COUNTER-AFFIDAVIT

OF RESPONDENT x x x

THE UNDERSIGNED RESPONDENT respectfully states:

X x x. x x x x.

THE INSTANT CRIMINAL COMPLAINT IS A PERJURIOUS, MALICIOUS, FELONIOUS, BASELESS,

UNFOUNDED, AND UNJUST FABRICATION.

1. Before proceeding any further, the Respondent hereby states that the instant complaint of the
Complainant xxx is a perjurious, malicious, felonious, baseless, unfounded and unjust FABRICATION by
the Complainant intended:

(a) To collect a loan that the Respondent had already paid in full to the Complainant; and

(b) To earn unjust, huge, usurious, iniquitous and unconscionable interests and/or penalties/ surcharges
on the said fully paid loan, without any legal and contractual basis for such a claim, solely to serve the
selfish financial gain of the Complainant and his anonymous Financier.

2. The Respondent categorically states that:

(a) He does not owe any amount whatsoever to the Respondent;

(b) The act of the Complainant of initiating the instant case against the Respondent, without any
legal and factual basis, has caused mental anguish, extreme anxieties, sleepless nights, and besmirched
reputation on the part of the Respondent and his family;

(c) The Respondent shall soonest file a counter-charge for PERJURY against the Complainant to
serve as an example to society and in the interest of justice;
(d) The Respondent reserves the right to file an independent civil action for TORT AND DAMAGES
against the Complainant and his cohorts for initiating this unjust, unfair, baseless, reckless, and
irresponsible case.

3. The true facts of the case are enumerated and discussed hereinbelow.

CHRONOLOGY OF RELEVANT FACTS AND EVENTS.

4. The Respondent XXX is a Xxx national. He is doing business in xxx in the sector of tourism,
entertainment and food and beverages.

5. He has two (2) minor children with his common-law Filipina spouse xxx.

6. Their two (2) minor children are XXX, 5 years old and a pupil of xxx, and xxx XXX, 3 years old.

7. The Respondent XXX (“XXX”) and common-law spouse xxx first met the Complainant XXX XXX
(“XXXF”; alias “xxx”) in 2014.

8. The Complainant was introduced to the Respondent and xxx by a brother-in-law of the latter named
xxx.

9. At that time, the couple XXX and xxx was looking for a private van for rent to be used by them for
their family outings.

10. xxx introduced the Complainant as a “kumpare” and a private van operator-driver.

11. The Respondent and xxx hired the van of the Complainant for about three (3) times for the out-of-
town trips/excursions of their family. Moreover, in some business trips of the Respondent also used the
van of the Complainant.
12.The Respondent and XXX reposed their trust on the Complainant because the latter seemed to be a
good and trustworthy person. Sometimes the Complainant made social visits to the home of the
Respondent and xxx.

13.Because of their trust in the Complainant, the Respondent and xxx did not mind the confidential
information later given to them by xxx that the Complainant was engaged in the illegitimate business of
securing xxx visas for interested Filipino, as a sideline. The Complainant’s modus operandi, according to
the information from xxx, was that the Complainant would make it appear that the visa applicants were
members of a Filipino xxx Team with official business, tournaments, or trainings in the xxx.

14. On 20 September 2014 or thereabout, the Respondent was in need of P15, 000.00 for the tuition
fees of his child enrolled at the xxx. He sought the assistance of the Complainant. The Complainant said
he could lend the Respondent the amount the latter needed. The Complainant said he had some savings
to accommodate the urgent need of the Respondent. The Complainant did not mention that he would
source the amount from an outside Financier.

15. On 30 September 2014, when the Respondent was ready to pay in full his loan, the Complainant
demanded an additional amount of P6, 000.00 as interest on the P15, 000.00 principal loan (for a very
short period of ten (10) days).

16.The Complainant alleged that the said amount was required by his anonymous Financier. The
Respondent was surprised by such a statement of the Complainant because the latter had earlier said
that the amount of P15, 000.00 was the Complainant’s own personal savings. He started to suspect the
honesty of the Complainant.

17. The P6, 000.00 interest on the P15, 000.00 principal loan for a very short period of ten (10) days was
usurious, unacceptable, unconscionable, iniquitous, and immoral.

18.Nonetheless, to avoid unnecessary interpersonal problems with the Complainant, the Respondent
paid to the Complainant the P6, 000.00 interest that the latter and his anonymous Financier were
demanding via a deposit to the bank account of the Complainant.

19.Thus the Respondent paid the Complainant on 30 September 2014 the total amount of P21, 000.00,
broken down as follows:
(a) P15, 000.00 as principal loan; and

(b) P6, 000.00 as interest.

20. Please note that the said P6, 000.00 interest amounted to an incredible, usurious, iniquitous,
unconscionable and immoral forty percent (40%) interest rate for the very short period of ten (10) days
(i.e., 20 September 2014 to 30 September 2014).

21.The abovementioned loan transaction involving a principal amount of P15, 000.00 that took place on
20 September 2014 was not evidenced by any promissory note, contract of loan, voucher, official
receipt, or similar financial or contractual document.

· It was a verbal loan transaction.

· There was no oral or written stipulation whatsoever as to the interest, penalties, or surcharges of
the said verbal loan.

22. Please note that the Complainant did not attach to his Complaint any promissory note,
contract of loan, voucher, official receipt, or similar financial or contractual document to prove his claim
against the Respondent.

23. What are attached to the Complainant are only the following documents:

(a) Barangay “Kasunduan” dated 7 October 2015 between the Complainant and the Respondent;

(b) Final Demand Letter, dated 12 November 2015, which was based solely on the Barangay
“Kasunduan”; and

(c) Special Power of Attorney (SPA), dated 14 December 2015, executed by the Complainant in favor of
xxx (his daughter) and XXX (his sister) on the pretext that he would be going abroad soon.
24. Two (2) weeks after 30 September 2014 (the date when the Respondent paid to the
Complainant the amount of P21,000.00) -- or sometime in the middle of October 2014, -- the
Complainant called up the Respondent alleging:

(a) That his anonymous Financier (whom the Complainant did not identify) had allegedly rejected the
payment of P21, 000.00 earlier made by the Respondent; and

(b) That the unidentified Financier of the Complainant was allegedly demanding double the said amount
of P21, 000.00, that is, a total of P42, 000.00.

25. The Respondent rejected such an unfair, unjust, iniquitous, unconscionable, immoral, usurious,
and unacceptable demand for P42, 000.00.

26. Please note that the Complainant’s demand for P42,000.00 as of 15 October 2014 or
thereabout, in relation to the original verbal loan of P15,000.00 contracted on 20 September 2014,
would amount to a huge and unjust interest of thirty-five percent (35%) for very short period of twenty-
five (25) days (i.e., 20 September 2014 to 15 October 2014).

27. This was clearly usurious, immoral, unacceptable, iniquitous, unconscionable, and unjustified,
considering that no interest was formally agreed upon or stipulated when the verbal loan for P15,
000.00 was consummated between the Complainant and the Respondent on 20 September 2014.

28. The Complainant did not present to the Respondent at that time and up to the present time
any credible documentary proof identifying his anonymous Financier.

29. Neither did the Complainant present to the Respondent at that time and up to the present
time any documentary proof of demand/collection, statement of account, billing, letter, or any written
request or instruction from his anonymous Financier to prove the allegation of the Complainant that his
anonymous Financier was indeed demanding P42, 000.00 at that time.

30. The Respondent at that time demanded that the Complainant identify the name, address and
contact details of the anonymous Financier so that the Respondent could personally discuss and explain
his position to the Financier. But the Complainant refused and continues to refuse to this very day to
give to the Complainant the name, address and contact details of the anonymous Financier.
31.After his telephone call to the Respondent on 15 October 2014 or thereabout, the Complainant kept
quiet for two (2) months.

32. Then sometime in December 2014 or thereabout the Complainant again called up the
Respondent alleging that the past-due interest of the Respondent on the original principal loan of
P15,000.00 made on 20 September 2014 had already escalated to P100,000.00 as of the date of his call
in December 2014.

33. The Complainant alleged that he had mortgaged his house to his anonymous Financier to pay
for the said unpaid interest of the Respondent.

34. The Respondent, doubting the sincerity and truthfulness of the allegation of the Complainant,
demanded the name, address and contact details of the Financier so that the Respondent could
forthwith talk and discuss the issue with the said Financier.

35. The Respondent also demanded copies of any documentary proof justifying the claim of P100,
000.00 interest as of that time (December 2014).

36. But the Complainant failed and refused and continues to fail and refuse to this very day to
provide the Respondent such information and documentary proof/s.

37. On 7 October 2015 or thereabout the Complainant again called up the Respondent saying that
the former was at that time waiting inside xxx Subdivision near the home of the Respondent, inside his
van, and that the Complainant wished to talk with the Respondent for a while about his loan. The
Respondent agreed to meet with the Complainant outside his home. When they met, the Complainant
asked the Respondent to go inside his van for a more private discussion.

38. When the Respondent entered the van of the Complainant, he was surprised to see a
man who identified himself as xxx, who showed the Respondent a government ID. xxx threatened the
Respondent with the following words:
“HOY, IKAW, LOKO KA HA! MAY UTANG KA PALA NANG GANITO KALAKI KAY XXX. HINDI MO BA AKO
KILALA? xxx AKO NG ASSOCIATION NG xxx HOMES. SUMAMA KA SA AKIN SA BARANGAY. PAG HINDI KA
SUMAMA, PAPALABASIN KO KAYO SA xxx AT HINDI NA KAYO PWEDE TUMIRA DITO.”

39. Although the Respondent (a xxx national) has no perfect mastery of the Tagalog language, he
understood the context of the threatening words of XXX based on his facial expressions and hand
movements and based on the harassing presence of the Complainant.

40. Despite the fact that there was no pending formal Barangay complaint against the Respondent
and despite the fact that there was no official Barangay summons issued to the Respondent as of that
time, he was forced by xxx and the Complainant to go with them to the Barangay Hall of Barangay xxx
xxx City right that very moment.

41.At the Barangay Hall, the Respondent told the Barangay officer, by the name of “Deputy XXX”,

(a) That he had not received any formal Barangay complaint or formal Barangay summons; and

(b) That the claim of the Complainant (which had mysteriously ballooned to P366, 000.00 at that time)
was baseless, unfounded, untrue, false, and fabricated.

42. The Respondent, without the aid of an interpreter and without the moral presence of his
common-law spouse XXX (who spoke conversational Xxx language), was forced by Barangay Deputy XXX,
XXX, and the Complainant to sign a page of the Barangay logbook. It turned out later to be a
“KASUNDUAN”.

43. The Respondent was misled by Barangay Deputy XXX, XXX, and the Complainant that the
document was a harmless record or minutes of the Barangay meeting.

44. The contents and the legal effects of the said document were not explained and interpreted to
the Respondent by Barangay Deputy XXX or by any Barangay Kagawad or by the Barangay Secretary or
by any Lupon or Pangkat Member.

45. The Respondent signed the Kasunduan UNDER DURESS. He was MISLED by Barangay Deputy
XXX to sign it. He was threatened/intimidated by XXX and the Complainant to sign it. He did not
understand its contents, consequences, and legal effects. He was not assisted by an Interpreter or by his
Filipina common-law spouse XXX or by a Barangay Lupon or Pangkat official or member or by a lawyer of
his choice. All he knew was that the said document was a harmless minutes of meeting, as
misrepresented to him by Barangay Deputy XXX, XXX and the Complainant.

46. Later, in the instant criminal complaint of the Complainant for Estafa against the Respondent,
the Complainant would capitalize on the said KASUNDUAN as the sole basis of his FINAL DEMAND
LETTER to prove the alleged financial liability of the Respondent.

47. In fine, the Kasunduan was an entrapment document used by the Complainant to document a
verbal loan agreement and to evade the degree of evidence required by the Statutes of Frauds of the
Civil Code.

48. Aside from the suspicious Kasunduan, to this very day the Complainant has not presented
any credible document, such as, but not necessarily limited to, a CONTRACT OF LOAN, a PROMISSORY
NOTE, a VOUCHER, a STATEMENT OF ACCOUNT, or a BILL executed or signed by the Lender and the
Borrower:

(a) To prove the financial claim of the Complainant and his anonymous Financier;

(b) To prove the veracity of the computation/s of the usurious, iniquitous and unconscionable
past-due interests; and

(c) To prove compliance by the Complainant and his anonymous Financier with the mandatory
provisions of the TRUTH IN LENDING ACT in re: the formal issuance by the Lender to the Borrower of a
FULL DISCLOSURE STATEMENT, containing the amount of the principal loan, the stipulated interest rate,
the stimulated penalties and surcharges, if any, and other covenants related to the agreed loan.

48.After a few days from 7 October 2015, the Complainant made a series of calls to the Respondent,
pestering the Respondent to pay his alleged obligation. The Complainant alleged and stated:

(a) That the payment be made by the Respondent at the home of XXX, vice president of the
homeowners association of xxx Subdivision (who was not a party to the oral loan transaction);
(b) That the Complainant would soon leave for abroad;

(c) That his wife would soon return from abroad; and

(d) That it would be a great problem on the part of the Complainant if his wife would discover that
he had mortgaged his house (and his van) to his anonymous Financier to secure the alleged obligation of
the Respondent.

49. Sometime in the latter part of October 2015 or thereabout the Complainant visited the home
of the Respondent, accompanied by an unidentified man whose appearance appeared to be suspicious.

50. The Complainant repeated his demand to be paid, this time, in the total amount of P366,
000.00.

51. The Respondent and his common-law wife XXX insisted that the Respondent had already settled in
full his original verbal loan of P15, 000.00 with P6, 000.00 interest.

52. They demanded that the Complainant show proofs of the alleged total liability of the
Respondent and the computations of the alleged past-due interests, either in the form of a voucher or
an official receipt or a statement of account or a billing or a promissory note or a contract of loan or any
other credible document.

53. Ignoring the foregoing demand of the Respondent, the Complainant unreasonably insisted that
the Respondent pay the total amount he was claiming and that the same be paid by the Respondent at
the home of XXX for reasons known only to themselves.

54. The Respondent and his common-law wife XXX were constrained to tell the Complainant that it
would be better for him to file a court case to prove his claim so that the truth would come out.

55. Please note that in the Barangay KASUNDUAN, dated 7 October 2015, the alleged financial
obligation of the Respondent, according to the Complainant, was P366, 000.00.
56. It contradicts the Final Demand Letter, dated 12 November 2015, of the Complainant, which
claimed the total amount of P326, 000.00 - or a huge and unexplained difference of P40, 000.00.

57. On 26 November 2015 XXX, common-law wife of the Respondent, confronted XXX at his home
in xxx Subdivision.

58. She brought along with her, as her mediators/witnesses, the Spouses xxx. xxx was a past
president of the homeowners association of the subdivision.

59. During the said confrontation, the Complainant was mysteriously present inside the home of
XXX.

60. In that confrontation, XXX told XXX:

(a) That the Respondent and XXX have been residents/tenants of the subdivision for seven (7)
years;

(b) That as the vice president of the homeowners association with the legal duty to serve the
common good of the homeowners/tenants of the subdivision, XXX should have taken steps to protect
the Respondent and XXX, as residents/tenants of the subdivision (i.e., as his constituents in the
subdivision) against the baseless and unfounded claim of the Complainant;

(c) That at the very least XXX should have first consulted and heard the side of the Respondent
when the Complainant first sought his assistance to collect from the Respondent; and that he should not
have believed outright, hook line and sinker, the said claim of the Complainant without first giving the
Respondent an opportunity to be heard;

(d) That the act of XXX of coercively bringing the Respondent to the Barangay Hall on 7 October
2015, without the assistance of XXX and based solely on the personal request of the Complainant, and
without the prior filing by the Complainant a formal Barangay complaint and without the prior issuance
by the Barangay Secretary of a formal Barangay summons to the Respondent, was an unjust, unfair,
improper and illegal act of harassment, intimidation, and unjust vexation;
61.To put an end to abusive and pestering collection behavior of the Complainant -- and solely to buy
peace, without admitting any liability on the part of the Respondent and without admitting the validity
of the claim of the Complainant in the amount of P366, 000.00 -- the Respondent paid the Complainant
an additional amount of P47, 000.00 on October 15, 2015, via a deposit to the bank account of the
Complainant, hoping that such an act or accommodation would finally end the baseless claim and
collection pestering/harassment of the Complainant.

62. But it was not so. To this very day, the Complainant continues to insist on his claim of P366,
000.00 by filing the instant harassment case for Estafa.

63. The Complainant is using this Honorable Office as his coercive COLLECTION AGENCY in filing
this fabricated case.

64. It is the hope and prayer of the Respondent that this Honorable Office would resist the
malicious move of the Complainant to use, mislead, exploit and take advantage of the Criminal Justice
System as his harassment tool and as his pro bono personal COLLECTION AGENCY.

65. On 26 November 2015, XXX , common-law wife of the Respondent filed a complaint with
Barangay xxx against the Complainant and XXX.

66. During the Barangay conciliation XXX apologized to her for his behavior. XXX accepted his
apology, with the hope that XXX would be more discerning as a community leader in the future.

67. On January 18, 2016 at 7:00 PM, the Subpoena of this Honorable Office was delivered by the
process server of this Honorable Office at the new home address of the Respondent at xxx Subdivision.
(It was originally addressed to the old home address of the Respondent).

68. The Respondent and his common-law wife XXX recently retained the legal services of the
LASERNA CUEVA-MERCADER LAW OFFICES, Las Pinas City, to defend the legal and constitutional rights
of the Respondent in the litigation of the instant case, in the interest of truth and justice, and to
disprove the false, fabricated, baseless, unfounded, and malicious claim of the Complainant. Hence, this
pleading.
 ADDENDUM.

69. Please note the internal contradictions and inconsistencies among the documents submitted
by the Complainant:

AS TO THE AMOUNT OF THE ALLEGED CLAIM.

(a) In his Sworn Statement, dated 14 December 2015, given before the xxx City Police Station, the
Complainant claims P326,000.00;

(b) In the Barangay Kasunduan, 7 October 2015, the Complainant claims P366,000.00;

(c) In the Final Demand Letter, dated 12 November 2015, the Complainant claims P326,000.00;

(d) In the Special Power of Attorney (SPA), dated 14 December 2015, the Complainant claims
P326,000.00;

(e) Please note that in all of the foregoing allegations no VOUCHERS, OFFICIAL RECEIPTS,
STATEMENTS OF ACCOUNTS, BILLS, PROMISSORY NOTES, CONTRACTS OF LOAN, and/or DISCLOSURE
STATEMENTS were presented by the Complainant to prove his claim.

AS TO THE PURPOSE OF THE ALLEGED LOAN OF THE RESPONDENT.

(a) In his Sworn Statement, dated 14 December 2015, given before the xxx City Police Station, the
Complainant alleges that he released funds to the Respondent because he and the Respondent had
earlier agreed to go into the business of money lending. (Q and A No. 6).

(b) In his Special Power of Attorney (SPA), dated 14 December 2015, the Complainant alleges that
his claim was based on alleged “Ticket Purchase”. (Par. 1, SPA).

(c) Please note that the Complainant has not presented any proof of his alleged partnership
agreement or business agreement with the Respondent to establish a money lending business referred
to in Q and A No. 6 of his Sworn Statement, dated 14 December 2015, e.g., AGREEMENT/ CONTRACT,
MEMORANDUM OF UNDERSTANDING, ARTICLES OF PARTNERSHIP, AFFIDAVIT, UNDERTAKING, DEED,
LETTERS AND OTHER COMMUNICATIONS, and the like.

(d) Please note, too, that the Complainant has not presented any proof of the alleged “Ticket
Purchase” of the Respondent, referred to in Par. 1 of his SPA, dated 14 December 2015, e.g., VOUCHERS,
PLANE TICKETS, BILLS, STATEMENTS OF ACCOUNT, UNDERTAKINGS, DEEDS, LETTERS AND OTHER
COMMUNICATIONS, and the like.

SUPPORTING DOCUMENTS FOR THE RESPONDENT.

70. The Respondent hereby submits to this Honorable Office the following supporting documents
to prove the veracity of his foregoing statements:

(a) Annex “1” - xxx Cash Deposit Slip #xxx, dated 30 September 2014, in the amount of P21,
000.00 paid to the bank account of the Complainant - to prove the full payment of the oral loan dated
20 September 2014, broken down as follows:

· The agreed principal loan of P15, 000.00; and

· The unstipulated interest of P6, 000.oo demanded by the Complainant.

(b) Annex “2” and “2-A” – Barangay Blotter, dated 26 November 2015, re: the complaint of XXX,
common-law wife of the Respondent, against the Complainant and XXX.

Note:

Due to lack of material time, the Respondent cannot submit as an annex to this pleading a copy of the
xxx Cash Deposit Slip, dated 15 October 2015, in the amount of P47, 000.00 to prove that the
Respondent had deposited the said amount in the bank account of the Complainant to buy peace,
without admitting any
liability on the part of the Respondent and without admitting the validity of the claim of the
Complainant.

The Respondent, assisted by his common-law wife Xxx, will attempt this week to secure from the Bank a
formal Certification of its Branch Manager to corroborate the foregoing fact.

The Respondent reserves the right to present the said bank certification as an annex to his Rejoinder-
Affidavit.

The said Cash Deposit Slip was misplaced or thrown away by the housemaid of the Respondent and his
family, together with other papers, when his family recently moved to their new home address in the
same subdivision. The housemaid mistakenly thought that those papers were trash and unnecessary.

At any rate, please note that the Complaint admits in Q and A No. 7 of his Sworn Statement, dated 14
December 2015, that he indeed RECEIVED from the Respondent the said amount of P47,000.00.

REVOCATION OF THE BARANGAY KASUNDUAN DATED 7 OCTOBER 2015.

71. For the record, the Respondent hereby REVOKES the dubious, unfair, invalid, and misleading
BARANGAY KASUNDUAN, dated 7 October 2015 (written in Tagalog, which is not the mother language of
the Respondent and of which he is not comprehensively familiar), the reason being that the Respondent
was forced to sign the same UNDER DURESS, UNDER THE MISLEADING AND FALSE REPRESENTATION of
Barangay Deputy Xxx, XXX and the Complainant that the document was merely a harmless
record/minutes of the their Barangay meeting, and WITHOUT A FULL, INTELLIGENT, AND VOLUNTARY
KNOWLEDGE, CONSENT AND UNDERSTANDING OF THE LEGAL EFFECTS AND CONSEQUENCES THEREOF
on the part of the Respondent.

LAW AND JURISPRUDENCE ON ESTAFA.

72. The relevant provision of the Revised Penal Code on deceit and swindling (estafa) is quoted
below for reference:
“Art. 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. X x x.

2nd. X x x;

3rd. x x x; and

4th. X x x 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) x x x.

(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) x x x.

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) x x x.

(c) x x x.

(d) x x x.

(e) x x x.

3. x x x.”
73. Nothing in the Record shows that the Respondent “misappropriated” or “converted”, to the
prejudice of the Complainant, the “money” of the Complainant; or that the Respondent “received” any
money from the Complainant “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”; or that the Respondent “denied
having received such money”.

Nothing in the Record shows that the Respondent committed FRAUD.

Nothing in the Record shows that the Respondent, “by means of false pretenses or fraudulent acts”
used “fictitious name”; that the Respondent “falsely pretended to possess power, influence,
qualifications, property, credit, agency, business or imaginary transactions”; or that the Respondent
committed “means of other similar deceits”.

72.In the case of ROSITA SY vs. PEOPLE OF THE PHILIPPINES, G.R. No. 183879, April 14, 2010, where the
sole issue was whether the accused should be held liable for Estafa penalized under Article 315,
paragraph 2(a) of the Revised Penal Code (RPC), the Supreme Court held that:

(a) There are three ways of committing estafa, viz.:

· With unfaithfulness or abuse of confidence;

· By means of false pretenses or fraudulent acts; or

· Through fraudulent means.

(b) The ways of committing estafa may be reduced to two, i.e.,

· By means of abuse of confidence; or

· By means of deceit.

(c) The elements of estafa in general are the following:

· That an accused defrauded another by abuse of confidence, or by means of deceit; and

· That damage and prejudice capable of pecuniary estimation is caused the offended party or third
person.

(d) The act complained penalized by Article 315, paragraph 2(a) of the RPC is estafa 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”.

(e) The elements of estafa by means of deceit are the following, viz.:

· That there must be a false pretense or fraudulent representation as to his power, influence,
qualifications, property, credit, agency, business or imaginary transactions;

· That such false pretense or fraudulent representation was made or executed prior to or
simultaneously with the commission of the fraud;

· 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

· That, as a result thereof, the offended party suffered damage.

73.Nothing in the Record proves that the herein Respondent committed any of the essential elements of
Estafa as defined by the Revised Penal Code.
ENTERING INTO AN ORDINARY CONTRACT OF LOAN IS NOT A CRIMINAL ACT OF ESTAFA. IT IS MERELY A
CIVIL LIABILITY THAT IS ENFORCEABLE BY AN ORDINARY CIVIL ACTION AND NOT BY A CRIMINAL ACTION.

74.In the case of LAND BANK OF THE PHILIPPINES vs. LAMBERTO C. PEREZ, NESTOR C. KUN, MA.
ESTELITA P. ANGELES-PANLILIO, and NAPOLEON O. GARCIA, G.R. No. 166884, June 13, 2012, the
Supreme Court held that “the law does not singularly seek to enforce payment of the loan, as there can
be no violation of the right against imprisonment for non-payment of a debt”.

75. Sec. 20, Art. III, Bill of Rights, of the 1987 Constitution provides that “no person shall be imprisoned
for debt or non-payment of a poll tax”.

76.In the case of BETTY GABIONZA and ISABELITA TAN, COURT OF APPEALS, LUKE ROXAS and EVELYN
NOLASCO, G.R. No. 161057, September 12, 2008, the Supreme Court held that nonpayment of a LOAN
does not give rise to criminal liability for estafa through misappropriation or conversion. Thus:

“To the benefit of private respondents, the Court of Appeals ruled, citing Sesbreno v. Court of Appeals,
310 Phil. 671 (1995), that the subject transactions are akin to money market placements which partake
the nature of a loan, the non-payment of which does not give rise to criminal liability for estafa. X x x.

Sesbreno affirmed that a money market transaction partakes the nature of a loan and therefore
nonpayment thereof would not give rise to criminal liability for estafa through misappropriation or
conversion. X x x.

Indeed, Sesbreno explains: In money market placement, the investor is a lender who loans his money to
a borrower through a middleman or dealer. Petitioner here loaned his money to a borrower through
Philfinance. When the latter failed to deliver back petitioner's placement with the corresponding
interest earned at the maturity date, the liability incurred by Philfinance was a civil one. X x x.”

77. In the case of PEOPLE OF THE PHILIPPINES vs. RICA G. CUYUGAN, G.R. Nos. 146641-43, November
18, 2002, it was held, inter alia, that when an obligation “is civil in character and in the absence of fraud,
no criminal liability under the Revised Penal Code arises from the mere issuance of postdated checks as
a guarantee of repayment.”

“x x x.
The transaction between appellant and the Abagat spouses, in our view, was one for a loan of money to
be used by appellant in her business and she issued checks to guarantee the payment of the loan. As
such, she has the obligation to make good the payment of the money borrowed by her. But such
obligation is civil in character and in the absence of fraud, no criminal liability under the Revised Penal
Code arises from the mere issuance of postdated checks as a guarantee of repayment. We find
appellants allegation, that the Abagat spouses entered into a joint venture agreement with her for the
supply of materials with the AFP, is self-serving. But we also note that the trial court convicted appellant
on a general allegation that all the elements of estafa under Article 315, 2 (d) of the Revised Penal Code
had been proved by the prosecution without making any reference to or giving any proof of the actual
fraud that appellant allegedly committed to make her liable for estafa. It is elementary that where an
allegation in the information is an essential element of the crime, the same must be proved beyond
reasonable doubt to sustain a conviction. In this case, the prosecution did not establish specifically and
conclusively the fraud alleged as an element of the offenses charged.

X x x.”

78. The case of ELVIRA LATEO y ELEAZAR, FRANCISCO ELCA y ARCAS, and BARTOLOME
BALDEMOR y MADRIGAL vs. PEOPLE OF THE PHILIPPINES, G.R. No. 161651, June 8, 2o11, defines FRAUD
as follows:

“In Alcantara v. Court of Appeals, 462 Phil. 72, 88-89 (2003), this Court, citing People v. Balasa, G.R. Nos.
106357 & 108601-02, September 3, 1998, 295 SCRA 49. explained the meaning of fraud and deceit, viz.:

[F]raud in its general sense is deemed to comprise anything calculated to deceive, including all acts,
omissions, and concealment involving a breach of legal or equitable duty, trust, or confidence justly
reposed, resulting in damage to another, or by which an undue and unconscientious advantage is taken
of another. It is a generic term embracing all multifarious means which human ingenuity can device, and
which are resorted to by one individual to secure an advantage over another by false suggestions or by
suppression of truth and includes all surprise, trick, cunning,

dissembling and any unfair way by which another is cheated. And deceit is the false representation of a
matter of fact whether by words or conduct, by false or misleading allegations, or by concealment of
that which should have been disclosed which deceives or is intended to deceive another so that he shall
act upon it to his legal injury.

X x x.”
79.The case of JOY LEE RECUERDO vs. PEOPLE OF THE PHILIPPINES, G.R. No. 168217, June 27, 2006, held
that “there can be no estafa if the accused acted in good faith because good faith negates malice and
deceit (People vs. Ojeda, G.R. Nos. 104238-58, June 3, 2004, 430 SCRA 436).”

“x x x.

There can be no estafa if the accused acted in good faith because good faith negates malice and deceit
(People vs. Ojeda, G.R. Nos. 104238-58, June 3, 2004, 430 SCRA 436). Good faith is an intangible and
abstract quality with no technical meaning or statutory definition, and it encompasses, among other
things, an honest belief, the absence of malice and the absence of design to defraud or to seek an
unconscionable advantage. X x x. It implies honesty of intention and freedom from knowledge of
circumstances which ought to put the holder upon inquiry. The essence of good faith lies in an honest
belief in the validity of ones right, ignorance of a superior claim, and absence of intention to overreach
another (Philippine National Bank v. De Jesus, G.R. No. 149295, September 23, 2003, 411 SCRA 557,
561). In People v. Gulion, 402 Phil. 653 (2001), the Court held that:

Good faith is a defense to a charge of Estafa by postdating a check. This may be manifested by the
accused’s offering to make arrangements with his creditor as to the manner of payment or, as in the
present case, averring that his placing his signature on the questioned checks was purely a result of his
gullibility and inadvertence, with the unfortunate result that he himself became a victim of the trickery
and manipulations of accused-at-large.

X x x.”

LAW AND JURISPRUDENCE ON LOAN, INTEREST, PENALTY, SURCHARGE.

80. Art. 1933 of the Civil Code provides that “by the contract of loan, one of the parties
delivers to another, either something not consumable so that the latter may use the same for a certain
time and return it, in which case the contract is called a commodatum; or money or other consumable
thing, upon the condition that the same amount of the same kind and quality shall be paid, in which
case the contract is simply called a loan or mutuum.”
81. It provides that “simple loan may be gratuitous or with a stipulation to pay interest”.

82. Art. 1934 of the Civil Code provides that a “simple loan itself shall not be perfected until
the delivery of the object of the contract.”

83. Art. 1955 of the Civil Code provides that “the obligation of a person who borrows money
shall be governed by the provisions of Articles 1249 and 1250” of the Civil Code.[1]

84. Art. 1956 of the Civil Code clearly provides that “no interest shall be due unless it has
been expressly stipulated in writing.”

85.Art. 1957 of the Civil Code provides that “contracts and stipulations, under any cloak or device
whatever, intended to circumvent the laws against usury shall be void”.

86. It provides that “the borrower may recover in accordance with the laws on usury”.

87.The related Art. 1961 of the Civil Code provides that “usurious contracts shall be governed by the
Usury Law and other special laws, so far as they are not inconsistent with this Code.”

88. Please note that although the Usury Law has been abolished in the 1980s and although
present Central Bank circulars provide for a floating interest rate depending on free market conditions,
nonetheless, the Supreme Court in many cases, as will be discussed later in this pleading, has held that
when the stipulated interest rate is INIQUITOUS AND UNCONSCIONANABLE, it may be reduced by the
Courts in the interest of equity and justice.

89. Art. 1959 of the Civil Code provides that “without prejudice to the provisions of Article
2212, interest due and unpaid shall not earn interest”; that “the contracting parties may by stipulation
capitalize the interest due and unpaid, which as added principal shall earn new interest”.

90. Article 2212 of the Civil Code (referred to in Art. 1959, supra) provides that “interest due
shall earn legal interest from the time it is judicially demanded, although the obligation may be silent
upon this point.”
91. Art. 1960 of the Civil Code provides that “if the borrower pays interest when there has been no
stipulation therefor, the provisions of this Code concerning solutio indebiti, or natural obligations, shall
be applied, as the case may be.”

92. On the matter of iniquitous and unconscionable interest rate, it will be noted that in
September 2009, the Supreme Court promulgated its decision in Ileana Dr. Macalino vs. Bank of the
Philippines Islands, G.R. No. 175490, September 17, 2009, wherein it held that the interest rate of 1.5%
per month on credit card payments should be reduced to 1% per month.

93. Further, in the case of Sps. Isagani & Diosdada Castro vs. Angelina de Leon Tan, G.R. No.
168940. November 24, 2009, the Supreme Court again faced the issue of whether the interest rate
imposed (this time under a loan agreement) is excessive.

94. In the said case, the loan agreement (denominated as Kasulatan ng Sanglaan ng Lupa at
Bahay) provided for an interest rate of 5% per month, compounded monthly. The principal amount of
the loan was PhP30, 000.

95.In the said case, the Supreme Court held:

“While we agree with petitioners that parties to a loan agreement have wide latitude to stipulate on any
interest rate in view of the Central Bank Circular No. 905 s. 1982 which suspended the Usury Law ceiling
on interest effective January 1, 1983, it is also worth stressing that interest rates whenever
unconscionable may still be declared illegal. There is certainly nothing in said circular which grants
lenders carte blanche authority to raise interest rates to levels which will either enslave their borrowers
or lead to a hemorrhaging of their assets.

In several cases, we have ruled that stipulations authorizing iniquitous or unconscionable interests are
contrary to morals, if not against the law. In Medel v. Court of Appeals, we annulled a stipulated 5.5%
per month or 66% per annum interest on a P500,000.00 loan and a 6% per month or 72% per annum
interest on a P60,000.00 loan, respectively, for being excessive, iniquitous, unconscionable and
exorbitant. In Ruiz v. Court of Appeals, we declared a 3% monthly interest imposed on four separate
loans to be excessive. In both cases, the interest rates were reduced to 12% per annum.

In this case, the 5% monthly interest rate, or 60% per annum, compounded monthly, stipulated in the
Kasulatan is even higher than the 3% monthly interest rate imposed in the Ruiz case. Thus, we similarly
hold the 5% monthly interest to be excessive, iniquitous, unconscionable and exorbitant, contrary to
morals, and the law. It is therefore void ab initio for being violative of Article 1306 of the Civil Code.
With this, and in accord with the Medel and Ruiz cases, we hold that the Court of Appeals correctly
imposed the legal interest of 12% per annum in place of the excessive interest stipulated in the
Kasulatan.”

96. In the same case, the Supreme Court also ruled that the imposition by the Court of a
12% rate per annum does not violate the freedom of contract:

“Petitioners allege that the Kasulatan was entered into by the parties freely and voluntarily. They
maintain that there was already a meeting of the minds between the parties as regards the principal
amount of the loan, the interest thereon and the property given as security for the payment of the loan,
which must be complied with in good faith. Hence, they assert that the Court of Appeals should have
given due respect to the provisions of the Kasulatan. They also stress that it is a settled principle that the
law will not relieve a party from the effects of an unwise, foolish or disastrous contract, entered into
with all the required formalities and with full awareness of what he was doing.

Petitioners’ contentions deserve scant consideration. In Abe v. Foster Wheeler Corporation, we held
that the freedom of contract is not absolute. The same is understood to be subject to reasonable
legislative regulation aimed at the promotion of public

health, morals, safety and welfare. One such legislative regulation is found in Article 1306 of the Civil
Code which allows the contracting parties to “establish such stipulations, clauses, terms and conditions
as they may deem convenient, provided they are not contrary to law, morals, good customs, public
order or public policy.”

To reiterate, we fully agree with the Court of Appeals in holding that the compounded interest rate of
5% per month, is iniquitous and unconscionable. Being a void stipulation, it is deemed inexistent from
the beginning. The debt is to be considered without the stipulation of the iniquitous and unconscionable
interest rate. Accordingly, the legal interest of 12% per annum must be imposed in lieu of the excessive
interest stipulated in the agreement.

From the foregoing, it is clear that there is no unilateral alteration of the terms and conditions of the
Kasulatan entered into by the parties. Surely, it is more consonant with justice that the subject interest
rate be equitably reduced and the legal interest of 12% per annum is deemed fair and reasonable.”

THE COMPLAINANT HAS BLATENATLY VIOLATED THE “TRUTH IN LENDING ACT”.

97.It will be noted that REPUBLIC ACT No. 3765, AN ACT TO REQUIRE THE DISCLOSURE OF FINANCE
CHARGES IN CONNECTION WITH EXTENSIONS OF CREDIT and otherwise known as the TRUTH IN
LENDING ACT, “declares it to be the policy of the State to protect its citizens from a lack of awareness of
the true cost of credit to the user by assuring a full disclosure of such cost with a view of preventing the
uninformed use of credit to the detriment of the national economy”. (Sec. 2, RA 3765).

98. Under the said Act, "Credit" means “any loan, mortgage, deed of trust, advance, or
discount; any conditional sales contract; any contract to sell, or sale or contract of sale of property or
services, either for present or future delivery, under which part or all of the price is payable subsequent
to the making of such sale or contract; any rental-purchase contract; any contract or arrangement for
the hire, bailment, or leasing of property; any option, demand, lien, pledge, or other claim against, or for
the delivery of, property or money; any purchase, or other acquisition of, or any credit upon the security
of, any obligation of claim arising out of any of the foregoing; and any transaction or series of
transactions having a similar purpose or effect.” (Sec. 3, Id.).

99. It defines "Finance charge" as “interest, fees, service charges, discounts, and such other
charges incident to the extension of credit as the Board may be regulation prescribe.” (Id.).

100. It defines "Creditor" as “any person engaged in the business of extending credit (including
any person who as a regular business practice make loans or sells or rents property or services on a
time, credit, or installment basis, either as principal or as agent) who requires as an incident to the
extension of credit, the payment of a finance charge.” (Id.).

101. Section 4 of the said Act provides that “any creditor shall furnish to each person to
whom credit is extended, prior to the consummation of the transaction, a clear statement in writing
setting forth, to the extent applicable and in accordance with rules and regulations prescribed by the
Board, the following information:

(1) the cash price or delivered price of the property or service to be acquired;

(2) the amounts, if any, to be credited as down payment and/or trade-in;

(3) the difference between the amounts set forth under clauses (1) and (2);

(4) the charges, individually itemized, which are paid or to be paid by such person in connection with the
transaction but which are not incident to the extension of credit;

(5) the total amount to be financed;

(6) the finance charge expressed in terms of pesos and centavos; and
(7) the percentage that the finance bears to the total amount to be financed expressed as a simple
annual rate on the outstanding unpaid balance of the obligation.”

102. Section 6 of the said Act provides “any person who willfully violates any provision of this
Act or any regulation issued thereunder shall be fined by not less than P1,00 or more than P5,000 or
imprisonment for not less than 6 months, nor more than one year or both”. The same section also
provides that “a final judgment hereafter rendered in any criminal proceeding under this Act to the
effect that a defendant has willfully violated this Act shall be prima facie evidence against such
defendant in an action or proceeding brought by any other party against such defendant under this Act
as to all matters respecting which said judgment would be an estoppel as between the parties thereto”.

THE DUTY OF THE INVESTIGATING PROSECUTOR TO PROTECT AN INNOCENT RESPONDENT FROM THE
PAIN, COSTS, AND TEDIOUSNESS OF A BASELESS CIRMINAL TRIAL.

103. When the Record clearly shows that there is no probable cause, the fair, just and proper
action required by law of the investigating prosecutor is to dismiss the baseless harassment case.

104. In the case of JOSE BERNARDO vs. RAFAEL T. MENDOZA, G.R. No. L-37876, May 25, 1979,
the Supreme Court held that although “prosecutors are endowed with ample powers in order that they
may properly fulfill their assigned role in the administration of justice x x x, (it) should be realized,
however, that when a man is haled to court on a criminal charge, it brings in its wake problems not only
for the accused but for his family as well” and that “therefore, it behooves a prosecutor to weigh the
evidence carefully and to deliberate thereon to determine the existence of a prima facie case before
filing the information in court”, otherwise, it, held that, it “would be a dereliction of duty”.

105. In the case of SUSANA B. CABAHUG vs. PEOPLE OF THE PHILIPPINES, SANDIGANBAYAN,
3rd Division, and OFFICE OF THE SPECIAL PROSECUTOR, G.R. No. 132816, February 5, 2002, the
Supreme Court ”(admonished) agencies tasked with the preliminary investigation and prosecution of
crimes that the very purpose of a preliminary investigation is to shield the innocent from precipitate,
spiteful and burdensome prosecution”.

It added that such investigating agencies were “duty-bound to avoid, unless absolutely necessary, open
and public accusation of crime not only to spare the innocent the trouble, expense and torment of a
public trial, but also to prevent unnecessary expense on the part of the State for useless and expensive
trials”.
It held that “when at the outset the evidence cannot sustain a prima facie case or that the existence of
probable cause to form a sufficient belief as to the guilt of the accused cannot be ascertained, the
prosecution must desist from inflicting on any person the trauma of going through a trial”.

Thus:

“We cannot overemphasize the admonition to agencies tasked with the preliminary investigation and
prosecution of crimes that the very purpose of a preliminary investigation is to shield the innocent from
precipitate, spiteful and burdensome prosecution. They are duty-bound to avoid, unless absolutely
necessary, open and public accusation of crime not only to

spare the innocent the trouble, expense and torment of a public trial, but also to prevent unnecessary
expense on the part of the State for useless and expensive trials. Thus, when at the outset the evidence
cannot sustain a prima facie case or that the existence of probable cause to form a sufficient belief as to
the guilt of the accused cannot be ascertained, the prosecution must desist from inflicting on any person
the trauma of going through a trial. “

106. Further, in the aforecited case of Cabahug v. People, GR No. 132816, February 5, 2002,
the Supreme Court held that “good faith is always presumed”. Thus:

“X x x.

Contrary to the Ombudsman’s ruling that bad faith on the part of petitioner was deducible, good faith is
always presumed. Therefore, he who charges another with bad faith must prove it. In other words, the
Office of the Ombudsman should determine with certainty the facts indicative of bad faith. However,
the records show that the Office of the Ombudsman was clearly uncertain of its position on the matter
of existence of bad faith on the part of petitioner Cabahug. X x x.

X x x.

Clearly, any further prosecution of petitioner is pure and simple harassment. It is imperative that she be
spared from the trauma of having to go to trial on such a baseless complaint. The evidence is insufficient
to sustain a prima facie case and it is evident that no probable cause exists to form a sufficient belief as
to the petitioner’s guilt.

X x x. Judicial power of review includes the determination of whether there was grave abuse of
discretion amounting to lack or excess of jurisdiction on the part of any branch or instrumentality of the
government. Under this definition, the Sandiganbayan should have, considering the divergent positions
in the Office of the Ombudsman, granted the motion for redetermination of probable cause after
reviewing the evidence thus far submitted, and dismissed the case against petitioner. Thus, respondent
court committed grave abuse of discretion in allowing the case to proceed.

X x x.”

WHEREFORE, in the interest of justice, it is respectfully prayed that the instant criminal complaint be
DISMISSED for lack of merit.

FURTHER, the respondent respectfully prays for such and other reliefs as may be deemed just and
equitable in the premises.

xxx City, 27 January 2016.

XXX XXX

Respondent

Xxx St.

Xxx Subd.

Brgy. xxx, xxx City

SUBSCRIBED and sworn to before me in xxx City on 27 January 2016.

 Administering Assistant City Prosecutor

Copy Furnished:

XXX XXX

Complainant

Block xxx, Lot xxx

xxx St., xxx Subd.

Brgy. xxx,

Xxx City

[1] ARTICLE 1249. The payment of debts in money shall be made in the currency stipulated, and if it is
not possible to deliver such currency, then in the currency which is legal tender in the Philippines.

The delivery of promissory notes payable to order, or bills of exchange or other mercantile documents
shall produce the effect of payment only when they have been cashed, or when through the fault of the
creditor they have been impaired.

In the meantime, the action derived from the original obligation shall be held in abeyance. (1170)

ARTICLE 1250. In case an extraordinary inflation or deflation of the currency stipulated should
supervene, the value of the currency at the time of the establishment of the obligation shall be the basis
of payment, unless there is an agreement to the contrary. (n)