REPUBLIC OF THE PHILIPPINES

DEPARTMENT OF JUSTICE
NATIONAL PROSECUTION SERVICE
OFFICE OF THE PROVINCIAL PROSECUTOR
Malolos City, Bulacan

TAAL TODA, INC. represented by

ALBERTO D.R. DELA CRUZ,
Complainant,

- versus - NPS DOCKET NO. III-04-INV-19J-04945

For: Estafa under Art. 315 (1) (b)

RAFAEL SAN JUAN,

PHILIP MANONG,
DANILO NARCISO,
CRISOSTOMO FRANCISCO, and
ZALDY ESTANISLAO,
Respondents.
x-----------------------x

COUNTER - AFFIDAVIT

I, PHILIP MANONG, Filipino citizen, and with residence and

postal address at Taal, Bocaue, Bulacan, after being duly sworn to in
accordance with law deposes and states that:

1] I am one of the respondents in this criminal complaint for

allegedly conspiring with the other respondents named above in the
commission of the crime of Estafa punishable under Article 315,
paragraph 1(b) of the Revised Penal Code (RPC).

2] I vehemently deny, refute, and controvert the false and

misleading allegations of complainant that I, together with the other
respondents in this case, have committed a criminal act or conspired
to commit such criminal act or violated Article 315 paragraph 2(b) of
the RPC.

3] On 10 December 2019 I went at the Office of Provincial

Prosecutor Malolos City, Bulacan to inquire whether or not there is a
subpoena issued by this Honorable Office and that I am required to file
a counter-affidavit in relation to the above entitled case within ten (10)
days from receipt thereof.
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 4] Upon verification, there is indeed a subpoena issued by this
Honorable Office, stating among others, that I have to file a counter-
affidavit in relation to this criminal complaint within ten (10) days from
receipt thereof. Inasmuch as I have not in fact receive a copy of said
subpoena, I requested for its copy together with a copy of the
Complaint-Affidavit. Hence, constructive notice of the existence of the
subpoena was given to me on 10 December 2019.

5] Reckoned from 10 December 2019, the 10th day therefore

falls on 20 December 2019.

6] Hence, this Counter-Affidavit is being filed within the allowed

period of time.

BACKGROUND INFORMATION

7] FEBOTODA stands for Federation of Bocaue Tricycle

Operators and Drivers Association. The incumbent president of
FEBOTODA is DANTE DELA CRUZ.

8] The FEBOTODA is composed of locals or chapters known as

TODA (Tricycle Operators and Drivers Association). The tricycles of
the TODA members operate within their respective barangays of
Bocaue, Bulacan. The FEBOTODA is the governing body of the
TODAs.

9] Taal TODA of Barangay Taal, Bocaue, Bulacan is one of the

association-members of FEBOTODA. At the time this criminal
complaint was filed on 22 October 2019, ALBERTO D.R. DELA CRUZ
was still the incumbent president. He assumed the presidency on 01
July 2017.

10] Not to be ignored is the fact that Alberto D.R. Dela Cruz was
removed from the presidency of Taal TODA effective 02 December
2019 for violation of the By-Laws of FEBOTODA and TODA the most
blatant of which is his adamant refusal, notwithstanding repeated
demands, to account for the funds he received and held for
administration and in trust for TODA.

11] It is equally relevant to note the fact that this criminal

complaint against me is but a mere fabrication of Alberto D.R. Dela
Cruz. It is an afterthought, malicious, and baseless. His vile objectives
are the following

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 11.1] to harass respondents;

11.2] to expose respondents to public ridicule; and

11.3] foremost, to shift the blame to respondents regarding

his adamant refusal to make an accounting of the
finances of Taal TODA despite repeated demands by
the members.

CHRONOLOGY OF
RELEVANT FACTS AND EVENTS

12] On 12 October 2019, a petition for the ouster of Alberto

D.R. Dela Cruz as president was commenced by the members of Taal
TODA. The petition (Annexes “1” up to “1-G”) states, among others,
the following:

PETISYON

Kaming mga nakalagda na kasapi ng Taal Tricycle and Drivers

Association (Taal TODA) ay hinihiling na bigyan daan ng
pamunuan ng FEBOTODA ang petisyon na ito na natutungkol sa
pagkaluklok ni Ginoong Alberto Dela Cruz bilang
pangkasalukuyang pangulo ng Taal TODA sa mga sumusunod na
kadahilanan:

Unang Kadahilanan:

Maaaring paglabag sa nakasanayan ng panuntunan at by-

laws ng FEBO TODA na bawal bumoto sa Halalan ng Opisyales
ang mga bagong kasapi ng Taal TODA lalo na at hindi pa
nababayaran ng buo ang bayad-sapi.

Ikalawang Kadahilanan:

Hindi pagtupad sa kasunduang pagbibigay ng ulat hinggil sa

estado ng pananalapi ng Taal TODA na itinakda noong nakalipas
na buwan ng Setyembre taong pangkasulukuyan.

13] On 30 October 2019, an amended petition (Annexes “2”

up to “2-G”) for the ouster of Alberto D.R. Dela Cruz as president was
commenced by the members of Taal TODA. This petition, which was
duly submitted to FEBOTODA states, among others, the following:

Kami po ang samahang Taal TODA na nakabase sa Brgy. Taal,

Bocaue, Bulacan na may kabuoang bilang 300 + 30 na kasapi ay
lumiham sa iyong pamunuan o febotoda upang sana ay inyo nang

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 matugunan ang matagal at umiinit na kaganapan sa aming
samahan. Nagmula po itong ganitong pangyayari sa noo’y
inihalal naming pangulo na si G. G. Alberto Dela Cruz at mga
kasamang pamunuan at ngayo’y kasalukuyan paring
nanunungkulan sa aming samahan. Mula po ito sa mga dahilang
sa bawat isang kasapi ay nagdudulot ng kalituhan at mga tanong
sa lahat.

Una: Sa pagtatapos ng kanilang kabuoang 3 terminong ay

walang malinaw at detelyadong sagot sa ulat ng pondo ng
samahan kapag ginaganap ang pulong pangkahalatan.

Pangalawa: Ang pag wawalng bahala sa mga patawag ng

mataas na kinauukulan upang maiayos ang sigalot. (Hal>)
sanggunihang bayan.

Pangatlo: Mga patakarang hindi saklaw ng aming saligang batas

at dagliang ipinatutupad kahit walang konsultasyon sa kasapian
o pulong pangkalahatan.

Pang-apat: Luma at bagong masterlist aming katibayan na

nagbago ang karamihan ng pangalan ditto at ito ay nag
papatunay na nagkaroon ng bilihan (lipat sapi) at ang bawat isang
pangalan na nagbago ditto sa masterlist ay may katumbas na
halaga at ito ay hindi na nila inuulat kada bilihan.

14] On 23 November 2019 a Memorandum (Annexes “3” up

to “3-a”) was issued by FEBOTODA directing Alberto D.R. Dela Cruz
(TODA President) and Ricardo Valerio (Treasurer) to immediately step
down from office. The same Memorandum gave notice to all TODA
members regarding the holding of a snap election for the positions of
Taal TODA president and treasurer. The Memorandum states, among
others, the following:

Nais kong ipabatid sa inyong kasapian na ang inyong Pangulo

na si Alberto Dela Cruz at Ingat-Yaman Ricardo Valerio ay
inatasan bumaba sa kanilang tungkulin bilang Pangulo at Ingat-
Yaman. Sa dahilang hindi nila pag-uulat sa ginanap na
pangkalahatang pulong ng Taal TODA na ginanap petsa
Nobyembre 23, 2019. Ito ay paglabag sa inyong Local TODA By
Laws at FEBOTODA By Laws.

At magkakaroon ng agaran Snap Election sa unang Linggo ng

buwan ng Disyembre para sa puwesto ng Pangulo at Ingat
Yaman.

Kalakip din nito ang mga lagda ng mga Pangulo ng FEBOTODA

sa desisyon na pababain sa tungkulin si Alberto Dela Cruz at
Ricardo Valerio.
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 15] On 28 November 2019 a Memorandum (Annex “4”) was
issued by FEBOTODA informing the members of Taal TODA to
participate in the 01 December 2019 snap election for the vacant
positions of Taal TODA president and treasurer.

16] Finally, attached hereto is a certification (Annex “5”)

issued by FEBOTODA stating that the duly elected president and
appointed officers of Taal TODA effective 02 December 2019 are the
following:

17.1] Pangulo – Antonio Leabres

17.2] Pangalawang Pangulo – Sonny Mendoza
17.3] Secretary – Victorino Espiritu
17.4] Treasurer – Erwin Felizardo
17.5] Auditor – Antonio Salvador

17] Briefly stated, Alberto D.R. Dela Cruz and his treasurer was
ousted from the positions of president and treasurer, respectively, of
Taal TODA due to their violations of the by-laws of Taal TODA and
FEBOTODA. The most blatant of which is their adamant refusal to
account for the funds they received and held for administration and in
trust for TODA.

ARGUMENTS

THIS CRIMINAL COMPLAINT

IS AN AFTERTHOUGHT,
MALICIOUS, BASELESS,
UNFOUNDED AND UNJUST
FABRICATION BY ALBERTO
D.R. DELA CRUZ

18] As an after-thought and last-ditch effort to escape liability,

this criminal complaint was instituted by Alberto D.R. Dela Cruz. He
filed it on 22 October 2019 or barely ten (10) days after the members
of Taal TODA commenced a petition for his ouster as president of Taal
TODA on 10 October 2019 ((Annexes “1” up to “1-G”).

19] Other compelling evidence that the filing of this criminal

complaint by Alberto D.R. Dela Cruz was motivated by a sinister design
to vex and humiliate respondents rather than to seek redress from an
alleged wrong done by respondents against Taal TODA members are
the following:

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 19.1] He filed the above-captioned criminal complaint two
years and three days after he secured the authority from and
concurrence of the Taal TODA members on 19 October
2017 (please see Annex “H” of Complaint-Affidavit).

19.2] The demand letters, alleged to have been given to

individual respondents and signed by Atty. Bobby L. Billote,
were dated way back 18 October 2017 (please see Annexes
“I” up to “M” of Complaint-Affidavit). Nonetheless, he only
filed the above-captioned criminal complaint two years and
four days after the preparation of the aforesaid demand
letters.

19.3] The Certification of Police Blotter issued by the Bocaue

Police Station is dated 19 October 2017 (please see Annex
“O” of Complaint-Affidavit). Nonetheless, he only filed the
above-captioned criminal complaint two years and three
days after the issuance of the aforesaid Certification.

19.4] The meeting of the Board of Directors of Taal TODA,

whereby it was resolved in the said alleged meeting to file
legal action against respondents, was held on 19 October
2017 (please see Annex “A” of Complaint-Affidavit).
Nonetheless, he only filed the above-captioned criminal
complaint two years and three days after the conduct of the
said alleged board meeting.

20] Worse, in order to expose respondents to public ridicule

and humiliation, Alberto D.R. Dela Cruz posted the subpoena in
various public places in Taal, Bocaue, Bulacan in full view of the public,
as follows:

20.1] at the sub-terminal of Taal TODA located at Castillo

St. corner Eusebio St. (Annex “6”)

20.2] along M. De Jesus St. corner M.E. Nicolas St.

(Annex “7”)

20.3] along McArthur Highway corner Kaingin Road in

(Annex “8”)

21] As explained to me by my lawyer, although not in all fours

with the circumstances of the present criminal complaint, Martires vs.
Cokieng (G.R. No. 150192, 17 February 2005) nonetheless
demonstrate the firmly held general principle that the right to institute
criminal prosecutions has its metes and bounds and cannot be
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exercised maliciously and in bad faith to the detriment and harassment
of a person, viz:

“The right to institute criminal prosecutions has its metes and

bounds and can not be exercised maliciously and in bad faith to
the detriment and harassment of a person who, without cause, is
pestered, inconvenienced, and rendered cash-strapped inasmuch
as such suits where liberty is at stake, compel an accused to hire
a lawyer and incur other expenses for his defense. We are likewise
constantly mindful that over and above these monetary costs is
the psychological burden that an accused and his family would
have to hurdle in the interregnum. Indeed, being tagged as an
"accused" is by itself traumatic.”

RESPONDENTS NEVER
CONSPIRED WITH ONE
ANOTHER TO COMMIT
ESTAFA

22] It is well to point out that Alberto D.R. Dela Cruz’s

accusation of conspiracy among respondents was so stretched that in
his complaint-affidavit he vainly attempts to impute the crime of
conspiracy to commit Estafa against four (4) respondents with the
EXCLUSION OF RESPONDENT DANILO NARCISO on the basis
alone of their respective positions in Taal TODA, as follows:

22.1] “Rafael San Juan, then the President then is

in charge of the overall operations of the TODA.
Being signatory of all cash withdrawals (cash on
hand and bank) he has the control of all cash.” (page
4 of complaint-affidavit)

22.2] “Philip Manong, then the Treasurer,

necessarily controls the cash. His failure to account
the missing funds is a prima facie evidence of his
complicit with the misappropriation” (page 4 of
complaint-affidavit)

22.3] “Crisostomo Francisco, then the Secretary,

failed to make report of the activities of the TODA as
well as its operations. He is in cahoots with the
Rafael San Juan in disbursing funds of the TODA.”
(page 4 of complaint-affidavit)

22.4] “Zaldy Estanislao, being then the Vice

President, is a co-signatory to the bank withdrawals.
He acted as the President when Rafael San Juan is
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 not around. As such, his participation to the possible
misappropriation is evident.” (page 4 of complaint-
affidavit)

23] Proceeding from such a premise, the hard and indelible

truth remains that Alberto D.R. Dela Cruz’s postulation of conspiracy
to commit Estafa is nothing more than an inference drawn from a
presumption. It is noteworthy that such inference could not rationally
constitute evidence of direct participation or of conspiracy to defraud
the members of Taal TODA. Relevantly, the pronouncement of the
Supreme Court in Paredes, et al. vs. Calilung (G.R. No. 156055, 5
March 2007) is of an obvious application according to my lawyer:

“Conspiracy cannot be established by mere inferences or

conjectures. It is incumbent upon respondent to prove that each
of the petitioners performed an overt act in pursuance or
furtherance of the alleged complicity, so as to convince the
investigating prosecutor that there is probable cause that
petitioners conspired with one another to commit the crime.”

24] Also instructive at this point according to my legal counsel is

that conspiracy requires the same degree of proof required to establish
the crime - proof beyond reasonable doubt; as mere presence at the
scene of the crime at the time of its commission without proof of
cooperation or agreement to cooperate is not enough to constitute one
a party to a conspiracy (People vs. Tomas, et al.,G.R. No. 192251, 16
February 2011).

25] By the same token, my legal counsel further explained that

it is necessary that a conspirator should have performed some overt
act as a direct or indirect contribution to the execution of the crime
committed. x x x To establish a conspiracy, evidence of actual
cooperation rather than mere cognizance or approval of an illegal act
is required. Nevertheless, mere knowledge, acquiescence or approval
of the act, without the cooperation or agreement to cooperate, is not
enough to constitute one a party to a conspiracy, but that there must
be intentional participation in the transaction with a view to the
furtherance of the common design and purpose (Rimando vs. People,
G.R. No. 229701, 29 November 2017).

26] Applying the foregoing jurisprudential guideposts mentioned

in paragraph nos. 23, 24 and 25, the hard and indelible truth remains
that Alberto D.R. Dela Cruz’s postulation of conspiracy to commit
Estafa under Article 315, paragraph 1(b) of the RPC, clearly founded
on generalities, is speculative and remains unsubstantiated.

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NONE OF THE ELEMENTS
OF THE CRIME OF ESTAFA
IS PRESENT

28] The elements of Estafa under Article 315, paragraph 1(b) of

the Revised Penal Code are as follows:

28.1] that the money, good or other personal property is

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;

28.2] that there be misappropriation or conversion of such

money or property by the offender or denial on his part of
such receipt;

28.3] that such misappropriation or conversion or denial is

to the prejudice of another; and

28.4] that there is a demand made by the offended party on

the offender.1

29] The essence of estafa committed with abuse of confidence

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.2

30] Looking at the present instance, the criminal complaint

against me is baseless. There exists no probable cause to indict me
for the crime of conspiracy to commit Estafa punishable under Article
315, paragraph 1(b) of the RPC in the light of the following reasons:

30.1] As to the Element of Demand.

The truth is that there was no demand made to me. A

cursory examination of the demand letter (Annex “M”)
attached to Alberto D.R. Dela Cruz’s complaint-
affidavit readily reveal this fact. It is noteworthy that
nowhere could be found in the said demand letter a
1 Tria vs. People (G.R. No. 204755, 17 September 2014)
2 Khitri vs. People (G.R. N. 210192, 4 July 2016)

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 speck of evidence that would show I truly receive said
demand letter.

30.2] As to the Element of Receipt of Money.

Other than the self-serving statements of Evelyn J.

Manalaysay in her Salaysay-Reklamo attached to
Alberto D.R. Dela Cruz’s complaint-affidavit, the latter
failed to present even a speck of evidence to establish
or suggest that I in fact received the amount of
Php626,379.00 from TODA.

In this regard, it is relevant to state herein that the

relevant entries in the log book of Taal TODA are
revelatory that I am the fourth treasurer of Taal TODA
to be appointed during the incumbency of then duly-
elected president and my co-respondent Rafael San
Juan. Relevantly, I was appointed on 15 March 2014
as shown in the pertinent portion of the logbook entry
of 15 March 2014 attached as Annex “9”.

a] the first being Orlando Cruz (please see logbook

entry of 31 July 2013 attached as Annex “10”);

b] the second being Arnel Francisco. The pertinent

portion of the logbook entry of 6 January 2014
attached as Annex “11” states as follows:

“turnover ng mga gamit at tala ng ingat-yaman sa

bagong ingat yaman si Arnel Francisco”

c] the third and my immediate predecessor being

Restituto Teodoro.

In fact, the money that was turned over to me by my

predecessor, Restituto Teodoro, amounted to
PESOS: Forty Thousand (Php45,972) only.

It is noteworthy that said amount of money was turned

over to me on 14 April 2014 or almost a month after
my appointment as treasurer of Taal TODA as shown
in the cash turnover document attached as Annex
“12.”

By way of summary, it is absolute falsity that I received

the amount of Php626,379.00 representing Taal
TODA funds.
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 30.3] As to the Element of Misappropriation.

Other than the self-serving statements of Evelyn J.

Manalaysay in her Salaysay-Reklamo attached to
Alberto D.R. Dela Cruz’s complaint-affidavit, the latter
failed to present even a speck of evidence to establish
or suggest that I in fact received the amount of
Php626,379.00 representing Taal TODA funds. As
discussed in the preceding paragraph, what the
records show is that Restituto Teodoro turned over to
me PESOS: Forty Thousand (Php45,972) only
representing Taal TODA funds.

Clearly, it is absolute falsity for me to have mis-

appropriated the amount of Php626,379.00 as
complainant would like this Honorable Office to
believe.

THE PURPOSE OF
PRELIMINARY INVESTIGATION

31] It may not be amiss to conclude at this stage that Alberto

D.R. Dela Cruz is perhaps using the facility of this Honorable Office for
the advancement of his own selfish interest unmindful of the true intent
of preliminary investigation. Put differently, he therefore comes to this
Honorable Office with unclean hands.

32] According to my lawyer, a preliminary investigation is the

crucial sieve in the criminal justice system which spells for an individual
the difference between months if not years of agonizing trial and
possibly jail term, on the one hand, and peace of mind and liberty, on
the other hand. Thus, we have characterized the right to a preliminary
investigation as not "a mere formal or technical right" but a
"substantive" one, forming part of due process in criminal justice
(consolidated cases of Palad, et al. vs. Velasco [G.R. Nos. 172070-
72, 1 June 2007], Masa, et al. vs Gonzales [G.R. Nos. 172074-76, 1
June 2007], and Beltran vs. People [G.R. No. 175013, 1 June 2007]).

33] My lawyer further explained that while probable cause

should be determined in a summary manner, there is a need to
examine the evidence with care to prevent material damage to a
potential accused’s constitutional right to liberty and the guarantees of
freedom and fair play, and to protect the State from the burden of
unnecessary expenses in prosecuting alleged offenses and holding
trials arising from false, fraudulent or groundless charges (consolidated

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cases of Tan vs. Matsuura [G.R. No. 179003, 9 January 2013] and Tan
vs. Cua [G.R. No. 195816, 1 June 2013]).

34] True, a finding of probable cause need not be based on clear

and convincing evidence, or on evidence beyond reasonable doubt. It
does not require that the evidence would justify conviction.
Nonetheless, although the determination of probable cause requires
less than evidence which would justify conviction, it should at least be
more than mere suspicion. And while probable cause should be
determined in a summary manner, there is a need to examine the
evidence with care to prevent material damage to a potential accused’s
constitutional right to liberty and the guarantees of freedom and fair
play, and to protect the State from the burden of unnecessary
expenses in prosecuting alleged offenses and holding trials arising
from false, fraudulent or groundless charges. It is, therefore, imperative
for the prosecutor to relieve the accused from the pain and
inconvenience of going through a trial once it is ascertained that no
probable cause exists to form a sufficient belief as to the guilt of the
accused (consolidated cases of Tan vs. Matsuura [G.R. No. 179003, 9
January 2013] and Tan vs. Cua [G.R. No. 195816, 1 June 2013]).

35] All told, the dismissal of this criminal complaint is warranted.

IN WITNESS WHEREOF, I affixed my signature this 20th day

of December 2019 in the City of Malolos, Province of Bulacan,
Philippines.

PHILIP B. MANONG

SUBSCRIBED AND SWORN TO before me, this 20th day of

December 2019 in the City of Malolos, Province of Bulacan,
Philippines.
_____________________
Asst. Provincial Prosecutor

CERTIFICATION
I HEREBY CERTIFY that I have personally examined the Affiant
and he confirmed to me that the foregoing narration was read by him
and that he understood its contents for which he confirms its
truthfulness and completeness.

_____________________
Asst. Provincial Prosecutor
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Copy furnished to:

TAAL TODA, INC. represented by RR NO. RE_____________________ZZ

ALBERTO D.R. DELA CRUZ MAILED AT: PhilPost Malolos, Bulacan
No. 86 2nd Avenue, Pag-asa St.
MAILED ON: December 20, 2019
Taal, Bocaue, Bulacan

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