DEMURRER TO EVIDENCE

ACCUSED, through counsel, unto this Honorable Court respectfully moves for the
dismissal of the charge against her of Qualified Theft on the following grounds:
1. The highly improbable theory of the prosecution was not substantiated.
2. The prosecution relied primarily on hearsay, self-serving and inadmissible
evidence to prove its case.
3. None of the testimonies of the prosecutions witnesses, as well as the
documents offered as evidence, directly, or even logically, point to the accused
as the perpetrator of the crime charged.
4. The testimonies of the prosecutions key witnesses are inconsistent and
contradictory on material points so as to make their testimonies worthless as
evidence.
5. In sum, the bottom line is that there is gross insufficiency of evidence to
sustain the indictment or to support a verdict of the guilt of the accused
beyond reasonable doubt.
I. PREFATORY STATEMEMENT
1. This is a case of Qualified Theft filed against the herein accused, Carolyn Lim,
former Customer Relations Assistant (CRA) of the Greenhills Branch of AB
Banking Corporation, filed by Carmela Collantes, then Senior Manager of the
Audit Examination Department of said bank, in behalf of the bank as private
complainant.
2. Curiously and worthy of note is the fact that the charge was filed shortly
following charges of incriminatory machination and intriguing against honor filed
by the accused herself against the officers of the bank branch of private
complainant where the accused used to work. 1
3. Criminal prosecution is a process whereby the accused is proceeded against for an
alleged commission of an offense as indicted in the information. In this wise, an
accused is a lone person defending himself/herself against the full machinery of
the State and the People of the Philippines. Consequently, all the necessary
defenses and principles allowed under the law which may exculpate him/her
from criminal liability should be applied in his/her favor. The time-honored
doctrine is that an accused should be convicted, not on the basis of the weakness
of his defense, but on the strength of the prosecutions evidence itself.

4. Accordingly, an accused is presumed innocent until the contrary is proved beyond

reasonable doubt. This presumption prevails unless overturned by competent and
credible proof which the State is required to establish on all the essential elements
of the crime with which the defendant is charged in the indictment, and to
establish beyond reasonable doubt that the accused is guilty of said crime. It is
necessary that unless the preponderance of evidence points beyond the shadow of
a doubt to his guilt, the accused is entitled to an acquittal. 2 For the evidence to be
considered sufficient, it must prove (a) the commission of the crime, and (b) the
precise degree of participation by the accused. 3
5. It must be noted at the very outset that the charge of qualified theft of which the
accused is charged hinges entirely and exclusively on the fantastic tale the
private complainant persists to parlay that the accused succeeded in completely
deceiving her superiors at the Greenhills branch of the complainant bank into
believing that the cash collection covered by each of the banks official receipts
covering the transactions that are the subject of this case was pocketed by the
accused, and that she (the accused) did this on 644 separate occasions during
her stint as Customer Relations Assistant at said bank for a period of about one
year and a halfa gothic story that defies human reason and insults ones
intelligence.
6. Worse, the prosecution attempted to prove its impossible theory, not by
adducing evidence establishing the precise degree of participation by the
accused as required by the Supreme Court in each and every act of the crime
of which she stands charged but by wild presumptions and illogical inferences
to show an alleged criminal pattern based on circumstantial or indirect
evidence that does not even pass the test of admissibility.
II. THE CHARGE AGAINST THE ACCUSED
The Amended Information filed with this Honorable Court on April 27, 2000, charging
Carolyn Lim with the crime of Qualified Theft, reads as follows:
On or about or sometime between January 1995 to May 1996, in San Juan, Metro
Manila, and within the jurisdiction of this Honorable Court, the said accused, with intent
to gain and without the knowledge and consent of the owner, being then an employee of
AB Banking Corporations Greenhills Branch, who was assigned to handle the collection
and remittance of Safety Deposit box (SDB) rental accounts of the Banks customer and
with grave abuse of confidence reposed on her by her employer, did then and there
willfully, unlawfully and feloniously take, steal and carry away cash money amounting to
P314,760.00, belonging to AB Corporation, represented by Carmela Collantes to the
damage and prejudice of the latter in the said amount of P314,760.00.
Contrary to law.
III. DISCUSSION AND ARGUMENTS

1. On March 2, 2004, the prosecution rested its case, at least preliminarily (the
complete resting of the prosecutions case being upon the courts resolution of the
Formal Offer and Objections thereto 4 ) through a Formal Offer of Exhibits. In the
Comments/Objections to Prosecutions Formal Offer filed by the accused on April
6, 2004, it emphasized the non-inclusion of several alleged exhibits in the
Prosecutions Formal Offer, which deprives her of the right to object thereto, as
follows:
a. The prosecution alleges in page 116 of the Formal Offer that the first set
of documents offered for a common purpose starts from Exhibit A up to
Exhibit P25-3, while the first set actually attached in the formal offer of
Exhibits is only from Exhibit A to Exhibit P17-3.
b. Contrary to the prosecutions allegations, there are no portions of
Exhibits A to D22-3 which are marked as Exhibits A-1 to D22-1.
c. There are also no portions therein marked as Exhibits A-2 to D22-2
contrary to the prosecutions allegations.
d. There are no initials of Carolyn Lim (the accused) in any portion of each
of the documents comprising Exhibits A to P25-3 contrary to the
prosecutions allegations.

2. Arguing further on the matter, the accused went on by discussing that these
exhibits are misleading as they are not what the prosecution alleges them to be
and that the above-identified documents, alleged but not found in the formal offer
of the prosecution, may not be considered as having been formally offered. Under
the Rules, the court shall consider no evidence which has not been formally
offered (Rule 132, sec. 35). A formal offer is necessary, since judges are required
to base their findings of fact and their judgment solely and strictly upon the
evidence offered by the parties at the trial. Opposing parties would be deprived of
their chance to examine the document and to object to its admissibility if this
procedure were not followed.
3. In an order dated April 20, 2004, the Honorable Court, confirming the abovecited
objections, returned to the prosecution its Formal Offer of Evidence due to the
finding that some exhibits listed in the Covering Pleading of said Formal Offer
were missing as attachments.
4. Hence, in a hearing of this case dated April 27, 2004, the prosecution withdrew its
Formal Offer for the same reasons stated above. Thus, the accused was
constrained to also withdraw its Comments and Objections in order to adjust its
allegations according to the additional exhibits that were supposed to be attached
in the Formal Offer. The Court, therefore, issued an order giving the prosecution a

period of thirty (30) days within which to file its Formal Offer, and the accused
with the same period from receipt of a copy of the Formal Offer to file its
Objections and Comments thereto, after which the matter shall be deemed
submitted for resolution.
5. Subsequently, the prosecution asked, and the court granted, in an order dated July
16, 2004, another fifteen (15) day period from receipt of said order to file its
Formal Offer, giving the prosecution more than ample time to complete its offer.
6. Counsel for the accused received a copy of the prosecutions NEW Formal Offer
of Evidence on August 3, 2004. Amazingly, this new Formal Offer, consisting of
123 pages, comprises the Cover Pleading only. It failed not only to complete the
attachments as required by this Court, but altogether omitted every and all
exhibits described therein.
7. Despite the fact that the previous Formal Offer (filed by the prosecution on March
3, 2004) has been withdrawn and, thus, considered stricken off the records of the
case, the NEW Formal Offer did not contain any attachment of any documentary
evidence, which effectively deprives the accused of any opportunity to object to
any of the alleged exhibits submitted by the prosecution.
8. Additionally, after a circumspect and painstaking scrutiny, it was found out that
the changes in the cover pleading (as discussed in the accuseds
Objections/Comments to Prosecutions Formal Offer) constitute only insertions of
some exhibits with similar purposes as the first Formal Offer. The fact that no
documentary evidence, originally attached in the previous formal Formal Offer
or otherwise, has been attached in this new Formal Offer renders the foregoing
changes immaterial and inconsequential. It has not cured, even in the slightest
degree, the defects of the previous Formal Offer of the prosecution which has
been excluded by this Honorable Court.
9. Moreover, the introduction of the foregoing changes did not affect the purposes
for the offer of the documentary evidence as there has been no changes
whatsoever in the discussion of the purposes for said offer.
10. It should be stressed that the new Formal Offer did not even incorporate by
reference the incomplete attachments of the previous Formal Offer of Exhibits.
11. On these scores, as this Court has expressed in its July 16, 2004 Order Failure to
comply within the reglementary period will be considered as a waiver of the
prosecutions right. The submission of the Formal Offer by the prosecution,
although made in time, is, in fact, not a compliance at all.
12. The failure of the prosecution to offer a complete exhibit in the previous Formal
Offer and its failure to submit any exhibit on the new Formal Offer should be
deemed a waiver of its right to do so. The delay of the proceedings in this case

due to the unjustified lapses in the prosecutions offer of evidence has been
clearly vexatious and oppressive, constitutive of a violation of the right to a
speedy trial of the accused.
13. Nevertheless, maintaining the above arguments, if only to obviate any further
possible delay, and in the event that the Honorable Court, for whatever judicious
and just reason there may be, would find no merit in the above discussion, or if
the Court would consider the attachments in the previous Formal Offer as deemed
incorporated in the second Formal Offer, the accused, without admitting the
propriety of the new Formal Offer, interposed its comments and objections both to
the withdrawn and the new Formal Offer of Exhibits of the prosecution. Thus, the
following arguments and discussion in support of the demurrer:
1. The highly improbable theory of the
prosecution was not substantiated.
The prosecution, during the presentation of its evidence, adduced 643 separate official
receipts issued by the complainant bank for safety deposit box (SDB) payments
purportedly aggregating P314,760.00, which was allegedly misappropriated/taken by the
accused, on 644 separate occasions, continuously, surreptitiously, unnoticed and
undetected during a long span of approximately eighteen months. These documents were,
however, not offered in the new Formal Offer of Evidence. At most, they were offered
incompletely in the prosecutions first Formal Offer.
The prosecution attempts to convince the Court, without properly offering these exhibits,
that these documents, on their face, prove that the accused actually stole the money
covered by the receiptspatently a reductio ad absurdum.
Even assuming for arguments sake that these documents were formally offered, nowhere
in these official receipts is there any sign or indication that the monies covered by the
receipts were stolen or pocketed by the accused. On the contrary, the official receipts,
each signed by a senior official of the bank, prove conclusively that the complainant bank
actually received the money and not an iota of evidence was independently adduced to
suggest, much less to directly prove, that the accused removed any part of the money
from the complainant banks possession.
The Supreme Court, in evaluating the value of official receipts, has this to say:
These documents are not mere scraps of paper bereft of probative value but vital
pieces of evidence of commercial transactions. They are written memorials of the
details of the consummation of contracts. 5
In addition to said receipts, the prosecution presented, at least in the first Formal Offer,
subsidiary ledgers 6 allegedly to prove that payments for SDB rentals and deposits for
keys were not remitted nor reported by the accused as income in the general ledger and

that the accused did not prepare income tickets on SDB rentals and deposits for keys,
much less had them validated by the tellers, which allegedly would have shown that such
collections were received by the private complainant. 7 The said subsidiary ledgers,
however, are nothing more but index cards, 8 not accountable official records required
by the Bureau of Internal Revenue (BIR) and therefore subject easily to fabrication or
manipulationand, furthermore, self-serving and inadmissible as evidence.
Also, the prosecution, contrary to its allegations, did not attach A-1 to D22-1 and A2 to D-2 to D22-2 in its previous Formal Offer of Evidence. Worse, it did not attach
even one exhibit in its new Formal Offer.
Nevertheless, the sum of these documents merely shows, at best, that the accused is
guilty of violating standard banking procedures, never to be taken as a crime. It does not
prove, in any way, that the accused pocketed or carted away sums of money owned by the
complainant bank.
Ironically, the prosecution, while maintaining that the accused should have observed
standard banking procedures, admits emphatically, and relies on it as an argument, to
establish the guilt of the accused, that the complainant bank itself is deficient in
enforcing such procedures, an express admission of guilt of mismanagement.
In aid of its flimsy demonstration of the guilt of the accused through the official receipts
and subsidiary ledgers, the prosecution took refuge in the allegation that it was due to the
defects in the implementation of banking procedures by the private complainant itself that
facilitated the accuseds commission of the alleged offense. This is, to use a figure of
speech, turning the gun around and pointing it to the accused. This argumentation of the
prosecution should not be allowed to operate to the prejudice of the accused. In fact, such
allegation militates against the private complainant as it merely bolsters the fact that the
procedures followed in the bank is vulnerable to abuse by anyone among its employees,
including the witnesses themselves or even the higher officials within the complainant
bank having access to the subject monies. It is enigmatic why the private complainant
limited its imputation to just the accused when the monies allegedly lost were also
accessible to the other employees. And this is all because of the self-declared deficiency
in the procedures of complainant bank. It behooves a rational mind to think that the case
was filed only against the accused as a vengeful afterthought against the latters earlier
filing of a case against her superiors in the bankor that her accusers did so as a
conspirational coverup for their own misdeeds.
2. The prosecution relied primarily
on hearsay, self-serving and inadmissible
evidence to prove its case.
A person should testify only as to the facts which he/she knows of his/her personal
knowledge . 9 Any other testimonial evidence outside the witness personal knowledge is
hearsay and downright inadmissible. 10

The prosecutions principal witness and accuser, Carmela Collantes, did not have
personal knowledge of what had really transpired during the time of the alleged
commission of each and every act of qualified theft. She only based her statements and
factual assessments on the records and stories presented and conveyed to her by the
employees in complainant banks employ, which cannot avoid the obvious taint of bias
and partiality. Consequently, her testimony as a whole has no probative value at all.
The general rule is that hearsay evidence is not admissible. Admissibility of evidence
should not be equated with weight of evidence. Hearsay evidence whether objected to or
not cannot be given credence for it has no probative value. 11
Aside from supervising the audit examination of the bank records allegedly covered by
the questioned transactions, witness Collantes interviewed Elsa Garcia, the Branch
Cashier, and the tellers and employees of the complainant bank, 12 the results of which
were submitted in her audit report, 13 in addition to the figures presented in relation to the
audited transactions. The report also contains baseless conclusions, among which is that
562 official receipts, presented as prosecution evidence, were allegedly prepared by the
accused 14 without stating the basis of such conclusion as required by the rules of
evidence on signature authentication.
The audit report further contains such odd statements as the following:
Some of the above officers, namely, Elsa Garcia, Branch Cashier, Carlos Pea, Branch
Operations Head and Ernie Santos, Acting Branch Manager claimed that when the
official receipts were presented to them for signature, there were times when cash were
inserted in the official receipt booklet and on occasions when there was no cash, they
thought the money was already given to the tellers. 15 (underscoring supplied)
Any reasonable-thinking person who happens to read this particular passage would have
guffawed at this laughable story were it not for the fact that it involves a serious matter
which should be dismissed outright.
Paragraphs 1, 2, 3 and 4 under the title B. Subsequent Events/Actions Taken on page 2
of the report, and paragraphs 2, 3 a), b), c) and d) under the title II. Findings on page 3
and 4 of the same Audit Report (attached in the first Prosecutions Formal Offer but not
in the second one) are all hearsay and inadmissible as evidence to prove the truth of the
allegations thereof. Assuming arguendo that the said findings are admissible, they are
simply incapable of constituting direct proof of the guilt of the accused as they only
lead to general conclusions inconclusive of the fact that the accused took monies from
the bank. Moreover, the proceedings employed to arrive at such findings are internal
and administrative in the bank, very susceptible to bias and partiality and with very
limited rights provided for the accused.
The only material point on which witness Collantes reported on her own personal
knowledge is found in paragraph 7 on page 3, and this is favorable to the accused. The
paragraph is quoted below:

7. On June 6, 1996, Carolyn Lim, accompanied by her father, Mr. Antonio Lim, came to
the Head Office for a meeting with representatives of HRMDD, Legal Group, BRAD and
Audit where she denied any knowledge or participation in the non-remittance of SDB
collections. She even accused the Branch officers and staff of staging a conspiracy
against her. When Carolyn was asked for what reason, she cited that maybe because she
was requesting to be transferred to other branches since last year but her request was
denied. (emphasis supplied)
When witness Collantes conducted the audit examination of the transactions in question,
she was a Senior Auditor holding office at the complainant banks head office, not an
operation officer at the bank branch where the accused was working. How could she
personally have known what happened in the handling of safety deposit box accounts of
the bank branch when she was not there personally? How could she suggest that the
accused, tricked, deceived or manipulated her superiors at the bank? How could she say
or suggest that the accused succeeded in misappropriating the safety deposit box
collections subject of the alleged crime?
3. None of the testimonies of the
prosecutions witnesses, as well
as the documents allegedly offered as
evidence, directly, or even logically, point
to the accused as the perpetrator of
the crime charged.
The bulk of the documents offered in the first Formal Offer of the prosecution consists of
safety deposit box official receipts evidencing, as earlier mentioned, the fact that the
complainant bank actually received, through its authorized officers, the amounts covered
by the documents. Instead of implicating the accused, the receipts totally exculpate her
of the crime attributed to her.
Receipts, to repeat what we previously said, are not mere scraps bereft of probative value
but vital pieces of evidence of commercial transactions. They are written memorials of
the details of the consummation of the contracts. 16
Also included in the documents offered in the previous Formal Offer as prosecution
evidence are charts, copies of bank procedures allegedly violated by the accused, and the
computer printouts allegedly reflecting the questioned transactions. Assuming that they
were formally offered, all of them are self-serving and inadmissible evidence. They are
non-accountable and sequentially unnumbered documents which by themselves will
not prove the commission of the crime and therefore inadmissible as such in evidence.
None of them will induce a reasonable mind to conclude that the accused is guilty of the
crime charged against her.
Self-serving declarations are not admissible in evidence as proof of the facts asserted,
whether they arose by implications from acts and conduct or were made orally or hearsay

character. Furthermore, such declarations are untrustworthy, and to permit their

introduction in evidence would open the door to frauds and perjuries. 17
Nor do these documents prove the facts they seek to establish the purpose of the offer.
At best, what they demonstrate is the tolerance of the officers of private complainant in
the defects of its own procedures. It is rather an utter admission of the banks
negligence that forecloses its right to protest against its unfavorable effects.
Conversely, said documents only bolster the fact that the system within the bank is
readily vulnerable to abuse and exploitation by anyone, including the officers and
employees of the private complainant and the prosecution witnesses themselves.
It may not serve the same purposes sought even if considered as part of the testimonies of
witnesses Edna Garcia, Branch Cashier, and Ernie Santos, Acting Branch Manager.
Witnesses Garcia and Santos are biased witnesses as they have been charged by the
accused of another offense prior to the execution of their respective affidavits. Not to
mention that they are employees of the complainant bank. Necessarily, the contents of
their affidavits would be defensive and exculpatory at the expense of the accused. The
possibility exists that their accusation and testimonies are mere cover-ups for the crimes
for which the accused is chargedwhich may have been committed by others within the
bank, not excluding the witnesses themselves.
The same is true with the Tellers Entry allegedly prepared by witness Rose Gadia, teller,
marked in exhibit as W to W-5A in the previous Formal Offer, purportedly to prove
that Gadia did not receive the cash or process the transaction of client Peter LI, as SDB
lessee, for Php700.00 as rental for SDB 1064. This clearly does not prove what it
purports to prove. It is, moreover, incompetent and irrelevant evidence. The veracity
and authenticity of the entries and other contents thereof were never established in
accordance with the rules. Not being accountable forms, they can easily be selectively
manipulated or even fabricated to serve the complainant banks or the witnesses own
personal purposes.
In the case of the testimonies and depositions in the affidavits of Gadia and the tellers of
the branch concerned of the complainant bank at the time the questioned transactions
took place, it should be noted that not any one of them directly pointed to the accused as
having actually misappropriated the funds supposed to have been stolen by her. In other
words, there was no smoking gun. All they did was to deny that the funds covered by
the official receipts and income tickets ID-stamped by them were actually received by
them as allegedly evidenced by lack of their initials. This again is at best specious logic
and at worst a ridiculous and futile argument. Why would they ID-stamp the income
tickets covering safety deposit box collections when they did not actually receive the
money? What was the purpose of, and the point in, going through this exercise? No rightthinking and impartial observer would have ever conceived of the reason for such act
other than to indicate receipt of the monies covered by the income tickets. It should
furthermore be noted that the witnesses were and still are employees of the complainant
bank and therefore biased and under moral pressure to testify in favor of their employer.

One final point on the matter that should be brought out is the hesitant manner or
demeanor of the witnesses, which the court may have observed.
4. The testimonies of the prosecutions
key witnesses are inconsistent and
contradictory on material points so as to
make their testimonies worthless as
evidence.
a. The contradictions in the testimony of prosecution and key witness Edna
Garcia, the bank cashier.
On the witness stand, prosecution witness Garcia testified:
1. In explaining the procedure observed in the handling of Safety Deposit
Box rental payments, that: First, the Custom(er) Relations Assistant
would ask the client to give the money to the teller The client goes to
the teller where the client makes the payment 18
This directly contradicts the line peddled under oath by the other
prosecution witnesses 19 that the accused, as CRA, invariably received or
took delivery of SDB clients rental payments. This testimony even
bolsters the fact that, in fact and in truth, the accused received no
money from the banks customers.
2. That after the CRA had prepared the income ticket, the teller presents it
to the bank official for validation. 20
This again directly contradicts the testimonies of other prosecution
witnesses 21 regarding the procedure in the handling of SDB rental
payments to the effect that the CRA, not the teller, presents the income
ticket to the bank official for validation.

b. Drafting of the Notice of Investigation

Carlos Pea, Branch Operations Head of the Greenhills Branch of complainant
bank, at first testified on the witness stand that, on instructions of Ernie Santos,
the Acting Branch Manager, he requested one of my [his] staff to type the Notice
of Investigation [to the accused] and then directly handed it to Mr. Santos. 22
Fourteen days later, on February 5, 2001, the witness changed his testimony by
saying that he referred the matter first to our Legal, and then drafted it first 23
before giving it to a staff member for typing.

When asked under cross-examination on February 5, 2001 why he still thought it

proper to conduct an investigation of the alleged anomaly in the handling of the
Peter Li account when he, together with Edna Garcia, believed that the accused
practically confessed to him and to Garcia her guilt, Pea made this out-of-thisworld response;
xxx we were just trying to get information from her [fishing expedition?]
xxx usap-usapan lang. 24 [translation: It is just mere talk.]
At any rate, it is essential to note that the effect of this investigation is
irrelevant and baseless evidence, containing mere unfounded self-serving
surmises on the guilt of the accused. The findings in said investigation are
immaterial and not binding in these proceedings. The investigation held by
the bank representatives is expected to be biased in favor of the bank.
Although there purports to be opportunity for the accused to be heard, the
partiality of the jury (composed of officers of the bank itself) rendered such
opportunity futile and nugatory.
c. Time of meeting of senior branch staff with the accused on May 29, 1996.
Branch Operations Head Pea testified on February 5, 2001 that he, along with
the other senior branch staff and the accused, had a meeting in the office of Acting
Branch Manager Santos on the alleged anomaly concerning the SDB rental
payment of bank client Peter Li at around 11:00 A.M. and that the Notice of
Investigation was presented to the accused at 11:30 A.M. or 12:00 noon during
said meeting. 25
On the other hand, Acting Branch Manager Santos, under direct examination,
declared that the meeting actually took place at 10:00 A.M., not 11:00 A.M. 26
a full one hour difference from the meeting time testified to by Carlos Pea.
The contradictory statements of the prosecutions key witnesses touch on a very
material point, suggesting that either or both of them were lying through their
teeth.
d. Content of the Notice of Investigation.
Prosecution witness Pea said on the witness stand on February 5, 2001 that the
Notice of Investigation issued to the accused was in connection with the case of
Mr. Peter Li. When cross-examined, however, he admitted that there was nothing
such contained in the said Notice, 27 a fact verified by an examination of the
document. For his part, Acting Branch Manager, Santos never mentioned a thing
about it.

This particular matter is likewise very material, since it is customary, nay required
standard operating procedure, that a notice of investigation must indicate the
purpose of the investigation, the absence of which exposes the person to be
investigated to an ambush in gross violation of his/her right to due process.
e. Bank Procedures.
In his testimony on February 5, 2001, Branch Operations Head Carlos Pea
declared that he was ignorant of changes in procedures instituted by Branch
Cashier Edna Garcia because he was not informed about such changes, implying
that Ms Garcia could change the procedures without the necessity of informing
him. 28
It is completely unbelievable that an Operations Head is not informed of
changes of procedures in his own turf.
f. The Crying Incident.
Acting Branch Manager Santos testified that the accused cried inside his office
while the meeting was being conducted. 29
On the other hand, Edna Garcia declared on the witness stand that the crying
incident took place before the meeting and not in the office of Acting Branch
Manager Santos. Operations Head Pea was silent about the matter.
Again, contradictory statements on a very material matter, which usually happen
when a story is concocted in conspiracy.
Ms Garcia also supposedly had the following exchange of words with the accused
as follows:
Ms Carolyn Lim [accused] cried and told me, among others, that
NOON PA DURING THE DAYS WHEN KA CLOSE KO SI GINA. SABI
NGA NG KA CLOSE KO PAG KAILANGAN KO NG PERA, GANITO
AND GAWIN KO.[Translation: Even then when I was close to Gina.
She said that whenever I need money, this is what I should do.] She
further told me that one of the reasons why she requested for transfer to
another branch is because she could not control herself from doing it
anymore. She even told me FEELING KO ANG GALING-GALING KO
NA. HINDI NILA AKO NAHUHULI. 30 [Translation: I felt I was very
good. They cannot catch me.]
This is an unnatural and preposterous exchange, if such exchange ever took place,

which even caught the unusual attention of the court when the alleged exchange
of words was narrated by the witness.
All the foregoing inconsistencies and contradictions on material points in the
testimonies of the key witnesses negate their value as evidence.
Inconsistencies such as these in the testimonies of prosecution witnesses have
been known to happen, and indeed acquittals have been the result where the
inconsistencies and self-contradictions dealt with material points as to
altogether erode the credibility of the witness. 31
Moreover, when the alleged eyewitnesses contradict themselves, then the
element of reasonable doubt is injected and cannot be lightly disregarded. 32
5. In sum, the bottom line is that there is
gross insufficiency of evidence to
sustain the indictment or to support a
verdict of the guilt of the accused
beyond reasonable doubt.
All the foregoing discussions, coupled by the fact of failure of the prosecution to properly
offer its exhibits formally, clearly show that the prosecution has miserably failed to prove
its case and to overcome the presumption of innocence of the accused.
The presumption can be overcome only by competent and credible proof beyond
reasonable doubt. The reasonable doubt should necessarily pertain to the facts
constitutive of the crime charged. Discrepancies that touch on significant factors, such as
those pointed out above, are crucial on the guilt or innocence of an accused. In criminal
prosecution, a reasonable doubt can be created by many things; it is sufficient to prevent
a conviction if the doubt arises from the evidence adduced or from the lack of evidence.
While no test definitely determines which is and which is not considered reasonable
under the law, it must necessarily involve genuine and irreconcilable contradictions
based, not on suppositional thinking, but on the hard facts constituting the elements of the
crime. And these are what the doubt created in this case is based on. It is not mere
possible doubt but intelligent, reasonable and impartial doubt based on a careful
examination and conscious consideration of all the evidence in the case. It is that state
of the case which, after the entire comparison and consideration of all the evidence leaves
the mind of the judge in that condition that he cannot say that he feels an abiding
conviction to a moral certainty of the truth of the crime charged. Absolute certainty is
not demanded by the law to convict of any criminal charge but moral certainty is
required, and this certainty must be every proposition of proof requisite to constitute
the offense. 33
The constitutional presumption of innocence is not an empty platitude meant only to
embellish the Bill of Rights. Its purpose is to balance the scales in what would otherwise
be an uneven contest between the lone individual (the accused) pitted against the People

of the Philippines and all the resources at their command. Its inexorable mandate is that,
for all the authority and influence of the prosecution, the accused must be acquitted and
set free if his/her guilt cannot be proved beyond the whisper of a doubt. The presumption
of innocence can only be rebutted by proof beyond reasonable doubt. In order to convict
an accused, the circumstances of the case must exclude all and each and every hypothesis
consistent with his innocence. For the slightest possibility of an innocent man being
convicted for an offense he has not committed would be far more dreadful than letting a
guilty person go unpunished for a crime he may have perpetrated.
At this point, it is well worth repeating what we said at the outset: The prosecution
attempted to prove its impossible theory, not by adducing evidence establishing the
precise degree of participation by the accused as required by the Supreme Court in
the case of Gutib vs. Court of Appeals 34 in each and every act of the crime of which
she stands charged but by wild presumptions and illogical inferences to show an
alleged criminal pattern based on circumstantial or indirect evidence that does not
even pass the test of admissibility.
We beg to end this exposition by asking the crucial question: Why is it that, out of 643
separate SDB transactions subject of this case, the complainant bank did not produce a
single witness who participated in any of these transactions, such as, for example,
Peter Li, the handling of whose SDB payment was allegedly thoroughly investigated by
the complainant, to testify definitively to whom among the bank employees concerned
his/her SDB cash payment was actually given or delivered? Why? Why?
In light of the foregoing discussions, the accused stands on firm ground that the weight of
evidence of the prosecution against her lacks sufficient strength to convict her and thus
should fall by itself.
IV. PRAYER
WHEREFORE, it is respectfully prayed that this Honorable Court issue an order
DISMISSING the case against the accused for failure of the prosecution to establish
proof beyond reasonable doubt of the guilt of the accused.
RESPECTFULLY SUBMITTED.