REPUBLIC OF THE PHILIPPINES

Department of Justice
OFFICE OF THE CITY PROSECUTOR
City of Cebu
xxx
Represented by: xxx,
Complainant,
NPS Docket No. VII-09INV-13J-0193333-N
-

versus
For: ESTAFA (15 counts) & BP 22 (15
counts)

xxx
Respondent.
COUNTER-AFFIDAVIT
I, xxx, Filipino, of legal age, married, and a resident of Mohon, Talisay,
Cebu, after having been duly sworn to in accordance with law, hereby
depose and say:
1.

I have been wrongfully accused of

Revised Penal Code and Batas
complainant solely on account of
obligation, to pay a sum of money
owed Complainant.

violating Article 315 2(d) of the

Pambansa Blg. 22 by herein
my failure to perform a civil
to be exact, which I admittedly

2.

Complainant and I have known each other for quite some time now; I
used to work for them on or about the year 1990-1992, more or less.
Several years later, I engaged in business; and one of my suppliers is
herein Complainant.

3.

We have already entered in many transactions in the past leading to

these present incidents. As can be reasonably inferred from the
admissions and conduct of complainant, I have been religious in paying
my past monetary obligations. In fact, in one of the transactions
alleged in their complaint, one check, which I issued in their favor,
came good. Had it not been for my faithful compliance of what is
incumbent upon me, we would not have lasted this long in doing
business with each other. This strict fulfillment of my obligations
towards them lead Complainant to grant me a sort of credit line; such
that they allow me to incur payables up to the amount of Seven
Hundred Thousand Pesos (Php 700,000.00), which sometimes they
extends up to a Million; in turn, I pay them in fractions as long as I do
not exceed the granted limits.

4.

Truth to tell, in the third quarter of the year 2010, unfortunately, my

business suddenly suffered a series of significant losses as my
customers have likewise failed to pay me; such that I had difficulty in
settling and paying my past or previous monetary obligations,
including this of complainant.

5.

In our system of laws, for the crime of Estafa to exist, Fraud, Deceit,
Malice or Bad faith is indispensable; its presence must be proven
beyond reasonable doubt before the accused can be liable thereto.

6.

For Estafa failing under 315 2(d), the false pretense or fraudulent acts
must be executed prior or simultaneous with the commission of the
fraud. In this particular instance, to constitute Estafa under this
provision, the act of postdating or of issuing a check in payment of an
obligation must be the efficient cause of the defraudation; accordingly,
it should be either prior to or simultaneous with the act of fraud.

7.

In fine, the offender must be able to obtain money or property from the
offended party by reason of the issuance, whether postdated or not, of
the check. It must be shown that the person to whom the check is
delivered would not have parted with his money or property were it not
for the issuance of the check by the other party. Stated otherwise, the
check should have been issued as an inducement for the surrender by
the party deceived of his money or property and not in payment of a
pre-existing obligation
There is no crime of Estafa if a postdated check is issued in payment of
a pre-existing obligation.

8.

The foregoing elementary requisite is not attendant in the case at

hand, as here, the checks did not serve as the efficient cause for
complainant to part with their goods. Verily, Complainant parted with
their supplies, clearly, not by reason of the postdated checks because
such were issued as payments for various previous or past obligations
and not immediately for present ones. This can be deduced by the fact
that not one in complainants narration did it mention as to when the
checks were exactly issued or delivered vis--vis in payment of the
transaction they relate.

9.

I would like to make it clear that I did not in any way employ deceit in
the issuance of the checks; I issued the checks in the most honest and
sincere belief that such was sufficiently funded at the date of maturity.
Sad though but its true, I expected funds from my clients to pour in
and fund my account so that it would be sufficient to pay those checks
which I have previously issued.
Much to my dismay, business reverses and slack down frustrated such
intent.

10. Upon receipt of the notice of dishonor and foreseeing my inability to

instantly pay the due amount, I went to complainant and explained my
situation, further saying that I have no intention of reneging and
absconding from my obligation; I told them that I intend to pay the
same, in fact, I have an offer for them.
11. To prove my undertaking, I gave them an original duplicate copy of the
title to a property which was co-owned by my wife, to partially cover
the amount I owed them.
12. For the crime of estafa to exist, the element of fraud or bad faith is
indispensable. Under paragraph 2 (d) of Article 315 of the RPC, Deceit

is an essential element of the offense and must be established by

satisfactory proof to warrant conviction.
13. In my case, it cannot be said that I had acted in bad faith. In fact, I
believe my actions constitute good faith that would rebut
complainants presumption of deceit.
I had acted promptly in
arranging payment to complainant and even offered something to pay
for my obligation.
Had I acted in bad faith, I would not have approached complainant and
informed them of my intent to pay. Had I intended to deceive
complainant,
I would have avoided confrontation and instead absconded.
But NO, because of my prior existing business relationship with
complainant, I faced my accountability.
14. On the concern of violating Batas Pambansa Blg. 22, after receiving a
Notice of Dishonor, I immediately offered to pay Complainant by way of
Dacion En Pago or that I would sell and alienate the land in their favor
in exchange for the remission of the debt. In fact, I even gave them the
original copy of the lands certificate of title, which up to date, has not
been returned by Complainant to the undersigned. Concurrently, I also
verbally offered to pay fractional or payment by installment of the
subject amounts.
15. In crimes involving BP 22, the drawer or maker of the check must
possess knowledge of the insufficiency of funds at the time the check
was issued, accordingly, there arises a prima facie presumption of
knowledge as to the insufficiency of the funds. But the law also
provides that the presumption does not arise when the issuer pays the
amount of the check or makes arrangement for its payment within five
banking days after receiving notices that such check has not been paid
by the drawee.
Verily, the legislator of BP 22 intends to give the offender an
opportunity to satisfy the amount indicated in the check and thus avert
prosecution.
16. As the Court held in Lozano v. Martinez, the aforecited provision serves
to "mitigate the harshness of the law in its application.
"It has been observed that the State, under this statute, actually offers
the violator a compromise by allowing him to perform some act which
operates to preempt the criminal action, and if he opts to perform it
the action is abated. This was also compared to certain laws allowing
illegal possessors of firearms a certain period of time to surrender the
illegally possessed firearms to the Government, without incurring any
criminal liability. In this light, the full payment of the amount
appearing in the check within five banking days from notice of dishonor
is a complete defense.
17. Insofar as this case goes, as admitted by Complainant, in just 2 days
after receipt of the Notice, I instantly offered to pay complainant or
make arrangement as to paying the amount of the bounced check. I
even went as far as handing over to them the owners copy of my title.
Sadly, complainant left me hanging and waiting in regards the

acceptability of my offer. They did not bother to reply or respond, by

way of counter-offer or pure rejection, to the offer contained in my
letter dated December 8, 2010. Furthermore, they did not even return
the owners duplicate copy of the title I handed to them.
18. All this circumstances lead me to reasonably believe that they have
already accepted my offer. Their act partakes of an admission or
acceptance by silence, since if the offer was not acceptable to them, it
is incumbent upon them to reply and voice-out their sentiments.
Instead, they chose to deprive me of the right to prelude a criminal
prosecution through their inaction, and opting to prematurely file this
case.
19. This undeniable fact had deprived me of the benefit of the law, such
that my constitutionally enshrined right to substantive and procedural
due process has been immensely curtailed.
20. As bold and fearless as a lion, I can proudly say: the act cannot be
criminal unless the mind is criminal. In all of my dealings with
complainant, I have acted in good faith. My error is not that of mind
that would render me criminally liable. I just basically do not possess
the general and specific intent mandated by law to make me a felon.
21. In a catena of case, courts have already gained notice of the practice
of using the prosecutorial arm of the state as well as the courts as
collection agency for faltering debtors. This was the import of the
Supreme Court when it recognized that the offended parties in Estafa
cases usually use the court as a collection agency. Such practice
should not be given countenance. At the earliest opportunity, any sight
of these should be curtailed. Here, to give life to this dictate, the
Honorable City Prosecutor should perforce outrightly dismiss the
present case.
22. I am executing this Counter-Affidavit to attest to the truth that I DID
NOT COMMIT THE CRIME OF ESTAFA and BP 22 in whatever manner as
erroneously alleged by the Complainant; and to ask for the dismissal of
this unfounded case hurdled against me.
23. I hereby reserve the right to file a Supplemental/Rejoinder Affidavit to
elaborate further my defense.
IN WITNESS WHEREOF, I have hereunto set my hand this 11 TH day of
December 2013 at City of Cebu, Philippines.
Xxx.
Affiant
SUBSCRIBED AND SWORN to before me, the undersigned prosecutor,
this 11th day of December 2013 at the City of Cebu. The undersigned certifies
that he/she personally examined the affiant and that he is satisfied that he
voluntarily executed and understood his counter-affidavit.

Copy furnished via mail:

xxx

Rm C, 2nd Fr., C.T. Bldg.

Maximo Patalinghug Ave.,
Basak, Lapu-lapu City

EXPLANATION
This Counter-Affidavit is served upon the complainants counsel
through registered mail due to the distance of the formers office, making
personal service impractical and costly.
xxx
Affiant