Republic of the Philippines

DEPARTMENT OF JUSTICE
OFFICE OF THE CITY PROSECUTOR
Makati City

MARIANO KA INDO,
Complainant,

- versus - NPS-9239832972390
FOR: QUALIFIED THEFT

KULAMBO WATAWAT,
Respondent.
x-----------------------------------------x

COUNTER-AFFIDAVIT

I, KULAMBO WATAWAT, Filipino, of legal age and a resident of

No. 111, Apo Street, San Marcelino, Valle Verde 9, Digos City, after having
been duly sworn in accordance with law, do hereby depose and state that:

1. I am the Respondent in the above-entitled Complaint docketed as

NPS--9239832972390, for Qualified Theft pending Preliminary
Investigation before the Honorable Assistant City Prosecutor
LEONARDO DI;

2. I have read the Salaysay ng Pagrereklamo (Complaint) of

MARIANO KA INDO, together with its supporting documents and
affidavit;

3. Before proceeding any further, I humbly submit that the present

complaint was filed by KA INDO without any proof of authority
from INDO, the corporate entity in whose name and behalf the
complaint was filed, as no Board Resolution or Secretary’s Certificate
to evidence KA INDO' authority to file the instant Complaint, was
attached thereto;
COUNTER-AFFIDAVIT
KA INDO vs. WATAWAT
NPS-9239832972390
For: Qualified Theft
Page ---------------------- 2 of 9

4. There is no truth to the charges being leveled at me. The statements

of the Complainant is perjurious, malicious, felonious, baseless and
unfounded, obviously meant to prop up and strengthen a fabricated
charges against me, as will be shown hereunder;

5. On September 20, 2017 I was hired by INDO as a Safety Officer, to

perform the following duties and responsibilities:

a. To inspect the site to ensure it is a hazard-free environment;

b. To promote safety practices at the job site;

c. To enforce safety guideline;

d. To train and carry out drills and exercises on how to manage

emergency situations;

e. To conduct investigations of all accidents and near-misses;

f. To establish safety standards and policies as needed;

g. To ensure safety of all workers and to protect them from

entering hazard situations;

h. To respond to employees' safety concerns;

i. To assist in developing and implementing safety and loss

prevention programs;

j. To monitor safety performance of on-site workers to determine

vulnerability;

k. To identify and remove unsafe or hazardous materials from job

sites prior to each shift;

l. To perform accident investigation to gauge measures that need

to be taken to prevent it;

m. To write detailed report of on-site accidents;

n. Educate workers about the company's safety policy and

procedures;
COUNTER-AFFIDAVIT
KA INDO vs. WATAWAT
NPS-9239832972390
For: Qualified Theft
Page ---------------------- 3 of 9

o. Communicate essential safety standards to workers; and

p. Perform other tasks as may be necessary from time to time.

The above mentioned duties and responsibilities are enumerated

under the employment contract that I signed on September 21, 2017,
which I was not given a copy, and if it wasn't for my own effort to
take picture of the said contract, I would not be able to get a copy of
the same. (A photo print of the Employment Contract is attached
hereto as Annex "1");

6. I was assigned to one of the construction sites of INDO, located at 4th

Floor, Insular Life Building, Ayala Avenue, Makati City, wherein,
INDO is doing a fit out project for a particular client;

7. On January 10, 2018, I failed to report for work due to severe

headache and I was not able to inform my superior, KA INDO, that I
will absent on the said date, because I do not have any prepaid load
balance and I cannot go out to buy one, due to my sickness;

8. On January 11, 2018, I reported back to work and I talked to KA

INDO to apologize for my absence, however, KA INDO became so
enraged, that he told me that I will be suspended, effective
immediately, due to my absence without official leave;

9. On January 12, 2018 when I was about to claim my salary I was

informed by KA INDO that my salary was put on hold;

10. On January 15, 2018 I was told to report to the office of INDO
wherein, I was asked to sign a notice stating that I will be suspended
from January 13, 2018 to January 17, 2018. (A copy of the Suspension
Notice is attached hereto as Annex "2");

11. On January 18, 2018 after serving my suspension, I was told by KA

INDO that I don't need to report to work as of the moment. When I
COUNTER-AFFIDAVIT
KA INDO vs. WATAWAT
NPS-9239832972390
For: Qualified Theft
Page ---------------------- 4 of 9

asked KA INDO, he cannot provide me with any reason for my

continued suspension;

12. I told KA INDO that it is unfair to extend my suspension for an

indefinite period, just because of a single absence. I also told him that
I will be referring the matter to the Department of Labor and
Employment;

13. KA INDO got furious and told me that he will also file a case against
me and angrily stated that there are missing equipment in the
construction site and he will make me answerable for it;

14. On February 21, 2018, I was surprised when I received as Subpoena

from this Honorable Office, stating among others, that I am being
charged for Qualified Theft, for the missing copper wire in the
storage room of INDO's Insular Life Building construction site at
Makati City;

15. To set the record straight, there is no storage room in the said
construction site. I don't know if KA INDO is referring to the
makeshift locker room where all employees, including me, put their
belongings, when he mentioned "storage room" in his Affidavit;

16. I am one of the key holders of the said makeshift locker room and
any of the key holders can open the said room, if it is still close, upon
arrival in the morning. The last person to leave the construction site,
has the duty to lock the same in the afternoon or in the evening;

17. The aforementioned room is open to all INDO employees of the

construction site and I am not the only person or employee who has a
duplicate key of the said room. This is contrary to what the
Complainant is trying to imply, that I am the only employee who has
a key or access to the said room;
COUNTER-AFFIDAVIT
KA INDO vs. WATAWAT
NPS-9239832972390
For: Qualified Theft
Page ---------------------- 5 of 9

18. I do not have any knowledge of the existence of a copper wire or that
there are missing copper wire in the said locker room, because as a
safety officer, my primary concern is the implementation of safety
standards and I do not even know the physical appearance of the
said copper wire;

Elements of Qualified Theft, under

Article 310, in relation to Articles
308 and 309 of the Revised Penal
Code.

19. Basic is the principle in criminal law, that every crime is defined by
its elements, without which there should be at the most no criminal
offense. (Ma. Belen Flordeliza C. Ang-Abaya vs. Eduardo G. Ang,
G.R. No. 178511, December 4, 2008);

20. In the recent case of Engr. Anthony V. Zapanta vs. People of the
Philippines (G.R. No. 170863, March 30, 2013), the Honorable
Supreme Court held that the elements of Qualified Theft, punishable
under Article 310 in relation to Articles 308 and 309 of the Revised
Penal Code (RPC), are: (a) the taking of personal property; (b) the
said property belongs to another; (c) the said taking be done with
intent to gain; (d) it be done without the owner's consent; (e) it be
accomplished without the use of violence or intimidation against
persons, nor of force upon things; and (f) it be done under any of the
circumstances enumerated in Article 310 of the RPC;

21. Article 310 of the Revised Penal Code:

ART. 310. Qualified theft. - The crime of theft shall be punished by the
penalties next higher by two degrees than those respectively specified in the
next preceding article, if committed by a domestic servant, or with grave
abuse of confidence, or if the property stolen is motor vehicle, mail matter or
large cattle or consists of coconuts taken from the premises of the plantation
or fish taken from a fishpond or fishery, or if property is taken on the
COUNTER-AFFIDAVIT
KA INDO vs. WATAWAT
NPS-9239832972390
For: Qualified Theft
Page ---------------------- 6 of 9

occasion of fire, earthquake, typhoon, volcanic eruption, or any other

calamity, vehicular accident or civil disturbance. (As amended by R.A. 120
and B.P. Blg. 71. May 1, 1980).

The Complaint, failed to allege

any of the elements of the crime of
Qualified Theft.

22. To be indicted of the offense for Qualified Theft, punishable under

Article 310, in relation to Articles 308 and 309 of the Revised Penal
Code, it is indispensable that all the elements thereof must be present
or, at least, alleged in the Complaint;

23. The allegations of the Complaint as well as the pieces of evidence and
affidavit attached thereto unmistakably negate the existence of any of
the element of the crime of Qualified Theft;

24. To recall, the Complaint of the Complainant purports to establish the

following narrative:

a. That JOJAY BESANO (BESANO) discovered that the four (4)

boxes of copper wires inside the storage is missing. (Paragraph
2);

b. That the said incident it was reported by BESANO to KA

INDO. (Paragraph 3);

c. That KA INDO reported the incident to their management

(Paragraph 4);

d. That, I was holding the key prior to the incident, I did not
report the incident to KA INDO and I did not inform KA INDO
that I will be absent. (Paragraph 5);

e. That the copper wire was still inside the storage room on
January 09, 2018; and
COUNTER-AFFIDAVIT
KA INDO vs. WATAWAT
NPS-9239832972390
For: Qualified Theft
Page ---------------------- 7 of 9

f. That I confessed through text message that I have a knowledge

of the incident. (Paragraph 5);

25. There was no evidence or any allegation in the Complaint; that there
was a taking of personal property; that such property belongs to
another; that it was taken without the consent of the owner; that it
was done with intent to gain; that it was done without violence or
intimidation against the person or force upon things; and that it was
committed under the circumstances mentioned under Article 310 of
the Revised Penal Code;

26. Consequently, the foregoing allegations of the Complainant, even if

given full faith and credit and considered as established facts, fails to
establish that the crime of Qualified Theft was committed. If at all,
the Complaint including its attachments, only constitute evidence
that I am an employee of INDO.

27. Even the text messages allegedly received by KA INDO, assuming

that it is true, does not in any manner, indicate my involvement in
the incident, much less, that it amounts to a confession. There is
nothing to confess, because I do not have any involvement or
knowledge of the missing copper wire;

28. In sum, the Complainant has not been fair, truthful and has been
misleading this Honorable Office when they lodged the present
complaint against me, in violation of due process and existing laws.
To my mind, the present Complaint was filed simply to vex or harass
me, so that I will be forced to forego with the filing of the Labor Case
against INDO;

No sufficient ground to engender a

well-founded belief that a crime
has been committed and that the
respondent is probably guilty
thereof.
COUNTER-AFFIDAVIT
KA INDO vs. WATAWAT
NPS-9239832972390
For: Qualified Theft
Page ---------------------- 8 of 9

29. The Complaint as well as the affidavit and pieces of evidence

presented are not sufficient to establish the existence of probable
cause, that the copper wire was lost due to felonious taking, and,
more importantly, that it was herein respondent who committed the
felonious taking.

30. The Pronouncement of the Honorable Supreme Court in the case of

Rodrigo R. Duterte vs. Sandiganbayan, (G.R. No. 130191, April 27,
1998, 289 SCRA 721) is undeniably fitting, thus:

In order that probable cause to file a criminal case may be

arrived at, or in order to engender the well-founded belief that a
crime has been committed, the elements of the crime charged should
be present.

31. As previously discussed, there was no evidence or even any

allegation in the Complaint of any of the elements of the crime of
Qualified Theft;

32. Bereft of any allegations whatsoever, the designation of the

Complainant of the offense, "Qualified Theft," is merely a product of
a conclusion which rendered the charge nebulous;

33. Any further prosecution of the present Complaint is pure and simple,
harassment. It is imperative that I be spared from the trauma of
having to go to trial on such a baseless Complaint;

34. Undeniably, none of the facts and pieces of evidence alluded to by

the complainant squarely falls on any of the jurisprudential
pronouncements of the Honorable Supreme Court to warrant the
finding of Probable Cause;

35. Certainly, the allegations, pieces of evidence, existing laws and

prevailing jurisprudence clearly support no other conclusion other
than the outright DISMISSAL of the present Complaint against me.
COUNTER-AFFIDAVIT
KA INDO vs. WATAWAT
NPS-9239832972390
For: Qualified Theft
Page ---------------------- 9 of 9

IN WITNESS WHEREOF, I have hereunto set my hand this 5th day

of May, 2001 at Makati City, Philippines.

KULAMBO. WATAWAT
Affiant

SUBSCRIBED AND SWORN to before me this 5th day of May, 2001

at Makati City. I hereby certify that I have personally examined the affiant
and I am fully satisfied that he voluntarily executed and understood all of
the allegations contained in his Counter-Affidavit and that the same is
based on his personal knowledge.

ACP. LEONARDO DI
INVESTIGATING PROSECUTOR
OFFICE OF THE CITY PROSECUTOR
MAKATI CITY