"x x x.
OPPOSITION
(In Re:
MOTION FOR RECONSIDERATION,
Dated
June 18, 2012, Filed by the Accused/Respondent x x x.)
THE COMPLAINANT x x x , by counsel, respectfully states, by way of
OPPOSITION to the MOTION FOR RECONSIDERATION of respondent x x x:
1.
The
accused had been ARRAIGNED by RTC Branch 204 Muntinlupa City on June 27, 2012
in the presence of the Public Prosecutor assigned thereat. This fact can be
easily confirmed by this Honorable Office with the said Public Prosecutor
assigned at the said Branch and with the said Court itself.
The
arraignment of the accused renders MOOT AND ACADEMIC her pending motion for
reconsideration with this Honorable Office. It must therefore be DENIED.
X x x.
4.
In the case of LIBERATA AMBITO, BASILIO AMBITO, and
CRISANTO AMBITO vs. PEOPLE OF THE PHILIPPINES and COURT OF APPEALS, G.R. No. 127327, February 13,
2009, it was held that in the
prosecution for Estafa under Article 315, paragraph 2(a) of the RPC,[1]
it is indispensable that the element of deceit, consisting in the false
statement or fraudulent representation of the accused, be made prior to, or at
least simultaneously with, the delivery of the thing by the complainant; and
that false pretense or fraudulent act must be committed prior to or
simultaneously with the commission of the fraud, it being essential that such
false statement or representation constitutes the very cause or the only motive
which induces the offended party to part with his money.
5.
In PEOPLE OF THE PHILIPPINES vs. VIRGINIA BABY P. MONTANER,
G.R. No. 184053, August 31, 2011,
the accused was convicted for the crime of Estafa as
defined and penalized under paragraph 2(d), Article 315 of the Revised Penal
Code. The Information alleged that on or about May 17, 1996 in the Municipality
of San Pedro, Province of Laguna and within the jurisdiction of this Honorable
Court accused Virginia (Baby) P. Montaner did then and there willfully,
unlawfully and feloniously defraud one Reynaldo Solis in the following manner:
said accused by means of false pretenses and fraudulent acts that her checks
are fully funded draw, make and issue in favor of one Reynaldo Solis ten (10)
Prudential Bank Checks, all having a total value of FIFTY THOUSAND PESOS (P50,000.00)
and all aforesaid checks were postdated June 17, 1996 in exchange for cash
knowing fully well that she has no funds in the drawee bank and when the said
checks were presented for payment the same were dishonored by the drawee bank
on reax x x of “ACCOUNT CLOSED” and despite demand accused failed and refused
to pay the value thereof to the damage and prejudice of Reynaldo Solis in the
aforementioned total amount of P50,000.00. In the said case, the
prosecution sufficiently established appellant’s guilt beyond reax x xable
doubt for estafa under paragraph 2(d), Article 315 of the Revised Penal
Code. According to Solis’s clear and
categorical testimony, appellant issued to him the 10 postdated Prudential Bank
checks, each in the amount of P5, 000.00 or a total of P50,
000.00, in his house in exchange for their cash equivalent. From the circumstances, the Court held that
it was evident that Solis would not have given P50, 000.00 cash to
appellant had it not been for her issuance of the 10 Prudential Bank
checks. These postdated checks were
undoubtedly issued by appellant to induce Solis to part with his cash. However, when Solis attempted to encash them,
they were all dishonored by the bank because the account was already closed. Solis
wrote appellant a demand letter dated October 13, 1996 which was received by
appellant’s husband to inform appellant that her postdated checks had bounced
and that she must settle her obligation or else face legal action from Solis. Appellant did not comply with the demand nor
did she deposit the amount necessary to cover the checks within three days from
receipt of notice. This gave rise to a prima facie evidence of deceit, which is
an element of the crime of estafa, constituting false pretense or fraudulent
act as stated in the second sentence of paragraph 2(d), Article 315 of the
Revised Penal Code.
6.
In the case of BETTY GABIONZA AND ISABELITA TAN, PETITIONERS, VS. COURT OF
APPEALS, LUKE ROXAS AND EVELYN NOLASCO, RESPONDENTS, [G.R. No. 161057,
September 12, 2008], it was held that “to be
clear, it is possible to hold the borrower in a money market placement liable
for estafa if the creditor was induced to extend a loan upon the false or
fraudulent misrepresentations of the borrower”; that “such estafa is one by means of deceit”; that
“the borrower would not be generally liable for estafa through misappropriation
if he or she fails to repay the loan, since the liability in such instance is
ordinarily civil in nature”, except when deceit is present, of course. Thus:
“x x x.
This analysis is highly myopic and ignorant of the bigger
picture. It is one thing for a corporation to issue checks to satisfy isolated
individual obligations, and another for a corporation to execute an elaborate
scheme where it would comport itself to the public as a pseudo-investment house
and issue postdated checks instead of stocks or traditional securities to
evidence the investments of its patrons. The Revised Securities Act was geared
towards maintaining the stability of the national investment market against
activities such as
those apparently engaged in by ASBHI. As the DOJ Resolution
noted, ASBHI adopted this scheme in an attempt to circumvent the Revised
Securities Act, which requires a prior license to sell or deal in securities.
After all, if ASBHI's activities were actually regulated by the SEC, it is
hardly likely that the design it chose to employ would have been permitted at
all.
x x x.
x x x.
It is ineluctable that
the DOJ Resolution established a prima facie case for violation of
Article 315 (2)(a) of the Revised Penal Code and Sections 4 in relation to 56
of the Revised Securities Act. X x x
X x x.”
WHEREFORE, premises considered, it is respectfully prayed that motion
for reconsideration of the respondent/accused be DENIED for lack of merit.
Las
Pinas City, July 2, 2012.
LASERNA CUEVA-MERCADER
LAW OFFICES
Counsel for the Complainant
Unit 15, Star Arcade. C.V. Starr Ave.
Philamlife Village, Las Pinas City 1740
Tel. No. 8725443; Fax No. 8462539.
[1]
Art. 315. Swindling (estafa).
– Any perx x x who shall defraud another by any of the means mentioned herein
below . . .
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.
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