Republic of the Philippines

CITY PROSECUTIONS OFFICE

Bacoor City
RICO GOJAR GIDOC

Complainant,
-versus-

I.V.-27-INV-136-00302-030
For: Qualified Theft and
Malicious Mischief

ALEJANDRO L. FERMIN

Respondents,
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RESOLUTION
Submitted for resolution is the charge for attempted homicide under the
Revised Penal Code.
According to the complainant on his affidavit, the respondent is his lessor
on his apartment. Allegedly the respondent met him to inform him that the latter
will terminate the contract of lease. During their meeting, the complainant alleges
that the respondent asked him to sign a document stating that he acknowledge
the termination of contract of lease as well as the surrender of the key with the
note on the lower left of the said letter that the key will be given by the
respondent personnel named Vic duly signed by the respondent. After a few
days, the complainant went to the said apartment to check its status when
unfortunately he was shocked when he discovered the damages on his
apartment as well as the missing furniture inside.
The complainant also present his witness Jinky Vale who stated that she
actually saw the respondent together with some of his personnel removing the
ceiling, tables water meters, electrical line, etc. and placing the same in the truck
outside he house.
The respondent on the other hand denies the allegation of the
complainant and present his own copy of the acknowledgement letter showing
that the complainant actually received the key, however, his copy has no notes
that the key will be surrendered by a person named Vic. He alleges that he
observe all the diligence required to safeguard the house. He also deny any
participation or involvement on what happens to the complainants house.

The respondent likewise present his witness stating that there was no
ceiling, tables etc. remove from the house.
Based on the foregoing, this office finds probable cause to charge the
respondent of the crime of Malicious Mischief
Based the gathered facts as well as the evidence presented. The first
question is that whether the crime was indeed committed. The pictures presented
shows that there was in fact a damages on the apartment of the complainant,
hence the crime was indeed probably committed.
Now the second question is that whether the respondent is probably guilty
of the crime charge. This office respectfully submitted that the respondent is
probably guilty of Malicious Mischief and not of Qualified Theft.
In the case at bar, it is admitted by the complainant that the respondent is
a lessor of his apartment together with his personal effects such as the tables. It
is therefore clear that the kind of possession of the respondent on the said
articles is juridical possession and not mere physical or material possession. well
settled is the rule that the crime is estafa by abuse of confidence when the
possession of the property involved is juridical one and qualified theft by grave
abuse of confidence when the possession is physical or material possession.
Hence, this office finds no probable cause for he charge of qualified theft.
With the charge of Malicious Mischief, this office finds no probable cause
against the respondent.
The crime of malicious mischief as defined by Art. 327 of the Revised
Penal Code means:
"the willful damaging of another property by any act not constituting
arson or crimes of destruction due to hate, revenge or mere pleasure of de
stroying"
It cannot be inferred on the facts given as well as the pictures submitted
that the act of destroying or damaging was due to hate, revenge or mere
pleasure of destroying the same. The complainant does not alleged nor give any
motive for the respondent to damage or destroy his property. There was even no
allegation that the respondent acted for revenge, or due to hatred, or for the mere
pleasure of destroying the property. Absent any of the foregoing, this office
cannot presume such circumstances required by the provisions of Art. 327.
In the case of Sy Thiong Shiou vs Sy Chim, GR No. 174168, March 30,
2009, the Supreme Court held that:
The term probable cause does not mean actual and positive cause nor
does it import absolute certainty. It is merely based on opinion and

reasonable belief. Thus, a finding of probable cause does not require an

inquiry into whether there is sufficient evidence to procure conviction. It is
enough that it is believed that the act or omission complained of
constitutes the offense charged."
WHEREFORE, it is hereby recommended that this case be dismissed.