOUSES when their
relationship with the ACCUSED turned sour. Thereby the SPOUSES
repudiated of committing such acts despite of the fact that the acts of the
ACCUSED were due to the SPECIAL POWER OF ATTORNEY executed by
the SPOUSES empowering the ACCUSED to apply for loan;
12. That from the foregoing, there is no proof that the respondents intentionally,
maliciously and feloniously deceived the BANK. The ACCUSED was in
GOOD FAITH in applying for a loan before the BANK because the act was in
accord with the formal manifestation, mandate, order, wish, and desire of the
SPOUSES and who had mandated to mortgage the disputed land as
collateral to secure such loan;
13. In the case of Amora vs. Court of Appeal, G.R No. L-58973-76, July 20, 1982,
the Supreme Court discussed that GOOD FAITH was a defense in malum in
se, such as estafa, to wit:
xxxThus the learned Mr. Justice Ramon C. Aquino has said, "there is no falsification
of a public document if the acts of the accused are consistent with good faith. Thus,
it has been held that 'a conviction for falsification of a public document by a private
person will not be sustained when the facts found are consistent with good faith on
the part of the accused.' In other words, although the accused altered a public
document or made a mistatement or erroneous assertion therein, he would not be
guilty of falsification as long as he acted in good faith and no one was prejudiced by
the alteration or error.” (Emphasis supplied);

14. Additionally, in the case of Pascual vs. PEOPLE OF THE PHILIPPINES, G.R
No. 204873, July 27,2016, the Supreme Court explained what is deceit, to wit:
The deceit by which the charade was accomplished is unmistakable. Deceit as used
in this instance is defined as any act or devise intended to deceive; a specie of
concealment or distortion of the truth for the purpose of misleading. Concomitantly,
for it to prosper, the following elements must concur: (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.

15. In the present case, deceit is not present because again, the
ACCUSED only applied for a loan before the BANK and mortgaged
the disputed land as collateral for the loan because of the SPECIAL
POWER OF ATTORNEY executed by the SPOUSES empowering
the ACCUSED to perform such acts.
16. Hence, the ACCUSED affirmed its ground that the case should be
dismissed for lack of cause of action against him. Instead, the
ACCUSED respectfully pray before this Honorable Court that the
proper parties be pleaded before the present case.
 PRAYER
WHEREFORE, in view of the foregoing, ACCUSED most respectfully pray of this
Honorable Court the following;

1. To DISMISS the instant Complaint for utter of lack of merit and for its failure to
state a cause of action against the ACCUSED;
2. To ORDER Complainant to pay ACCUSED the amount of P50,000 by way of
moral damages
3. To plead the proper parties in the present case.

Other reliefs, just and equitable under the premises, are likewise prayed for.

COUNTERCLAIM
The ACCUSED respectfully states that the BANK be held liable of damages by
way of MORAL DAMAGES as he suffered extreme anxiety, stress and sleepless nights
which when quantified is equivalent to at least FIFTY THOUSAND PESOS (P50,000);

Cagayan de Oro City, 15th of July 2009

Department of Justice
PUBLIC ATTORNEY’S OFFICE
Hall of Justice
Cagayan de Oro City
By:
(Sgd) ATTY. Habib Simban
Public Attorney 1
Roll of Attorneys No. 12345
IBP No. 123345, MIS. OR. Chapter
MCLE Compliance Exempted

Copy furnished:
Arina A. Santol
Counsel for the Complainant
Associate Prosecution Attorney II

EXPLANATION
In compliance with Section 11, Rule 13 of the Rules of Court, this COUNTER-
AFFIDAVIT was filed with this Honorable Court and served on the other party by
registered mail due to lack of messengers and lack of material time.