REPUBLIC OF THE PHILIPPINES

Department of Justice
OFFICE OF THE CITY PROSECUTOR
City of Iligan

JUAN DELA CRUZ,

Complainant,

I.S. No. :____________

-versus- For: Violation of B.P. Blg. 22

PEDRO PENDUKO,
Respondent.
x-------------------------------------------x

COUNTER-AFFIDAVIT

I, Pedro Penduko, the UNDERSIGNED RESPONDENT

respectfully states:

1. I specifically admit paragraphs 2, 3 and 4 with regards the

names, residences and status of the parties, but refutes portions
of other paragraphs, for lack of adequate knowledge to form as
to the truth thereof.

2. I deny particularly paragraph 6, claiming that I, after notice of the

dishonored check practically abandoned to fund it. Defendant
replied through the a letter dated 12 February 2019 stating that
I was not able to fund the said check due to the series of losses
suffered by my business. As a substitute, defendant will issue
another check for the payment of the said services. Photocopy
of said reply letter attached as Annex ‘‘A’’.

3. In showing my good intention to pay for the services rendered by

the complainant, I partially paid the complainant in cash
amounting to TEN THOUSAND PESOS (P10,000.00) and
issued thereon a promissory note amounting to TEN
THOUSAND PESOS (P10,000.00) to be paid on or within 30
days from the date of the note. A true and faithful copy of the said
note with affixed signature of the complainant signifying her
acceptance of the same is hereto attached as Annex "B" and as

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 well as a copy of the cash collection receipt issued by the
complainant in favor of defendant is hereto attached as Annex
“C”;

4. In our system of laws, for the crime of Estafa to exist, Fraud,

Deceit, Malice or Bad faith is indispensable; its presence must
be proven beyond reasonable doubt before the accused can be
liable thereto.

5. In my case, it cannot be said that I had acted in bad faith. In

fact, I believe my actions constitute good faith that would rebut
complainant’s presumption of deceit. I had acted promptly in
arranging payment to complainant and even offered something
to pay for my obligation.

Had I acted in bad faith, I would not have approached

complainant and informed them of my intent to pay. Had I
intended to deceive complainant, I would have avoided
confrontation and instead absconded.

But NO, because of my prior existing business relationship with

complainant, I faced my accountability.

6. In crimes involving BP 22, the drawer or maker of the check must

possess knowledge of the insufficiency of funds at the time the
check was issued, accordingly, there arises a prima facie
presumption of knowledge as to the insufficiency of the funds.
But the law also provides that the presumption does not arise
when the issuer pays the amount of the check or makes
arrangement for its payment within five banking days after
receiving notices that such check has not been paid by the
drawee.

Verily, the legislator of BP 22 intends to give the offender an

opportunity to satisfy the amount indicated in the check and thus
avert prosecution.

7. As the Court held in Lozano v. Martinez, the aforecited provision

serves to "mitigate the harshness of the law in its application.

"It has been observed that the State, under this statute, actually
offers the violator ‘a compromise by allowing him to perform
some act which operates to preempt the criminal action, and if
he opts to perform it the action is abated.’ This was also
compared ‘to certain laws allowing illegal possessors of firearms
a certain period of time to surrender the illegally possessed

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 firearms to the Government, without incurring any criminal
liability.’

8. I hereby states that the instant complaint of the Complainant is a

perjurious, malicious, felonious, baseless, unfounded and unjust
FABRICATION by the Complainant.

9. I am executing this Counter Affidavit to attest to the truth of all

the foregoing facts and events and to disclaim all the accusations
against me.

WHEREFORE, in the interest of justice, it is respectfully prayed

that the instant criminal complaint be DISMISSED for lack of merit.

IN WITNESS WHEREOF, I have hereunto affixed my signature

this 20th day of March 2019, in the City of Iligan.

PEDRO PENDUKO
Respondent/Affiant

CERTIFICATION

I hereby Certify that I personally examined the affiant and that I

am satisfied that he voluntarily executed and understood his counter-
affidavit.

ATTY. VIVIEN INES S. MOSTRALES

City Prosecutor

SUBSCRIBED AND SWORN TO before me this 20th day of

March 2019, in Iligan City.

ATTY. VIVIEN INES S. MOSTRALES

City Prosecutor

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Copy Furnished:
BY PERSONAL SERVICE

Juan dela Cruz

Complainant
Purok 5, Barangay Tambacan, Iligan City

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