REPUBLIC OF THE PHILIPPINES

OFFICE OF THE CITY PROSECUTOR

Kalibo Aklan

REISA MARIE J. EXMUNDO,

Complainant, I.S. No. _______

- versus - For: ESTAFA

Spouses GINALYN M. GASIS

And ERMITY P. GASIS JR.
Respondents.

x-----------------------------------------x

URGENT MOTION FOR

RECONSIDERATION

THE UNDERSIGNED PETITIONER, REISA MARIE

EXMUNDO, 32 years old, married, Filipino, and residing at
Tigayon Kalibo Aklan, under oath, respectfully states:

I. PREFATORY STATEMENT;
SUBJECT MATTER OF THIS PLEADING.

1. The subject matter of this pleading is the RESOLUTION,

dated September 8, 2017, of this Honorable Office.

2. This pleading respectfully seeks the reinvestigation,

reconsideration and re-opening of the preliminary
investigation of the instant case.

II. MATERIAL DATES.

3. The Respondent received a copy of the questioned

Resolution on February 20, 2018.

4. Her 10th day to file this pleading ends on March 2, 2018.

 III. THE QUESTIONED RESOLUTION.

5. The questioned Resolution by the Provincial Prosecutor’s

Office Dismissed the case for Estafa against Ginalyn Gasis and
Ermity Gasis;

6. The question Resolution contained jurisprudents wherein

facts and issues therein are not at par with circumstances of
this case;

7.the Resolution further stated that based on the factual

accounts it was not established that fraud was committed by
Respondent. It should however be remembered that a
preliminary investigation, according to Section 1, Rule 112 of
the Rules of Court, is "an inquiry or proceeding to determine
whether there is sufficient ground to engender a well-founded
belief that a crime has been committed and the respondent is
probably guilty thereof, and should be held for trial." The
investigation is advisedly called preliminary, because it is yet
to be followed by the trial proper in a court of law. The
occasion is not for the full and exhaustive display of the
parties’ evidence but for the presentation only of such
evidence as may engender a well-founded belief that an
offense has been committed and that the accused is probably
guilty of the offense.1 (emphasis supplied)

IV. GROUNDS FOR THIS PLEADING.

8.The issues presented in this pleading are as follows:

(a) Should the questioned Resolution bereconsidered and

set aside in the interest of justice?

(b) Should the preliminary investigation of the instant

case be re-opened in the interest of due process and justice?

V. DISCUSSION, APPLICABLE LAWS AND JURISPRUDENCE

9. The relevant provision for deceit and swindling (estafa)

under Article 315 of the Revised Penal Code in quoted below
for reference:

1
Osorio v. Desierto, G.R. No. 156652, October 13, 2005, 472 SCRA 559, 574; Kara-an v.
Office of the Ombudsman, G.R. No. 119990, June 21, 2004, 432 SCRA 457, 467.
Article 315-Swindling (estafa). — Any person who
shall defraud another by any of the means mentioned
hereinbelow shall be punished by:

1st. The penalty of prision correccional in its maximum period

to prision mayor in its minimum period, if the amount of the
fraud is over 12,000 pesos but does not exceed 22,000 pesos,
and if such amount exceeds the latter sum, the penalty
provided in this paragraph shall be imposed in its maximum
period, adding one year for each additional 10,000 pesos; but
the total penalty which may be imposed shall not exceed
twenty years. X x x.
2nd. X x x;
3rd. x x x; and

4th. X x x provided that in the four cases mentioned,

the fraud be committed by any of the following means:

1. With unfaithfulness or abuse of confidence, namely:

(a) x x x.
(b) By misappropriating or converting, to the prejudice of
another, money, goods, or any other personal
property received by the offender in trust or on commission,
or for administration, or under any other obligation involving
the duty to make delivery of or to return the same, even
though such obligation be totally or partially guaranteed by a
bond; or by denying having received such money, goods, or
other property.
(c) x x x.

2. By means of any of the following false pretenses or

fraudulent acts executed prior to or simultaneously with the
commission of the fraud:
Xxx

(d) By postdating a check, or issuing a check in payment of an

obligation when the offender had no funds in the bank, or his
funds deposited therein were not sufficient to cover the
amount of the check. The failure of the drawer of the check to
deposit the amount necessary to cover his check within three
(3) days from receipt of notice from the bank and/or the payee
or holder that said check has been dishonored for lack or
insufficiency of funds shall be prima facie evidence of deceit
constituting false pretense or fraudulent act.
10. The complaint was clear and that it can be show with
sufficient evidence and can be established with sufficient
proof that the Respondent Ginalyn Gasis and his spouse
Ermity Gasis “misappropriated” or “converted”, to the
prejudice of the Complainant, the “money” of the
Complainant; and that the Respondent “received” any money
from the Complainant “in trust or on commission”, or “for
administration”, or “under any other obligation involving the
duty to make delivery of or to return the same”; or that the
Respondent “denied having received such money.

Respondent has a furniture business where Respondent

needs additional capitalization since typhoon Yolanda has
damage most of her stocks. Respondent had the obligation to
return the money entrusted to her for administration and/or
commission before November 15, 2017. Respondent upon
demand however asked for several grace periods to return the
funds since she had so many obligation such as tuition fees of
her childres, payment of additional supplies from suppliers
and other excuses. Respondent however, unlawfully, willfully
and with intent to defraud and deceive misappropriated,
misapplied and coverted to her personal use the amount given
to her without the consent of the Petitioner.

12. In a case for Estafa by misappropriation the court had to

occasion to rule that:

The elements of estafa through conversion or

misappropriation under subsection 1 (b) of Art. 315 of the
Revised Penal Code are as follows:

I. That money, goods, or other personal property be received

by the offender in trust, or on commission, or for
administration, or under any other obligation involving the
duty to make delivery of, or to return, the same, even though
the obligation is guaranteed by a bond;

II. That there be misappropriation or conversion of such

money or property by the person who received it, or a denial
on his part that he received it;

III. That such misappropriation or conversion or denial is to

the prejudice of another; and

IV. That there be demand for the return of the property.

The essence of this kind of estafa is the appropriation or
conversion of money or property received to the prejudice of
the entity to whom a return should be made. The words
"convert" and "misappropriate" connote the act of using or
disposing of another’s property as if it were one’s own, or of
devoting it to a purpose or use different from that agreed
upon. To misappropriate for one’s own use includes not only
conversion to one’s personal advantage, but also every attempt
to dispose of the property of another without right. In proving
the element of conversion or misappropriation, a legal
presumption of misappropriation arises when the accused
fails to deliver the proceeds of the sale or to return the
items to besold and fails to give an account of their
whereabouts.2

13. FRAUD in cases for estafa is best explained in the case of

of ELVIRA LATEO y ELEAZAR, FRANCISCO ELCA y ARCAS, and
BARTOLOME BALDEMOR y MADRIGAL vs. PEOPLE OF
THE PHILIPPINES, G.R. No. 161651, June 8, 2o11, defines
FRAUD as follows:

“In Alcantara v. Court of Appeals, 462 Phil. 72, 88-89

(2003), this Court, citing People v. Balasa, G.R. Nos. 106357 &
108601-02, September 3, 1998, 295 SCRA 49. explained the
meaning of fraud and deceit, viz.:

[F]raud in its general sense is deemed to comprise anything

calculated to deceive, including all acts, omissions, and
concealment involving a breach of legal or equitable duty,
trust, or confidence justly reposed, resulting in damage to
another, or by which an undue and unconscientious advantage
is taken of another. It is a generic term embracing all
multifarious means which human ingenuity can device, and
which are resorted to by one individual to secure an advantage
over another by false suggestions or by suppression of truth
and includes all surprise, trick, cunning, dissembling and any
unfair way by which another is cheated. And deceit is the false
representation of a matter of fact whether by words or
conduct, by false or misleading allegations, or by concealment
of that which should have been disclosed which deceives or is
intended to deceive another so that he shall act upon it to his
legal injury.

X x x.”
2 MARGIE BALERTA VS PEOPLE OF THE PHILIPPINES G.R. No.
205144 November 26, 2014; Pamintuan v. People, G.R. No. 172820, June 23,
2010, 621 SCRA 538, 547.
14. The questioned resolution cited the case of People of the
Philippines vs. Gilbert Reyes Wagas G.R. No. 157943 September
4, 2013 stating that:

In order to constitute estafa under this statutory

provision, the act of postdating or issuing a check in payment
of an obligation must be the efficient cause of the
defraudation. This means that the offender must be able to
obtain money or property from the offended party by reason
of the issuance of the check, whether dated or postdated. In
other words, the Prosecution must show that the person to
whom the check was delivered would not have parted with his
money or property were it not for the issuance of the check by
the offender.

The Investigating prosecutor failed to consider the facts

surrounding the case itself. The Prosecution in the above-cited
case did not establish beyond reasonable doubt that it was
Wagas who had defrauded Ligaray by issuing the check. It was
admitted by both parties that they did not meet in person.

Even after the dishonor of the check, Ligaray the

Petitioner did not personally see and meet whoever he had
dealt with and to whom he had made the demand for payment,
and that he had talked with him only over the telephone.

Secondly, the check delivered to Ligaray was made

payable to cash. Under the Negotiable Instruments Law, this
type of check was payable to the bearer and could be
negotiated by mere delivery without the need of an
indorsement. This rendered it highly probable that Wagas had
issued the check not to Ligaray, but to somebody else like
Cañada, his brother-in-law, who then negotiated it to
Ligaray. Relevantly, Ligaray confirmed that he did not himself
see or meet Wagas at the time of the transaction and
thereafter, and expressly stated that the person who signed for
and received the stocks of rice was Cañada.

In every criminal prosecution, however, the identity of the

offender, like the crime itself, must be established by proof
beyond reasonable doubt. In that regard, the Prosecution in the
above-cited case did not establish beyond reasonable doubt
that it was Wagas who had defrauded Ligaray by issuing the
check. It was for the same reason that the court reversed the
decision of the Regional Trial court and acquited Gilbert Wagas
of the crime of estafa.
 The facts and circumstances of the case cited in the
questioned resolution cannot therefore be applied to the
instant complaint for estafa since in the instant case, Petitioner
herself met with Respondent. Respondent Ginalyn Gasis post-
dated the checks before Petitioner released to her the funds by
itself constitute estafa.

15. To complete the quoted portion of the case of People of the

Philippines vs. Gilbert Reyes Wagas, below is the full text of the
case in relation to estafa committed under par 2(d):

Article 315, paragraph 2(d) of the Revised Penal Code, as

amended, provides:

Article 315. Swindling (estafa). — Any person who shall defraud

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

xxxx

2. By means of any of the following false pretenses or

fraudulent acts executed prior to or simultaneously with the
commission of the fraud:

xxxx

(d) By postdating a check, or issuing a check in payment of an

obligation when the offender had no funds in the bank, or his
funds deposited therein were not sufficient to cover the amount
of the check. The failure of the drawer of the check to deposit
the amount necessary to cover his check within three (3) days
from receipt of notice from the bank and/or the payee or holder
that said check has been dishonored for lack or insufficiency of
funds shall be prima facie evidence of deceit constituting false
pretense or fraudulent act.

In order to constitute estafa under this statutory provision, the

act of postdating or issuing a check in payment of an obligation
must be the efficient cause of the defraudation. This means that
the offender must be able to obtain money or property from the
offended party by reason of the issuance of the check, whether
dated or postdated. In other words, the Prosecution must show
that the person to whom the check was delivered would not
have parted with his money or property were it not for the
issuance of the check by the offender.3

The essential elements of the crime charged are that: (a) a

check is postdated or issued in payment of an obligation
contracted at the time the check is issued; (b) lack or
insufficiency of funds to cover the check; and (c) damage to
the payee thereof.4 It is the criminal fraud or deceit in the
issuance of a check that is punishable, not the non-payment
of a debt.5 Prima facie evidence of deceit exists by law upon
proof that the drawer of the check failed to deposit the
amount necessary to cover his check within three days from
receipt of the notice of dishonor.6

16. In the instant case, the identity of the parties were certain
and was fully established in contrast with case cited on the
questioned resolution. The checks issued in the case of Gilbert
Wagas was made PAYABLE TO CASH and NOT to was not
payable to any specified person making the check payable to
the bearer and could be negotiated by mere delivery without
the need of an indorsement unlike in the instant complaint
against the spouses Ginalyn Gasis and Ermity Gasis where the
identity of the parties are sufficiently establish with adequate
proof.

17. In the case of People of the Philippines vs. Viginia Baby

Montaner7 the court ruled that:

The elements of estafa under paragraph 2(d), Article

315 of the Revised Penal Code are: (1) the postdating or
issuance of a check in payment of an obligation
contracted at the time the check was issued; (2) lack of
sufficiency of funds to cover the check; and (3) damage to
the payee.8

The case was about an accused name Virginia (Baby) P.

Montaner who willfully, unlawfully and feloniously defraud
one Reynaldo Solis by issuing 10 checks in exchange for cash
knowing fully well that she has no funds in the drawee bank
and when the said checks were presented for payment the
same were dishonored by the drawee bank on reason of

3
Timbal v. Court of Appeals, G.R. No. 136487, December 14, 2001, 372 SCRA 358, 362-
363.
4
Dy v. People, G.R. No. 158312, November 14, 2008, 571 SCRA 59, 70.
5
Recuerdo v. People, G.R. No. 168217, June 27, 2006, 493 SCRA 517, 532.
6 Philippines vs. Gilbert Reyes Wagas G.R. No. 157943 September 4, 2013
7 G.R. No. 184053 August 31, 2011
8
Cajigas v. People, G.R. No. 156541, February 23, 2009, 580 SCRA 54, 63
ACCOUNT CLOSED and despite demand accused failed and
refused to pay the value thereof to the damage and prejudice
of Reynaldo Solis.

It was evident that Solis would not have given P50,000.00

cash to appellant had it not been for her issuance of the 10
Prudential Bank checks. These postdated checks were
undoubtedly issued by appellant to induce Solis to part with
his cash. However, when Solis attempted to encash them, they
were all dishonored by the bank because the account was
already closed. Thus a case for estafa was then filed.

In the case, it was ruled that the prosecution sufficiently

established appellants guilt beyond reasonable doubt for
estafa under paragraph 2(d), Article 315 of the Revised Penal
Code. According to Soliss clear and categorical testimony,
appellant issued to him the 10 postdated Prudential Bank
checks, each in the amount of P5,000.00 or a total
of P50,000.00, in his house in exchange for their cash
equivalent.

18. Based on the complaint in the instant case, Petitioner

would not have parted with her cash without the post-dated
checks issued by the Respondents.

19. As the Court emphasized in Timbal v. Court of Appeals:9

x x x In order to constitute Estafa under the

statutory provisions, the act of postdating or of
issuing a check in payment of an obligation must be
the efficient cause of the defraudation; accordingly,
it should be either prior to or simultaneous with
the act of fraud. In fine, the offender must be able
to obtain money or property from the offended
party by reason of the issuance, whether postdated
or not, of the check. It must be shown that the
person to whom the check is delivered would not
have parted with his money or property were it not
for the issuance of the check by the other party.
(emphasis supplied)

The fact that Petitioner would not have parted with case
if it was not for the check issued by Respondents
constitutes estafa as sufficiently alleged in the complaint.

9
423 Phil. 617, 622 (2001)
20. Respondent herein maliciously, intentionally and with
intent to deceive Petitioner issued post-dated checks knowing
that the account was close even BEFORE the issuance of the
check. Knowing fully well that the account was issued and
issuing a worthless check in exchange for cash is sufficiently
establish and may be fully established after a full trial on the
merits.

Estafa is a felony committed by dolo (with malice). For

one to be criminally liable for estafa under paragraph (2)(d) of
Article 315 of the Revised Penal Code, malice and specific
intent to defraud are required.

General criminal intent is an element of all crimes but

malice is properly applied only to deliberate acts done on
purpose and with design. Evil intent must unite with an
unlawful act for there to be a felony. A deliberate and unlawful
act gives rise to a presumption of malice by intent. On the
other hand, specific intent is a definite and actual purpose to
accomplish some particular thing.
The general criminal intent is presumed from the
criminal act and in the absence of any general intent is relied
upon as a defense, such absence must be proved by the
accused. Generally, a specific intent is not presumed. Its
existence, as a matter of fact, must be proved by the State just
as any other essential element. This may be shown, however,
by the nature of the act, the circumstances under which it was
committed, the means employed and the motive of the
accused.10

The law provides that, in estafa, prima facie evidence

of deceit is established upon proof that the drawer of the
check failed to deposit the amount necessary to cover his
check within three (3) days from receipt of the notice of
dishonor for lack or insufficiency of funds. A prima
facie evidence need not be rebutted by a preponderance of
evidence, nor by evidence of greater weight.11

22. Sufficient time was given to Respondents to cover the

checks issued but still no payment or reimbursement was
made to the prejudice of the Petitioner.

10W.L. BURDICK, LAW OF CRIME, Vol. I 139-140 (1946).

11
Bautista v. Sarmiento, G.R. No. L-45137, September 23, 1985, 138 SCRA 587, 593
(1985)
Damage and deceit are essential elements of the offense and
must be established with satisfactory proof to warrant
conviction. The false pretense or fraudulent act must be
committed prior to or simultaneously with the issuance of the
bad check.12 Thus, the drawer of the dishonored check is given
three days from receipt of the notice of dishonor to cover the
amount of the check. Otherwise a prima facie presumption of
deceit arises.13

23. Lastly, any subsequent payments made by respondent does

not extinguish criminal liability for estafa.

The reimbursement or restitution to the offended party

of the sums swindled by the petitioner does not extinguish the
criminal liability of the latter. It only extinguishes pro tanto the
civil liability.14 Moreover, estafa is a public offense which must
be prosecuted and punished by the State on its own motion
even though complete reparation had been made for the loss
or damage suffered by the offended party.15 The consent of the
private complainant to petitioners payment of her civil
liability pendente lite does not entitle the latter to an
acquittal. Subsequent payments does not obliterate the
criminal liability already incurred.16Criminal liability for estafa
is not affected by a compromise between petitioner and the
private complainant on the formers civil liability.

VI. RELIEF.

WHEREFORE, in the interest of truth and justice, it is

respectfully prayed (a) that the questioned RESOLUTION, dated
8 September 2017, be RECONSIDERED and SET ASIDE; (b) that
the Preliminary Investigation of the instant case be RE-OPENED
for purposes and grounds as discussed above; and (c) upon
termination of the re-opened preliminary investigation, a new
Resolution be issued finding probable cause for the instant
complaint for Estafa.

FURTHER, the Respondent respectfully prays for such and

other reliefs as may be deemed just and equitable in the
premises.

12
People v. Tan, G.R. No. 120672, 17 August 2000, 338 SCRA 330, 336-337.
13
People v. Ojeda, et al., G.R. Nos. 104238-58, 7 June 2004.
14 Sajot v. Court of Appeals, 364 Phil. 182, 187 (1999).
15 People v. Ladera, 398 Phil. 588, 602 (2002).
16 See Dayawon v. Badilla, A.M. No. MTJ-00-1309, September 6, 2000, 339 SCRA 702, 707
Iloilo City; 25 February 2018.

ATTY. REISA MARIE J. EXMUNDO

JALBUNA-CATALUNA LAW OFFICES
Suite 201-202 2nd floor Lolita Bldg.
Cor. Quezon-Gen. Luna Sts. Iloilo City
PTR NO. 5795739; 1/03/2018, Ilolo City
IBP No. Life Time No.35019
Roll of Attorneys No. 63983/April 27, 2015
Admitted to the Bar on April 27, 2015
MCLE Com. No. V-0023987

SUBSCRIBED and sworn to before me in on February 22, 2018.

Administering Officer

Copy Furnished:

GINALYN GASIS
Complainant Reg. Rec. __________
G-Furniture February 22, 2018
Kalibo Aklan Post Office

Old Buswang
Aklan

EXPLANATION

Individual copies of this pleading are separately served

on the adverse counsel and the complainant via registered
mail, and not via personal service, due to the urgency of filing
the same.

ATTY. REISA MARIE J. EXMUNDO