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REPUBLIC OF THE PHILIPPINES

DEPARTMENT OF JUSTICE
NATIONAL PROSECUTION SERVICE
OFFICE OF THE CITY PROSECUTOR
xxx xxx

Xxx bank,
Complainant/s,

I.S. No. ____________________


-versus-
For: Qualified Theft under Article
310 of the Revised Penal Code thru
Computer-Related Forgery
xxx xxx xxx.,
Respondent/s. punishable under Section 4(b) of
the Cybercrime Prevention Act of
x---------------------------------------------------x 2012

COUNTER – AFFIDAVIT

I, xxx xxx xxx, Filipino, of legal age, married, with


residential address at xxx xxx xxx after being duly sworn in
accordance with law, do hereby depose and state the following:

1. That I am the respondent in the instant complaint;

2. At the onset, I vehemently deny and brand as malicious,


baseless, unfounded and unjust fabrications that the
instant complaint has leveled against me;

3. The truth of the matter are as follows:

A. As to the allegations contained in paragraph 8 and 9


of the Complaint-Affidavit I admit the same, only as to
the nature of my work and my position as an employee
of xxx xxx xxx.
B. However as to paragraphs 10, 11, 12, 14, 15, 16, 17,
18, 19 and 20, I am denying the same for absence of
personal knowledge as to the occurrence of the said
events;

C. While the allegation contained in paragraph 13 of the


complaint, as to my absence and/or disappearance on
26 March 2018, the same is true. However, it was not
because I realized that my alleged criminal acts had
been discovered. But because I was kidnapped and
was taken into an unknown location in xxx xxx xxx.

D. Starting xxx xxx xxx I have been dealing with a threat

to the safety of my life and my family, since that day


up to this moment I have been receiving phone calls
from unknown numbers and coercing me to commit
things I do not have any control of;

E. And on that day of my disappearance (xxx xxx xxx), I

was forced and coerced to go to an unknown location


and was forced to provide information about certain
banking transactions that I, as a bank employee have
access on. Attached as Annex 1 is the Police report of
my disappearance;

F. However, despite their coercion I did not provide the


information that they are asking. I as an employee of
xxx xxx xxx believed that it is my sacred duty to

protect the confidential information I have come to


know working there;

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G. I have been employed in xxx xxx xxx for a very long

time. In my long career with xxx xxx xxx I have never

committed any illegal acts or was never a privy to any;

H. It has always been my priority to upheld the interest


of xxx xxx xxx and as an attestation to my character

and dedication to xxx xxx xxx, through my several

years of service, I was given awards and citations.


Attached as” Annex 2 and Series” are copies of the
awards and citations given to me;

I. That I was only able to return home on xxx xxx xxx.

On the same day I went to the xxx xxx xxx station

and Pasig Police station to report my appearance;

J. As to the allegations that I transferred money to my


account thru computer-related forgery, the same is
false and without factual basis;

K. While as to the allegations that I committed qualified


theft, I have no knowledge of any transfer and I was
never the person who operated our computer banking
system to facilitate the transfer of any fund;

L. As correctly stated by complainant I had no hand in


the uploading of files or the actual transfers of funds
thru the banks computerized system, but certain
employees;

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4. The Elements of Qualified theft thru Computer-Related
Forgery punishable under Section 4(b) of the
Cybercrime Prevention Act of 2012 are not present:

A. Article 308 of the Revised Penal Code which defines


theft provides:
xxx xxx xxx
Art. 308. Who are liable for theft. — Theft is committed
by any person who, with intent to gain but without
violence against or intimidation of persons nor force
upon things, shall take personal property of another
without the latter's consent.
xxx xxx xxx

Thus the elements of theft according the Supreme Court


in Cruz v. People1; citing People v. Bago2 are: (1) there was
a taking of personal property; (2) the property belongs to
another; (3) the taking was without the consent of the
owner; (4) the taking was done with intent to gain; and (5)
the taking was accomplished without violence or
intimidation against the person or force upon things.

Theft is qualified under Art. 310 of the RPC, thus:


Art. 310. Qualified theft. — The crime of theft shall be
punished by the penalties next higher by two degrees
than those respectively specified in the next preceding
article, if committed by a domestic servant, or with
grave abuse of confidence, or if the property stolen is
motor vehicle, mail matter or large cattle or consists of
coconuts taken from the premises of a plantation, fish
taken from a fishpond or fishery or if property is taken
on the occasion of fire, earthquake, typhoon, volcanic

1
G.R. No. 176504, September 3, 2008, 564 SCRA 99, 110.
2
G.R. No. 122290, April 6, 2000, 330 SCRA 115, 138-139.

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eruption, or any other calamity, vehicular accident or
civil disturbance.

B. While, Computer-Related Forgery punishable under


Section 4(b) of the Cybercrime Prevention Act of 2012
which states:
xxx xxx xxx
(4) Computer-related Offenses:

(b) Computer-related Forgery. —

(i) The input, alteration, or


deletion of any computer data
without right resulting in
inauthentic data with the
intent that it be considered or
acted upon for legal purposes
as if it were authentic,
regardless whether or not the
data is directly readable and
intelligible; or

(ii) The act of knowingly using


computer data which is the
product of computer-related
forgery as defined herein, for
the purpose of perpetuating a
fraudulent or dishonest
design.(emphasis supplied)

C. First, the element of taking of someone’s private


property was not proven with even substantial
evidence. Herein Complainant stated that the alleged

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missing funds were transferred to Account No.
109452159301, that purportedly was my Account
Number. However, I have no knowledge of such
transfer and or the use of my bank accounts;

D. Second as to the third element, that there was intent


to gain on my part. Intent to gain or animus lucrandi,
is an internal act that is presumed from the unlawful
taking by the offender of the thing subject of
asportation.

However such intent is not present in this case, since


I have no knowledge of the transfer nor was I involved
in the transfer itself. As explained, there were other
bank employees that are in charge of inputting data
into the banks computer system. Such may be due to
inadvertent typographical error or other human
nature such as exhaustion and fatigue that may have
caused the errors;

E. And lastly, as stated above, Computer related-forgery


is done either by (i) The input, alteration, or deletion of
any computer data without right resulting in inauthentic
data with the intent that it be considered or acted upon
for legal purposes as if it were authentic, regardless
whether or not the data is directly readable and
intelligible; or (ii) The act of knowingly using computer
data which is the product of computer-related forgery
as defined herein, for the purpose of perpetuating a
fraudulent or dishonest design (emphasis supplied).

F. Clearly in this case however, that it was not me who


inputted the data but some other person. And that I

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have no participation in the encoding of data or the
actual transfer itself but some other employee.

5. Good Faith as a defense in the crime charged. In common


usage, the term good faith is ordinarily used to describe that
state of mind denoting honesty of intention, and freedom
from knowledge of circumstances which ought to put the
holder upon inquiry; an honest intention to abstain from
taking any unconscientious advantage of another, even
through technicalities of law, together with absence of all
information, notice, or benefit or belief of facts which render
transaction unconscientious3.

6. In short, good faith is actually a question of intention.


Although this is something internal, we can ascertain a
persons intention by relying not on his own protestations of
good faith, which is self-serving, but on evidence of his
conduct and outward acts4.

7. Here, I as the respondent, did not purport any actuations


that would negate my good faith towards the company and
its transactions. I have no hand in transferring the alleged
missing funds to my personal bank accounts nor did I used
any of the alleged missing funds for my personal gain since
I still live a humble and simple life with just a little to live
on by;

8. It must be emphasized that Probable Cause is defined as


“the existence of such facts and circumstances as would

3
Blacks Law Dictionary, sixth edition, 1990 at 693 (underscoring supplied), citing Efron vs. Kalmanovitz, 249
Cal.App. 187, 57 Cal.Rptr. 248, 251; Leung Yee vs. Frank L. Strong Machinery Co., 37 Phil. 644 (1918); Fule vs.
Legare, 117 Phil. 368 (1963).
4
Gabriel vs. Mabanta, G.R. No. 142403, March 26, 2003, 399 SCRA 573.

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excite the belief in a reasonable mind, acting on the facts
within the knowledge of the prosecutor, that the person
charged was guilty of the crime for which he was
prosecuted.5 No less than the Supreme Court has held that
“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
charges6;

9. My work with xxx xxx xxx has been the source of my


aspiration and livelihood not just for me but for my family.
I would never do any act that would jeopardize my
relationship with the company. I had been working with xxx
xxx xxx since 1990 and has always strived to advance its

interest;

10. For whatever may had happened are all explainable and
are just according to the circumstances. I am hoping that
my relationship with the company will not be totally
strained but is just a mere bump on the road that will be
part of my experience working there;

11. If my absence had caused panic and alarm for the


company, tenth fold was felt by my family. Everything was
due to some evil acts of people that wanted to do harm not
only to me but to xxx xxx xxx and I did not gave in to their

5
Severino B. Vergara v. The Honorable Ombudsman G.R.No. 174567 March 1 2009
6
Alfredo Ching vs. The Secretary of Justice, et al., G. R. No. 164317, February 6, 2006.

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desire. So I hope that the Company will understand and will
give me another chance to again, gain their trust;

12. And for what it’s worth, I am willing to cooperate to finally


determine the events that transpired within the walls of the
Company. For I, still consider myself part of the xxx xxx

xxx family;

PRAYER
WHEREFORE, premises considered, it is respectfully prayed
that the instant criminal complaint be DISMISSED for lack of merit.
FURTHER, the respondents respectfully pray for such and
other reliefs as may be deemed just and equitable in the premises.

IN WITNESS WHEREOF, I have hereunto affixed my signature


this ___________ day of ______________________ 2018, in
___________________________________________________________

Defendant

SUBSCRIBED AND SWORN TO before me this _____ day of


________________ 2018, in __________________________________.

CERTIFICATION

I HEREBY CERTIFY THAT I have personally examined the


affiant and I am satisfied that he voluntarily executed and
understood his own affidavit.

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