Republic of the Philippines

Department of Justice
OFFICE OF THE PROVINCIAL PROSECUTOR OF RIZAL
Justice Hall Bldg., Binangonan Station
Binangonan, Rizal

HERMINIO U. VILLARUZ,
Complainant,

-versus- I.S. NO. 08-3228

FOR: ESTAFA (Art. 315,
2a, RPC)

FEDERICO DELOS REYES,

Respondent.

MEMORANDUM

COMES NOW, Herminio Villaruz, through the undersigned

counsel, unto this Honorable Office most respectfully states:

THE FACTS OF THE CASE

Sometime in the month of June, 2007, respondent FEDERICO

DELOS REYES, (delos Reyes hereafter) met with Nieves Villaruz &
Yolanda Natividad on a prospective sale of a parcel of land located at
Barangay Calumpang, Binangonan, Rizal which was co-owned by
Federico delos Reyes with his sister, Evelyn delos Reyes-Merida. Nieves
Villaruz was then looking for a lot in behalf of her son, Complainant
Herminio Uchi Villaruz who was abroad.

By the end of the said month, an ocular inspection was

conducted on the subject parcel. Mrs. Nieves Villaruz noted that on the
side of the property facing the road, it was blocked by another
property on which a building called “Binangonan Paint Center” was
standing. Apart from that, there was a concrete wall which blocked
respondent delos Reyes’ property altogether. As such, there was no
access to the subject property from the main road.
 Sensing that the said lack of access to and from the main road
would be the stumbling block in the negotiation, respondent delos
Reyes came up with a scheme whereby he tricked Nieves Villaruz into
parting with a substantial amount of money for the subject property,
while holding in abeyance its sale. This complicated scheme is
evidenced by three documents, to wit:

a) The Extra Judicial Settlement of Estate with Partition and Deed

of Sale – dated July 20, 2007. It must be noted that although
denominated as a Deed of Sale the same was in fact subject
to conditions which are found in two (2) other Memoranda of
Agreement;
b) Memorandum of Agreement – dated July 20, 2007 (Annex “A”
to Reply of Herminio Uchi Villaruz) wherein paragraph 1.3
states:
“x x x

Immediately after the SELLER successfully completed

the negotiation with the owner/ heirs of certain EUGENIA
PATAG (Note: the heirs are represented by Mrs. Lydia
Maycacayan) of the road widening/opening of the
frontage area, the total balance be due to the seller.”
(Emphasis supplied)

c) Memorandum of Agreement – signed sometime in July 2007

(Annex B to the respondent delos Reyes’ Counter-Affidavit)
paragraph 1.2 and 1.3 of which states:

“ x x x TERMS AND CONDITIONS

1.2 That the parties hereby agree that upon execution of

this DEED OF SALE, the BUYER shall make a partial payment
of ONE MILLION TWO HUNDRED TWENTY FIVE THOUSAND
PESOS (Php, 1,225.000.00) Philippine Currency to the SELLER,
and the balance of FIVE HUNDRED TWENTY FIVE THOUSAND
PESOS (Php525, 000.00) shall be paid upon completion of the
transactions.

1.3 That, upon full payment the seller will execute

the DEED OF SALE in favor of the buyer.”

Thus, on July 20, 2007, Nieves Villaruz, with the approval of

Herminio Uchi Villaruz gave P1, 250,000.00 to respondent delos Reyes.
 A month or so later, respondent delos Reyes summoned Nieves
Villaruz and Yolanda Natividad to where the subject lot was located
and told them that the heirs of Eugenia Patag through Mrs. Lydia
Maycacayan already gave consent to the opening of the concrete wall
in order to give the subject premises access to and from the main
road. To further convince them, the wall was torn down in their
presence.

Having thus been re-assured (falsely, as it turns out) Nieves

Villaruz gave the remaining amount of P500, 000.00 to respondent
delos Reyes.

Subsequently, Herminio Villaruz came home and prepared for the

construction of a house on the subject lot. As part of the requirements
of the local government of Binangonan, he tried to secure the consent
of the owners of the adjoining parcels.

When Herminio Villaruz went to the house of Mrs. Lydia

Maycacayan, (who represented the heirs of Eugenia Patag and owner
of the Binangonan Paint Center), it was then that Herminio Villaruz
found out that respondent delos Reyes misrepresented to her that the
lot bought by Herminio Villaruz would be used temporarily as a
dumpsite of debris coming from a demolished government building.
That was the only reason she agreed to the tearing down of the
concrete wall. Apparently, she had no intention to give Herminio
Villaruz (or any buyer of the subject property) an access to and from
the main road by passing through her own property. Thereafter, Mrs.
Maycacayan put up a barbed wire fence on the area where the
concrete fence used to stand. Presently, the lot bought by Herminio
Villaruz is inaccessible to and from the main road.

Hence, this case.

ISSUE

WHETHER OR NOT PROBABLE CAUSE

EXISTS AGAINST RESPONDENT DELOS
REYES FOR THE CASE OF ESTAFA.
 Article 315 paragraph 2(a) of the Revised Penal Code states:

Art. 315. Swindling (estafa). – Any person who shall

defraud another by any of the means mentioned
hereinbelow shall be punished by:

xxx

2. By means of any of the following false pretenses

of 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.

Here, the crux of the matter is that respondent delos Reyes

employed false pretenses by pretending that he has allegedly secured
the consent of the heirs of Eugenia Patag as represented by Lydia
Maycacayan to the opening or tearing down of the concrete wall on
their property in order to give access from the main road to the
property being sold by delos Reyes. The said fraudulent
misrepresentation was never refuted by respondent delos Reyes who
lamely hides under the principle on the law of sales known as “caveat
emptor” . That by itself is an admission that there was something
wrong with what he sold.

It must be observed that both sides have conflicting claims

regarding the actual stand of Mrs. Maycacayan. Respondent delos
Reyes claims that she verbally agreed to the tearing down of the wall.
We may concede the same, but for what purpose? Definitely not to
give the buyer Herminio Villaruz a right of way to and from the main
road. Mrs. Maycacayan may be called upon to testify in court in order
to fully elucidate us on the matter, but as of the present, HER ACTIONS
SPEAK LOUDER THAN WORDS, i.e. the fact that she put up once more
a barbed wire fence in place of the concrete wall which she allowed to
be demolished only means that she does not want Herminio Villaruz to
pass thereon in order to gain access to the property sold by
respondent delos Reyes. Plain and simple, and like a broken record we
reiterate, that is contrary to what delos Reyes misrepresented to
Herminio and Nieves Villaruz and their witness Yolanda Natividad.
 Furthermore, complainant and his witnesses are categorical in
stating that had there been no misrepresentation to that effect, they
would not have bought the subject lot. It matters not that there is
another supposed right of way into the property, because that was not
even considered by the complainant in acquiring the same. He wanted
a property with access in front leading to the main road. We can see
now that that is what he paid for, but that is not what he got.

The esteemed authority on Criminal Law, Luis B. Reyes,

speaks in his book, thusly:

“Indispensable requirement for the application of

Art. 315, No. 2(a).

In the prosecution for estafa under Article 315,

paragraph 2(a) of the Revised Penal Code, it is
indispensable that the element of deceit, consisting in
the false statement or fraudulent representation of the
accused, be made prior to, or, at least simultaneously
with, the delivery of the thing by the complainant, it
being essential that such false statement or
fraudulent representation constitutes the very
cause or the only motive which induces the
complainant to part with the thing. If there be no
such prior or simultaneous false statement or fraudulent
representation, any subsequent act of the accused,
however fraudulent and suspicious it may appear,
cannot serve as a basis for prosecution for that class of
estafa. (Emphasis supplied) (People vs. Gines, et.al.,
C.A., 61 O.G. 1365)” (Cited in REYES, Book 2, RPC,
Thirteenth Ed., p. 764)

Furthermore, in order to clinch the case against respondent, his

acts may also fall under “other similar deceits”, thusly:

“Estafa “by means of other similar deceits.”

Deceit, not covered by any of those specifically

mentioned in subdivision 2, paragraph (a), but similar to
any of them, may give rise to estafa under that phrase
“by means of other similar deceits.” (supra)

The aforesaid discussion clearly establishes probable cause

against respondent delos Reyes. 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. (Raro v. Sandiganbayan, et. al., G.R. No.
108431, July 14, 2000, citing Cruz, Jr. v. People)

Probable cause is based neither on clear and convincing

evidence of guilty nor evidence establishing absolute certainly of guilt.
It is merely based on opinion and reasonable belief, and so it is enough
that there exists such state of facts as would lead a person of ordinary
caution and prudence to believe, or entertain on honest or strong
suspicion, that a thing is so. (Pimentel, Jr., v. Commission on Elections,
et. al., G.R. No. 133509, February 9, 2000).

The term does not connote absolute certainly. Neither

does it require an inquiry into the sufficiency of the evidence
to obtain a conviction. (Villanueva v. United Coconut Planters
Bank (UCPB), etc., G.R. No. 138291, March 7, 2000)

Notably, the defenses raised by respondent delos Reyes are

peripheral and evidentiary in nature. This further persuades for, not
against the filing of the instant cae so that he can raise them s proper
defenses in a full blown trial.

In the alternative, it must also be considered that part of what ws

sold to Herminio Villaruz is covered by a road right of way, as
respondent himself admits. Under Section 112 of the Public Land Act,
lots fronting the road as subject to such right of way subject only to
damages for improvements as may be found thereon. They do not
have to go through normal expropriation proceedings, and operate as
a “reserved” right for the government. As such, it appears that
respondent delos Reyes sold a portion of his property which is reserved
for the Government at to complainant Herminio Villaruz. This
constitutes a estafa by falsely pretending that he has property.

RESPECTFULLY SUBMITTED.

Malolos City, Bulacan, August 11, 2008.

The Law Office of

 PURIFICACION S. BARTOLOME-BERNABE & PARTNERS
Counsel for the Complainant
2nd Floor, Commercial Building II
Provincial Capitol Compound
City of Malolos, Bulacan

PURIFICACION S. BARTOLOME-BERNABE
Roll of Attorney’s No. 39458
IBP No. 70837. 01-09-08
PTR No. 5412628. 01-23-08
City of Malolos, Bulacan
E-mail address: pingkibart@yahoo.com

Copy furnished:

FEDERICO DELOS REYES

Respondent
082 Zulueta St., Brgy. Libid
Binangonan, Rizal