THIRD DIVISION

R.R. PAREDES, W.S. TIFFANY, G.R. No. 156055

T.R. KOTZE, H. MUSSAIN,
FRANCISCO A. CRUZ, Present:
EDGARDO C. CATAGUIS,
E.M. LAPUZ, ATTY. JOSELIA YNARES-SANTIAGO, J.,
POBLADOR, JOSE DE Chairperson,
LUSONG, EDUARDO A. AUSTRIA-MARTINEZ,
RICARDO, ATTY. ARIEL F. CALLEJO, SR.,*
ABONAL, and ADOLFO CHICO-NAZARIO, and
GARCIA, NACHURA, JJ.
Petitioners,

- versus-
Promulgated:

TARCISIO S. CALILUNG,
March 5, 2007
Respondent.
x- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -x

DECISION

CHICO-NAZARIO, J.:

Before this Court is a Petition for Review on Certiorari[1] under Rule 45 of the
Rules of Court seeking the reversal and setting aside of the Decision, [2] dated 29
January 2001, and Resolution,[3] dated 14 November 2002, of the Court of Appeals
in CA-G.R. SP No. 54862. In its assailed Decision, the Court of Appeals reversed
the Resolution,[4] dated 27 July 1998, of the Department of Justice (DOJ), which
affirmed the Resolution,[5] dated 7 October 1997, of the Makati City Prosecution
Office, finding no probable cause and dismissing the herein respondents complaint,
docketed as I.S. No. 97-22188-191; and, instead, disposed as follows
 WHEREFORE, the resolution of the Department of Justice
dated November 26, 1997, is hereby set aside. The Prosecutor ofMakati, is
hereby Ordered to file an information of Estafa against the respondents.

During the time material to the Petition at bar, petitioners Francisco A. Cruz
(Cruz), Edgardo C. Cataguis (Cataguis), Atty.Joselia J. Poblador (Atty. Poblador),
Jose De Lusong (De Lusong), Eduardo A. Ricardo (Ricardo), and Atty. Ariel
F. Abonal (Atty.Abonal) were serving, in various capacities, as officials
of Caltex Philippines, Inc. (CPI). Petitioner Cruz was the Vice President for
Corporate Planning and a member of the Board of Directors of CPI;
petitioner Cataguis was the General Manager for Marketing and also a member of
the Board of Directors of CPI; petitioner Atty. Poblador was the Corporate
Secretary and General Manager for Legal and Tax of CPI; petitioner
De Lusong was the General Manager for Marketing Retail of CPI; petitioner
Ricardo was the General Manager for Marketing of CPI for the years 1990-1996;
and petitioner Atty. Abonal was the internal Legal Counsel of CPI.

On 3 May 1997, respondent Tarcisio S. Calilung (Atty. Calilung), a lawyer

and a businessman, instituted a Complaint, docketed as I.S. No. 97-22188-191,
against the aforementioned petitioners and several others. Respondent included in
his complaint R.R.Paredes, W.S. Tiffany, T.R. Kotze, H. Mussain, and
E.M. Lapuz, who had likewise served as officials of CPI but are no longer
connected with the company and whose whereabouts as of present time are
unknown. They did not participate in any proceedings.Respondent also included in
his complaint Adolfo B. Garcia (Garcia), the Deputy Sheriff of the Manila
Regional Trial Court (RTC), Branch 31, who participated in the proceedings before
the Makati City Prosecution Office and the DOJ, but no longer participated in the
instant petition.

In his complaint before the Makati City Prosecution Office, respondent

charged petitioners, et al., with several counts of estafa.Respondents Original
Complaint was summarized in the Resolution, [6] dated 7 October 1997, of
the Makati City Prosecution Office, to wit

[Herein respondent] Tarcisio S. Calilung alleged that [herein

petitioner] Atty. Joselia Poblador, Chief Legal Counsel
of CaltexPhilippines (Caltex for brevity) negotiated to him the sale of
several parcels of land consisting of 228.9 hectares, more or less[,] situated
at Barrio Alibagu, Ilagan, Isabela. Atty. Poblador represented to
[respondent] that Caltex is the absolute owner of all the parcels [of] land as
it acquired the same at a Sheriffs Auction Sale, a copy of a Sheriffs
Certificate of Final Sale was shown to [respondent]. Likewise,
Atty. Poblador represented and assured complainant that subject property is
not covered by the Agrarian Reform Program and that the adverse
occupants thereof are mere squatters. Consequently, [respondent] paid the
total amount of P3.5 Million for all the said parcels of land in two
payments. Thereupon, a Deed of Assignment with Consolidation of Title
dated June 22, 1995 was executed
between Caltex Philippines and Tarcisio S. Calilung. Later, [respondent]
discovered that none of the representations made to him by [petitioner]
Atty. Poblador is true. Contrary to
Atty. Pobladors representation, Caltex Philippines is not the absolute owner
of the several parcels of land sold to him. Accordingly, the several parcels
of land are owned by the heirs of Antonia Medina
(sic). Caltex Philippines is the owner of only one share of the co-heirs
which it acquired at the Sheriffs Auction.Further, [respondent] learned that
on August 3, 1993, Caltex thru E.A. Ricardo, manager for Marketing, has
already sold the subject parcels of land to the Department of Agrarian
Reform under Voluntary Offer To Sell program of the Government. Also,
complainant averred that the Sheriffs Certificate of Final Sale executed by
Deputy Sheriff Adolfo Garcia shown to him was falsified as it showed
that Caltexs bid of P2.7 Million was successful and it is the absolute owner
of all the parcels of land. The truth however, is that Caltexis the owner of
only one share of one of the co-heirs. Lastly, Caltex through E.A. Ricardo
misrepresented to the Department of Agrarian Reform that the subject
property is agricultural inorder (sic) that it will qualify and be sold under
the Agrarian Reform Program. The truth of the matter is the said parcels of
land are pasturelands thus, exempt from the coverage of the Agrarian
Reform Program. Hence, [respondent] filed this complaint
for Estafa against R.H. Paredes, W.S. Tiffany, T.R. Kotze, H. Mussain,
F.A. Cruz, E.C. Cataguis, E.M. Lauz who are members of the Board
of Caltex Philippines, Atty. Joselia Poblador, Chief Legal Counsel, Jose
DeLusong, signatory of the Deed of Assignment and E.A. Ricardo,
 manager for Marketing and Atty. Ariel F. Abonal, assistant Secretary to the
Board of Caltex Philippines who according to him acted in concert in
perpetrating the crime charged. Likewise, a complaint for Falsification is
instituted against Adolfo Garcia who connived with the above-mentioned
officers/members of the Board of CaltexPhilippines for falsification.

To answer the respondents accusations against them, petitioners

Atty. Poblador, Cruz, Cataguis, De Lusong, and Ricardo, submitted their Joint
Counter-Affidavit,[7] averring that the respondents complaint was without basis in
fact and in law, and that they could not be held liable for estafa. The contents of
their Joint Counter-Affidavit were concisely recounted by the Makati City
Prosecutor in her Resolution,[8] dated 7 October 1997

Jose de Lusong and Atty. Poblador claimed that they did not at any
time represent that Caltex Philippines is the absolute owner of the entire
subject parcels of land.

[Herein petitioners] narrated that Caltexs rights and interests on

subject parcels of land arose from Civil Case No. 84-22434
entitled Caltex Philippines vs. Antonia Vda. de Medina at Branch 31, RTC-
Manila. Antonia Vda. de Medina is Caltexs judgment debtor and is
[respondents] mother-in-law. During the pendency of the case, or
on February 7, 1984, 5 Notices of Levy on Attachment were issued against
the rights, titles and interest of [respondents] mother-in-law. The undivided
shares of the other heirs, two (2) children of Antonia Vda. de Medina were
never levied. On September 17, 1984, a decision was rendered in favor
of Caltex Philippines and the same became final and executory. On July 24,
1989, a Writ of Execution was issued. On July 24, 1989, Deputy Sheriff
Adolfo B. Garcia issued a Notice of Levy Execution [sic] where only the
shares, rights and interests of [respondents] mother-in-law over subject
parcels of land were levied upon. Likewise, a notice of Sheriffs Sale was
issued. On August 23, 1989, Caltex, through Atty. Rafael
Durian bidded P4.5 Million for the purchase of the rights, shares of
[respondents] mother-in-law in subject parcels of land.Consequently, the
subject parcels of land (shares and interests of Antonia Vda. de Medina
which is 66.67% of the entire property) were sold to Caltex Philippines in
the amount of P2,785,620.00. After the execution of the sale, [respondents]
mother-in-law was given one (1) year within which to redeem her interest
over the subject land.
 After the lapse of the one (1) year redemption period given to
Antonia Vda. de Medina, [respondent] went to Caltex office and propose
[sic] to reacquire the interest of Antonia Vda. de Medina and to pay
the defficiency (sic) judgment obligation of his mother-in-
law. Caltex Philippines, through its office accepted the proposal of
[respondent] to buy the parcels of land. Complainant further requested that
all cases against his mother-in-law be withdrawn. Caltex Philippines agreed
and the sale of the said subject parcels of land to [respondent] in the amount
of P3.5 Million materialized. On the first payment made by the
[respondent], Caltex Philippinesexecuted a Deed of Waiver and Quitclaim
in all cases filed against [respondents] mother-in-law. Thereupon, a Deed of
Assignment with Consolidation of Title was executed by herein parties
after the balance [thereof] was tendered by [respondent].

On the alleged sale by Caltex Philippines of subject parcels of land

to the Department of Agrarian Reform, [petitioners] denied having sold the
same to DAR. According to [petitioners], it was Antonia Vda. de Medina
through her attorney-in-fact Carlito Baluangwho transacted the voluntary
Officer (sic) To Sell with the Department of Agrarian Reform sometime in
1988 and 1989.Subsequently, by virtue of the Deed of Assignment (With
Special Power of Attorney Couple (sic) With Interest) executed by
AntoniaVda. de Medina ceded in favor of Caltex Philippines, wherein
Antonia Vda. de Medina all her rights, interests, claims and participation
from the proceeds of land compensation for all the property that she has
voluntarily offered to sell to Caltex Philippines and constituted the latter as
its (sic) exclusive attorney-in-fact to follow-up with the Department of
Agrarian Reform. Accordingly, this matter is make (sic) known to
[respondent]. It was on the strength of [respondents] relation to
Antonia Vda. de Medina and his assurance that he has connections with
DAR that CPI decided to sell subject property to [respondent].

[Petitioners] denied the allegation of [respondent]

that Caltex officers and directors conspire (sic) with Deputy Sheriff Adolfo
B. Garcia and notary Public Atty. Ariel Abonal in the falsification of the
Sheriffs Certificate of Final Sale by representing that Caltexbidded for the
entirety of all the parcels of land subject of the sale and using the said
falsified documents to convince [respondent] ofCaltexs absolute title over
the subject parcels of land.

Lastly, the declaration [of] Mr. Eduardo A. Ricardo that subject

parcels of land is (sic) agricultural in nature in the Voluntary Officer (sic)
To Sell to the DAR can hardly be considered a crime moreso that there is
 no other proof presented than the mere self-serving statement of Mr.
Ricardo. Besides, in the Deed of Assignment with Consolidation of Title,
there is not (sic) warranty as to theproperties[] classification or primary use
given.

Deputy Sheriff Garcia submitted his own Counter-Affidavit with a Counter-

Complaint for Perjury.[9] He essentially affirmed the narration made in the
petitioners Joint Counter-Affidavit, particularly, the events arising from Civil Case
No. 84-22434, instituted by CPI against respondents mother-in-law,
Antonia Vda. de Medina, before the Manila RTC. After the Decision, dated 17
September 1984, rendered by the Manila RTC against Antonia Vda. de Medina,
became final and executory, and upon failure of Antonia Vda. de Medina to pay
her judgment debt to CPI, Deputy Sheriff Garcia proceeded to implement the Writ
of Execution which levied upon AntoniaVda. de Medinas rights, interests, title and
participation in the subject real properties. At the execution sale held on 24 August
1989, CPI won the bidding. It bought Antonia Vda. de Medinas limited interests
over the subject real properties in the total amount of P4.5 Million. CPIs winning
bid was broken down[10] as follows

P2,785,620.00 For the parcels of land covered by TCT Nos.

T-132694, T-133034, T-94234, T-124684, T-
139590, T-138153, T-138154, T-138155, T-
133033, T-133021, T-133022, T-133023, T-
133024, T-133025, T-133026, T-133027, T-
133028, T-133029, T-133030, T-133031, T-
133032, T-133033 and T-133034; and,

P1,714,380.00 For the parcels of land covered by Tax

Declaration Nos. 01-262, 01-265, 01-25080,
01-29376 and 01-23470

P4,500,000.00 Total

When Antonia Vda. de Medina failed to redeem her interest in the subject real
properties within a year from the execution sale, ownership over the said interest
was consolidated in CPI. Deputy Sheriff Garcia explained that he prepared the
Final Certification of Sale on 24 October 1990, although it was notarized only on 1
February 1994. He denied that he ever conspired with CPI, through its officers and
directors, to make false representations to respondent that CPI was the absolute
owner of the subject real properties; to maliciously conceal from respondent that
CPI already sold the subject real properties to the Department of Agrarian Reform
(DAR); or to falsify the Sheriffs Certificate of Final Sale so as to convince
respondent that CPI had absolute title over the subject real properties.He averred
that he conducted the execution sale as part of his official duties and in accordance
with the Rules of Court and the judgment issued by the Manila RTC in Civil Case
No. 84-22434. He also maintained that only the rights and interests of
Antonia Vda.de Medina over the subject real properties were covered by the
execution.

Respondent submitted a Reply-Affidavit in which he insisted that the

concealment of a prior sale, the falsification of the Sheriffs Certificate of Final Sale
and the conspiracy among the petitioners, et al., and the others can be readily
seen. Once again, reference is herein made to the Resolution, dated 7 October
1997 of the Makati City Prosecution Office which related[11] thus

[Herein respondent] alleged that he married the daughter of

Antonia Vda. de Medina on November 22, 1994. In early November of
1994, Atty. Villacorta, [respondents] counsel, inquired from Caltex about
the redemption of subject parcels of land. Caltex refused their offer to
redeem the property because the period for redemptions (sic) has long
expired. However, Caltex proposed that if they are interested in the
remaining subject properties, they can purchase the same, Caltex demanded
for P9 Million for the fourteen (14) parcels of land consisting of 228.9
hectares. Caltex never informed [respondent] or his counsel that the entire
properties were sold to DAR for [P]1 Million. On November 1994,
[respondent] formally offered to buy the entire fourteen (14) parcels of land
[pay for]P3.5 Million as earnest money which was accepted by
Atty. Poblador. Even if the titles over the subject parcels of land was (sic)
still in the name of Antonia Medina (sic), he believed
Atty. Pobladors representation that Caltex is the absolute owner by virtue of
 the Sheriffs Certificate of Final Sale handed to him. Nowhere in the
Sheriffs Certificate of Final Sale that only undivided share of Antonia
Medina was auctioned.

The certificate of Final Sale was dated October 24, 1990 but
notarized only on November 15, 1994, which is more than a week before he
paid the earnest money on November 29, 1994. Lastly, the declared sale
price of P2,785,620.00 does not correspond to the written winning bid
by Caltex for P4.5 Million.

To support his foregoing allegations, respondent also submitted the

Affidavit[12] of his counsel, Atty. Rolando A. Villacorta(Atty. Villacorta), who
supposedly represented and assisted him during the negotiations with CPI for the
purchase of the subject real properties. Atty. Villacorta attested that he met with
both petitioners Attys. Poblador and Abonal of CPI regarding respondents offer to
purchase the subject real properties; that Atty. Poblador, in response to a direct
query by respondent, expressly denied that the subject real properties were covered
by the Comprehensive Agrarian Reform Program (CARP) of the Government; and
that respondent was never informed that what he was purchasing was not the whole
of the subject real properties, consisting of 229 hectares, but only an undivided
share therein.

In their Joint Rejoinder,[13] petitioners Cruz, Cataguis, De Lusong, Ricardo

and Attys. Poblador and Abonal denied meeting and talking to
Atty. Villacorta. According to petitioners Attys. Poblador and Abonal, at the
beginning of their negotiations for the purchase by respondent of the subject real
properties from CPI, the latter was accompanied, not by Atty. Villacorta, but an
Atty. Karl Miranda from the Office of the Solicitor General (OSG), acting as a
broker. During their meeting, they discussed about the redemption of the rights,
interests, and title of Antonia Vda. de Medina over the subject real properties. In
their succeeding meetings, petitioners stressed that respondent was informed that
CPI was selling and assigning only the limited rights, interests, and title of
Antonia Vda. de Medina over the subject real properties, and that the subject real
properties were under the coverage of CARP and were subject of a Voluntary
Offer to Sell (VOS). Petitioners pointed out that respondent himself admitted that
he was purchasing only the limited interest of AntoniaVda. de Medina in the
subject real properties when he stated in his letter,[14] dated 29 November 1994,
addressed to CPI, that, We are pleased to inform you that we accept your offer to
sell to us for P3.5 Million your interest in the foreclosed Medina properties.

Moreover, to belie the attestations of respondent and Atty. Villacorta in their

affidavits, petitioners presented the Affidavits of Attys. Rodrigo B. Libunao,
Jr.[15] and Catherine T. Manahan,[16] Legal Counsel and Tax Counsel, respectively,
of CPI, who were also present during the meetings of petitioner
Atty. Poblador with respondent. They both alleged that they were called to join the
meeting in October 1994 wherein respondent was accompanied, not by
Atty. Villacorta, but Atty. Miranda of the OSG; that respondent claimed to be
married to Ma. Luisa Victoria Medina, the daughter of Antonia Vda. de Medina,
and he was interested in acquiring CPIs rights, interests, and title to the subject real
properties in exchange for CPIs execution of a waiver or quitclaim to secure the
release of Antonia Vda. de Medina who was in prison by reason of the criminal
cases filed by CPI against her; and that Atty. Poblador made full disclosure to
respondent that CPI had, and was assigning to respondent, only the limited rights,
interests, and title of Antonia Vda. deMedina over the subject real properties, and
that the subject real properties were under the coverage of CARP and the subject of
the VOS initiated by Antonia Vda. de Medina herself, through her attorney-in-
fact Carlito Balauag.

Atty. Libunao further claimed that on 1 December 1994, when respondent

came unaccompanied to the CPI Office to pay the P1 Million earnest money,
Atty. Libunao again explained to him in detail the following

a. That CPI was merely a co-owner of the said properties as there were
other heirs to the estate, one of whom was his wife, and that only the
undivided share pertaining to Antonia Vda. de Medina which we
 acquired in an execution sale in Civil Case No. 84-22434 could be
transferred to him.

b. That photocopies of the TCTs to the subject parcels of land were

furnished, and exhibited to, him and he carefully noted that the subject
parcels of land were in the name of Heirs of Antonio Medina.

c. That the subject parcels of land were covered by the Comprehensive

Agrarian Reform Program (CARP) by virtue of a Voluntary Offer to
Sell signed by Antonia Vda. de Medina, through her attoreney-in-fact,
Mr. Carlito Balauag. A copy of this document was also furnished
Atty. Calilung.

d. That out of the sixteen (16) parcels of land under process by the DAR,
two (2) lots are ready for compensation and that the money has already
been deposited by the DAR in a trust account in the Landbank branch
in Tuguegarao, Cagayan.
e. That the fourteen (14) subject parcels of land are still under process by
the MARO in Ilagan, Isabela and that the latter has started to identify
the actual occupants and proposed beneficiaries of the same.

f. That payment of compensation under the CARP was being delayed by

the fact that the heirs of Antonio Medina have not initiated any estate
settlement proceeding and that none of the heirs has ever participated in
the DAR conferences, despite notice.[17]

When Atty. Libunao again asked him if he really understood the complexities of
the CARP issues affecting the subject real properties, respondent allegedly
confidently replied that he had been successful in preserving his and his familys
landholdings in Pampanga and that he will do the same for the subject parcels of
land.[18]

On 7 October 1997, the Makati City Prosecution Office wrapped up its

preliminary investigation and issued its Resolution, in which it made the following
findings and recommendations[19]

After a careful examination of the evidence obtaining in this case the

undersigned finds that: (1) there appears
 no conceivablefraudulent representations committed by [herein
petitioners, et al.] (Caltex Officers) in the negotiation and sale of subject
parcels of land, (2) there is no sufficient proof to show that the Sheriffs
Certificate of Final Sale was falsified by [Deputy Sheriff Garcia] in
connivance with [petitioners, et al.] Caltex Officers; and (3) that there is
insufficient evidence to substantiate [respondents] claim that [petitioners, et
al.] (Caltex Officers) made false declaration that subject parcels of land are
productive agricultural land so these parcels of land may be covered and
sold under the Agrarian Reform Program of the Government.

xxxx

Seemingly, [respondent] would want to extricate himself from a bad

bargain and annul the effects of an unwise act. If the [respondent] failed to
apprise himself of the consequence of his purchase of subject parcels of
land from Caltex[,] he was simply unfortunate. As it would appear all
documents and informations (sic) about the parcels of land subject matter
of the sale transactions entered by the parties are in [respondents] hands for
his scrutiny. [Respondent] is a lawyer and as such it can be presumed that
he knows the complexities/controversies attached to the interests and rights
of his mother-in-law (Antonia Vda. de Medina) over the parcels of land he
wants to purchase from [petitioners, et al.] Caltex Officers. Clearly, there
was no misrepresentation and/or concealment regarding the ownership
of Caltex over subject parcels of land. Neither was there falsification
committed on the Sheriffs Certificate of Title.

xxxx

WHEREFORE, premises considered, it is respectfully recommended

that complainant (sic) against [petitioners, et al.] CaltexOfficers and Adolfo
Garcia be dismissed, as it is hereby upon, approval, dismissed.

Likewise, it is recommended that the counter-charge of perjury

against [respondent] be dismissed.

Aggrieved, respondent filed with the DOJ a Petition for Review of the Resolution,
dated 7 October 1997, of the Makati City Prosecution Office. However, on 27 July
1998, the DOJ resolved[20] to dismiss his Petition for Review, ratiocinating thus
 The record clearly shows that the subject parcels of land were
previously owned by the late Antonio Medina. Upon the latters death, the
said properties were inherited by Antonia Vda. de Medina and her children
through intestate succession. When Caltex filed a civil case against
Antonia Vda. de Medina, who is [herein respondents] mother-in-law, the
latters rights, title and interests over the subject properties were levied on
attachment during the pendency of the said case. Thereafter, upon judgment
in favor of Caltex in the said civil case; and, pursuant to the writ of
execution issued therein, the rights, title and interests of
Antonia Vda. de Medina over the said parcels of land were levied on
execution and, consequently, sold at public auction with Caltex eventually
winning the bid. Finally, a certificate of sheriffs sale was issued and based
thereon Caltex became the owner of the undivided interest of
Antonia Vda. deMedina over the subject parcels of land.

We find it incredible for [respondent] not to have known the

foregoing circumstances. It must be stressed that [respondent is] a member
of the family of Antonia Vda. de Medina. It taxes ones credulity that
[respondent] would have had no personal knowledge about the familys
properties which were the subject of the sale transaction [respondent] had
with Caltex. Besides, [respondent is] a lawyer [himself]. As such, not only
[was respondent] expected to know the intricacies and complexities of the
sale transaction [he] entered with Caltex but also [respondent] had all the
means and resources to check and counter-check the veracity of [herein
petitioners, et al.s] representations. Indeed, it is hard to believe that
[respondent] chose to just take the word of [petitioners, et al.] that Caltex is
the owner of all the subject properties rather than examine the documents
pertaining thereto before parting with a substantial amount of money. We
take with a grain of salt [respondents] allegation that during the sale
negotiations [respondent was] unaware of the extent of the ownership
of Caltex over the properties in question not only because of [respondents]
stature as a lawyer-businessman but also because of [his] personal
knowledge thereon by reason of [his] being a member of the family of
Antonia Vda. deMedina from whom Caltex acquired the subject
properties. Under this milieu, no amount of fraudulent misrepresentations
from [petitioners, et al.] could have misled [him] into executing
with Caltex the Deed of Assignment with Consolidation of Title over the
properties in question.

The foregoing circumstances not only create suspicion as to

[respondents] actual motive in filing the instant complaint but also
strengthen [petitioners] claim that there is, indeed, reasonable ground to
believe that [respondent] entered into the transaction in question knowing
 fully well that what was being sold by Caltex was only the undivided
interest of [his] mother-in-law who is one (1) of the co-heirs in (sic) the
subject parcels of land.

Besides, no clearer acknowledgment by [respondent] of [his]

knowledge on (sic) the circumstances surrounding the subject properties
than as stated in par. 3, p. 5, of the Deed of Assignment with Consolidation
of Title can be made, which states thus

xxxx

4. ASSIGNEE [respondent] further acknowledges that

he is fully aware of the circumstances under which these
Properties were acquired by ASSIGNOR [CPI] and that he
has examined the title and inspected the said properties and
has verified their location together with their
boundaries. x x x

As regards the findings of the City Prosecutor on [respondents] other

charges for estafa under Article 315, par. (3) of the Revised Penal Code and
falsification/use of falsified documents, we can find no cogent reason to
alter, modify much less reverse the same.

WHEREFORE, [respondents] instant petition for review is hereby

dismissed.

Respondents Motion for Reconsideration was denied by the DOJ in another

Resolution dated 30 June 1999.

This prompted respondent to file with the Court of Appeals a Petition

for Certiorari under Rule 65 of the Rules of Court, contending that the DOJ and
the Makati City Prosecution Office committed grave abuse of discretion amounting
to lack or excess of jurisdiction in dismissing respondents complaint in I.S. No. 97-
22188-191. The Court of Appeals, in its Decision,[21] dated 29 January 2001,
reversed the findings of the DOJ and the Makati City Prosecution Office, and
ordered the filing of an information for estafaagainst the petitioners, based on the
following raison d'tre
 The Court after a perusal over (sic) the ruling of the Department of
Justice believes that said resolution deserves scant consideration. This is so
because the issue on double sale was just taken in passing by the
Department of Justice, when that issue is paramount in the case.

It appears on record that E.A. Ricardo, General Manager Marketing

commercial of Caltex offered for sell (sic) to DAR the subject property.

xxxx

It should be noted that the sale to DAR is unlike the ordinary

contract to sell transactions wherein one could determine when a sale is
consummated. But at this instance, where voluntary offer to sell has been
made, where process has been undergoing at that time, We opine that there
is already sale considering the unique circumstance of selling the subject
landholding to the DAR.

This is so because under Administrative Order No. 5 series of 1992,

it provides that landowners who entered into Voluntary Offer to sell can no
longer back out, except under the exceptional circumstances as earlier
illustrated. The present case is one that is not of the exception. Hence, if a
landowner can no longer back out since he entered into that kind of
transaction and by entering into another sale such as in this case, fully
knowing of the circumstances but without divulging the same to the
petitioner, would that not tantamount to misrepresentation, fraud and deceit.

A careful perusal on (sic) the comments and arguments of the

[herein petitioners] that it (sic) did not refute in whatever manner that there
was a sale that took place between the Department of Agrarian Reform and
the CPI. As a matter of fact, a reading of the foregoing, in consonance with
the VOS would connote that the sale has indeed been entered into
because Caltex knew that a process has been undertaken by the DAR (p.
175 [petitioners] Comment) x x x.

These are an admission (sic) so far, that there was indeed a previous
transfer of the subject parcels of land to the DAR as they never disputed
that there was a sale between CPI and DAR. The words of CALTEX are
simple and explicit, there was an offer and transfer and that there was
already an ongoing process of the VOS. Hence, there was a sale by virtue
of the voluntary offer to sell under the Comprehensive Agrarian Reform
Program. The only thing is that, Caltex denies responsibility that it was the
one who offered the sale to DAR, but it claim (sic) instead that it was
Antonia Vda. de Medina. But this argument bears no weight. Regardless of
whether or not Antonia Vda. de Medina was the one who offered to sell the
property to DAR, CALTEX cant absolve itself from any responsibility.

xxxx

So whether or not the first voluntary offer to sell to the Department

of Agrarian Reform was made by Antonia Vda. de Medina and the second
offer was made by CALTEX to DAR, to our mind is, of no moment. One
thing is thus, clear, CALTEX who duly executed the necessary
documents. There is nothing on record which would reveal that
[petitioners] was (sic) able to prove that [herein respondent] was fully
informed of the first sale made to DAR.

Further, [petitioners] claimed that being a son-in-law,it (sic) would

be impossible for [respondent] not to know it. This is not sufficient reason
to conclude that [respondent] was aware of the attending
circumstances. And we cannot therefore, agree with the conclusion of the
DOJ.

Clearly then, the evidence points out that what appears to have been
sold were the properties described in the 14 TCTs without any qualification
thereon. And that the existence of a double sale cant be contested, there
being an admission by the [petitioners] that there was a sale made to DAR
prior to herein [respondent].

xxxx

With the acts of CALTEX in the case at bar it can be

gleaned therefrom that there was no clear transactions [sic] that took place,
thus, there was an evident misrepresentation to the damage and prejudice of
the [respondent]. As supported by the Deed of Assignment itself,
the assurances given by the assignor CALTEX to [respondent] is a grave
misrepresentation to the [respondent] who is the buyer of the properties in
question. That where there was no divulgement made by the CALTEX to
petitioner of the sale to DAR, there is no question that deceit is present. The
presence of damage and deceit are (sic) apparent in the present case, hence,
the very elements of Estafa exist.

Even granting that the sale was only with respect to the individual
share or interest of CALTEX, it cant be denied that deceit was committed
by [petitioners, et al.] in not being fair, honest in not revealing the real
 status of the subject lot. x x x Had it not been of such misrepresentation, the
Court believes that [respondent] would not have parted substantial amount
of money.

From the foregoing premises, a prima facie case of ESTAFA was

herein committed by the [petitioners, et al.] on the ground of double
sale. And the only way to determine whether [petitioners, et al.] herein are
guilty or not is in a full blown trial before a Court.However, we do not find
any participation of the Deputy Sheriff Adolfo Garcia on the issue of
double sale, it appearing that he has nothing to do with the transaction
between CALTEX and Department of Agrarian Reform. This Court is
convinced that the Deputy Sheriff had just performed a ministerial duty
imposed upon him by law.

After their Motion for Reconsideration was denied by the Court of Appeals,
in its Resolution,[22] dated 14 November 2002, petitioners come before this
Court via a Petition for Review on Certiorari under Rule 45 of the Rules of
Court. Petitioners posit that the Court of Appeals erred in finding that there exists
a prima facie case against them considering that: (1) Petitioners never deceived
respondent with regard to the background circumstances of the subject real
properties; (2) There was no double sale made by CPI of its rights and interests in
the subject real properties; and (3) There exists no proof of specific overt acts or
omission of each of the petitioners which would constitute conspiracy in
committing the alleged crime of estafa.

This Court finds the Petition at bar meritorious.

In his complaint, respondent charges petitioners, together with other persons

no longer part of the present Petition, of two counts of estafa by means of deceit:
(1) estafa by means of false pretenses, under Article 315(2)(a) of the Revised Penal
Code; and (2)estafa by means of concealment, under Article 315(3)(c) of the same
Code. Relevant provisions of the Revised Penal Code expressly read thus

ART. 315. Swindling (estafa). Any person who shall defraud another
by any of the means mentioned hereinbelow shall be punished by:
 xxxx

[P]rovided that in the four cases mentioned, the fraud be committed by any
of the following means:

xxxx

(2) By means of any of the following false pretenses or fraudulent

acts executed prior to or simultaneous with the commission of the fraud:

(a) By using a fictitious name, or falsely pretending to possess

power, influence, qualifications, property, credit, agency, business or
imaginary transactions, or by means of other similar deceits;

xxxx

(3) Through any of the following fraudulent means:

xxxx

(c) By removing, concealing or destroying, in whole or in part, any

court record, office files, document or any other paper.

The elements of estafa by means of deceit,[23] whether committed by false

pretenses or concealment, are the following

a. That there must be a false pretense, fraudulent act or fraudulent means.

b. That such false pretense, fraudulent act or fraudulent means must be

made or executed prior to or simultaneously with thecommission of the
fraud.

c. That the offended party must have relied on the false pretense,
fraudulent act, or fraudulent means, that is, he was induced to part with
his money or property because of the false pretense, fraudulent act, or
fraudulent means.

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

 Now the question is whether there exists probable cause that petitioners
committed the crime of estafa by means of deceit which would warrant the filing
of an information against them before the trial court.

Probable cause has been defined as the existence of such facts and
circumstances as would excite the belief, in a reasonable mind, acting on the facts
within the knowledge of the prosecutor, that the person charged was guilty of the
crime for which he was prosecuted. Probable cause is a reasonable ground of
presumption that a matter is, or may be, well-founded, such a state of facts in the
mind of the prosecutor as would lead a person of ordinary caution and prudence to
believe, or entertain an honest or strong suspicion, that a thing is so. The term does
not mean "actual and positive cause" nor does it import absolute certainty. It is
merely based on opinion and reasonable belief. Thus, a finding of probable cause
does not require an inquiry into whether there is sufficient evidence to procure a
conviction. It is enough that it is believed that the act or omission complained of
constitutes the offense charged. Precisely, there is a trial for the reception of
evidence of the prosecution in support of the charge.[24] While probable cause
demands more than "bare suspicion," it requires "less than evidence which would
justify conviction." A finding of probable cause merely binds over the suspect to
stand trial. It is not a pronouncement of guilt.[25]

The conduct of preliminary investigation for the purpose of determining the

existence of probable cause is executive in nature.[26] The prosecution of crimes
appertains to the executive department of the government whose principal power
and responsibility is to see that the laws of the land are faithfully executed. A
necessary component of this power to execute the laws is the right to prosecute
their violators. The right to prosecute vests the prosecutor with a wide range of
discretion, the discretion of whether, what and whom to charge, the exercise of
which depends on a smorgasbord of factors which are best appreciated by
prosecutors.[27]

The main function of a government prosecutor during his conduct of

preliminary investigation is to determine the existence of probable cause and to file
the corresponding information should he find it to be so.[28] The purpose of a
preliminary investigation is to secure the innocent against hasty, malicious and
oppressive prosecution, and to protect him from an open and public accusation of
crime, from the trouble, expense and anxiety of a public trial, and also to protect
the state from useless and expensive trials. A preliminary investigation serves not
only the purposes of the State. More important, it is a part of the guarantees of
freedom and fair play which are birthrights of all who live in this country. It is,
therefore, imperative upon the fiscal to relieve the accused from the pain of going
through a trial once it is ascertained that no probable cause exists to form a
sufficient belief as to the guilt of the accused.[29]

A prosecutor, by the nature of his office, is under no compulsion to file a

particular criminal information where he is not convinced that he has evidence to
prop up the averments thereof, or that the evidence at hand points to a different
conclusion. This is not to discount the possibility of the commission of abuses on
the part of the prosecutor. But this Court must have to recognize that a prosecutor
should not be unduly compelled to work against his conviction.[30] Although the
power and prerogative of the prosecutor, to determine whether or not the evidence
at hand is sufficient to form a reasonable belief that a person committed an offense,
is not absolute but subject to judicial review, it would be embarrassing for him to
be compelled to prosecute a case when he is in no position to do so, because in his
opinion he does not have the necessary evidence to secure a conviction, or he is not
convinced of the merits of the case.[31]

Hence, this Court consistently adheres to its policy of non-interference in the

conduct of preliminary investigations, and to leave to the investigating prosecutor
sufficient latitude of discretion in the determination of what constitutes sufficient
evidence as will establish probable cause for the filing of an information against a
supposed offender.[32]
 In the present case, the Makati City Prosecution Office, as well as the DOJ,
found no probable cause that petitioners committedestafa by deceit to the damage
of respondent. There was no factual or legal basis for the Court of Appeals to
reverse the findings of the prosecutor who conducted the preliminary investigation
in I.S. No. 97-22188-191.

It should do well for the Court of Appeals to remember that the DOJ
Resolutions, dated 27 July 1998 and 30 June 1999, affirming the dismissal by
the Makati City Prosecution Office of respondents complaint against petitioners,
were brought before it via a Petition on Certiorari under Rule 65 of the Rules of
Court. Its duty is confined to determining whether the executive determination of
probable cause was done without or in excess of jurisdiction or with grave abuse of
discretion. Thus, although it is entirely possible that the investigating prosecutor
may erroneously exercise the discretion lodged in him by law, this does not render
his act amenable to correction and annulment by the extraordinary remedy
of certiorari, absent any showing of grave abuse of discretion amounting to excess
of jurisdiction.[33]

For the courts to grant the extraordinary writ of certiorari, so as to justify the
reversal of the investigating prosecutors finding on the existence or absence of
probable cause to file an information, the one seeking the writ must be able to
establish the following

For grave abuse of discretion to prosper as a ground for certiorari, it

must first be demonstrated that the lower court or tribunal has exercised its
power in an arbitrary and despotic manner, by reason of passion or personal
hostility, and it must be patent and gross as would amount to an evasion or
to a unilateral refusal to perform the duty enjoined or to act in
contemplation of law. Grave abuse of discretion is not enough. Excess of
jurisdiction signifies that the court, board or office, has jurisdiction over the
case but has transcended the same or acted without authority. [34]
 Try as we might, this Court cannot find grave abuse of discretion on the part
of the DOJ, when it affirmed the finding of theMakati City Prosecution Office, that
there was no probable cause to file an information for estafa by means of deceit
against petitioners and resolved to dismiss respondents complaint. There is
absolutely no showing that the DOJ, in the exercise of its power to review on
appeal the findings of the Makati City Prosecution Office, acted in an arbitrary and
despotic manner, so patent or gross as to amount to an evasion or unilateral refusal
to perform its legally-mandated duty. On the contrary, this Court finds the
Resolutions of the DOJ, as well as that of the Makati City Prosecution Office, to be
more in accordance with the evidence on record and relevant laws and
jurisprudence than the assailed Decision of the Court of Appeals.

Respondent charges petitioners with the crime of estafa because they

allegedly employed deceit to induce respondent to enter into a contract of sale with
CPI by (1) falsely misrepresenting that CPI was the owner of and, thus, could
assign to respondent the entire subject real properties, when in truth, CPI only
acquired and could assign to respondent the limited interest of Antonia Vda. de
Medina in the subject real properties; and (2) fraudulently concealing the fact that
the subject real properties were covered by CARP and were actually the subject of
a pending VOS with the DAR.

It is worth stressing that it was respondent who initiated the complaint

before the Makati City Prosecution Office. Thus, upon him rests the burden of
supporting his charges with affidavits and any other evidence, for it is upon these
evidence thus adduced, that the investigating prosecutor determines the existence,
or in this case, the absence, of probable cause to hold the petitioners for trial for the
crimes charged. Respondent must have necessarily tendered evidence, independent
of and in support of the allegations in his affidavit-complaint, of such quality as to
engender belief in an ordinarily prudent and cautious man that the offense charged
therein has been committed by the petitioners. Indeed, probable cause need not be
based on clear and convincing evidence of guilt, neither on evidence establishing
guilt beyond reasonable doubt and definitely, not on evidence establishing absolute
certainty of guilt, but it certainly demands more than bare suspicion and can never
be left to presupposition, conjecture, or even convincing logic.[35]

Respondent, however, miserably failed to present sufficient evidence to

establish probable cause for the filing of an informationagainst petitioners
for estafa by means of deceit. The only evidence presented by respondent that
would directly establish the deceit allegedly perpetrated by the petitioners consists
of his very own affidavits and that of his alleged counsel, Atty. Villacorta. These
had been sufficiently rebutted by the evidence of the petitioners. The affidavits of
petitioners, Deputy Sheriff Garcia, and witnesses Attys.Libunao and Manahan, all
presented a consistent, coherent, and credible version of events, adequately
supported by other documentary evidence. Even respondents own documentary
evidence was satisfactorily explained or was even consistent with the version of
events as presented by petitioners and their witnesses. The sale of CPIs interest in
the subject real properties to respondent was a legitimate business transaction,
done in the course of CPIs business, and petitioners did nothing more than to carry
out their respective functions as officers of CPI to perfect and execute the sale.

Moreover, as between the mere denial constituting self-serving negative

assertions of respondent that he did not fully know of the circumstances and the
current status of the subject real properties he acquired from CPI, and the positive
and categorical declarations of petitioners and their witnesses that respondent was
duly informed thereof, the choice is not hard to make, for the jurisprudence on the
matter is that positive statement is stronger and attains greater evidentiary weight
than negative evidence.[36]
 Also, this Court seriously doubts that, given the particular circumstances of
this case, respondent was indeed clueless or ignorant of the true state of affairs of
the subject real properties.

First, Antonia Vda. de Medina, from whom CPI acquired its interest in the
subject real properties, is the respondents mother-in-law. He is married to Ma.
Luisa Victoria Medina, one of the co-heirs and co-owners of the subject real
properties. The Court of Appeals brushed aside the relations between
Antonia Vda. de Medina and respondent as insufficient to conclude that respondent
knew of the circumstances and status of the subject real properties. Although it
may not constitute as conclusive evidence, the relations between
Antonia Vda. de Medina and respondent casts serious doubts on respondents
assertions. Given the close-knit relations among Filipino family members, it is
almost impossible that his mother-in-law Antonia Vda. de Medina, his wife Ma.
Luisa Victoria Medina, and respondent, never talked about the subject real
properties; more so, if we consider that respondent is a lawyer who can freely and
readily give legal advice to his mother-in-law and his wife to protect their
remaining rights and interests in the subject real properties.

Neither can this Court give credence to respondents contention that his wife Ma.
Luisa Victoria Medina, born 30 January 1972, was only a minor when CPI
instituted Civil Case No. 84-22434 against her mother Antonia Vda. de Medina,
before the Manila RTC on 18 February 1984; when judgment was rendered therein
against her mother on 17 September 1984; and when the subject real properties
were sold in favor of CPI at the execution sale on 24 August 1989. Respondent
avers that his wife then still failed to grasp the significance of the events taking
place as regards CPI, her mother, and the subject real properties. Respondent
seems to ignore the fact that his wife grew up, and the likelihood that she
eventually came to understand the history and legal problems besetting the subject
real properties. In fact, respondent does not deny that on 26 September 1996, his
wife Ma. Luisa Victoria Medina, together with the other heirs of her deceased
father Antonio Medina, filed a civil complaint with the RTC of Ilagan, Isabela,
docketed as Civil Case No. 948, in which they questioned and, thus, admitted
knowledge of the VOS made by CPI in favor of DAR.[37] And if Ma. Luisa
Victoria Medina already knew that the subject real properties were voluntarily
offered for sale by CPI to the DAR, it is highly unlikely that she would have kept
such information from respondent, her husband.

It should also be recalled that it was respondent who approached CPI first
and sought the purchase of its interest in the subject real properties. Respondent
never explained how he knew of CPIs interest in the subject real
properties. Neither did respondent allegenor prove that CPI actively offered for
sale to the public its interest in the subject real properties. The only logical
deduction would be that respondent came to know of CPIs interest in the subject
real properties through his wife and/or mother-in-law. In fact, in consideration of
respondents purchase of the interest of CPI in the subject real properties for P3.5
Million, respondent was able to secure the execution by CPI of the Deed of Waiver
and Quitclaim, dated 22 December 1994, by virtue of which, CPI waived any
further claim for sum of money and damages from respondents mother-in-law
Antonia Vda. de Medina, and discharged the latter from any and all pending court
case liabilities, whether civil or criminal, filed by CPI against her. That respondent
sought the execution by CPI of the said Deed of Waiver and Quitclaim, which
obviously benefited his mother-in-law, only supports the view that respondent not
only knew of the current status of the subject real properties, but also the history of
the legal tussle between Antonia Vda. deMedina and CPI, which resulted in the
transfer of Antonia Vda. de Medinas interest in the subject real properties to CPI.

Respondents contention of his seeming disconnection and isolation from the

affairs of his wifes family is undoubtedly contrary to the common family life
experience of Filipinos. Reference is made herein to the quote of Vice-Chancellor
Van Fleet, reproduced inPacheco v. Hon Court of Appeals and People of the
Philippines[38]

Evidence to be believed must not only proceed from the mouth of a

credible witness but must be credible in itself - such as the common
experience and observation of mankind can approve as probable under the
circumstances. We have no test of the truth of human testimony, except its
conformity to our knowledge, observation and experience. Whatever is
repugnant to these belongs to the miraculous, and is outside of judicial
cognizance.[39]

Second, there is a clear paper trail by which respondent could have traced
and uncovered the true status of the subject real properties. CPI itself provided
respondent with some of these documents, while the others are part of public
records to which respondent had access.

There is scant evidence on record that CPI or any of its officers, including
herein petitioners, had willfully and maliciously made false misrepresentations to
respondent that CPI owned the subject real properties in its entirety. Again, only
the affidavits of respondent and Atty. Villacorta directly and positively describe
how the alleged false misrepresentations were made, and, even therein, they could
only attribute the same to petitioner Atty. Poblador, and no other. Thus, it
behooves this Court how, from respondents self-serving and unsubstantiated
allegations, it can jump off to conclude that all the petitioners, in conspiracy and
with criminal intent, made false misrepresentations on behalf of CPI to the damage
of respondent.

Instead, the documentary evidence on record establishes that CPI laid claim
on and actually acquired only the limited interest of Antonia Vda. de Medina in the
subject real properties and nothing more.
 The Notice of Levy on Attachment[40] issued on 7 February 1984 by Deputy
Sheriff Garcia to the Register of Deeds of Ilagan,Isabela, during the pendency of
Civil Case No. 84-22434 before the Manila RTC, clearly stated that what was
being levied upon was limited to the rights, interest, title and participation which
Antonia Vda. de Medina may have in the real properties enumerated therein.

In its letter,[41] dated 23 August 1989, addressed to Deputy Sheriff Garcia,

CPI presented its bid of P4.5 Million at the auction sale of the properties of
Antonia Vda. de Medina, held to satisfy the latters judgment debt to CPI in Civil
Case No. 84-22434. CPIs bid was conditioned on the following

[2] With respect to property under the exclusive name of

Antonia Caragayan Vda. de Medina, the Certificate of Sale shall indicate
that the said property together with improvements thereon, is sold to the
successful bidder.

[3] With respect to property registered in the name of Heirs of

Antonio Medicna and/or Antonia Vda. de Medina representing or as
Administration [sic] of Estate of Antonio of Antonio Medina the Certificate
of Sale shall refer only [to] the rights, interests, claims and participation
of Antonia Vda. de Medina in the covered property and
improvements since she has co-heirs, a son and a daughter. In the
computation of the undivided interest of Antonia Vda. de Medina and the
two heirs, since the property appear to be conjugal, two thirds [66.67%] of
the property pertains to Antonia Vda. de Medina while the remaining one-
third [33.34%] pertains to the heirs, son and daughter. (Emphasis supplied.)

Respondent himself, in his letter,[42] dated 29 November 1994, addressed to

CPI, wrote in the first paragraph that, We are pleased to inform you that we accept
your offer to sell to us for P3.5 Million your interest in the foreclosed Medina
properties. CPIs interest in the subject real properties, as referred to in respondents
letter, could be nothing more than the same interest therein of
Antonia Vda. de Medina.
 Thus, although the Deed of Assignment with Consolidation of
Title[43] executed between CPI and respondent on 22 June 1995, provides that

1. For and in consideration of the sum of THREE MILLION FIVE

HUNDRED THOUSAND PERSOS (P3,500,000.00), Philippine Currency,
receipt of which is acknowledged, [CPI] hereby assigns, transfers and
conveys unto and in favor of [respondent], his heirs, executors and assigns,
the Properties aforedescribed.

it should not be taken to mean that what CPI was assigning to respondent was the
entirety of the subject real properties, instead of merely the limited interest therein
acquired by CPI from Antonia Vda. de Medina. The reference in the said
paragraph, as well as in any other part of the Deed, to Properties without
particularly limiting or qualifying the same to the undivided interest of CPI in the
subject real properties, could be more of a problem of imprecise use of terms rather
than a criminal intent to defraud and mislead respondent.Even so, the afore-quoted
paragraph should be read in conjunction with the rest of the Deed, especially the
succeeding paragraphs, to wit

3. [Respondent] acknowledges that he is fully aware of the

circumstances under which these Properties were acquired by [CPI] and
that he examined the title and inspected the properties and verified their
location together with their boundaries. [CPI] shall therefore be no longer
obliged to submit to [respondent] a location survey plan of the Properties
nor pinpoint the same to [respondent].

4. [Respondent] further acknowledges that the Properties are

presently occupied by squatters and other adverse occupants and that [CPI]
makes no warranty that possession can be immediately delivered to
[respondent] free and clear of these squatters and other adverse
occupants. All the expenses for the eviction of these persons shall be borne
by [respondent].

5. [CPI] warrants the genuineness of its interest over said Properties

and that it shall, if necessary, execute any additional documents to complete
the title of [respondent] to above-described Properties. No warranty,
however, as to the Properties classification or primary use is hereby given.
 Respondent, by virtue of paragraphs 3 and 4 of the Deed of Assignment with
Consolidation of Title, explicitly acknowledges that he is fully aware of the
circumstances by which CPI acquired its interest in the subject real properties; that
he has examined the title; that he has inspected the properties; and that he
acknowledges that the subject real properties are occupied by squatters and other
adverse occupants. The said acknowledgments made by respondent dispute any
claim on his part that he was misled to believe that when he entered into the
contract of sale with CPI, he was acquiring the entirety of the subject real
properties.

Respondent had every opportunity to verify what he was actually purchasing

from CPI. He already admits knowing the circumstances by which CPI acquired its
interest in the subject real properties. If this is truly so, respondent should have
known that the subject real properties were inherited, intestate, by
Antonia Vda. de Medina and her co-heirs, from Antonias deceased husband,
Antonio; that Antonia Vda. de Medina is just one of the heirs of the late Antonio
Medina, so she co-owns with the other heirs, in undivided shares or interests, the
subject real properties; that Antonia Vda. de Medinas undivided interest in the
subject real properties was sold at an auction sale held to satisfy her judgment debt
to CPI in Civil Case No. 84-22434; that CPI gave the highest bid at the auction sale
and was thus awarded Antonia Vda. de Medinas limited interest in the subject real
properties; that when Antonia Vda. deMedina failed to redeem her interest in the
subject real properties within a year, title was thereby consolidated in CPI; and that
even before CPI acquired Antonia Vda. de Medinas interest in the subject real
properties, she, together with all the other heirs of her late husband Antonio
Medina, had already voluntarily offered to sell the subject real properties to
DAR. With respondents knowledge of the foregoing circumstances, coupled with
his extensive legal knowledge as a lawyer, then respondent should have realized
that what he was acquiring from CPI shall be nothing more than the same limited
interest in the subject real properties acquired by CPI from
AntoniaVda. de Medina.

Even if the Deed of Assignment with Consolidation of Title was prepared

entirely by CPI, respondent cannot claim that the same was a contract of adhesion,
in which he had no other participation but to adhere to. There were several
meetings between CPI and respondent precisely for the purpose of negotiating the
terms of their contract. Contrary to respondents contention that the Deed contained
so many ambiguities, subterfurge and clever craft to allow CPI a back-door retreat,
if necessary, this Court finds that it is actually couched in simple terms easily
understandable, and capable of no other possible and reasonable interpretation than
what this Court had already discussed in the preceding paragraphs. Respondent, as
a lawyer, is very capable of reviewing the Deed himself. He must also know that
he had a legal right to revise certain terms or provisions thereof if he found these
too ambiguous. Respondent was actually given time to review and revise the Deed,
and for some unexplained reason, his only revision was to change his status from
married to single.

Furthermore, assuming that respondent had absolutely no knowledge of the

circumstances surrounding CPIs acquisition of its interest in the subject real
properties from Antonia Vda. de Medina, then his examination of the transfer
certificates of title (TCTs) should have revealed to him such circumstances or, at
the very least, led him to ask questions about the same. The court
processes[44]issued by the Manila RTC in Civil Case No. 84-22434, affecting the
subject real properties, and duly served on the Register of Deeds, were clearly
annotated on the TCTs covering the subject real properties. What is more,
the TCTs were all still in the name of the Heirs of Antonio Medina, not CPI. Such
a fact should have been a caveat to respondent to proceed with the transaction with
more prudence and to inquire into CPIs title to or interest in the subject properties,
as well as the circumstances attendant to its acquisition thereof.According to a
well-established rule in our jurisdiction
The law protects to a greater degree a purchaser who buys from the
registered owner himself. Corollarily, it requires a higher degree of
prudence from one who buys from a person who is not the registered
owner, although the land object of the transaction is registered. While one
who buys from the registered owner does not need to look behind the
certificate of title, one who buys from one who is not the registered owner
is expected to examine not only the certificate of title but all factual
circumstances necessary for him to determine if there are any flaws in the
title of the transferor, or in his capacity to transfer the land.[45] (Emphasis
supplied.)

Respondent could be reasonably assumed to be familiar with the foregoing since

he is a lawyer.

Third, respondent is a lawyer and, as such, he is presumed to know the

law.[46] Though respondent may not be actively practicing law as a profession, the
legal rules and principles applicable to the present Petition are so basic and
fundamental, and which respondent must have learned even while he was still
studying law. Respondent is also a businessman who must possess some degree of
shrewdness in his dealings so as to protect his business interests. With respondents
qualifications as a lawyer and a businessman, while they may not protect him
absolutely, make him less susceptible to deception as compared to an ordinary
layperson.
The Court of Appeals, in its Decision, dated 29 January 2001, found that
CPI committed a double sale of the subject real properties when it sold the same
first to the DAR, then second to the respondent. It declared that a VOS is already a
consummated sale because landowners who made such an offer can no longer back
out. This declaration by the Court of Appeals has no basis in law or jurisprudence.

Respondents mother-in-law Antonia Vda. de Medina decided to avail of the

VOS under Republic Act No. 6657, otherwise known as the Comprehensive
Agrarian Reform Law (CARL) of 1988. On 5 April 1988, she executed a Special
Power of Attorney (SPA)[47] designating a certain Carlito Balauag to represent her
and her children in any and all transactions with the DAR and theLandbank of
the Philippines (Landbank) and to place the subject real properties under the
voluntary coverage of CARP. Worth noting is the fact that the SPA covers not just
Antonia Vda. de Medinas share but all of the subject real properties. Pursuant to
his SPA,Carlito Balauag submitted on 10 March 1989 the VOS Forms covering the
subject real properties to the DAR. He signed the said forms on behalf of the
landowners, who he identified as the Heirs of Antonio Medina.

However, just a few days earlier, on 22 February 1989, Antonia Vda. de

Medina executed a Deed of Assignment (with Special Power of Attorney Coupled
with Interest),[48] in which, for and in consideration of her unpaid obligations to
CPI, she assigned all of her rights, interests, claims and participation from the
proceeds of land compensation for the property she voluntarily offered to sell and
transfer under the CARP. She claimed in the same Deed that the VOS was already
under process for indorsement to theLandbank. Hence, she was appointing CPI as
her exclusive attorney-in-fact to follow-up the processing of the VOS papers with
the DAR and the Landbank. On 13 August 1993, CPI, pursuant to the authority
granted to it by Antonia Vda. de Medina under the same Deed, submitted new
VOS Forms covering the subject real properties.

By virtue of the foregoing, should the VOS covering the subject real
properties already be deemed a consummated sale? This Court rules in the
negative.

The CARL of 1988 encourages landowners to voluntarily offer for sale their
lands by giving an additional five percent compensation to those who avail of this
option.[49] To implement the VOS scheme under the CARL of 1988, the DAR
issued Administrative Order No. 3, series of 1989, subsequently revised by
Administrative Order No. 9, series of 1990, which provided for the rules and
procedure governing the acquisition by the government of land subject of a
VOS. A cursory reading of these Administrative Orders would reveal that a VOS
undergoes a long process. It is initiated by the filing by the landowner of the VOS
Form and other required documents. The VOS is reviewed, among other
personalities, by the Municipal Agrarian Reform Officer (MARO), the Provincial
Agrarian Reform Officer (PARO), the DAR Regional Director, the Bureau of Land
Acquisition and Development (BLAD), and the Landbank, for purposes of
identifying the land and the qualified tenants, the valuation of the land, and
payment of just compensation to the landowner.

In the case of Government Service Insurance Systems, Inc. v. Court of

Appeals,[50] this Court already ruled that

While it is true that under DAR Administrative Order No. 3, series

of 1989, it is not necessary that the voluntary offeror of the lot be the
registered owner thereof, private respondent failed to show that the DAR
accepted and approved his offer to sell. Without said approval and
acceptance, private respondent cannot safely presume that his voluntary
offer to sell was accepted by the DAR.Notably, the word offer, is subject to
acceptance. The voluntary offer to sell is in fact reviewed and evaluated by
the DAR before a corresponding notice of acceptance is sent to the
landowner. The applicable rules and procedure governing voluntary offer to
sell (VOS) at the time private respondent made his offer provides:
xxxx
Evidently, without the notice informing the landowner of
the DARs conformity with the offer to sell, private respondent cannot
validly presume that his offer to sell has been accepted by the DAR and that
the latter will now assume the payment of the loan to the GSIS. (Emphasis
supplied.)

Hence, a VOS, as its name implies, is a voluntary offer to sell the land to the
government so that the latter can distribute the same to qualified tenants. While a
landowner who voluntarily offered his land for sale is precluded from withdrawing
his offer except under specified circumstances, such a condition does not make the
mere offer a consummated sale. It bears to emphasize that the offer still needs to
be accepted by the DAR on behalf of the government, and just compensation for
the land determined and paid to the landowner. The sale is deemed consummated
when the landowner has received payment or deposit by the DAR of just
compensation with an accessible bank, in cash or Landbank bonds, since only then
is ownership of the land finally transferred from the landowner to the
government.[51]

In the present case, the VOS covering the subject real properties is still being
processed by the DAR. There has so far been no express acceptance by the DAR of
the said VOS or payment of just compensation to CPI. There being no
consummated sale of the subject real properties to DAR, CPI could not have
committed a double sale of the same. It remained a co-owner of the subject real
properties, together with the other heirs of Antonio Medina, and, thus, it could still
legally sell its share or interest therein to another person, such as
respondent. Should the DAR finally approve the VOS covering the subject real
properties, then respondent, after acquiring the interest of CPI, shall be entitled to
just compensation corresponding to his interest.

After finding that petitioners did not deceive respondent into purchasing
CPIs limited interest in the subject real properties, then it necessarily follows that
there can be no conspiracy to commit such deception. This Court would still want
to point out that respondents accusation of conspiracy was so stretched that he
implicated in his complaint members of the CPI Board of Directors who did
nothing more than sign a resolution authorizing the sale of CPIs interest in the
subject real properties to respondent. Yet again, the existence of conspiracy among
the CPI officers rests on no other evidence but respondents own allegations in his
affidavits.Conspiracy cannot be established by mere inferences or conjectures. [52] It
is incumbent upon respondent to prove that each of the petitioners performed an
overt act in pursuance or furtherance of the alleged complicity, so as to convince
the investigating prosecutor that there is probable cause that petitioners conspired
with one another to commit the crime.[53] However, respondents general
accusations against petitioners and the other CPI officers do little to persuade.
 WHEREFORE, premises considered, the instant Petition is
hereby GRANTED. The Decision, dated 29 January 2001, and Resolution, dated
14 November 2002, of the Court of Appeals in CA-G.R. SP No. 54862, are
hereby REVERSED and SET ASIDE.Respondents complaint in I.S. No. 97-
22188-191 is hereby ordered DISMISSED.

SO ORDERED.

Estafa; attempted; false pretense; elements of;

accused convicted.
G.R. No. 161651

ELVIRA LATEO y ELEAZAR, FRANCISCO G.R. No. 161651

ELCA y ARCAS, and BARTOLOME
BALDEMOR yMADRIGAL, Present:

Petitioners, CARPIO, J.,

- versus - NACHURA,

PEOPLE OF THE PHILIPPINES, BERSAMIN,

Respondent. ABAD, and

DEL CASTILLO,

Promulgated:

June 8, 2011

x---------------------------------------------------------------x
x x x.

Inarguably, the resolution of the issues raised by petitioners requires us to

inquire into the sufficiency of the evidence presented, including the
credibility of the witnesses, a course of action which this Court will not do,
consistent with our repeated holding that this Court is not a trier of facts.
Basic is the rule that factual findings of trial courts, including their
assessment of the witnesses credibility, are entitled to great weight and
respect by this Court, particularly when the CA affirms the findings.[15]

It is true that the rule admits of several exceptions,[16] but none of the
recognized exceptions is present in the case at bar.

Article 315(2)(a) of the Revised Penal Code lists the ways by

which estafa may be committed, which includes:

Art. 315. Swindling (estafa). x x x.

xxxx

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.

The elements of the felony are as follows:

1. That there must be a false pretense, fraudulent act or fraudulent means.

2. That such false pretense, fraudulent act or fraudulent means must be made or
executed prior to or simultaneously with the commission of the fraud.

3. That the offended party must have relied on the false pretense, fraudulent act, or
fraudulent means, that is, he was induced to part with his money or property
because of the false pretense, fraudulent act, or fraudulent means.

4. That as a result thereof, the offended party suffered damage.[17]

 We agree with the finding of the trial court that the transaction involving
the Bacoor property was a continuation of the transaction involving parcels of
land in Muntinlupa, Metro Manila. When Lucero discovered that Elcas certificates
of title over the Muntinlupa property were fake, Elca offered, as substitute, the 5-
hectare portion of his purported 14-hectare lot in Bacoor, Cavite, but asked for an
additional P2,000,000.00, in this wise:

Dear Ms. Lucero:

This is with reference to the advances we had obtained from you in the total amount
of P4.7 million, more or less. It was agreed that the said advances shall be due and
demandable upon the release of titles over my parcels of land situated in Muntinlupa,
Metro Manila of which we are presently working out with appropriate government
agencies. Your current demand fro[m] us to pay the aforesaid amount plus your
unilaterally imposed interests is therefore premature and baseless.

However, with regards to your alternative demand that you be given a total of 5
hectares (2 has. upon signing of an agreement assigning my rights and additional 3 has.
upon complete release of the remaining 14 hectares) please be informed that I am now
amenable, provided that an additionalP2.0 million will be paid to me to take care of my
other personal commitments. These 5 hectares are situated in Malipay, Bacoor, Cavite
with a portion of Lot 10140 of Plan Sgs-04213-000441-D. I am expecting the title of said
property early next year. The current market [valuation] of real estate properties in that
area is P450.00 per square meter and hence, the property will be more [than] sufficient
to cover our obligates (sic).

Please be guided accordingly.

Very truly yours,

(Signed)

Francisco N. Elca

Bo. Katihan, Poblacion

Muntinlupa, Metro Manila[18]

As it turned out, Elca did not own 14 hectares in Bacoor, Cavite. He merely
had an inchoate right over the Bacoor property, derived from his Application to
Purchase Friar Lands, which covered only 7 hectares.[19] Elcas application was
later amended to cover only 4 hectares, in view of the protest by Alfredo Salenga
(Salenga).[20]Clearly, Elca was in no position to transfer ownership of the 5-
hectare Bacoor property at the time petitioners offered it to Lucero.

In Alcantara v. Court of Appeals,[21] this Court, citing People v.

Balasa,[22] explained the meaning offraud 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.

Indubitably, petitioners parody that Elca owned 14 hectares in Bacoor,

Cavite, and was offering a 5-hectare portion of it, in substitution of the
Muntinlupa property, and demanding an additional P2,000,000.00 from Lucero,
constituted fraud and deceit.

To reiterate, it is an oft-repeated principle that the factual findings of the

trial courts, including their assessment of the witness credibility, are entitled to
great weight and respect by this Court, particularly when the CA affirms the
findings.[23] Considering that there is nothing in the records that shows that the
factual findings of the trial court and the appellate court were erroneous, we
affirm their conclusion that petitioners attempted to defraud Lucero again.

Undoubtedly, petitioners commenced the commission of the crime

of estafa but they failed to perform all the acts of execution which would produce
the crime, not by reason of their own spontaneous desistance but because of
their apprehension by the authorities before they could obtain the amount. Since
only the intent to cause damage and not the damage itself had been
shown,[24] the RTC and the CA correctly convicted petitioners of
attempted estafa.

On the penalty. The RTC sentenced petitioners to an imprisonment term of

ten (10) years and one (1) day to twelve years. The CA modified it to six (6)
months ofarresto mayor, as minimum, to four (4) years and two (2) months
of prision correccional, as maximum.

Petitioners and the OSG both argue that the penalty imposed by the CA was
wrong, and plead for its modification.

The penalty for estafa depends on the amount defrauded. Thus, if the
crime of estafa had been consummated, Lucero would have been defrauded in
the amount of P100,000.00.[25] Hence, the applicable penalty under Article 315
of the Revised Penal Code (RPC) would have been prision correccional in its
maximum period to prision mayor in its minimum period, with an additional one
(1) year for every P10,000.00 in excess of the first P22,000.00; provided, that the
total penalty should not exceed twenty years.

Since what was established was only attemptedestafa, then the applicable
penalty would be that which is two degrees lower than that prescribed by law for
the consummated felony pursuant to Article 51,[26] in relation to Article
61(5),[27] of the RPC. Accordingly, the imposable penalty would be arresto
mayor in its medium period to arresto mayor in its maximum period,[28] or an
imprisonment term ranging from two (2) months and one (1) day to six (6)
months. And because the amount involved exceeded P22,000.00, one (1) year
imprisonment for every P10,000.00 should be added, bringing the total to seven
(7) years.

However, we agree with the OSG that it would be inequitable to impose the
additional incremental penalty of 7 years to the maximum period of penalty,
considering that petitioners were charged and convicted merely of attempted and
not consummated estafa. We, therefore, modify the penalty and sentence
petitioners to imprisonment of four (4) months of arresto mayor.

WHEREFORE, the petition is DENIED. The assailed Decision and Resolution of the
Court of Appeals in CA-G.R. CR No. 23240 are AFFIRMED. Petitioners Elvira Lateo,
Francisco Elca, and Bartolome Baldemor are found guilty beyond reasonable
doubt of attempted estafa, and are hereby sentenced to suffer the penalty of four
(4) months of arresto mayor.

SO ORDERED.
 Estafa; sample counter-affidavit
Below is a sample counter-affidavit prepared by Atty. Manuel J. LAserna Jr. involving
Estafa undergoing preliminary investigation before an investigating prosecutor in Metro Manila.
The facts part thereof are omitted. Only the jurisprudential part thereof is retained for legal
research purposes of the visitors of this law blog.

REPUBLIC OF THE PHILIPPINES

DEPARTMENT OF JUSTICE

OFFICE OF THE CITY PROSECUTOR

X x x CITY

X x x,

Complainants,

IS No. x x x

- versus

Estafa

X x x,

Respondents.

x----------------------------x
 JOINT COUNTER-AFFIDAVIT

OF THE RESPONDENTS X x x

THE UNDERSIGNED RESPONDENTS respectfully state:

1. ADMISSIONS AND DENIALS.

X x x. (omitted)

2. DISCUSSION

2.1. 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.

X x x.
2.2. In the case of DIONISIO AW a.k.a. TONY GO vs. PEOPLE OF THE PHILIPPINES, GR No. 182276, March
29, 2010, the elements of Estafa were discussed by the Supreme Court, thus:

Xxx.

The elements of Estafa under Article 315, Paragraph 1(B) of the Revised Penal Code are:

(a) that money, goods or other personal property is 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.

(b) that there be misappropriation or conversion of such money or property by the offender,
or denial on his part of such receipt

(c) that such misappropriation or conversion or denial is to the prejudice of another; and

(d) there is demand by the offended party to the offender.

The first element of Estafa under Article 315, Paragraph 1(B) is the receipt by the offender of
the money, goods, or other personal property 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.

X x x.
 We next turn to the second element of Estafa under Article 315, Paragraph 1(B) namely,
prejudice and the third element, therein of misappropriation.

The essence of Estafa under Article 315, paragraph 1(b) is the appropriation or conversion of
money or property received to the prejudice of the owner. The words convert and
misappropriate connote an act of using or disposing of anothers property as if it were ones
own, or of devoting it to a purpose or use different from that agreed upon. To misappropriate for
ones own use includes not only conversion to ones personal advantage, but also every attempt
to dispose of the property of another without right.

X x x.

2.3. 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 forestafa, 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.

X x x.

2.4. In the case of FRANCISCO R. LLAMAS and CARMELITA C. LLAMAS vs. THE
HONORABLE COURT OF APPEALS, BRANCH 66 OF THE REGIONAL TRIAL COURT OF
MAKATI CITY and THE PEOPLE OF THE PHILIPPINES, GR No. 149588, August 16, 2010, it
was held, among other things, that DAMAGE is an element of estafa, thus:

X x x.

Article 316 (2) of the Revised Penal Code states:

ART. 316. Other forms of swindling. The penalty of arresto mayor in its minimum and medium
periods and a fine of not less than the value of the damage caused and not more than three
times such value, shall be imposed upon:

xxx

2. Any person who, knowing that real property is encumbered, shall dispose of the same,
although such encumbrance be not recorded;

xxx

In every criminal prosecution, the State must prove beyond reasonable doubt all the elements of
the crime charged and the complicity or participation of the accused.

For petitioners to be convicted of the crime of swindling under Article 316 (2) of the Revised
Penal Code, the prosecution had the burden to prove the confluence of the following essential
elements of the crime:

1. that the thing disposed of be real property;

2. that the offender knew that the real property was encumbered,

whether the encumbrance is recorded or not;

3. that there must be express representation by the offender that the real property is free from
encumbrance; and

4. that the act of disposing of the real property be made to the damage of another.
 One of the essential elements of swindling under Article 316, paragraph 2, is that the act of
disposing the encumbered real property is made to the damage of another. In this case, neither
the trial court nor the CA made any finding of any damage to the offended party. Nowhere in the
Decision of the RTC or that of the CA is there any discussion that there was damage suffered
by complainant Avila, or any finding that his rights over the property were prejudiced.

On the contrary, complainant had possession and control of the land even as the cases were
being heard. His possession and right to exercise dominion over the property was not disturbed.
Admittedly, there was delay in the delivery of the title. This, however, was the subject of a
separate case, which was eventually decided in petitioners favor.

If no damage should result from the sale, no crime of estafa would have been committed by the
vendor, as the element of damage would then be lacking. The inevitable conclusion, therefore,
is that petitioners should be acquitted of the crime charged.

X x x. (underscoring supplied)

2.5. There is no proof that the respondents intentionally, maliciously and feloniously deceived the
association. Respondents x x x and x xx signed the questioned check as authorized bank
signatories of the association.

(Note: Respondent x x x did not sign the check. He did not participate in the questioned
transactions in any manner).

2.5.1. There is no proof that the respondents damaged the association by using, malversing or
converting the questioned amount to their own personal use.

2.5.2. Respondents x x x and x x x simply transferred the amount to the name of the new Cooperative
IN GOOD FAITH in accord with the formal manifestation, mandate, order, wish, and desire of
the members of the association who had formed a new Cooperative and who had mandated the
 association to transfer its funds, assets, concessions, and contracts association to the
new Cooperative.

2.5.3. GOOD FAITH is a defense in malum en se, such as estafa. This is too basic and too
elementary a doctrine that it does not require jurisprudential citations. At any rate, the following
cases are cited:

PEOPLE OF THE PHILIPPINES vs. CORA ABELLA OJEDA, G.R. Nos. 104238-58, June
2004, on GOOD FIATH as a defense in estafa and mala en se.

X x x.

DECEIT AND DAMAGE AS ELEMENTS OF ESTAFA

Under paragraph 2 (d) of Article 315 of the RPC, as amended by RA 4885, the elements of
estafa are: (1) a check is postdated or issued in payment of an obligation contracted at the time
it is issued; (2) lack or insufficiency of funds to cover the check; (3) damage to the payee
thereof. Deceit and damage are essential elements of the offense and must be
established by satisfactory proof to warrant conviction. Thus, the drawer of the dishonored
check is given three days from receipt of the notice of dishonor to cover the amount of the
check. Otherwise a prima facie presumption of deceit arises.

The prosecution failed to prove deceit in this case. The prima faciepresumption of deceit was
successfully rebutted by appellants evidence of good faith, a defense in estafa by postdating a
check. Good faith may be demonstrated, for instance, by a debtors offer to arrange a payment
scheme with his creditor. In this case, the debtor not only made arrangements for payment; as
complainant herself categorically stated, the debtor-appellant fully paid the entire amount of the
dishonored checks.
It must be noted that our Revised Penal Code was enacted to penalize unlawful acts
accompanied by evil intent denominated as crimes mala in se. The principal consideration is
the existence of malicious intent. There is a concurrence of freedom, intelligence and intent
which together make up the criminal mind behind the criminal act. Thus, to constitute a
crime, the act must, generally and in most cases, be accompanied by a criminal intent.Actus
non facit reum, nisi mens sit rea. No crime is committed if the mind of the person
performing the act complained of is innocent. As we held
in Tabuena vs. Sandiganbayan, 268 SCRA 332 [1997].:

The rule was reiterated in People v. Pacana, although this case involved falsification of public
documents and estafa:

Ordinarily, evil intent must unite with an unlawful act for there to be a crime. Actus non facit
reum, nisi mens sit rea. There can be no crime when the criminal mind is wanting.

American jurisprudence echoes the same principle. It adheres to the view that criminal intent in
embezzlement is not based on technical mistakes as to the legal effect of a transaction honestly
entered into, and there can be no embezzlement if the mind of the person doing the act is
innocent or if there is no wrongful purpose.

X x x. (underscoring supplied).

By Analogy:

FRANCISCO M. LECAROZ and LENLIE LECAROZ, vs.SANDIGANBAYAN and

PEOPLE OF THE PHILIPPINES, G.R. No. 130872, March 25, 1999, re: PRSUMPTION
OF GOOD FAITH.

X x x.
 The rule is that any mistake on a doubtful or difficult question of law may be the basis of good
faith. In Cabungcal v. Cordova,No. L-16934, 31 July, 1964, 11 SCRA 584, we affirmed the
doctrine that an erroneous interpretation of the meaning of the provisions of an ordinance by a
city mayor does not amount to bad faith that would entitle an aggrieved party to damages
against that official. We reiterated this principle in Mabutol v. Pascual which held that public
officials may not be liable for damages in the discharge of their official functions absent any bad
faith. Sanders v. Veridiano II expanded the concept by declaring that under the law on public
officers, acts done in the performance of official duty are protected by the presumption of good
faith.

X x x.

2.5.4. X x x.

2.5.5. X x x.

2.6. X x x.

2.7. In the case of PEOPLE OF THE PHILIPPINES vs. FELICIANO ANABE y CAPILLAN, G.R. No. 179033 ,
September 6, 2010, where conspiracy was not proved, the Supreme Court held, thus:

X x x. While conspiracy was alleged in the Informations, it was notestablished during the trial.

Conspiracy as a basis for conviction must rest on nothing less than a moral certainty. Considering the
far-reaching consequences of a criminal conspiracy, the same degree of proof necessary in establishing
the crime is required to support the attendance thereof, i.e., it must be shown to exist as clearly and
convincingly as the commission of the offense itself. While conspiracy need not be established by direct
evidence, it is nonetheless required that it be proved by clear and convincing evidence by showing a
series of acts done by each of the accused in concert and in pursuance of the common unlawful
purpose.
 In the present case, there is want of evidence to show the concerted acts of appellant, Conrada and
Felicita (albeit already discharged) in pursuing a common design to rob Uy. The prosecution in fact
appears to have abandoned the theory of conspiracy altogether, no evidence thereof having been
presented. Absent proof of conspiracy, appellant may only be held accountable for acts that are
imputable to him with moral certainty.

X x x.

2.8. IN THE CASE OF ROSIE QUIDET VS. PEOPLE OF THE PHILIPPINES, G.R. NO. 170289, APRIL 8, 2010, IT WAS HELD,
THUS:

Conspiracy must be proved as clearly and convincingly as the commission of the offense itself
for it is a facile device by which an accused may be ensnared and kept within the penal fold. In
case of reasonable doubt as to its existence, the balance tips in favor of the milder form of
criminal liability as what is at stake is the accuseds liberty. We apply these principles in this
case.

X x x.

Conspiracy exists when two or more persons come to an agreement concerning the commission of a felony and
decide to commit it. The essence of conspiracy is the unity of action and purpose. Its elements, like the physical
acts constituting the crime itself, must be proved beyond reasonable doubt. When there is conspiracy, the act of
one is the act of all.

Conspiracy can be inferred from and established by the acts of the accused themselves when said acts point to a
joint purpose and design, concerted action and community of interests. However, in determining whether
conspiracy exists, it is not sufficient that the attack be joint and simultaneous for simultaneousness does not of
itself demonstrate the concurrence of will or unity of action and purpose which are the bases of the responsibility
of the assailants. What is determinative is proof establishing that the accused were animated by one and the same
purpose.

X x x.

There is no question that "a person may be convicted for the criminal act of another where, between them, there
has been conspiracy or unity of purpose and intention in the commission of the crime charged." It is, likewise,
settled that "to establish conspiracy, it is not necessary to prove previous agreement to commit a crime, if there is
proof that the malefactors have acted in consort and in pursuance of the same objective." Nevertheless, "the
evidence to prove the same must be positive and

convincing. As a facile device by which an accused may be ensnared and kept within the penal fold, conspiracy
requires conclusive proof if we are to maintain in full strength the substance of the time-honored principle in
criminal law requiring proof beyond reasonable doubt before conviction."

X x x.

Moreover, although the appellant and his co-accused acted with some degree of simultaneity in attacking the
deceased, nevertheless, the same is insufficient to prove conspiracy. The rule is well-settled that
"simultaneousness does not of itself demonstrate the concurrence of will nor the unity of action and purpose
which are the basis of the responsibility of two or more individuals." To establish common responsibility it is not
sufficient that the attack be joint and simultaneous; it is necessary that the assailants be animated by one and the
same purpose. In the case at bar, the appellant Raymundo Vistido and the accused Pepito Montao, did not act
pursuant to the same objective. Thus, the purpose of the latter was to kill as shown by the fact that he inflicted a
mortal wound below the abdomen of the deceased which caused his death. On the other hand, the act of the
appellant in giving the deceased one fist blow after the latter was stabbed by the accused Pepito Montao an
act which is certainly unnecessary and not indispensable for the consummation of the criminal assault does not
indicate a purpose to kill the deceased, but merely to "show off" or express his sympathy or feeling of camaraderie
with the accused Pepito Montao. Thus, in People vs. Portugueza, this Court held that:

X x x.
 By and large, the evidence for the prosecution failed to show the existence of conspiracy which, according to the
settled rule, must be shown to exist as clearly and convincingly as the crime itself. In the absence of conspiracy, the
liability of the defendants is separate and individual, each is liable for his own acts, the damage caused thereby,
and the consequences thereof. While the evidence shows that the appellant boxed the deceased, it is, however,
silent as to the extent of the injuries, in which case, the appellant should be held liable only for slight physical
injuries.

We reach the same conclusion here. For failure of the prosecution to prove conspiracy beyond reasonable doubt,
petitioners liability is separate and individual. X x x.

2.9. X x x..

2.10. The respondents reserve the right to file a SUPPLEMENTAL AFFIDAVIT x x x.

2.11. The respondents reserve the right to file a REJOINDER-AFFIDAVIT.

PRAYER

WHEREFORE, premises considered, it is respectfully prayed that the instant criminal

complaint be DISMISSED for lack of merit.

Further, the respondents respectfully pray for such and other reliefs as may be deemed just
and equitable in the premises.