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Republic of the Philippines

OFFICE OF THE OMBUDSMAN


Office of the Deputy Ombudsman for Luzon
Agham Road, Diliman, Quezon City

xxxxxxxxxxxxxxxxxxxxxx OMB-L-A-15-xxxx
Complainant,
FOR:

-versus- Grave Misconduct and


Violation of Section 5 (a),
Xxxxxxxxxxxxxxxxxxxxx, (c) and (d) of Republic Act
Respondents. No. 6713
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MOTION FOR RECONSIDERATION

COMES NOW, RESPONDET, by himself, unto this


Honorable Office, most respectfully states the following:

TIMELINESS OF THE MOTION

Plaintiff received a copy of the order of this Honorable


Office dated January 23, 2017 on __________________.
Respondent xxxxx, has fifteen (15) days or until
__________________ within which to file a motion for
reconsideration. Hence, this motion was timely filed.

COURTS FINDINGS and DIGEST OF THE ORDER

The Honorable Office ruled to dismiss herein respondent


Orata from office. In so doing it stated in the Decision that:

1. It finds that the respondents defense of alibi insufficient


to absolve him of the charges against him;
2. Respondent Orata received and accepted money in the
guise of facilitation fee.
GROUNDS, ISSUES and ARGUMENTS FOR
RECONSIDERATION

Respondent-movant most respectfully asks this


Honorable Office to review its findings as above-stated and
argue as follows praying for the reconsideration of the order:

I. Respondents defense of alibi


was sufficiently established in
order to absolve him from the
charges against him.

In a number of cases alibi is an inherently weak and


unreliable defense, for it is easy to fabricate and difficult to
disprove. To establish alibi, the accused must prove (a) that he
was present at another place at the time of the perpetration of
the crime, and (b) that it was physically impossible for him to
be at the scene of the crime. Physical impossibility refers to
the distance between the place where the accused was when
the crime transpired and the place where it was committed, as
well as the facility of access between the two places. Due to its
doubtful nature, alibi must be supported by clear and
convincing proof. [People of the Philippines vs Hubert
Jeffrey P. Webb, et. al., GR No. 176864, December 14,
2010]

Alibi, the plea of having been elsewhere than at the scene of


the crime at the time of the commission of the felony, is a
plausible excuse for the accused. Let there be no mistake
about it. Contrary to the common notion, alibi is in fact a
good defense. But, to be valid for purposes of exoneration
from a criminal charge, the defense of alibi must be such
that it would have been physically impossible for the
person charged with the crime to be at the locus
criminis at the time of its commission, the reason being
that no person can be in two places at the same time. The
excuse must be so airtight that it would admit of no
exception. Where there is the least possibility of accuseds
presence at the crime scene, the alibi will not hold water.
[People v. Florentino Bracamonte, G.R. No. 95939, June
17, 1996, as cited in People v. Aonuevo, G.R. No.
112989, September 18, 1996, 262 SCRA 22, 36]

In the ruling made by the Honorable Office, it was held that


respondent failed to show that it was physically impossible for
him to be at the CENRO Aparri, Cagayan on December 5, 2013
as the distance between the two places is not far enough to
impede him to make a return trip on the same day.
With all due respect to the Honorable Ombudsman, at the
outset, respondents defense of alibi has passed the two (2)
tests in order for it to be an admissible and an airtight excuse.

The Honorable Ombudsman opined in its ruling that the


distance between Sta. Ana, Cagayan and Aparri, Cagayan is
not far enough to impede him to make a return trip on the
same day. It must be pointed out that respondent was on
Official Travel which was evidenced by the Travel Order,
Itinerary of Travel and Certificate of Appearance, being an
official travel which was sanctioned by his office; it is
incumbent then that he must be doing his assigned task
accordingly.

While it is true that the distance between the two places are
not far enough, the very nature of respondents travel is
official, it is expected then that he must be at the place of the
assigned task from the very start until its very end. Hence, it
is impossible for him to travel from Sta. Ana, Cagayan to
Aparri, Cagayan during those time just to meet respondent in
contravention with respondents very purpose in the official
travel.

Assuming that respondent and complainant met that day,


there should have been a prior communication before they
met. The communication could have been vital in order to
consummate the transaction since respondent was then in an
official travel. Unfortunately, the Honorable Ombudsman did
not take notice of these circumstances rather it only based its
ruling on the surmises made by the complainant.
Thus, with all due respect to the Honorable Ombudsman,
respondent-movant humbly opines that the court could have
committed a mistake in finding that: the respondents defense
of alibi is not sufficient to absolve him of the charges against
him.

II. Respondent did not


received and accepted money
from complainant.

Respondent-movant most respectfully asks this Honorable


Office to reconsider and reiterates his contentions in his
Counter-Affidavit and Position Paper that he did not received
and accepted and monetary amount from complainant in the
guise of facilitation fee.

Furthermore, it could have been impossible for the respondent


to actually received the said amount considering that he could
not possibly be at CENRO Aparri, Cagayan on December 5,
2013 because he was on an Official Travel which apparently
makes it impossible to meet complainant that day.

With pain of being trite, the travel was one of an official travel.
Respondents presence on that very moment was very vital.
Respondent could not just leave and do whatever he wants
during those times.

The Honorable Ombudsman ruled that the issuance of an


acknowledgement receipt by respondent affirms that indeed he
received and accepted money from complainant. It must me
pointed out that the mere issuance of an acknowledgement
receipt, if indeed respondent issued the same, is not
conclusive evidence rather it renders only to be presumptive.

A receipt is defined as: A written and signed acknowledgment


that money has been paid or goods have been delivered. A
receipt is merely presumptive evidence and is not
conclusive. A written acknowledgment that money or a
thing of value has been received. Since a receipt is a mere
acknowledgement of payment, it may be subject to
explanation or contradiction. A receipt may be used as
evidence against one just as any other declaration or
admission. A simple receipt not under seal is presumptive
evidence only and may be rebutted or explained by other
evidence of mistake in giving it, or of non-payment or of the
circumstances under which it was given. [Philippine
National Bank (PNB) vs Court of Appeals and Carmelo H.
Flores, GR No. 116181, April 17, 1996]

Here, if respondent really issued the said acknowledgement


receipt, it was not indicated therein with particularity to whom
the alleged monetary consideration came from. It is contrary
to basic human experience and logic that when the
complainant entered into the transaction with the respondent,
complainant did not asked respondent to indicate in the
acknowledgement receipt her name which would actually prove
that indeed she actually gave the money.

PRAYER

WHEREFORE, it is most respectfully prayed that the


Honorable Ombudsman to grant this motion and for it
reconsider its Decision dated January 23, 2017 and reverse
the same.

Such other just and equitable reliefs are likewise prayed for.

February 27, 2017. xxxxxxxxxxxxxxxxxx.

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NOTICE OF FILING

The Clerk of Office


Office of the Ombudsman
Office of the Deputy Ombudsman for Luzon
Agham Road, Diliman, Quezon City
Sir/Madam:

Please submit the foregoing Motion for the consideration


of this Honorable Office. Thank you.

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PROOF OF SERVICE

Copy furnished:

xxxxxxxxxxxxxxxxxxxx
Bulanao, Tabuk City, Kalinga

OFFICE OF THE DEPUTY OMBUDSMAN FOR LUZON


Office of the Ombudsman
Agham Road, Diliman, Quezon City

EXPLANATION

Parties were served thru Registered Mail due to distance


and lack of manpower of the undersigned.

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