Republic of the Philippines

MUNICIPAL TRIAL COURT IN CITIES

Fourth Judicial Region
Branch 2
San Pablo City, Laguna

PEOPLE OF THE PHILIPPINES,

Plaintiff,
Criminal Case No. 55490
-versus- For: ESTAFA under Art. 315
Par. 1(b) of the RPC

FAYE KIM TOLENTINO CARLOS,

Accused.
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MEMORANDUM
[For Accused]

Accused, FAYE KIM TOLENTINO CARLOS, assisted by the Public

Attorney’s Office through undersigned counsel, most respectfully states:

Timeliness of Filing

1. On 29 November 2019, accused, through counsel, received this

Honorable Court’s “Order” dated 25 November 2019, directing both
parties to submit their respective memoranda within 30 days from receipt.

2. Hence, accused has until 29 December 2019 within which to file

her memorandum.

3. However, since the above date fell on a Sunday, and

considering that the days thereafter were proclaimed regular holidays,
accused has until the next working day or until 2 January 2020 within
which to file the same.

4. Therefore, this memorandum is being filed on time.

 Prefatory

The Constitution mandates that in all criminal prosecutions, the accused

shall be presumed innocent until the contrary is proved, and shall enjoy the
right to be heard by himself and counsel, to be informed of the nature of
the nature and cause of the accusation against him, to have a speedy,
impartial and public trial, to meet witnesses face to face, and to have
compulsory process to secure the attendance of witnesses and the
production of evidence in his behalf.

Well entrenched in Jurisprudence is the rule that the conviction of the

accused must rest, not on the weakness of the defense, but on the strength
of the prosecution. The burden is on the prosecution to prove guilt beyond
reasonable doubt, not on the accused to prove his innocence.

-Nilo Macayanan Jr. y Malana vs. People of the Philippines-

G.R. No. 175842, dated 18 March 2015

The Case

5. This is a criminal case for ESTAFA under Art. 315, Paragraph

1(b) of the Revised Penal Code, as amended, against accused FAYE KIM
TOLENTINO CARLOS, which was allegedly committed as follows:

“That on or about August 30 2017, in the City of San

Pablo, Republic of the Philippines and within the jurisdiction
of this Honorable Court, the said accused having received
from ROSALINA VENTURA a “Machine Super 501” with a
total value of Php209,000.00 Philippine currency for the
purpose for the purpose of selling the same on commission,
under express obligation of turning over and accounting for
the proceeds of the said merchandize, if sold, or returning or
accounting for the proceeds of the said merchandize if not
sold to said Rosalina Ventura within six (6) months from
receipt thereof, once in the possession of the said merchandize
and far from complying with her obligation aforesaid, the said
accused with unfaithfulness and/or abuse of confidence did,
then and there willfully, unlawfully and feloniously,
misappropriate, misapply and convert the said amount to her
own personal use and benefit to the damage and prejudice of
said Rosalina Ventura in the aforementioned amount.
 CONTRARY TO LAW.”
Parties

6. Plaintiff Republic of the Philippines is represented in this case

by HON. LIDA V. ANENIAS, Assistant City Prosecutor, with office
address at Office of the City Prosecutor, A. Mabini Ext. St., DOJ Building,
Brgy. V-B, San Pablo City, Laguna.

7. Private complainant ROSALINA VENTURA (“private

complainant”) is 65 years old, widow, resident of Azores St., Bagong
Bayan, San Pablo City and is allegedly engaged in the business of buy and
sell.

8. Accused FAYE KIM T. CARLOS (“accused”) is 28 years old,

married, and is a resident of 179 Purok 3, Brgy. Maunong, Calamba City,
Laguna.

9. Accused is assisted and represented by the PUBLIC

ATTORNEY’S OFFICE, with office address at Kagawaran ng Katarungan,
A. Mabini Ext. St., Brgy. V-B, San Pablo City, Laguna, where she may be
served with summons and other processes.

Statement of Facts

10. In 2012, accused’s father suffered a stroke. This then caused her
to borrow an amount of Php100,000.00 from an acquaintance, which shall
answer for hospital bills and other expenses related to such illness.

11. In 2016, said person demanded payment for the above amount
from accused. Still lacking the full amount, accused, through her brother-
in-law Victor R. Carlos (“Victor”), engaged in a loaning scheme popularly
known as “5-6” with private complainant in this case.

12. On 12 December 2016, accused, together with Victor, went to

private complainant’s residence located at 0005 DR-Doña Esperanza St.,
Crispina Park Subdivision, Bagong Bayan, San Pablo City, Laguna for the
above purpose.

13. Aside from Victor, accused was accompanied by her mother,

Iluminada Tolentino, and Fe Boado (“Fe”), who introduced Victor to
private complainant and her “5-6” business.
 14. Upon reaching private complainant’s residence, Victor and Fe
introduced accused to her. She later agreed to lend the amount of
Php150,000.00 to accused, however, with the condition that accused is
bound to pay a monthly interest of Php15,000.00, separate and distinct
from the above principal amount.

15. Upon agreement, private complainant then brought out a piece

of paper, denominated as “Kasunduan,” and made accused sign the same
right then and there.

16. When asked by accused regarding the document, Victor

explained that private complainant normally asks her borrowers to sign a
piece of paper. This was just part of the lending transaction. In fact, when
Victor himself borrowed money from private complainant, he likewise
signed a piece of paper then, albeit a blank one.

17. Hence, in order to expedite the transaction and without delving

into the substance of the “Kasunduan,” accused obliged, wrote her name
and affixed her signature thereon, with the sole belief that the same was
merely for the purpose of entering a contract of loan with private
complainant.

18. Immediately after accused signed the “Kasunduan,” private

complainant gave her the amount of Php50,000.00, while explaining that
the balance of PhP100,000.00 shall be withdrawn first from Banco De Oro,
SM San Pablo, Brgy. San Rafael, San Pablo City, Laguna.

19. After withdrawing the above balance, private complainant

handed the same to accused. Then, they all went back to their respective
houses upon this conclusion of the whole transaction involving solely of
money.

20. Years have passed, partial payments were made, and accused
was left in awe and confusion whe she received a Warrant of Arrest, by
virtue of an Information filed against her by the City Prosecutor’s Office,
San Pablo City, Laguna.

21. Said Information charges accused of the crime of Estafa under

Art. 315, Paragraph 1(b) of the Revised Penal Code, alleging that she
received a certain “Machine Super 501” from the private complainant for
the purpose of selling the same on commission basis which, however, was
vehemently belied by accused for: (1) not having received the same; (2) nor
entering into an agreement with private complainant to that effect.

22. To stress, ONLY MONEY, BY VIRTUE OF A CONTRACT OF

LOAN, WAS TRANSFERRED TO ACCUSED. THERE WAS NO
CONTRACT OF SALE ON COMMISSION BASIS. NEITHER WAS
THERE A SO-CALLED “SUPER MACHINE 501” TRANSFERRED TO
ACCUSED’S POSSESSION.

23. After arraignment, trial ensued. Prosecution presented their

sole witness, private complainant herself, who identified several
documents. On the other hand, defense presented as witnesses accused
herself and Victor.

24. On 13 November 2019, accused submitted before this

Honorable Court her “Formal Offer of Exhibits” to which the State did not
interpose any objection or comment. Exhibits formally offered consists of:

Exhibit “1” – “Panghusgadong Sinumpaang

Salaysay” executed by accused Faye Kim T. Carlos

Exhibit “1-A” – Signature of accused on her

“Panghusgadong Sinumpaang Salaysay”

Exhibit “2” – “Panghusgadong Sinumpaang

Salaysay” executed by Victor Renales Carlos

Exhibit “2-A” – Signature of Victor Renales Carlos on

his “Panghusgadong Sinumpaang Salaysay “

25. On 25 November 2019, this Honorable Court issued an order,

giving both parties thirty (30) days within which to file their respective
memoranda from receipt of said order.

26. Hence, this memorandum.

Issue

WHETHER OR NOT ACCUSED SHALL BE ACQUITTED OF THE

CRIME CHARGED.
 Discussion

Accused shall be acquitted. Prosecution

failed to prove beyond reasonable doubt
a case of Estafa under Article 315, Par. 1
(b) against her.

27. The elements of Estafa with abuse of confidence under Article

315, Paragraph 1 (b) of the Revised Penal Code, as amended, are as follows:

i. That money, goods or other personal property be

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;
ii. That there be misappropriation or conversion of such
money or property by the offender, or denial on his
part of such receipt;
iii. That such misappropriation or conversion or denial is
to the prejudice another; and
iv. That there is demand made by the offended party to
the offender.

28. Clearly, to successfully make a case of Estafa under Article 315,

Paragraph 1(b), prosecution must prove beyond reasonable doubt that
money, goods or other personal property was in fact received by accused,
transferring juridical possession of such property to her, under a certain
kind of transaction.

29. Juridical possession means possession which gives the

transferee a right over the thing which the transferee may set up even
against the owner.

30. Here, private complainant alleged the transfer of a certain

“Machine Super 501” to accused, which the latter specifically and
vehemently denied.

31. During her direct examination, private complainant produced

an image of said personal property allegedly misappropriated or converted
by accused, through her cellphone.
 32. However, when presented, said picture clearly exhibited a
machine branded “Leveluk Super 501” instead of the alleged “Machine
Super 501,” as per the information.

33. Apart from this clear inconsistency as to the property allegedly

received by accused, when asked about the terms of the “Kasunduan,”
private complainant seemed likewise confused, if not, unaware of the
details of the same.

34. Private complainant consistently contended that she filed this

case against accused because the latter was not able to return to her either
the subject machine or the proceeds from the alleged sale thereof within the
prescribed time written in their agreement. Hence, this Estafa under Art.
315, Paragraph 1 (b) charges.

35. However, when asked regarding the alleged period agreed

upon between private complainant and accused to return the subject
property as per the written “Kasunduan” during her direct examination,
private complainant confidently enunciated that the term is for a year
reckoned from the date of said writing.

36. The above statement is obviously inconsistent with that which

was stated in private complainant’s “Supplemental Affidavit.” There,
private complainant herself affirmed that the ‘Machine Super 501” shall be
sold within six (6) months.

37. In a frail effort to reconcile the above inconsistency by the

prosecution, private complainant reasoned out that said statement
regarding the “one year period” was made only because of accused’s
alleged failure to make good installments due thereon, which made no
sense at all.

38. Apart from the above irrelevance, it was only during that time
when private complainant was already cornered as to her inconsistent
statements that she made mention about these installments for the first
time.

39. To repeat, for one to be held guilty of the crime of Estafa under
Art. 315, Paragraph 1(b), money, goods or other personal property must
have been transferred by the offended party to the offender, the former
thereby transferring the juridical possession of the money, goods or other
personal property to the latter.
 40. In this case, private complainant miserably failed to prove that
the subject property was indeed transferred to accused’s possession.

41. Not only did private complainant fail to identify which

particular personal property was allegedly transferred to accused, she
likewise was unable to prove the terms of the contract allegedly entered
into between her and accused, which founded this case against the latter.

42. It is of great importance that in a case of Estafa under Art. 315,

par. 1(b), the property transferred must be described and identified with
particularity and accuracy as the transfer of the personal property is the
very element of the crime charged.

43. Private complainant offered no other evidence, aside from her

testimony, that the said “Machine Super 501” was indeed transferred to the
possession of the accused.

44. Private complainant’s testimony being unreliable, and the

accused and her witnesses having denied the same, the charges against the
former must necessarily fail.

45. It is worth reiterating that in criminal cases, the conviction of

the accused must rest, not on the weakness of the defense, but on the
strength of the prosecution evidence.

46. Considering the blatant inconsistencies on private

complainant’s testimony, it may not be amiss to state that the evidence of
the prosecution is not only weak but more so, futile, thereby negating any
and all accusations against accused.

47. The prosecution raised the possibility of “confusion” when

private complainant made her testimonies. Confusion, whatever the
circumstances may be, cannot be made basis to make an accused liable in a
criminal case, since in allowing so, would defeat the very essence of our
justice system.

48. Proof beyond reasonable doubt is the standard used in

convicting an accused, and “confusion” as an excuse is, in every way,
incompatible with the said quantum of proof.
 49. If at all, what the prosecution successfully accomplished was to
create doubt as to the guilt of accused from the moment private
complainant took her oath on the witness stand. Indeed, this doubt favors
accused and warrants her acquittal.

50. Further, on cross-examination, private complainant affirmed

that she allegedly parted with the subject machine on 30 August 2017,
which was likewise the date of the “Kasunduan,” presented and identified
before this Honorable Court.

51. As per the alleged agreement between the parties, accused

supposedly acceded to the obligation of selling the subject machine, and
return the proceeds from its sale or return such machine, when not sold,
within six (6) months from 30 August 2017.

52. However, the Demand Letter sent was dated 19 October 2017.
Hence, a demand was made even before the expiration of the period
allegedly agreed upon by the parties. Therefore, it is premature.

53. Thus, it can be deduced from the foregoing that not only did
the prosecution fail to prove the transfer of the subject machine’s juridical
possession to accused, it likewise failed to prove a timely demand made in
accordance with law.

54. In making a premature demand, it was as if private

complainant made no demand at all.

55. Hence, lacking ALL the essential requisites of the crime

charged, the criminal case against accused must fail.

56. At most, accused can only be made civilly liable for the
payment of the unpaid balance of the amount loaned, as it is easy to
perceive that the agreement entered into by the respective parties is only
that of a contract of loan.

57. All told, since the prosecution failed to prove all the elements of
the crime, accused cannot be held guilty of Estafa under Art. 315,
Paragraph 1(b).
 RELIEF

WHEREFORE, premises considered, accused FAYE KIM

TOLENTINO CARLOS prays that she be ACQUITTED of the crime
charged due to prosecution’s failure to prove this case beyond reasonable
doubt.

Other reliefs just and equitable are likewise prayed for.

San Pablo City, Laguna, 2 January 2020.

PUBLIC ATTORNEY’S OFFICE

Counsel for Accused
Kagawaran ng Katarungan
A. Mabini Ext., Brgy. V-B
San Pablo City, Laguna 4000
Tel No.: (049) 559-1579

MA. SHERYL L. HARINA-LAURE

Public Attorney III /Officer-in-Charge
Roll No. 60252
IBP Lifetime Membership No. 018112;
18 October 2017
MCLE Compliance No. VI-005490;
10 October 2017

By:

DHANNETE JAISE S. CAPPAL (ON LEAVE)

Public Attorney I
Attorney’s Roll No. 70968
IBP No. 097709/01/04/2019; PPLM
MCLE Compliance No. VI-0017990;
18 February 2019
Copy furnished: (by personal service)

Hon. Lida V. Anenias

Assistant City Prosecutor
Office of the City Prosecutor,
DOJ Building,
Brgy. V-B, San Pablo City, Laguna.