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Republic of the Philippines

OFFICE OF THE CITY PROCECUTOR


Las Pias City

MATILDA BRUHA,
Complainant,
I.S. No. 04-0303
For: Perjury

- versus MODESTO PRIETO,


Respondent.
X-------------------x

COUNTER-AFFIDAVIT
I, MODESTO PRIETO, after having been sworn in accordance with law, and
by way of counter-affidavit to the complaint-affidavit filed by MATILDA BRUHA, to
this Honorable Office, most respectfully depose and state that:
1.
The instant case arose from the complaint-affidavit for estafa I executed
as representative of GOGO COLLEGE against MATILDA BRUHA (complainant
herein) on 14 January 2004 docketed as I.S. No. 04-0088. For an obvious and
harmless typographic error, complainant Garcia charges me of Perjury, to wit:
Par. 4. The above-quoted allegations makes (sic) it
appear that in so far as Ms. Juliet JOSE was concerned, I
was required by MR. MODESTO PRIETO, in his letter of
04 April 2003, to explain [JOSES] inclusion in the payroll
register for six (6) payroll periods. Paragraphs 2 and 3 of
the Complaint-Affidavit make it appear that prior to 04 April
2003, MR. PRIETO had already discovered Juliet JOSE
included in six (6) payroll periods and accordingly directed
me to account for the six (6) payroll periods including the
payroll period of 1-15 February 2003. The CompliantAffidavit, at paragraph 6, thereafter alleges that I, on 8 April
2003 remitted to Ms. Cristobal the supposed salaries of
Ms. JOSE from February 16-April 30, 2003.
The
Complaint-Affidavit, at paragraph 7, underscores that Ms.
BRUHA did not remit Ms. JOSE supposed pay for
February 1-15, 2003.
Par. 6. Through paragraphs 2, 3, 6 and 7 of his
Complaint-Affidavit, MR. PRIETO maliciously wanted to
impress upon the Honorable City Prosecutor that as of 4
April 2003, he had already directed the undersigned to
explain the inclusion of Ms. JOSE in the payroll of 1-15
February 2003 and to account for the amount of P4,700.00
pertinent to said payroll period. MR. PRIETO further
2

wanted to maliciously impress that I failed to remit to the


cashier this amount since I only remitted to the cashier
excess payroll of Ms JOSE for five (5) payroll periods
beginning 16 February to 30 April 2003. It is the supposed
failure of Ms. BRUHA to remit the amount of P4,700.00
representing excess payroll of Juliet JOSE for payroll
period 1-15 February 2003 together with the P23,500.00
she remitted to the school cashier representing excess
payroll of Juliet JOSE for five (5) payroll periods, I,e., 1628 February, 1-15 March, 16-31 March, 1-15 April and 1630 April 2003, that materially constitutes the charge of
estafa in I.S. No. 04-0088.
I vehemently and categorically deny said charges.
2. The alleged falsehood I made in the complaint-affidavit follows
Forthwith, on 04 April 2003, I sent a letter to the school
accounting clerk in charge of the payroll, Ms. MATILDA
BRUHA(respondent herein), requiring an explanation of the
noted irregularity in the inclusion of Ms. JOSE in 6 payroll
registers and Ms. Pegia in 1 payroll register,
notwithstanding their earlier separation from employment.
3.
Complainant claims that I should be charged of Perjury because instead
of 6 payroll registers the admitted truth is that my letter of 04 April 2003 mentions
only 5 payrolls dated Feb. 16-28, Mar. 01-Mar. 15; Mar. 16-Mar. 31; April 01-April
15; and April 16-Arpil 30. The inclusion of MS. JOSE in the Feburary 1-15 payroll
was discovered later thus she was made to explain about this irregularity in a letter
dated June 20, 2003.
4.
At the outset, it must be stated that not all mistakes or falsities in sworn
statements constitute the felony of perjury. An objective appreciation of the entirety
of the complaint-affidavit will clearly show that the statement of the number 6
instead of 5 is an honest typographic mistake and that the mistake is not on a
material issue. In fact, I clarified this in my subsequent reply-affidavit submitted in
the same case on march 2, 2004, as follows:
16.
I take exception to the unkind words and
imputations of respondent that I allegedly made malicious
fabrications as regards par. 2 & 3 (mistakenly written by
my counsel as par. 3 & 4, but without any intention of
committing perjury) of my complaint-affidavit.
The
number 6 stated in paragraph 3 was obviously a
typographical error made in the course of preparation
of the draft of my complaint by my counsel as there is
no reason to make a fabrication as to the number of
payroll registers mentioned in the letter of April 4,
2003. The letter itself mentions five payroll periods
thus the allegation in my complaint-affidavit should
have been 5 and not 6 payroll periods ad Ms.
BRUHA was asked to explain about the payroll period
February 1-15, 2003 in a later letter dated June 20,

2003. The alleged fabricated statement should be read


in conjunction with par. 7 of my complaint, to wit:
It must be emphasized that Ms. BRUHA did
not remit Ms. JOSES supposed pay for February
1-15, 2003. This fact negates the contention of
respondent BRUHA that she kept the unclaimed
payroll in her vault.
The said paragraph was likewise quoted by respondent
in par. 4.06 of her counter-affidavit, but she emphasized
instead the first sentence thereof in an effort to show that I
tried to mislead this Honorable Office. Obviously, it is
respondent and her counsel who wants to mislead this
Honorable Office by turning an ember into a needless fire.
If there was really want of good faith on my part, I
should not have stated the quoted paragraph. The fact
that I did not attach my 04 April 2003 is of no moment,
as it is my view that the same is not that material to the
instant case unlike in the labor case. Besides, it would
be useless for me to conceal the same since in the first
place, respondent herself has a copy thereof, not to
mention that said letter formed part of public records
when it was attached as part of the position paper filed
before the NLRC, to which anyone can have access
to.
5.
At the risk of being repetitious, it bears reiterating that if I really intended
to impress upon this Honorable Office that as of my 04 April 2003 letter, I already
required Ms. BRUHA to explain MS. JOSEs inclusion in 6 payroll periods (which
includes the 1-15 February 2003 payroll), I would not have made said allegation in
Paragraph 7 of my complaint-affidavit which reads While my letter asking for an
explanation on the irregularity mentioned only the payroll periods starting
February 16-28, 2003, she should have also remitted the February 1-15 pay if it is
true that she just kept the money in her personal vault. There is no pretension
that my said letter included the payroll period February 1-15. On the contrary,
this is a statement of the truth that my letter did not mention payroll period
February 1-15.
6.
Alas and alack, Ms. BRUHA, understandably because she cannot
invoke a plausible defense in the estafa case, magnified such honest mistake,
obviously as a leverage against herein respondent. As if, complainant BRUHA is too
perfect not to commit mistakes. In her counter-affidavit in the estafa case,
respondent mistakenly stated under oath that Annex 9 of her counter-affidavit is a
written explanation she submitted on 26 June 2003 but her Annex 9 is dated July
15, 2003. But unlike complainant BRUHA, we all understand that it was a simple
mistake, which every human being is prone to commit. No one is infallible and not
every mistake constitutes a crime.
7.
In any event, the allegations in the complaint-affidavit MISERABLY
FAILED to show that Perjury was committed. While it is true that I executed a
complaint-affidavit in the estafa case against Ms. BRUHA and that it was made
before Prosecutor Alexander Q. Suarez, the purported false allegation is NOT

MATERIAL IN ORDER TO PROVE THE COMMISSION OF ESTAFA BY MEANS


OF DECEIT and THERE WAS NO WILLFUL AND DELIBERATE ASSERTION OF
A FALSEHOOD ON MY PART.
7.1 Apparently, complainant BRUHA is of the impression that had the statement
been 5 payroll registers and not the mistaken 6 payroll registers, there is
no estafa. She is of the mistaken belief that the estafa being charged in the
complaint is the failure to return the amount of P4,700.00 together with the
amount of P23,500. Thus, it was necessary for me to say 6 instead of 5
so that my complaint-affidavit can make a case of estafa. The absurdity is
obvious.
7.2 It must be emphasized that Ms. Garcia was charged by the school of having
committed ESTAFA BY MEANS OF DECEIT, in the consummation of which,
under the circumstances in the case, DEMAND IS NOT A NECESSITY OR
AN ELEMENT thereof unlike in Estafa by means of abuse of confidence.
What is important is the presence of the element of DECEIT (fraudulent
representation). To reiterate, the elements of said estafa are as follows: a)
that there must be a false pretense, fraudulent act or fraudulent means;
b) that the false pretense, fraudulent act or fraudulent means muyst be
made or executed prior to or simultaneously with the commission of the
fraud; C0 that the offended party must have relied on the false pretense,
fraudulent act, or fraudulent means, thatis, he was induced to part with his
money or property because of the false pretense, fraudulent act, or
fraudulent means; and d) that as a result thereof, the offended party
suffered damages. In Balitaan vs. CFI of Batangas 1, it was held that To
sustain a conviction for estafa under par. 2(a), x x x deceit or false
representation to defraud and the damage caused thereby must be proved.
And no demand is necessary.
7.3 There is no truth to complainant Garcias malicious insinuation that the
assertion under oath of 6 payrolls is willful and deliberate as can be
observed from the fact that I did not attach the said letter. The reason why
the letter of April 4, 2003 was not even attached as an annex to the
complaint is simply because demand is not necessary since Ms. BRUHA
used fraud or deceit. Even if we will consider jurisprudence on estafa by
abuse of confidence, the Supreme Court ruled in U.S. vs. Asensi 2, that
When money or property is received by means of fraud and false
representation, a demand for the return of the same is not necessary
in order to constitute the crime of estafa.
7.4 Evidently, there is no necessity for me to make it appear, as
complainant BRUHA suggests, that as early as 04 April 2003, I required
Ms. BRUHA to make an accounting of Ms. JOSEs inclusion in 6
payroll periods, including that of 1-15 February 2003 and that she
allegedly failed to return Ms. JOSEs salary for 1-15 February 2003
together with her salary for 16 February-30 April 2003. It is of no
moment whether or not I required her to make an accounting of the subject
purported salary nor whether the show cause letter was issued on 04 April
2003 or 23 June 2003, as it is not a material matter to the charges against
Ms. BRUHA
7.5 For purposes of perjury, the matter is material when it is directed to prove a
fact in issue3. In the estafa case filed by GOGO COLLEGE the fact in issue

is whether or not Ms. BRUHA committed the crime charged by including the
names of the separated employees in the schools payroll registers;
processing the payment of their supposed salaries; and appropriating the
money to the damage and prejudice of the school. The letter of April 4,
2003 finds significance in an administrative proceeding such as in the
termination from employment of Ms. BRUHA, but not in a criminal case for
estafa committed by deceit. It is not therefore important to prove in the
estafa case that on April 4, 2003, I required Ms. BRUHA to account for the
irregular payrolls including the pay period February 1-15, 2003. Stated
otherwise, even if my allegation in the questioned paragraph 3 of my
complaint-affidavit will be entirely omitted, the stubborn fact remains
that the complaint-affidavit is sufficient to support the charge of estafa
by deceit.
8. It is most respectfully submitted that I cannot be held liable for violation of
Article 183 of the Revised Penal Code. Not even probable cause exists to support
the filing of an information against me. x x x Although there is no general formula or
fixed rule for the determination of probable cause since the same must be decided in
the light of the conditions obtaining in given situations and its existence depends to a
large degree upon the finding or opinion of the judge conducting the examination,
such a finding should not disregard the facts before the judge nor run counter
to the clear dictates of reason. x x x The judge or fiscal, therefore, should not go
on with the prosecution in the hope that some credible evidence might later
turn up during the trial for this would be a flagrant violation of a basic right
which the courts are created to uphold. It bears repeating that the judiciary lives
up to its mission by vitalizing and not denigrating constitutional rights. So it has
been before. It should continue to be so.(Salonga v. Cruz-Pao)4
Additionally, in Cojuangco Jr. v. Presidential Commission on Good
government,5 the Supreme Court held:
x x x Indeed, a preliminary investigation is in effect
a realistic judicial appraisal of the merits of the case.
Sufficient proof of the guilt of the accused must be
adduced so that when the case is tried, the trial court
may not be found as a matter of law to order an
acquittal. x x x (emphasis supplied)
9. The allegations of complainant fall short of establishing probable cause
against me. It is foreseeable that the court will, as a matter of law, be compelled to
order an acquittal. Consequently, the State should be saved the trouble of
prosecuting innocent persons and thus serves the purpose of preliminary
investigation.
x x x The purpose of preliminary investigation us to
secure the innocent against hasty, malicious and
oppressive prosecution, and to protect him from an open
and public accusation of a crime, from the trouble,
expense, anxiety of a public trial, and also to protect the
state from useless and expensive trials. x x x (Trocio v.
Mantas)6
x x x However, in order to satisfy the due process
clause it is not enough that the preliminary investigation is
conducted in the sense of making sure that a transgressor

shall not escape with impunity. A preliminary investigation


serves not only the purpose of the State. More important,
it is part of the guarantees of freedom and fair play which
are birthrights of all who live in our country. It is therefore,
imperative upon the fiscal or judge as the case may be,
to relieve the accused from the pain of going through
trial once it is ascertained that the evidence is
insufficient to sustain a prima facie case or that no
probable cause exists to form a sufficient belief as to
the guilt of the accused. (Salonga v. Cruz-Pao)7
10. Above premises considered, the mistake in the complaint-affidavit is an
honest typographic error on an immateaial issue. The contents of the same affidacit
clearly show that the 6 should have been 5. This mistake was clarified by the
undersigned in a subsequent affidavit filed in the same case.
11. Evidently, the instant complaint is nothing but a sham compliant intended
to harass, vex and intimidate me. It is therefore prayed that the instant affidavitcomplaint ought to be, as it should be, DISMISSED for lack of factual and/or legal
basis.
12. I am executing this Counter-Affidavit to attest to the truth of the foregoing
and in support of my prayer for the dismissal of the complaint.
AFFIANT FURTHER SAYETH NAUGHT.
IN WITNESS WHEREOF, I have hereunto affixed my signature this 10 th day of
March 2004 at Las Pias City.

MODESTO PRIETO
Affiant
SUBSCRIBED AND SWORN TO before me this 10 th day of March 2004 at Las
Pias City. I futher certify that I have personally examined the affiant and that I am
satisfied that he has executed this Counter-Affidavit and has understood the
contents hereof of his own personal knowledge.

CYNTHIA MADAMBA-LUANG
Administering Prosecutor