Republic of the Philippines

DEPARTMENT OF JUSTICE
OFFICE OF THE CITY PROSECUTOR, QUEZON CITY

ELITE FORCE SECURITY AGENCY, INC. /

MARK CLESTER UNIAS Y ESPIRITU
Complainant,
vs. NPS DOCKET NO. 14-F-05918
FOR: QUALIFIED THEFT.

MARIANO INCISO CABANILLAS,.

Respondent/s;
x------------------------------------------x

COUNTER-AFFIDAVIT
I, MARIANO INCISO CABANILLAS, of legal age, with address at 496
Ninada St., Litex Road, Commonwealth, Quezon City, after having been
deposed in accordance with law, do solemnly swear;

That I vehemently DENY the baseless accusation being imputed against

me by complainant ELITE FORCE SECURITY AGENCY, INC. (Elite Force)
through its security inspector, MARK CLESTER UNIAS Y ESPIRITU.

First, complainant MARK CLESTER UNIAS has NO LEGAL

PERSONALITY to file the instant case in behalf of the ELITE FORCE as he is
not an “offended party” as defined under Rule 110 of the Rules of Criminal
Procedure which provides that:

Section 3. Complaint defined. — A complaint is a sworn written

statement charging a person with an offense, SUBSCRIBED BY THE
OFFENDED PARTY, any peace officer, or other public officer charged
with the enforcement of the law violated.

To the best of my knowledge, the complainant, ELITE FORCE

SECURITY AGENCY, INC., is a CORPORATION duly organized under the
laws of the Philippines. As such, it can only validly act through DULY
AUTHORIZED AGENTS of the Corporation as approved by its Board of
Directors. As ruled by our Supreme Court,

Physical acts, like the signing of documents, can be performed

only by natural persons DULY AUTHORIZED FOR THE PURPOSE by
corporate bylaws or by a specific act of the board of directors. “All acts
within the powers of a corporation may be performed by agents of its
selection; and, except so far as limitations or restrictions which may be
imposed by special charter, by-law, or statutory provisions, the same
general principles of law which govern the relation of agency for a
natural person govern the officer or agent of a corporation xxx.”( BA

1
 SAVINGS BANK, vs. ROGER T. SIA, G.R. No. 131214. July 27, 2000)

In the present case, it was only the alleged “GENERAL MANAGER” of

Elite Force Security Agency, Inc, in the person of EDUARD VELASCO who
gave the authority to complaining witness MARK CLESTER UNIAS “to sign
the Complaint”. Such authorization is NOT ENOUGH to satisfy the strict
requirements of the law as there is NO EVIDENCE to show that said General
Manager was duly authorized by the corporation to file a criminal case against
the respondent, much more to delegate such authority to Unias.

As held by the Supreme Court, “The right of the petitioners to file a

complaint charging the commission of a crime is PERSONAL. It is so, because
as required in section 2, Rule 106, (now section 3, Rule 110) complaint
charging a person with an offense must be SUBSCRIBED BY THE
OFFENDED PARTY..” (Guevarra v. Del Rosario 77 Phil. 615) Accordingly,
the complaint filed by UNIAS should be dismissed as he is not an “offended
party” within the meaning of the rules.

More importantly, there is NO qualified theft to speak of for the simple

reason that respondent NEVER stole or took the firearm in question. THIS
COMPLAINT WAS INITIATED BY ELITE FORCE SOLELY TO COERCE
THE RESPONDENT TO DROP THE LABOR CASE HE EARLIER FILED
AGAINST THE SECURITY AGENCY, HIS FORMER EMPLOYER. Clearly,
all the allegations in their complaint are FABRICATED LIES.

Thus, respondent has formally filed a LABOR COMPLAINT with the

National Labor Relations Commission (NLRC), initially for underpayment of
wages and benefits against the complainant agency in May 2014. Respondent
has been working as a SECURITY GUARD for Elite Force since August 22,
2008 and was posted at the Overland Park Bldg., No. 245 Banawe St. cor.
Quezon Ave., Quezon City, a small two-storey building besides McDonald’s
restaurant. The aforesaid building is occupied by various small establishments
as lessees. For several years, respondent was receiving the paltry sum of only
PHP230 AS HIS DAILY WAGE without any benefits, which is LESS THAN
HALF of the minimum daily wage required by law (Php466 per day).

Unfortunately, after he filed the complaint, he was thereafter

DISMISSED from employment by the security agency, forcing him to include
ILLEGAL DISMISSAL as part of his causes of action. A copy of his labor
complaint dated May 22, 2014 is hereto attached as ANNEX 1.

In view of the failure of the parties in the aforesaid case to reach a

settlement, they were required by the Honorable Labor Arbiter therein to file
their respective Position Papers. A copy of respondent’s POSITION PAPER
INCLUDING ANNEXES is hereto attached as ANNEX 2.

As stated in respondent’s POSITION PAPER, the following is what

really transpired in the case at bar:

2
 Complainant (respondent Cabanillas herein) was hired by herein
respondents (complaint Elite Force Security Agency herein) as a REGULAR
Security Guard sometime in August 2008 and his employment lasted until his
illegal dismissal on April 20, 2014, with latest salary of PHP 239.00.per 12
HOURS DUTY.

From the very start of his employment, complainant was assigned to

Overland Plaza in Banawe, Quezon City. As a regularly employed security
guard, herein complainant has always maintained a good track record and never
committed any infractions during the course of his employment. He was able to
maintain his integrity and dedication with the respondents for almost SIX (6)
years. Attached herewith is complainant’ Duty Detail Order dated August 22,
2008 as ANNEX A.

In view of the very low salary he was receiving, complainant has been
asking the respondents to reevaluate his salary considering his length of service
and dedication to his work. To reiterate, he was merely receiving the paltry sum
of PHP 239.00.per 12 HOURS DUTY. As proof thereof, attached herewith are
complainant’s PAYSLIPS as ANNEX B and series, and complainant’s DAILY
TIME RECORDs (DTR) as ANNEX C and series.

Unfortunately, his request fell on deaf ears and merely ignored by herein
respondents, leaving the complainant with no other choice but to file a complaint
with NLRC through the SENA sometime on April 22, 2014 so that that his
grievances will be looked into.

On April 30, 2014, at around 3:10 p.m., AFTER LEARNING ABOUT THE
CASE FILED BY THE COMPLAINANT, respondent’s Security Inspector Mark
Unias arrived at Overland Park Building where the complainant was posted and
immediately relieved the complainant of his duty. Accompanying Unias was
another security guard by the name of Marvin L. Belgrado and he immediately
took over the complainant’s post. UNIAS VERBALLY TOLD THE
COMPLAINANT FOR HIM TO NO LONGER REPORT FOR WORK. He then
ordered the complainant to surrender to him his assigned firearm, a RUSTED 38
Caliber Revolver with EXPIRED LICENSE. At exactly 4:25p.m. Unias told the
complainant to immediately leave the premises. As proof thereof, a copy of the
LOGBOOK report for the said date is hereto attached as ANNEX D.

Confused as to what has happened, on May 6, 2014, complainant went

to respondent’s office but he was again IGNORED by the respondents.
Complainant was NOT given any duty, posting or work.

On June 25, 2014, in a RETALIATORY MOVE, the respondents filed a

CRIMINAL CASE for alleged qualified theft of firearm against the complainant
with the City Prosecutor’s Office of Quezon City, a copy of which is hereto
attached as ANNEX E. As stated in the aforesaid complaint, the complainant
allegedly “between the hours of 7:00am and 7:00p.m. April 30, 2014, at No. 245
Overland Park Bldg. xxx, suspect, while manning his duty as a security guard
thereat, and for reason of his own, upon seeing chance and opportunity, with

3
 grave abused of trust and confidence repose upon him by the employer, with
intent of material gain, took/stole and carted away evidence No. 3 and likewise
abandoned his post without knowledge and consent of the establishment to
undisclosed place”.

Unbeknownst to the respondents, complainant has properly turned over

to the respondents the aforesaid firearm at the time he was unceremoniously
replaced by another security guard, as evidenced by the LOGBOOK report duly
signed by the parties, a copy of which is hereto attached as ANNEX E.

During the hearings of this case, respondents did not deny the fact that
the complainant was already DISMISSED from work. Respondents likewise
never offered the complainant to report back for work. xxx

From the foregoing facts, it is very clear that the only reason why the
complainant agency filed this present criminal complaint against respondent
Cabanillas is in order to COERCE and FORCE the respondent to withdraw the
aforesaid labor complaint. Respondent Cabanillas was actually forewarned by
his superiors that they will file a criminal complaint against him if he ever
decides to file a labor complaint against the agency with the NLRC.

Prior to this unfortunate incident, respondent Cabanillas never

committed any infraction against the security agency.

To reiterate, complainant properly turned over to the new Security

Guard (Marwin L. Belgrado) the firearm in question on April 30, 2014 at
around 4:25p.m. On said date, the respondent was relieved from his duty and
was replaced by the SG Belgrado. This is evidenced by the DUTY DETAIL
ORDER dated April 30, 2014 duly signed by both UNIAS and SG Belgrado, a
copy of which is hereto attached as ANNEX 3. The said DUTY DETAIL
ORDER (Annex 3) clearly indicated therein the TURN-OVER of “ISSUED
FIREARM(S) & AMMUNITIONS SHOOTERS 38 REV. 09034868 w/05 rds
of ammos.” In other words, the firearm allegedly stolen by respondent was
actually received by SG Belgrado at the time he replaced the respondent.

In fact, Mr. UNIAS, the complaining witness, was PRESENT during the
turn-over as he was the one who actually carried out the order for the relief of
respondent Cabanillas from his post. The aforesaid turn-over was also
WITNESSED by ANTONIO A. BANDIAN, the building’s MAINTENANCE
officer where the respondent was posted. In his Sworn Affidavit, a copy of
which is hereto attached as ANNEX 4, Mr. Badian witnessed that:

1. Ako ay nagsimulang magtrabaho bilang “BUILDING MAINTENACE” ng

Overland Park Bldg., No. 245 Banawe St. cor. Quezon Ave., Quezon City
simula January 2009;
2. Bilang Building Maintenance, bukod sa pag-maintain ng building, ako ang
naatasan ng Building Administrator na magbigay ng mga patakaran sa lahat
ng mga Security Guards ng Elite Force Securty Agency ukol sa
pagbabantay ng nasabing building;

4
 3. Matagal ko ng kilala si Mr. Mariano Cabanillas bilang Security Guard ng
nasabing building. Nakatalaga na sya sa building bago pa mang nagsimula
akong magtrabaho doon;
4. Dalawang security guard ang naka-assign sa nasabing building. Ang
kapalitan ni Mr. Cabanillas ay si Mr. Marlon Gumahad.
5. Noong huling linggo ng April 2014, sinabi sa akin ni Mr. Cabanillas at ni Mr.
Gumahad na nagreklamo sila sa Labor na katabi lang ng aming building
dahil sa maliit na sweldo nilang natatanggap mula sa kanilang security
agency.
6. Di kitagalan, sinabi sa akin nila Mr. Cabanillas at Mr. Gumahad na baka
palitan na sila sa pwesto dahil daw nag-file sila ng kaso sa labor.
7. Noong April 30, 2014, nakita ko si Mr. Mark Lester Unias na Security
Inspector ng Elite Force Security Agency na dumating sa building na may
kasamang bagong Security Guard.
8. Matagal ko ng nakikita si Unias dahil siya ang nag-iinspect ng mga security
guards sa amin.
9. Noong bandang mga alas 4:00 ng hapon, nakita ko mismo na ibinigay ni Mr.
Cabanillas ang baril na matagal nya ng ginigamit sa bagong kapalit nya na
Security Guard na kasama ni Unias. Napag-alaman ko na si Mr. Marwin
Belgrado ang bagong kapalit ni Mr. Cabanillas noong nabasa ko ang Duty
Detail Order na dala-dala ni Mr. Belgrado.
10. Pagkaalis ni Mr. Unias, kinausap ko si Mr. Belgrado para sabihin sa kanya
ang mga patakaran sa building. Sinabihan ko rin ang building administrator
tungkol sa pagpapalit kay Mr. Cabanillas. Nang tinananong sa akin kung
bakit papapalitan ang mga security guards, sinabi ko sa kanila na dahil nag-
file sila ng kaso sa Labor kaya pinaalis si Mr. Cabanillas.
11. Noong May 1, 2014, nalaman ko rin na napalitan na si Mr. Gumahad ni
Security Guard Chua. Dumating si Mr. Rommel, kapatid siya umano ng
asawa ng may-ari ng Elite Force. Nakita ko na kinuha ni Mr. Rommel sa
bagong security guard ang lumang baril na dating gamit nila Mr. Cabanillas
at pinalitan ito ng bagong baril na gawang ARMSCOR, na ayon sa logbook
ay may serial no. na 1154922.
12. Noong May 29, 2014, napag-alaman ko na nakipag-ayos si Mr. Gumahad sa
Elite Force at tuluyan na sya na nag-withdraw sa kaso nya sa Labor.
Ikinuwento niya sa akin na kakasuhan daw siya ng “loose firearms” ng
agency kung hindi nya tatangapin ang alok ng management ng Elite Force
Security Agency na Php15,000.00, kaya tinanggap na lang daw nya yung
pera. Simula noon, hindi ko na nakita si Mr. Gumahad. xxx

From the foregoing statements of Mr. Badian, an EYEWITNESS to the

facts of the case, there is really NO THEFT, qualified or otherwise, to speak
off. Mr. Badian, as maintenance officer of the building where the respondent
was posted, actually WITNESSED Mr. Cabanillas officially turning over the
firearm in question to the new security guard.

In the recent case of MATRIDO v. PEOPLE OF THE PHILIPPINES

(G.R. No. 179061, July 13, 2009, the Honorable Supreme Court reiterated the
elements of Qualified Theft citing many jurisprudence, as follows:

5
 In précis, the elements of QUALIFIED THEFT punishable under
Article 310 in relation to Articles 308 and 309 of the Revised Penal
Code (RPC) are as follows:

1. There was a taking of personal property.

2. The said property belongs to another.
3. The taking was done without the consent of the owner.
4. The taking was done with intent to gain.
5. The taking was accomplished without violence or
intimidation against person, or force upon things.
6. The taking was done under any of the circumstances
enumerated in Article 310 of the RPC, i.e., with grave
abuse of confidence.

In the instant case, there was absolutely NO TAKING or STEALING

done by respondent Cabanillas of the gun in question as he officially turned
over the said gun to his replacement, Security Guard Marwin Belgrado on
April 30, 2014, the day he was relieved of his duties. Said turnover was duly
documented in the Duty Detail Order signed by Mr. Unias (complaining
witness) and Mr. Belgrado (Annex 3). The aforesaid turn-over of the gun was
likewise officially recorded by respondent Cabanillas in the logbook (Annex D
of the Position Paper). Moreover, the aforesaid turn-over of the gun to the new
security guard was actually witnessed by Mr. Antonio A. Bandian, the
building’s maintenance officer, as evidenced by his sworn statement. (Annex
4). Finally, this belated criminal complaint was filed by complainant Elite
Force solely to coerce the respondent from withdrawing the labor complaint he
earlier filed against the agency. (Annex 1)

Without the critical element of UNLAWFUL TAKING, this complaint

for alleged qualified theft must necessarily fail.

PRAYER

WHEREFORE, it is respectfully prayed of this Honorable Office that the

complaint be dismissed for utter lack of merit.

IN WITNESS WHEREOF, I hereunto set my hand this

_____________________, in Quezon City.

MARIANO INCISO CABANILLAS

SUBSCRIBED AND SWORN TO before me, this _______________________, in

Quezon City. I hereby certify that I have personally examined the affiant and I am satisfied
that he have voluntarily executed and understand his affidavit.

PROSECUTOR