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
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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. That the ACCUSED real name was PEDRO PENDUKO and he was known to
his place of residence as DON ANIQO as he was elegant in giving money to
his friends and to those who are needy. Herein attached is the Sworn Affidavit
of the Barangay Chairman which he resides attesting to the fact that he was
known as DON ANIQO as Annex “1”;
4. That the ACCUSED and spouses Pascual are close friends as they were
cousins and they have been neighbors for 20 years in Vamenta, Carmen,
Cagayan de Oro City;
5. That the ACCUSED and MR. PASCUAL were cousins from his mother side
while his wife MRS. PASCUAL was ACCUSED’s cousin from also her mother
side;
6. That Mr.Pascual always seeks for help from the ACCUSED as he has an
expertise in commercial transactions because he was a graduate of LLB
course in MSU COLLEGE OF LAW – ILIGAN EXTENSION on 2000. A copy
of the ACCUSED DIPLOMA is hereinto attached as Annex “2”;
7. That Mr. Pascual entered into a transanction with AYALA GROUP OF
COMPANIES by renting a space in Robinson’s Plaza in Cagayan de Oro City
where he could place his store KICK IT OFF which is a SHOES STORE on
May 10, 2007;
8. That after sometime, Mr. Pascual find difficulties in paying his monthly rentals
for his store which made him decide to borrow money from North Bank in
Bayabas Branch, Cagayan de Oro City;
9. That since Mr. Pascual was pre-occupied from running his business and from
settling his debts, the SPOUSES executed a SPECIAL POWER OF
ATTORNEY. A copy of the SPECIAL POWER OF ATTORNEY is hereinto
attached as Annex “3”;
10. The SPECIAL POWER ATTORNEY executed by the SPOUSES specifically
authorized me to obtain a LOAN from the said BANK and in return the
SPOUSES agreed to MORTGAGE their conjugal land as COLLATERAL for
said loan;
11. That the ACCUSED obtained a LOAN APPLICATION from the BANK which
he gave it to the SPOUSES PASCUAL to fill up and in order for them to affix
their signatures. A picture showing that the SPOUSES were the ones who
personally filled in the LOAN APPLICATION was hereinto attached as Annex
“4”;
12. That the ACCUSED and the SPOUSES PASCUAL’s relationship turned sour
when the ACCUSED did not disagree with the plan of MR. PASCUAL’s plan to
enter into an illegal transactions;
13. 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;
14. 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 hereinbelow 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.

15.
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);

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

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

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.