Republic of The Philippines Office of The City Prosecutor

Republic of the Philippines
Department of Justice
OFFICE OF THE CITY PROSECUTOR
Taguig City
JOEL RALPH J. GRANDE,
Complainant,
No. XV-16-INV-19F-00474
- versus - For: Estafa (Art. 315 [2](a) or Article
316 or Article 318, RPC
MA. GRACIA S. OSIAN,
Respondent.
x-----------------x
MOTION FOR RECONSIDERATION

COMPLAINANT, through counsel, by way of a Motion for
Reconsideration, humbly asks this Honorable Office to take a second fresh look and
reflect deeply on the strength of complainant’s case and most respectfully submits that
the Resolution dated 25 September 2019 it issued be RECONSIDERED and SET-
ASIDE and a new one be issued INDICTING the respondent for the crime of
ESTAFA as charged in the complaint and in support thereof complainant posits:
PREFATORY STATEMENT
1. A Motion for Reconsideration is a virtual exercise in futility especially to
an office with enviable record of non-reversal of its decision. But it is relevant so long
as the possibility of mistake remains. No less than the Honorable Supreme Court
realized this and in reconsidering its decision, it solemnly declared:
“The inherent powers of a Court to amend and control its processes
and orders so as to make them conformable to law and justice includes the
right to reverse itself, especially when in its honest opinion it has
committed an error or mistake in judgment and that to adhere will cause
injustice to a party litigant.”1
2. In filing the instant Motion for Reconsideration herein complainant

apologizes to this Honorable Office for whatever inconvenience the same may bring
and states here that he has nothing against the Hon. Prosecutor who issued the
assailed Resolution but the highest respect and admiration. The Motion for
Reconsideration is being filed not to cast any unwanted aspersion towards the Hon.
Prosecutor who issued the said Resolution and complainant has no other purpose but
only to have the opportunity to be able to correct any actual or perceived error
attributed to it by re-examination of the legal and factual circumstances of the case.
3. From complainant’s limited view and layman’s understanding, the
Resolution is indeed surprising and unexpected in that respondent flouted with legal
processes as she did not even bother to attend the proceedings had in this case nor file
any counter-affidavit to controvert the accusation against her. As it is, the Resolution
is deeply excruciating and painful to the complainant with effect equal to the COVID
19 pandemic that everybody just went through for it not only took all his hope to make
1
Marjorie Tocao, et. al. vs. Court of Appeals, et. al., Supreme Court, First Division, G. R. No. 127405,
September 20, 2011
Page 2 of 4
respondent account for her devious act but also made it difficult for him get back the
hard earned money he was made to part with.
TIMELINESS OF THE FILING OF THE

4. On 16 June 2020, the complainant received a copy of the subject Resolution
issued by this Honorable Office. Under the rules, the complainant/movant has ten
(10) days within which to file a Motion for Reconsideration or until 26 June 2020
from receipt of the assailed Resolution. Accordingly, this Motion for
Reconsideration having been filed on or before 26 June 2020 is filed on time.
GROUNDS AND DISCUSSION FOR THE

5. On 16 June 2020, the complainant/movant received a copy of the
Resolution rendered by Senior Asst. City Prosecutor Maria Luz Antonette O.
Toyco-Tan and approved by the City Prosecutor of the City of Taguig, Vincent L.
Villena, the dispositive portion of which, reads as follows:
“WHEREFORE, premises considered, the complaint against
MA. GRACIA S. OSIAN for estafa under Art. 315 2(a) or, Art. 316 or,
Art. 318 of the Revised Penal Code, is recommended to be, as upon
approval, hereby dismissed for lack of probable cause.”
A copy of the said Resolution dated 25 September 2019 is hereto attached and
marked as Annex "A" and made an integral part hereof.
6. With all due respect, the said Resolution is contrary to existing laws and
existing jurisprudence on the matter. Thus, herein complainant/movant seeks the kind
indulgence of this Honorable Office to take a second fresh look of the instant case
and consider material facts, which if considered would certainly alter the result of the
findings and eventually indict the respondent in the appropriate court.
7. The assailed Resolution cited the case of Bienvenido Gonzaludo v.
People2 where it was held that “accused may be convicted for estafa only when the
deceit or false pretense, committed simultaneously with fraud, were the efficient cause
or primary consideration which induced the offended party to part with his money or
property.” The assailed Resolution further went on to say that “it is indispensable that
the element of deceit, consisting in the false statement or fraudulent representation of
the accused, be made prior to, or, at least simultaneous with, the delivery of the thing
by complainant, it being essential that such false statement or fraudulent representation
constitutes the very cause or the only motive which induces the complainant to part
with the thing.3”
8. According to the assailed Resolution, “complainant however failed to prove
that respondent employed the alleged false pretense or fraudulent act or means prior to
or simultaneous complainant’s defraudation. It must be stressed that when the parties
executed the Kasunduan, the stall was not mortgaged or subject of any sale.
Respondent was still the owner of the said property. The property was made subject of
alleged sale months or a year after the Kasunduan was made by them. Thus, the
respondent, being the owner, can dispose of her property at will. If, at all, the party
2
G.R. No. 150910, 06 February 2006
3
People v. Gines, CA 61 OG 1365
Page 3 of 4
who is the most aggrieved is the new owner as he bought the property which was the
subject of mortgage.”
9. Complainant wishes to state here that “the purpose of preliminary
investigation is merely to determine whether a crime has been committed and
whether there is probable cause to believe that the person accused of the crime is
probably guilty thereof and should be held for trial. 4” Again, in the case of Baytan
vs. Commission on Elections,5 it was held that “the established rule is that a
preliminary investigation is not the occasion for the full and exhaustive display of
the parties' evidence. It is for the presentation of such evidence only as may
engender a well-grounded belief that an offense has been committed and the
accused is probably guilty thereof.”
10. The preliminary investigation process is essentially one sided, that is, it
only serves to assist the prosecution in determining whether it has “prima facie
evidence” to sustain the filing of information. The term “prima facie evidence”
denotes evidence which, if unexplained and uncontradicted, is sufficient to sustain the
proposition it supports or to establish the facts, or to counter-balance the presumption
of innocence to warrant a conviction.
11. In the case of Tan vs. Hosana6, it defines ‘prima facie evidence’ as
evidence that “is good and sufficient on its face. Such evidence as, in the judgment
of the law, is sufficient to establish a given fact, or the group or chain of facts
constituting the party’s claim or defense and which if not rebutted or
contradicted, will remain sufficient.”
12. It must be emphasized that the conduct of preliminary investigation is only
for the determination of probable cause, and probable cause merely implies probability
of guilt and should be determined in a summary manner. Needless to say, the quantum
of evidence now required in preliminary investigation is such evidence sufficient to
“engender a well-founded belief” as to the fact of the commission of a crime and the
respondent’s probable guilt thereof.
13. In this case, to establish the offense of estafa, it is enough to consider the
false pretenses or misrepresentation in the “Kasunduan ng Sangla-Tira” that
respondent committed. It must be pointed out that in the said agreement, respondent
gave the express warranty and representation that “na ang nasabing kwarto ay
HINDI NAKASANLA sa ibang tao maliban sa IKALAWANG
PANIG/PINAGSANGLAAN (herein complainant) at HINDI MULING
GAGAWING KOLATERAL sa kahit sinong tao HANGGAT HNDI nakakansela
o natetermino ang kasunduang ito.”7 Respondent in this case prepared and executed
said agreement containing the express warranty that the mortgaged property is not
mortgaged to any other party when in truth and in fact, it is not as it was already also
mortgaged to another party. It was at the time of the execution of the said agreement
that deceit and fraud was exercised and committed by the respondent and during
which time the complainant parted with his hard earned money.
14. In this case, respondent did not even disclose to complainant that the
property mortgaged to him and used as collateral to guaranty payment of the amount
respondent borrowed from him was, in fact, also already mortgaged to another and
that respondent has also already sold the same property to another party.
4
Serapio vs. Sandiganbayan, 396 SCRA 443
5
396 SCRA 703
6
G.R. No. 190846, 02.03.2016
7
Par. 4, Kasunduan ng Sangla Tira
Page 4 of 4
15. As fraud involves acts or spoken or written words by a party to mislead

another into believing a fact to be true when it is not in fact and in truth constitute the
false representation or deceit and one of the elements giving rise to the crime of estafa.
16. When complainant agreed to enter into agreement with the respondent, he
did not know that the property mortgaged to him was also already mortgaged to
another party nor did he expect that respondent would later sell the subject property as
the latter gave the warranty that she will not mortgage again nor dispose of the subject
property. It was the very consideration of the agreement and can be logically assumed
that complainant would have refrained from parting with his hard earned money if he
had any inkling that the property would later be sold to another party.
17. For this Honorable Office to condone the conduct of the respondent would
encourage mischievous practices conducive of much harm to unsuspecting and
innocent party. Accordingly, complainant begs that respondent be indicted for the
crime of estafa as charged in the complaint.
PRAYER
WHEREFORE, premises considered, it is most respectfully prayed of this
Honorable Office that the Resolution dated 25 September 2019 issued by the Hon.
Senior Asst. Prosecutor Maria Luz Antonette O. Toyco-Tan and approved by the
Hon. City Prosecutor Vincent L. Villena be REVERSED and SET ASIDE and a
new one be rendered indicting respondent in court as charged.
Other reliefs just and equitable under the premises are likewise prayed.
Taguig City, 26 June 2020.
ATTY. ARMANDO I. TERCERO

Counsel for the Complainant
No. 11 Meralco Road corner Ballecer St.,
Central Signal Village, Taguig City, Metro Manila
PTR No. 8121677/01.06.2020/Makati City
IBP No. 101391/01.06.2020/Makati City
MCLE Compliance No. VI-0028951/10.04.2019
Roll of Attorney No. 37983
CERTIFICATE OF SERVICE & EXPLANATION

Copy of the above Motion for Reconsideration for the adverse party is served by
registered mail with return card due to time constraints and the distance between the offices of
the undersigned counsel and for lack of messengerial personnel to effect personal service.
ATTY. ARMANDO I. TERCERO
Copy furnished:
MA. GRACIA S. OSIAN
No. 8 Cuasay St., North Signal Village,
Taguig City
Registry Receipt No. _______________/Post Office: _______________
Date: _______________

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MOTION FOR RECONSIDERATION

2. In filing the instant Motion for Reconsideration herein complainant

TIMELINESS OF THE FILING OF THE

GROUNDS AND DISCUSSION FOR THE

15. As fraud involves acts or spoken or written words by a party to mislead

ATTY. ARMANDO I. TERCERO

CERTIFICATE OF SERVICE & EXPLANATION

ATTY. ARMANDO I. TERCERO

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