Our law office assisted
the respondent in this case.
“x x x.
COUNTER-AFFIDAVIT
OF RESPONDENT KAGAWAD xxx, IN RE: NPSD#-XV-04-INV. xxx, ENTITLED xxx PENDING
WITH THE OFFICE OF THE CITY PROSECUTOR OF
xxx CITY, FOR MALICIOUS MISCHIEF AND GRAVE COERCION
I, KAGAWAD
xxx, of legal age, married, Filipino, and with postal address at c/o Barangay
Hall, Barangay xxx, xxx Village, xxx, xxx City, under oath, depose and state:
I am a respondent in the above-mentioned complaint. I am
submitting this counter-affidavit to deny, rebut, and controvert the false,
malicious, and fabricated allegations against me stated in the complaint.
I am a senior Kagawad
of my community, i.e., Barangay xxx, xxx City, which I have served with full
dedication and selflessness for many years now without any taint of dishonor,
graft, corruption, abuse, malice, dishonesty, or misconduct.
The complainant xxx charges me with the alleged felonies
of MALICIOUS MISCHIEF AND GRAVE COERCION for:
(a) The alleged destruction of her stair
which was attached to the perimeter fence
existing between xxx Village (which
is a separate Barangay) and xxx Subd.
(which is under Barangay xxx) that separates the lot on which her main house
was located and the lot on which her
second house was located, and
(b) The alleged
destruction of her second house
located on a lot adjoining the main lot on which her main house was located. It
was allegedly valued at P250,000.00.
The true and correct historical facts of the instant case
are stated hereinbelow for the full appreciation of the Honorable Investigating
Prosecutor.
The true, lawful and registered owner of the subject real
property (which is described as Lot xxx,
Block xxx with an area of xxx square meters and covered by TCT No. T-xxx issued on xxx 1994 by the Register
of Deeds of xxx City) is a certain xxx, married to xxx, with postal address at
Unit xxx, xxx Townhomes, xxx St., xxx Village, xxx City.
A copy of the said TCT No. xxx is attached hereto as Annex “A” hereof.
At the lower end thereof appears the digital/computerized authentication of the said Register of Deeds
that it is a true copy of the original thereof.
The complainant and her husband (xxx) were in possession
of a fake, spurious or falsified version of the same TCT No. xxx, which they
had used to deceive future lessees and other persons interested in the subject
property by making it appear that they were the lawful owners thereof.
A photocopy of the said fake, spurious and falsified TCT
which bears the registered owner as “xxx,
married to xxx”, residing at “xxx
St., xxx Village, xxx City”, is attached as Annex “B” hereof.
Please note that the falsified and spurious version of
the complainant’s TCT does not bear the official
digital/computerized authentication of the Register of Deeds.
Sometime in 2012 the registered owner xxx signed an unnotarized Special Power of Attorney authorizing
his legal representative xxx to sell
the property and, in effect, to insure that the sad property was free from any and
all issues and problems, like the presence of illegal occupants or squatters, as
a prelude to the smooth sale thereof to interested third parties.
Attached is a copy of the said unnotarized SPA, marked as Annex
“C” hereof.
On xxx 2012,
the said legal representative, xxx, issued a Letter-Authorization to the board and officers of xxx HOMEOWNERS
ASSOCIATION, which had jurisdiction over the subject property, empowering the Association
to demolish and remove the illegally built house of the complainant on the
subject property, with the assurance that the said xxx would shoulder all
liabilities or damages arising out of any and all acts of the Association pursuant
to the powers granted to it under the said Letter-Authorization.
A copy of the said Letter-Authorization, dated xxx 2012,
is attached as Annex “D” hereof.
On xxx 2012,
the said legal representative xxx issued, under
oath, a follow-up Authorization reiterating the powers and instructions to
the said Association as previously stated in his Letter-Authorization,
dated xxx 2012.
A copy of the said notarized Authorization, dated xxx
2012, is attached as Annex “E”
hereof.
The xxx HOMEOWNERS ASSOCIATION is duly recognized by the
Barangay xxx as an entity. For instance,
see the attached Barangay Clearance,
dated xxx 2012, issued by the Chairman of Barangay xxx, Hon. xxx, in re:
cutting of obstructive ipil-ipil trees on the subject property (Lot xxx, Block xxx).
It is marked as Annex “F” hereof.
The stair of the complainant that she had illegally
attached to the perimeter fence
separating two (2) barangays -- xxx Village under Brgy. xxx Village, where she
actually lived, and the xxx Subd. under Brgy. xxx -- in
order to enable her to access her illegally-built house located on the subject
property in the latter village (Lot xxx, Block xxx, xxx Subd.), was prohibited by existing city and barangay
rules because it was a great security
risk that could be used by criminals and other suspicious elements to access one village from another
village to commit a crime to cause a disturbance of peace and order or to escape from one village to another
village after committing such a crime or disturbance of peace and order.
For instance, by way of analogy, in xxx City
Ordinance No. xxx-02, the City and the Barangay xxx are very conscious of
maintaining orderliness by clearing public
areas, which should include, by spirit and analogy, a perimeter fence of two
(2) adjoining barangays. A copy of the said ordinance is attached as Annex “G” hereof.
The lawful owner
of the subject property, i.e., xxx, acting thru his legal representative, i.e.,
xxx, had previously sought in 2012 the mediation and conciliation assistance of Barangay xxx to persuade the
complainant to remove her illegally-built house on the subject property, even
to the point of offering her a financial
assistance, but the complainant unjustly rejected the said offer. There was
an instance in the past where a meeting was held at the Office of the City
Engineer, upon the prodding of the complainant, where the complainant insisted
on her unjust claims, hence, the said meeting produced no positive result.
Going back to the
instant complaint, it will be noted that there is no single allegation therein
which shows that I had a clear, direct,
personal, and actual participation in the removal of her stair and the
demolition of her illegally built house.
All her allegations from Question No. 1 to Question No. 7
in her complaint do not mention or state my alleged direct, actual and personal
participate in the felonies she alleges against me.
The only allegation that the complainant has made to
directly implicate me appears in Question
No. 8 where she allegedly talked to me over the phone about her stair -- an allegation which I vehemently deny, the
truth of the matter being that I have never talked to the complainant over the
phone about such matter.
It will be noted that aside from her bare and empty
allegations, she has offered no documentary evidence or supporting
statements from credible witnesses to show my direct, actual, and personal participation
in the felonies she alleges against me.
For whatever worth
it may be, attached is a copy of the photos of the subject illegally-built
house (a squatter’s shanty, actually) of the complainant, marked as Annex “H” hereof.
Its condition, appearance, and appraisal would never
reach the alleged value of P250,000. Further, it will be noted from the photos
that the house was not destroyed, although it appears that its roof and windows
were missing.
1.
As to the
charge of malicious mischief, Art. 327 of the Rev. Penal Code provides that
there must be clear and positive proof that the guilty party “deliberately cause to the property of
another any damage not falling within the terms of the next preceding chapter.”
There
is no evidence presented by the complainant that I DELIBERATELY CAUSED DAMAGE
to her property.
Article 286 of
the Rev. Penal Code provides that the guilty party in a case for grave coercion must have committed the
following act, to wit: “any
person who, without authority of law, shall, by means of violence, prevent
another from doing something not prohibited by law, or compel him to do
something against his will, whether it be right or wrong”.
There is no positive and convincing evidence on record
that I used “violence” to “prevent” the complainant from doing something, or
that I used “violence” to “compel” her to do something.
Below are some
relevant citations:
“X x x,
From all indications, it is possible that the omission
was due to the inadequate documentation of Red's appointment to and assumption
of office, or the result of a mere clerical error which was later rectified in
the succeeding payroll. This however
cannot be confirmed by the evidence at hand.
But since a doubt is now created about the import of such omission, the
principle of equipoise should properly apply.
This rule demands that all
reasonable doubt intended to demonstrate error and not a crime should be
resolved in favor of the accused. If the
inculpatory facts and circumstances are capable of two or more explanations,
one of which is consistent with the innocence of the accused and the other with
his guilt, then the evidence does not fulfill the test of moral certainty and
is not sufficient to support a conviction.
X x x.”
“X x x.
In all
criminal cases, mere speculation and probabilities cannot substitute for proof
required to establish the guilt of an accused beyond reasonable doubt.
Suspicion no matter how strong cannot sway judgment. Where
there is reasonable doubt as to the guilt of the accused, he must be acquitted
even though his innocence may be doubted since the constitutional right to be presumed innocent until proven guilty
can be overthrown only by proof reasonable doubt. When
the guilt of the accused has not been proven with moral certainty, it is our
policy of long standing that the presumption of innocence of the accused must
be favored and his exoneration be granted as a matter of right.
X x x.
RIGHT TO BE PRESUMED INNOCENT.
The innocence of a defendant in a criminal case is always presumed until
the contrary is proven. Where two
probabilities arise from the evidence, the one compatible with the presumption
of innocence will be adopted. Mere
suspicion is not enough to take away one’s liberty and destroy one’s
reputation. Guilt must be proven by
proof as clear as daylight, evidence so airtight that no is left for any
reasonable doubt. (PEOPLE vs. BARO, G.R. Nos. 146327-29, 5 June 2002),
PEOPLE OF THE PHILIPPINES vs. JOEL ELLOREG DE LOS SANTOS,
et. al., G.R. No. 126998. September 14,
1999:
“x x x. Where the inculpatory circumstances are capable
of two or more explanations, one of which is consistent with the innocence of
the accused and the other with his guilt, then the evidence does not meet the
test of moral certainty. Necessarily, a
judgment of acquittal must issue.
Xxxx.
Well-settled is the rule that the prosecution must prove
the guilt of the accused beyond reasonable doubt. To be believed, its evidence
“must not only proceed from the mouth of a credible witness but it must also be
credible in itself, such that common experience and observation of mankind lead
to the inference of its probability under the circumstances.” Verily, guilt
cannot be shown by mere speculations or even probabilities, whether the offense
be malum prohibitum or malum in se.
xxxx.
Verily, the Court has repeatedly held that “where the
circumstances shown to exist yield two (2) or more inferences, one of which is
consistent with the presumption of innocence while the other or others may be
compatible with the finding of guilt, the Court must acquit the accused: for the evidence does not then fulfill the
test of moral certainty and is insufficient to support a judgment of
conviction.” Indeed, a corollary to the constitutional presumption of innocence
is the rule that “the circumstances of the case must exclude all and each and
every hypothesis consistent with [appellant’s] innocence.” xxxx.
WHEREFORE, in
the interest of justice, it is respectfully prayed that the instant complaint
be DISMISSED for lack of merit.
FURTHER, the herein respondent respectfully prays for
such and other reliefs as may be deemed just and equitable in the premises.
xxx City, xxx 2013.
KGD. Xxx
Respondent
SUBSCRIBED
and sworn to before me in Las Pinas City on xxx 2013.
Investigating
Assistant City Prosecutor
X x x.”
