REPUBLIC OF THE PHILIPPINES DEPARTMENT OF JUSTICE NATIONAL PROSECUTION SERVICE OFFICE OF THE CITY PROSECUTOR xxx xxx Xxx bank,
Complainant/s,
I.S. No. ____________________ -versus-
xxx
xxx
For: Qualified Theft under Article 310 of the Revised Penal Code thru Computer-Related Forgery punishable under Section 4(b) of the Cybercrime Prevention Act of 2012
xxx.,
Respondent/s. x-------------------x-----------------------------------------------------------------------x ---------x
COUNTER – AFFIDAVIT AFFIDAVIT I,
xxx
xxx
xxx,
residential address at
Filipino,
xxx xxx
xxx
of
legal
after
age,
being
married,
duly
with
sworn
in
accordance accordance with law, do hereby depose and state the following:
1. That 1. That I am the the respondent respondent in the instant instant complaint; complaint;
2. At the onset, I vehemently deny and brand as malicious, baseless, unfounded and unjust fabrications that the instant complaint has leveled against me;
3. The 3. The truth of the matter matter are as follows:
A. As to the allegations contained in paragraph 8 and 9 of the Complaint-Affidavit I admit the same, only as to the nature of my work and my position as an employee of
xxx xxx
xxx.
B. However as to paragraphs 10, 11, 12, 14, 15, 16, 17, 18, 19 and 20, I am denying the same for absence of personal knowledge as to the occurrence of the said events;
C. While the allegation contained in paragraph 13 of the complaint, as to my absence and/or disappearance on 26 March 2018, the same is true. However, it was not because I realized that my alleged criminal acts had been discovered. But because I was kidnapped and was taken into an unknown location in
D. Starting
xxx xxx
xxx I
xxx xxx
xxx.
have been dealing with a threat
to the safety of my life and my family, since that day up to this moment I have been receiving phone calls from unknown numbers and coercing me to commit things I do not have any control of;
E. And on that day of my disappearance (xxx
xxx
xxx),
I
was forced and coerced to go to an unknown location and was forced to provide information about certain banking transactions that I, as a bank employee have access on. Attached as Annex 1 is the Police report of my disappearance;
F. However, despite their coercion I did not provide the information that they are asking. I as an employee of xxx
xxx
xxx believed
that it is my sacred duty to
protect the confidential information I have come to know working there;
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G. I have been employed in
xxx xxx
time. In my long career with xxx
xxx xxx
for a very long xxx I
have never
committed any illegal acts or was never a privy to any;
H. It has always been my priority to upheld the interest of
xxx xxx
xxx and
and dedication to
as an attestation to my character
xxx
xxx
xxx,
through my several
years of service, I was given awards and citations. Attached as” Annex 2 and Series” are copies of the
awards and citations given to me;
I. That I was only able to return home on xxx On the same day I went to the xxx
xxx
xxx
xxx.
xxx station
and Pasig Police station to report my appearance;
J. As to the allegations that I transferred money to my account thru computer-related forgery, the same is false and without factual basis;
K. While as to the allegations that I committed qualified theft, I have no knowledge of any transfer and I was never the person who operated our computer banking system to facilitate the transfer of any fund;
L. As correctly stated by complainant I had no hand in the uploading of files or the actual transfers of funds thru the banks computerized system, but certain employees;
Page 3 of 9
4. The Elements of Qualified theft thru Computer-Related Forgery
punishable
under
Section
4(b)
of
the
Cybercrime Prevention Act of 2012 are not present:
A. Article 308 of the Revised Penal Code which defines theft provides: xxx
xxx
xxx
Art. 308. Who are liable for theft. — Theft is committed by any person who, with intent to gain but without violence against or intimidation of persons nor force upon things, shall take personal property of another without the latter's consent. xxx
xxx
xxx
Thus the elements of theft according the Supreme Court in Cruz v. People1; citing People v. Bago2 are: (1) there was a taking of personal property; (2) the property belongs to another; (3) the taking was without the consent of the owner; (4) the taking was done with intent to gain; and (5) the
taking
was
accomplished
without
violence
or
intimidation against the person or force upon things.
Theft is qualified under Art. 310 of the RPC, thus: Art. 310. Qualified theft. — The crime of theft shall be punished by the penalties next higher by two degrees than those respectively specified in the next preceding article, if committed by a domestic servant, or with grave abuse of confidence, or if the property stolen is motor vehicle, mail matter or large cattle or consists of coconuts taken from the premises of a plantation, fish taken from a fishpond or fishery or if property is taken on the occasion of fire, earthquake, typhoon, volcanic 1
G.R. No. 176504, September 3, 2008, 564 SCRA 99, 110. G.R. No. 122290, April 6, 2000, 330 SCRA 115, 138-139.
2
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eruption, or any other calamity, vehicular accident or civil disturbance.
B. While, Computer-Related Forgery punishable under Section 4(b) of the Cybercrime Prevention Act of 2012 which states: xxx
xxx
xxx
(4) Computer-related Offenses:
(b) Computer-related Forgery. —
(i) The input, alteration, or deletion of any computer data without
right
inauthentic
resulting
data
with
in the
intent that it be considered or acted upon for legal purposes as
if
it
were
authentic,
regardless whether or not the data is directly readable and intelligible; or
(ii) The act of knowingly using computer data which is the product
of
computer-related
forgery as defined herein, for the purpose of perpetuating a fraudulent
or
dishonest
design.(emphasis supplied)
C. First, the element of taking of someone’s private property was not proven with even substantial evidence. Herein Complainant stated that the alleged
Page 5 of 9
missing funds were transferred to Account No. 109452159301, that purportedly was my Account Number. However, I have no knowledge of such transfer and or the use of my bank accounts;
D. Second as to the third element, that there was intent to gain on my part. Intent to gain or animus lucrandi, is an internal act that is presumed from the unlawful taking by the offender of the thing subject of asportation.
However such intent is not present in this case, since I have no knowledge of the transfer nor was I involved in the transfer itself. As explained, there were other bank employees that are in charge of inputting data into the banks computer system. Such may be due to inadvertent typographical error or other human nature such as exhaustion and fatigue that may have caused the errors;
E. And lastly, as stated above, Computer related-forgery is done either by (i) The input, alteration, or deletion of any computer data without right resulting in inauthentic data with the intent that it be considered or acted upon for legal purposes as if it were authentic, regardless whether or not the data is directly readable and intelligible; or (ii) The act of knowingly using computer data which is the product of computer-related forgery as defined herein, for the purpose of perpetuating a fraudulent or dishonest design (emphasis supplied).
F. Clearly in this case however, that it was not me who inputted the data but some other person. And that I
Page 6 of 9
have no participation in the encoding of data or the actual transfer itself but some other employee.
5. Good Faith as a defense in the crime charged. In common usage, the term good faith is ordinarily used to describe that state of mind denoting honesty of intention, and freedom from knowledge of circumstances which ought to put the holder upon inquiry; an honest intention to abstain from taking any unconscientious advantage of another, even through technicalities of law, together with absence of all information, notice, or benefit or belief of facts which render transaction unconscientious 3.
6. In short, good faith is actually a question of intention. Although this is something internal, we can ascertain a persons intention by relying not on his own protestations of good faith, which is self-serving, but on evidence of his conduct and outward acts 4.
7. Here, I as the respondent, did not purport any actuations that would negate my good faith towards the company and its transactions. I have no hand in transferring the alleged missing funds to my personal bank accounts nor did I used any of the alleged missing funds for my personal gain since I still live a humble and simple life with just a little to live on by;
8. It must be emphasized that Probable Cause is defined as “the existence of such facts and circumstances as would 3
Blacks Law Dictionary, sixth edition, 1990 at 69 3 (underscoring supplied), citing Efron vs. Kalmanovitz, 249 Cal.App. 187, 57 Cal.Rptr. 248, 251; Leung Yee vs. Frank L. S trong Machinery Co., 37 Phil. 644 (1918); Fule v s. Legare, 117 Phil. 368 (1963). 4 Gabriel vs. Mabanta, G.R. No. 142403, March 26, 2003, 399 SCRA 573.
Page 7 of 9
excite the belief in a reasonable mind, acting on the facts within the knowledge of the prosecutor, that the person charged was guilty of the crime for which he was prosecuted .5 No less than the Supreme Court has held 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 6;
9. My work with
xxx xxx
xxx
has been the source of my
aspiration and livelihood not just for me but for my family. I would never do any act that would jeopardize my relationship with the company. I had been working with xxx xxx
xxx since
1990 and has always strived to advance its
interest;
10. For whatever may had happened are all explainable and are just according to the circumstances. I am hoping that my relationship with the company will not be totally strained but is just a mere bump on the road that will be part of my experience working there;
11. If my absence had caused panic and alarm for the company, tenth fold was felt by my family. Everything was due to some evil acts of people that wanted to do harm not only to me but to
xxx
xxx
xxx and
I did not gave in to their
5
Severino B. Vergara v. The Honorable Ombudsman G.R.No. 174567 March 1 2009 Alfredo Ching vs. The Secretary of Justice, et al., G. R. No. 164317, February 6, 2006.
6
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desire. So I hope that the Company will understand and will give me another chance to again, gain their trust;
12. And for what it’s worth, I am willing to cooperate to finally determine the events that transpired within the walls of the Company. For I, still consider myself part of the
xxx
xxx
xxx family;
PRAYER WHEREFORE, premises considered, it is respectfully prayed that the instant criminal complaint be DISMISSED for lack of merit. FURTHER, the respondents respectfully pray for such and other reliefs as may be deemed just and equitable in the premises.
IN WITNESS WHEREOF, I have hereunto affixed my signature this ___________ day of ______________________ 2018, in ___________________________________________________________
Defendant
SUBSCRIBED AND SWORN TO before me this _____ day of ________________ 2018, in __________________________________.
CERTIFICATION
I HEREBY CERTIFY THAT I have personally examined the affiant and I am satisfied that he voluntarily executed and understood his own affidavit.
Page 9 of 9
