Republic of the Philippines

DEPARTMENT OF JUSTICE
Manila

OREN AVNER,
Petitioner,
– versus – NPS No. XV-12-INV 17-K-3130
FOR: ESTAFA
KEVIN RAY P. MANIBO,
Respondent.
x----------------------------------------------------x

KEVIN RAY P. MANIBO,

Petitioner, NPS No. XV-12-INV 17-L-3453
– versus – FOR: ESTAFA

OREN AVNER
BAMBIE ALEXIS M. SOLANO,
Respondents.

COMMENT
(to the PETITION FOR REVIEW assailing the Resolution Dated August 6, 2018 by the Honorable
Assistant City Prosecutor filed by Petitioners BAMBIE ALEXIS M. SOLANO and OREN AVNER)

Respondent, KEVIN RAY P. MANIBO, through the undersigned counsel and

unto this Honorable Court, most respectfully states:

1. The Petition for Review, dated October 12, 2018, which was
allegedly filed by the petitioners is substantially and procedurally flawed
because only Bambie Alexis M. Solano signed the verification and certification
for non-forum shopping which means Oren Avner’s appeal lacks the formal
requirements to effect the same. Hence the assailed resolution became final
in relation with Avner’s rights and claims.

2. Section 4 of the 2000 NPS Rule on Appeal (DOJ Circular No. 70

dated July 30, 2000) provides, “An aggrieved party may appeal by filing a
verified petition for review with the Office of the Secretary, Department of
Justice, and by furnishing copies thereof to the adverse party and the
Prosecution Office issuing the appealed resolution.”

3. Section 6 thereof provides that “the failure of the petitioner to

comply with any of the foregoing requirements shall constitute sufficient
ground for the dismissal of the petition”. Hence, without the necessary
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verification and certification for non-forum shopping the appeal should be
dismissed with regard to the claims of Petitioner Oren Avner and consider only
those allegations in the appeal in relation with Petitioner Bambie Alexis M.
Solano’s legal issues.

4. The petition for review, in essence, argues that the Honorable

Assistant City Prosecutor erred in disregarding the alleged overwhelming
evidence adduced by Petitioner Oren Avner to prove his claims and that the
dismissal of Oren’s estafa case against respondent is tantamount to grave
abuse of discretion. Furthermore, the petition assails the finding of the
Honorable Assistant City Prosecutor that the respondent, based on the
evidence presented, is the true owner of the subject business. Additionally,
petitioner pleads to this Honorable Office to find probable cause against herein
respondent for the crime of estafa.

5. To clarify, the instant petition is essentially an appeal from the

resolution dated August 6, 2018 dismissing the estafa case filed by Oren Avner
against respondent and not an appeal in relation with Petitioner Solano’s guilt.
Petitioner Solano is not a party to the estafa case filed by Avner against
respondent and therefore has no legal footing to meddle in such affair.
Petitioner Solano’s legal standing only lies with the estafa case filed by
respondent against the two petitioners and the finding that there is probable
cause that petitioner Solano committed estafa for appropriating for personal
gain Php 58,000.00 given to him by respondent.

6. Rule 122 Section 11 (a) of the Rules of Court provides that “an
appeal taken by one or more of several accused shall not affect those who did
not appeal, except insofar as the judgement of the appellate court is favorable
and applicable to the latter.”

7. It becomes obvious that in the case at bar since Petitioner Avner

did not sign the verification and the certification for non-forum shopping his
appeal is a patent nullity. Furthermore, Petitioner Solano did not refute nor
assert his innocence in the fiscal’s finding of probable cause that he committed
estafa but instead chose to reiterate the claims of Petitioner Avner even when
he has no legal standing thereto.

8. In relation with the merits of the petition, it is most humbly

submitted that the Honorable Assistant City Prosecutor Laguindab A.
Marohombsar was correct to dismiss the complaint against respondent Manibo
simply because there is no proof of or any allegation in the complaint that the
alleged estafa or any of its essential elements happened in Paranaque City.

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 9. The concept of venue of actions in criminal cases, unlike in civil
cases, is jurisdictional. The place where the crime was committed determines
not only the venue of the action but is an essential element of jurisdiction. 1
This principle was explained by the Court in Foz, Jr. v. People,2 thus:

It is a fundamental rule that for jurisdiction to be acquired by courts in

criminal cases the offense should have been committed or any one of
its essential ingredients took place within the territorial jurisdiction of
the court. Territorial jurisdiction in criminal cases is the territory where
the court has jurisdiction to take cognizance or to try the offense
allegedly committed therein by the accused. Thus, it cannot take
jurisdiction over a person charged with an offense allegedly committed
outside of that limited territory. Furthermore, the jurisdiction of a court
over the criminal case is determined by the allegations in the complaint
or information. And once it is so shown, the court may validly take
cognizance of the case. However, if the evidence adduced during the
trial show that the offense was committed somewhere else, the court
should dismiss the action for want of jurisdiction.

10. Rule 110 Section 15 (a) of the Rules of Court provides that “subject
to existing laws, the criminal action shall be instituted and tried in the court of
the municipality or territory where the offense was committed or where any
of its essential ingredients occurred”. Thus, a criminal action filed in a court
where the act complained of occurred outside the territorial jurisdiction thereof
shall be dismissed for lack of jurisdiction.

11. Upon perusal of the records, it is clearly seen that the place of
receipt of the remittances where all made outside Paranaque City and outside
its jurisdiction. For this reason alone, merits the dismissal of the criminal
action.

12. Furthermore, the Honorable Assistant City Prosecutor Laguindab A.

Marohombsar is also correct in dismissing the complaint filed by Avner against
the respondent for the simple reason that there is no evidence against the
respondent to support the suit.

13. In determining probable cause, the average man weighs facts and
circumstances without resorting to the calibrations of the rules of evidence of
which he has no technical knowledge. He relies on common sense. What is
determined is whether there is sufficient ground to engender a well-founded

1
Macasaet v. People, G.R. No. 156747, February 23, 2005
2
G.R. No. 167764 October 9, 2009

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 belief that a crime has been committed, and that the accused is probably guilty
thereof and should be held for trial.3

14. The pieces of evidence presented by Avner in his complaint for

estafa against herein respondent clearly shows that respondent did not
personally receive any substantial amount and that the only remittance
received by respondent was the lone amount of Php 70,000.00 which was
respondent claimed, came from the conjugal funds of his mother, Imelda and
Avner. Such fact was not denied and thus considered admitted by Avner,
knowing well enough that at that time, Avner was still married to Imelda,
respondent’s mother.

15. The Honorable Assistant City Prosecutor is also correct in pointing

that the Conjugal Agreement submitted by Avner is not a credible document
because it is unsigned by Imelda, his wife. Without any marriage settlement
between Imelda and Avner, the rule is that the default property regime is
applied, hence there is conjugal properties.

16. Probable cause, for the purpose of filing a criminal information, has
been defined as such facts as are sufficient to engender a well-founded belief
that a crime has been committed and that respondent is probably guilty
thereof.4

17. It is most humbly submitted that the Assistant City Prosecutor did
not err in appraising whether or not there is probable cause against herein
respondent. The facts presented by the respondent is the truth, it is
substantiated with original documents, pertaining especially to the marriage
contract of Imelda and Avner proving that there is conjugal assets, Certificate
of Business Name Registration from the Department of Trade and Industry,
Barangay Clearance, and the Contract of Lease for the subject Spa’s location.

18. Lastly, the Assistant City Prosecutor did not err in finding probable
cause against Petitioner Solano because the allegations in the complaint is
complete as to its form, providing the name of the accused, the act or omission
done, the damage to the complainant, and also strong and convincing
evidence were presented along with the complaint corroborating the
allegations against Petitioner Solano.

3
Fenequito v. Vergara G.R. No 172829, July 18, 2012
4
Reyes v. Pearlbank Securities, Inc G.R. No. 152444, February 16, 2005
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 PRAYER

WHEREFORE, premises considered, it is most respectfully prayed of this

Honorable Court, after due consideration of the evidence submitted by the
parties, that an order be issued dismissing the same for utter lack of merit.

Other just and equitable reliefs are likewise prayed for.

Muntinlupa City December __, 2018.

JNO DE LEON & ASSOCIATES, Attorneys-at-Law

Suite 1104B Richville Corporate Tower,
Madrigal Business Park, Barangay Ayala Alabang,
1780 Muntinlupa City
Tel. No. (02)832-3266
Mobile No. 0933-317-1944
Email: dcdl_law@yahoo.com.ph

By:

Atty. JAMES NOEL O. DE LEON

IBP LRN 2706; PPLM; 06-08-17
PTR No. 2801941; Muntinlupa; 01-05-2018
Roll No. 44985
MCLE Compliance No. V- 0011180; 10-16-2015

Copy furnished:

Atty. Joseph Q. Orsos Registry Receipt No. _____

Counsel for Petitioners Post Office: ____________
Gaudier Fontanilla Orsos & Jacosalem
Date: December __, 2018
Gen. Evangelista St., Poblacion
4102 Bacoor City, Cavite

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 EXPLANATION
[Under Section 2, Rule 13 of the
1997 Rules of Civil Procedure]

Service on the counsel for plaintiff and other parties, were made through
registered mail for reasons of practicality, as the law firm, at present, has no
adequate manpower to serve pleadings personally. The messenger still has to
file other pleadings in cases of equal importance.

Atty. JAMES NOEL O. DE LEON