Republic of the Philippines

DEPARTMENT OF JUSTICE
Office of the Provincial Prosecutor
Kalibo, Aklan
___________________________,
Complainant,
4530

I. S. No. 2005-

- versus -

For:

____________________________.
Respondent.
x----------------------------------------x

ESTAFA

MOTION FOR RECONSIDERATION

COME NOW Respondent through counsel and unto this Honorable
Office most respectfully move for the reconsideration of its Resolution
dated August 23, 2005 on the following grounds:
Timeliness of the Filing of the
herein Motion for Reconsideration.
1.

Respondent received his copy of the Resolution dated August 23,

2005, on March 17, 2006, hence, he has until March 27, 2006, within
which to file this Motion;
Respondent did not commit any false
pretense or fraudulent act accompanying
the issuance of the check.

2.

The reason for the issuance of the check was the Amicable
Settlement (Annex 1 of the Counter-Affidavit), executed and entered
into by herein complainant and respondent, which was premised on the
ground that complainant shall cause for the DISMISSAL of Civil Case
No. 6723, entitled, _______, plaintiff, versus, _____________________, and
__________________________________, for Declaration of Nullity of Deed of
Sale/Memorandum

of

Agreement,

Possession with Damages.

Recovery

of

Ownership

and

Clearly, there was no false pretense or

fraudulent act that accompanied in the execution of said Amicable

Settlement or in the issuance of the check on the part of the herein
respondent;
3.

On the contrary, it was complainant who reneged on her

representation in the Amicable Settlement and did not move for the
dismissal of Civil Case No. 6723;

4.

As a result thereof, herein Respondent who had already parted

with his money, has no recourse but was constrained to request his
Bank for the Stop Payment of his check;

5.

Take note that if and when the Regional Trial Court decides in
favor of the complainant in Civil Case No. 6723, that is, to nullify the
Deed of Sale and Memorandum of Agreement subject of the case, then
complainant has to return all the money she has received from
respondent;

6.

As

such,

Respondent

has

no

pre-existing

obligation

with

complainant, hence, the stop payment;

Respondent has sufficient funds
To cover the check he ordered the
Bank for the stop payment.
7.

Contrary to the allegation of complainant, the check was

dishonored not for the reason of closed account or daif, but on the
request of respondent for stop payment. Respondent has submitted
a Certification from Allied Bank Boracay Branch, Malay, Aklan, that he
has more than sufficient funds to cover the amount of the check;

8.

Hence, there was no deceit or fraudulent act on the part of the

respondent. He was simply asking the complainant to do her part in
the amicable settlement.

Complainants action of reneging on her

obligation as provided in the said Amicable Settlement, therefore,

erases that obligation of respondent to pay complainant;

Pendency of Civil Case No. 6723

before the Regional Trial Court,
Branch 6, Kalibo, Aklan, creates
a prejudicial question .
9.

Further, although the issuance of the check subject of this case

was premised on the outright dismissal of Civil Case No. 6723, it is
clear from the foregoing that the resolution of said Civil Case No. 6723,
entitled, ______________________________________., for Declaration of
Nullity of Deed of Sale/Memorandum of Agreement, Recovery of
Ownership and Possession with Damages, by the Regional Trial Court,
Branch 6, Kalibo, Aklan, would determine whether or not respondent
has an obligation to complainant.

Hence, it creates a pre-judicial

question;
10.

A prejudicial question is one based on a fact distinct and

separate from the crime but so intimately connected with it that it

would determine the guilt or innocence of the accused, and for it to
suspend the criminal action, it must appear not only that said case
involves facts intimately related to those upon which the criminal
prosecution would be based, but also that in the resolution of the issue
or issues in the civil case, the guilt or the innocence of the accused
would be necessarily determined. (Librodo v. Coscolluela, Jr., 116
SCRA 303; Benitez v. Concepcion, 112 Phil. 105; Ras V. Rasul, 100
SCRA 125; Jimenez v. Averia, 131 Phil. 494; People v. Abelo Aragon,
94 Phil. 357; Rojas v. People, 57 SCRA 243; Zapanta v. Montesa, 114
Phil. 1227; Isip v. Gonzales, 39 SCRA 255; Falgui v. Provl. Fiscal of
Batangas, 62

SCRA 462; Merced v. Diez, 109 Phil. 155);

PRAYER
WHEREFORE, premises considered, it is most respectfully prayed
of this Honorable Office that its Resolution dated August 23, 2005,

received by Respondent on March 17, 2006, be reconsidered and set

aside; and a new Resolution be issued dismissing the above-entitled
complaint.
Other relief and remedies just and equitable under the premises
are prayed for
Iloilo City for Kalibo, Aklan, Philippines, March 22, 2006.

________________________________________
Counsel for the Respondent
2nd Floor Golden Commercial Center,
Iznart Street, Iloilo City
PTR No. 1975507, 01/06/06, I. C.
IBP No. 657600, 01/04/06, I.C.
Attorneys Roll No. 37532

NOTICE OF HEARING

Copy Furnished:
Department of Justice
Office of the Provincial Prosecutor
Kalibo, Aklan
Atty. Diomedes T. Resurreccion
Counsel for the Complainant
Banga, Aklan
Reg. Receipt No. : _________
Dated : ___________________