:: Paralegal Services Bureau

ACCUSED, through counsel, unto this Honorable Court respectfully moves for the dismissal of the charge against her of Qualified Theft on the following grounds:

The Amended Information filed with this Honorable Court on April 27, 2000, charging Carolyn Lim with the crime of Qualified Theft, reads as follows:

The prosecution, during the presentation of its evidence, adduced 643 separate official receipts issued by the complainant bank for safety deposit box (SDB) payments purportedly aggregating P314,760.00, which was allegedly misappropriated/taken by the accused, on 644 separate occasions, continuously, surreptitiously, unnoticed and undetected during a long span of approximately eighteen months. These documents were, however, not offered in the new Formal Offer of Evidence. At most, they were offered incompletely in the prosecution’s first Formal Offer.

The prosecution attempts to convince the Court, without properly offering these exhibits, that these documents, on their face, prove that the accused actually stole the money covered by the receipts—patently a reductio ad absurdum.

Even assuming for argument’s sake that these documents were formally offered, nowhere in these official receipts is there any sign or indication that the monies covered by the receipts were stolen or pocketed by the accused. On the contrary, the official receipts, each signed by a senior official of the bank, prove conclusively that the complainant bank actually received the money and not an iota of evidence was independently adduced to suggest, much less to directly prove, that the accused removed any part of the money from the complainant bank’s possession.

The Supreme Court, in evaluating the value of official receipts, has this to say:

In addition to said receipts, the prosecution presented, at least in the first Formal Offer, subsidiary ledgers ⁶ allegedly to prove that payments for SDB rentals and deposits for keys were not remitted nor reported by the accused as income in the general ledger and that the accused did not prepare income tickets on SDB rentals and deposits for keys, much less had them validated by the tellers, which allegedly would have shown that such collections were received by the private complainant. ⁷ The said subsidiary ledgers, however, are nothing more but “index cards,” ⁸ not accountable official records required by the Bureau of Internal Revenue (BIR) and therefore subject easily to fabrication or manipulation—and, furthermore, self-serving and inadmissible as evidence.

Also, the prosecution, contrary to its allegations, did not attach “A-1” to “D22-1 and “A-2” to “D-2” to D22-2 in its previous Formal Offer of Evidence. Worse, it did not attach even one exhibit in its new Formal Offer.

Nevertheless, the sum of these documents merely shows, at best, that the accused is guilty of violating standard banking procedures, never to be taken as a crime. It does not prove, in any way, that the accused pocketed or carted away sums of money owned by the complainant bank.

Ironically, the prosecution, while maintaining that the accused should have observed standard banking procedures, admits emphatically, and relies on it as an argument, to establish the guilt of the accused, that the complainant bank itself is deficient in enforcing such procedures, an express admission of guilt of mismanagement.

In aid of its flimsy demonstration of the guilt of the accused through the official receipts and subsidiary ledgers, the prosecution took refuge in the allegation that it was due to the defects in the implementation of banking procedures by the private complainant itself that facilitated the accused’s commission of the alleged offense. This is, to use a figure of speech, turning the gun around and pointing it to the accused. This argumentation of the prosecution should not be allowed to operate to the prejudice of the accused. In fact, such allegation militates against the private complainant as it merely bolsters the fact that the procedures followed in the bank is vulnerable to abuse by anyone among its employees, including the witnesses themselves or even the higher officials within the complainant bank having access to the subject monies. It is enigmatic why the private complainant limited its imputation to just the accused when the monies allegedly lost were also accessible to the other employees. And this is all because of the self-declared “deficiency in the procedures” of complainant bank. It behooves a rational mind to think that the case was filed only against the accused as a vengeful afterthought against the latter’s earlier filing of a case against her superiors in the bank—or that her accusers did so as a conspirational coverup for their own misdeeds.

2. The prosecution relied primarily
on hearsay, self-serving and inadmissible
evidence to prove its case.

A person should testify only as to the facts which he/she knows of his/her personal knowledge . ⁹ Any other testimonial evidence outside the witness’ personal knowledge is hearsay and downright inadmissible. ¹⁰

The prosecution’s principal witness and accuser, Carmela Collantes, did not have personal knowledge of what had really transpired during the time of the alleged commission of each and every act of qualified theft. She only based her statements and factual assessments on the records and stories presented and conveyed to her by the employees in complainant bank’s employ, which cannot avoid the obvious taint of bias and partiality. Consequently, her testimony as a whole has no probative value at all.

The general rule is that hearsay evidence is not admissible. Admissibility of evidence should not be equated with weight of evidence. Hearsay evidence whether objected to or not cannot be given credence for it has no probative value. ¹¹

Aside from supervising the audit examination of the bank records allegedly covered by the questioned transactions, witness Collantes interviewed Elsa Garcia, the Branch Cashier, and the tellers and employees of the complainant bank, ¹² the results of which were submitted in her audit report, ¹³ in addition to the figures presented in relation to the audited transactions. The report also contains baseless conclusions, among which is that 562 official receipts, presented as prosecution evidence, were allegedly prepared by the accused ¹⁴ without stating the basis of such conclusion as required by the rules of evidence on signature authentication.

The audit report further contains such odd statements as the following:

Any reasonable-thinking person who happens to read this particular passage would have guffawed at this laughable story were it not for the fact that it involves a serious matter—which should be dismissed outright.

Paragraphs 1, 2, 3 and 4 under the title “B.” Subsequent Events/Actions Taken” on page 2 of the report, and paragraphs 2, 3 a), b), c) and d) under the title “II. Findings” on page 3 and 4 of the same Audit Report (attached in the first Prosecution’s Formal Offer but not in the second one) are all hearsay and inadmissible as evidence to prove the truth of the allegations thereof. Assuming arguendo that the said findings are admissible, they are simply incapable of constituting direct proof of the guilt of the accused as they only lead to general conclusions inconclusive of the fact that the accused took monies from the bank. Moreover, the proceedings employed to arrive at such findings are internal and administrative in the bank, very susceptible to bias and partiality and with very limited rights provided for the accused.

The only material point on which witness Collantes reported on her own personal knowledge is found in paragraph 7 on page 3, and this is favorable to the accused. The paragraph is quoted below:

When witness Collantes conducted the audit examination of the transactions in question, she was a Senior Auditor holding office at the complainant bank’s head office, not an operation officer at the bank branch where the accused was working. How could she personally have known what happened in the handling of safety deposit box accounts of the bank branch when she was not there personally? How could she suggest that the accused, tricked, deceived or manipulated her superiors at the bank? How could she say or suggest that the accused succeeded in misappropriating the safety deposit box collections subject of the alleged crime?

3. None of the testimonies of the
prosecution’s witnesses, as well
as the documents allegedly offered as
evidence, directly, or even logically, point
to the accused as the perpetrator of
the crime charged.

The bulk of the documents offered in the first Formal Offer of the prosecution consists of safety deposit box official receipts evidencing, as earlier mentioned, the fact that the complainant bank actually received, through its authorized officers, the amounts covered by the documents. Instead of implicating the accused, the receipts totally exculpate her of the crime attributed to her.

Receipts, to repeat what we previously said, are not mere scraps bereft of probative value but vital pieces of evidence of commercial transactions. They are written memorials of the details of the consummation of the contracts. ¹⁶

Also included in the documents offered in the previous Formal Offer as prosecution evidence are charts, copies of bank procedures allegedly violated by the accused, and the computer printouts allegedly reflecting the questioned transactions. Assuming that they were formally offered, all of them are self-serving and inadmissible evidence. They are non-accountable and sequentially unnumbered documents which by themselves will not prove the commission of the crime and therefore inadmissible as such in evidence. None of them will induce a reasonable mind to conclude that the accused is guilty of the crime charged against her.

“Self-serving declarations are not admissible in evidence as proof of the facts asserted, whether they arose by implications from acts and conduct or were made orally or hearsay character. Furthermore, such declarations are untrustworthy, and to permit their introduction in evidence would open the door to frauds and perjuries.” ¹⁷

Nor do these documents prove the facts they seek to establish the purpose of the offer. At best, what they demonstrate is the tolerance of the officers of private complainant in the defects of its own procedures. It is rather an utter admission of the bank’s negligence that forecloses its right to protest against its unfavorable effects.

Conversely, said documents only bolster the fact that the system within the bank is readily vulnerable to abuse and exploitation by anyone, including the officers and employees of the private complainant and the prosecution witnesses themselves.

It may not serve the same purposes sought even if considered as part of the testimonies of witnesses Edna Garcia, Branch Cashier, and Ernie Santos, Acting Branch Manager. Witnesses Garcia and Santos are biased witnesses as they have been charged by the accused of another offense prior to the execution of their respective affidavits. Not to mention that they are employees of the complainant bank. Necessarily, the contents of their affidavits would be defensive and exculpatory at the expense of the accused. The possibility exists that their accusation and testimonies are mere cover-ups for the crimes for which the accused is charged—which may have been committed by others within the bank, not excluding the witnesses themselves.

The same is true with the Teller’s Entry allegedly prepared by witness Rose Gadia, teller, marked in exhibit as “W’ to “W’-5A” in the previous Formal Offer, purportedly to prove that Gadia did not receive the cash or process the transaction of client Peter LI, as SDB lessee, for Php700.00 as rental for SDB 1064. This clearly does not prove what it purports to prove. It is, moreover, incompetent and irrelevant evidence. The veracity and authenticity of the entries and other contents thereof were never established in accordance with the rules. Not being accountable forms, they can easily be selectively manipulated or even fabricated to serve the complainant bank’s or the witnesses’ own personal purposes.

In the case of the testimonies and depositions in the affidavits of Gadia and the tellers of the branch concerned of the complainant bank at the time the questioned transactions took place, it should be noted that not any one of them directly pointed to the accused as having actually misappropriated the funds supposed to have been stolen by her. In other words, there was no “smoking gun.” All they did was to deny that the funds covered by the official receipts and income tickets ID-stamped by them were actually received by them as allegedly evidenced by lack of their initials. This again is at best specious logic and at worst a ridiculous and futile argument. Why would they ID-stamp the income tickets covering safety deposit box collections when they did not actually receive the money? What was the purpose of, and the point in, going through this exercise? No right-thinking and impartial observer would have ever conceived of the reason for such act other than to indicate receipt of the monies covered by the income tickets. It should furthermore be noted that the witnesses were and still are employees of the complainant bank and therefore biased and under moral pressure to testify in favor of their employer.

One final point on the matter that should be brought out is the hesitant manner or demeanor of the witnesses, which the court may have observed.

4. The testimonies of the prosecution’s
key witnesses are inconsistent and
contradictory on material points so as to
make their testimonies worthless as
evidence.

5. In sum, the bottom line is that there is
gross insufficiency of evidence to
sustain the indictment or to support a
verdict of the guilt of the accused
beyond reasonable doubt.

All the foregoing discussions, coupled by the fact of failure of the prosecution to properly offer its exhibits formally, clearly show that the prosecution has miserably failed to prove its case and to overcome the presumption of innocence of the accused.

The presumption can be overcome only by competent and credible proof beyond reasonable doubt. The reasonable doubt should necessarily pertain to the facts constitutive of the crime charged. Discrepancies that touch on significant factors, such as those pointed out above, are crucial on the guilt or innocence of an accused. In criminal prosecution, a reasonable doubt can be created by many things; it is sufficient to prevent a conviction if the doubt arises from the evidence adduced or from the lack of evidence. While no test definitely determines which is and which is not considered reasonable under the law, it must necessarily involve genuine and irreconcilable contradictions based, not on suppositional thinking, but on the hard facts constituting the elements of the crime. And these are what the doubt created in this case is based on. It is not mere possible doubt but intelligent, reasonable and impartial doubt based on a careful examination and conscious consideration of all the evidence in the case. It is that state of the case which, after the entire comparison and consideration of all the evidence leaves the mind of the judge in that condition that he cannot say that he feels an abiding conviction to a moral certainty of the truth of the crime charged. Absolute certainty is not demanded by the law to convict of any criminal charge but moral certainty is required, and this certainty must be every proposition of proof requisite to constitute the offense. ³³

The constitutional presumption of innocence is not an empty platitude meant only to embellish the Bill of Rights. Its purpose is to balance the scales in what would otherwise be an uneven contest between the lone individual (the accused) pitted against the People of the Philippines and all the resources at their command. Its inexorable mandate is that, for all the authority and influence of the prosecution, the accused must be acquitted and set free if his/her guilt cannot be proved beyond the whisper of a doubt. The presumption of innocence can only be rebutted by proof beyond reasonable doubt. In order to convict an accused, the circumstances of the case must exclude all and each and every hypothesis consistent with his innocence. For the slightest possibility of an innocent man being convicted for an offense he has not committed would be far more dreadful than letting a guilty person go unpunished for a crime he may have perpetrated.

At this point, it is well worth repeating what we said at the outset: The prosecution attempted to prove its impossible theory, not by adducing evidence establishing “the precise degree of participation by the accused” as required by the Supreme Court in the case of Gutib vs. Court of Appeals ³⁴ in each and every act of the crime of which she stands charged but by wild presumptions and illogical inferences to show an alleged criminal pattern based on circumstantial or indirect evidence that does not even pass the test of admissibility.

We beg to end this exposition by asking the crucial question: Why is it that, out of 643 separate SDB transactions subject of this case, the complainant bank did not produce a single witness who participated in any of these transactions, such as, for example, Peter Li, the handling of whose SDB payment was allegedly thoroughly investigated by the complainant, to testify definitively to whom among the bank employees concerned his/her SDB cash payment was actually given or delivered? Why? Why?

In light of the foregoing discussions, the accused stands on firm ground that the weight of evidence of the prosecution against her lacks sufficient strength to convict her and thus should fall by itself.

WHEREFORE, it is respectfully prayed that this Honorable Court issue an order DISMISSING the case against the accused for failure of the prosecution to establish proof beyond reasonable doubt of the guilt of the accused.

RESPECTFULLY SUBMITTED.

August 31, 2004, San Juan, M. M. for Pasig City.

¹ Exhibits “W25 PT” for the prosecution (counter affidavits of Ernie Santos) and Exh. “T-25 PT” (counter affidavit of Elsa Garcia)
² People vs. Berroya, 89 SCAD 674.
³ Gutib vs. Court of Appeals G. R. No. 131209, August 13, 1999
⁴ Cornelio Godoy Vs. Hon. Court Of Appeals [G.R. No. 80814. August 30, 1988.]
⁵ G.R. No. 135657 January 17, 2001 Jose V. Lagon vs. Hooven Comalco Industries, Inc.
⁶ Contrary to prosecution’s allegations, there are no portions of Exhibits “A” to “D22-3 which are marked as Exhibits “A-1” to “D22-1 and “A-2” to “D-2” to D22-2;
⁷ Prosecution’s Formal Offer of Evidence, page 116
⁸ TSN, February 5, 2001, p.18
⁹ Rule 130 Section 36 of the Rules of Court.
¹⁰ (People vs. Bautista, G. R. No. 111149, September 5, 1997).
¹¹ People vs. Parungao, G. R. No. 125812, November 28, 1996.
¹² TSN August 8, 2001, page 9
¹³ Exhibits “V” to “V-18” of the prosecution
¹⁴ 3rd paragraph of page 5 of the report
¹⁵ 3rd paragraph of page 6 of the report)
¹⁶ Legon vs. Hooven Comalco Industries, Inc. (Jan. 17, 2001).
¹⁷ Restaurante Las Conchas vs. Llego; [G.R. No. 119085. September 9, 1999.]
¹⁸ TSN, December 18, 2000, p. 3, 2nd par.
¹⁹ Collantes, TSN Feb. 20. 2002, pp. 12-13
²⁰ TSN, Dec. 18, 2000, p. 3, 8th par.
²¹ Gadia, October 7, 2003 TSN, p. 8
²² TSN, Jan. 22, 2001, p. 8, pars. 4 and 6
²³ TSN, Feb. 5, 2001, p. 7, last par., and p. 9, 2nd par.
²⁴ TSN, Feb. 5, 2001, p. 23, last par.
²⁵ TSN, February 5, 2001, p. 8, pars. 2 & 6
²⁶ TSN, June 6, 2001, p. 4, par. 5
²⁷ TSN , February 5, 2001, p. 9, par. 5 and last par.
²⁸ TSN, February 5, 2001, p. 14, pars. 2 & 3.
²⁹ TSN,June 6, 2001, p. 5., 15th par.
³⁰ Exh. “T-25 (PT)” – (Counter-Affidavit of Nellie Alar, p. 9, par. 2.21 and 2.22).
³¹ People of the Philippines, plaintiff-appellee, vs. Joel Tañeza y Dacal, accused-appelllant. [G.R. No. 121668. June 20, 2000].
³² People of the Philippines vs. Melchor dela Iglesia, [G.R. Nos. 110991-92. February 24, 1995.]
³³ People vs. Lagmay, 105 SCAD 785.
³⁴ G. R. No. 131209, August 13, 1999.