REPUBLIC OF THE PHILIPPINES
DEPARTMENT OF JUSTICE
OFFICE OF THE CITY PROSECUTOR
City
AAAA,
Complainant,
-versus- Case No.: XXXXXX
For: Violation of Articles 353, 355,
364 and 287 of the Revised Penal
Code
BBBB,
Respondents.
x- - - - - - - - - - - - - - - - - - - - - - - - - - -x
COUNTER-AFFIDAVIT
I, BBBB, Filipino, of legal age, married, and with postal address at
________________________, after having sworn to in accordance with
law hereby depose and state the following statements in English, fully
conscious that I may face criminal liability for false testimony or perjury,
to wit:
1. I am the respondent and member of the board of CCCC in the
above-entitled case before this Honorable Office.
2. A simple perusal of the Joint Complaint-Affidavit should
immediately put any investigating prosecutor ON NOTICE that I
cannot be held criminally liable for the offense allegedly
committed because it is clear that all the allegations therein,
which I VEHEMENTLY DENY, are baseless and without any
factual or legal bases, and are mere conclusions of facts
and laws.
3. Not only that, with their fantastic allegations in the Complaint-
Affidavit, complainant simply wanted to find faults in order to
build a concrete case to my peril.
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4. Instead of cooperating in the investigation of discrepancies in
the letter/audit findings1 of theXXXXXXXX against the
undelivered plants and other supplies of the landscaper DDD
to clear her name, she filed multiple baseless criminal cases to
the other members of the board of the aforesaid Homeowner’s
Association with this Honorable Office, to wit:
XXXXXXX
5. Conversely, complainants cannot belittle the capability of the
Honorable Office to evaluate their baseless allegations. As
such, they still need to pass the scrutiny during the preliminary
investigation that more likely than not, a crime has been
committed by me and all those cases only clogs the dockets of
this Honorable Office.
6. According to my counsel, “[a] preliminary investigation is
designed to secure the respondent involved against hasty,
malicious and oppressive prosecution. A preliminary
investigation is an inquiry to determine whether (a) a crime has
been committed; and (b) whether there is a probable cause to
believe that the accused is guilty thereof. It is a means of
discovering the person or persons who may be reasonably
charged with a crime. Probable cause need not be based on
clear and convincing evidence of guilt. The investigating officer
acts upon reasonable belief. Probable cause implies probability
of guilt and requires more than bare suspicion but less than
evidence which would justify a conviction. A finding of probable
cause needs only to rest on evidence showing that more likely
than not, a crime has been committed by the suspect.”2
7. “However, 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.”3
8. Thus, after examining the allegations and the evidences
presented by the complainants, hereunder are the discussion
that should be considered for the outright dismissal of the
entitled criminal complaint.
1
A copy of Letter/Audit Findings dated April 26, 2021 including its annexes is hereto attached as Annex “A”
2
Preferred Home Specialties, Inc., et al. vs. Court of Appeals, et al., G.R. No. 163593, December 16,
2005
3
Supra, Emphasis and underscoring supplied.
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9. According to my counsel, in the case of Disini vs. The
Secretary of Justice, G.R. No. 203335, 11 February 2014, the
Supreme Court, the Supreme Court laid down the elements of
libel, to wit:
“Xxx The elements of libel are: (a) the allegation of a
discreditable act or condition concerning another; (b)
publication of the charge; (c) identity of the person
defamed; and (d) existence of malice. (Underscoring and
emphasis supplied)
10. It should be stressed that the first element that requires that
the allegation must be a malicious imputation of a crime or of a
vice or defect, real or imaginary, or any act, omission, condition,
status or circumstance tending to cause the dishonor, discredit
or contempt of a natural or juridical person or to blacken the
memory of one who is dead is missing in the instant complaint.
11. It is crystal clear that the first element of libel in this case is
missing, the sole purpose of the letter dated XXX is not to
malign one’s reputation but to state a fact and to fulfill moral
duty to protect the aforesaid Homeowner’s Association being
an auditor/officer thereof as the association has suffered a
damage in the amount of Forty Thousand Pesos
(Php40,000.00) based on the audit of delivered plants and
supplies.
12. Further, in the letter dated aa/aa/aa I only signed the said letter
as an auditor of the association which I only reported the result
of my audit of the beautification project.
13. In the investigations made by the board of directors it could
have been used by complainant to shed light to the discrepancy
in the financial audit of the Landscaping Project which the
complainant lead but instead she filed a criminal case to the
members of the board.
14. On the third element of Publication is also lacking in this case,
as the Joint the letter dated AAAA of the association was not
published, in fact it was marked as “Strictly Private and
Confidential” no other person was able to see the said letter but
only her.
15. Moreover, Article 354(2) of the Revise Penal Code which
provides that:
Art. 354. Requirement for publicity. - Every defamatory imputation is
presumed to be malicious, even if it be true, if no good intention and
justifiable motive for making it is shown, except in the following cases:
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1. A private communication made by any person to another in the
performance of any legal, moral or social duty; and
2. A fair and true report, made in good faith, without any comments or
remarks, of any judicial, legislative or other official proceedings which
are not of confidential nature, or of any statement, report or speech
delivered in said proceedings, or of any other act performed by public
officers in the exercise of their functions.
16. Also, the last element of libel or existence of malice is missing
in the instant complaint. Again, in the case of Disini vs. The
Secretary of Justice, G.R. No. 203335, 11 February 2014, the
Supreme Court elaborated the existence of malice in order to
satisfy the last element of libel, to wit:
“Xxx There is "actual malice" or malice in fact when the
offender makes the defamatory statement with the
knowledge that it is false or with reckless disregard of
whether it was false or not. The reckless disregard standard
used here requires a high degree of awareness of probable
falsity. There must be sufficient evidence to permit the
conclusion that the accused in fact entertained serious doubts
as to the truth of the statement he published. Gross or even
extreme negligence is not sufficient to establish actual malice.”
(Underscoring and Emphasis supplied)
17. No less than the jurisprudence requires that offender makes
the defamatory statement with the knowledge that statement
uttered or written is false or with reckless disregard of whether
it was false or not. It must be emphasized that I signed the said
letter dated _______ in performance of my moral and legal
duty as an auditor of the association and to protect the
association’s interest by giving the result of the audit.
18. The complainant failed to prove that the statement or the result
of the audit is false rather she made self-serving, conclusion of
facts and law in her complaint-affidavit.
19. Since Article 355 and Article 364 of the Revised Penal Code is
a crime against honor that have common elements with Article
353 (Libel) there is no need to discuss the same.
20. The Supreme Court in the case of Renato Baleros vs. People 4
defined unjust vexation, to wit:
“xxx unjust vexation exists even without the element of restraint or
compulsion for the reason that this term is broad enough to include any
human conduct which, although not productive of some physical or
material harm, would unjustly annoy or irritate an innocent person.”
4
G.R. 138033, dated 22 February 2006.
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21. Thus, respondent cannot also be indicted with unjust vexation
as the Joint Affidavit is executed in good faith in performance
of moral and legal obligation to protect the interest of the
association, in the case of Maderazo vs. People5 the Supreme
Court held, to wit:
“The second paragraph of the Article is broad enough to include any
human conduct which, although not productive of some physical or
material harm, could unjustifiably annoy or vex an innocent person.32
Compulsion or restraint need not be alleged in the Information, for the
crime of unjust vexation may exist without compulsion or restraint.
However, in unjust vexation, being a felony by dolo, malice is an
inherent element of the crime. Good faith is a good defense to a
charge for unjust vexation because good faith negates
malice.xxx”
22. Parenthetically, the complainants cannot, in the guise of filing
the instant complaint, claim that their reputations were
maligned based on the purported letter dated ____.
23. I executed this Counter-Affidavit to attest to the truth of all
the foregoing.
Further Affiants Sayeth Naught.
BBBBBB
Affiant
SUBSCRIBED AND SWORN to before me this 13th day of July,
2020, at Quezon City. I HEREBY CERTIFY that I have examined the
affiant and convinced that they have personally read and understood the
contents of their Joint Counter-Affidavit which according to them are true
and correct of their own personal knowledge and based on available
authentic records.
Administering Officer
5
G.R. 165065, dated 6 September 2006
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