Republic of the Philippines

Department of Justice
OFFICE OF THE CITY PROSECUTOR
MANILA

ZENAIDA QUIJANO – DE GULA,

ET AL,
Complainants;

-versus- NPS DOC. NO. 14B-00899

FOR: ESTAFA & FALSIFICATION

FLORANTE L. FEDALIZO,
Respondent.
x-----------------------------------------------x

REPLY-AFFIDAVIT
COMPLAINANTS, represented herein by their attorney-in-fact
FAK SUNG (MANNY) QUIJANO CHANG ("Manny"), of legal age,
married, after having been sworn in accordance with law, does hereby
deposes and states that:

This is a complaint for ESTAFA and/or FALSIFICATION as

defined and penalized under the Revised Penal filed by the complainants
against the respondent, who was able to unlawfully takeover the
possession of the complainants' real property worth hundreds of thousands
of pesos through the use of falsified and/or fake documents, to the damage
and prejudice of the complainants.

It should be emphasized that the purpose of a preliminary

investigation is to establish probable cause. It is inquiry to determine
whether a crime has been committed and whether there is probable cause
to believe that the accused is guilty thereof. The prosecuting officer acts
upon probable cause and reasonable belief. Probable cause need not be
based on clear and convincing evidence of guilt, neither on evidence
establishing guilt beyond reasonable doubt and definitely not on evidence
establishing absolute certainty of guilt. It implies probability of guilt and
requires more than "bare suspicion" but "less than evidences which would
justify conviction." (DRILON vs. COURT OF APPEALS (G.R. No.
115825, July 5, 1996)

It is also important to note that the complainants were able to prove

beyond all doubt they are the legitimate and true owner of the subject
property as evidenced by the certificate of title and other evidence of
ownership as attached to their Complaint Affidavit.

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 Briefly, complainants are the lawful owners of a house and lot
located at No. 139 Pearl St., Francis Subdivision, Meycauayan, Bulacan
with a total land area of 258 square meters. They left the country
sometime in 1994 in order to work and reside in the United States of
America. Complainant Zenaida entrusted the care and POSSESSION &
CONTROL of the aforesaid house and lot to his brother, Manny Quijano.
Thus, since 1994, Manny has actual possession of the property. In 2003,
when Manny tried to go inside the said property, he was surprised to find
out that there was already a stranger inside the house. That stranger
which Manny met for the first time is the respondent herein. When
Manny tried to lawfully enforce his possession over the said property,
respondent came out angrily and claimed that he was an officer of the
Bureau of Internal Revenue and that he was allegedly the owner of the
said property. When Manny told the respondent that he was the brother of
the owner of the property and that he should immediately leave the
premises, the respondent, in response, told Manny menacingly that he
will SHOOT AND KILL him if he does not leave the property. In view
of such intimidation perpetrated by the respondent, Manny, fearful of his
life, had no other recourse but to give up possession of the property to the
respondent.

From the foregoing, the ACTS of the respondent as stated in the

Complaint-Affidavit also show that the respondent is probably guilty of
GRAVE THREATS and USURPATION. Thus:

ART. 282. Grave threats. — Any person who shall

threaten another with the infliction upon the person, honor or
property of the latter or of his family of any wrong
amounting to a crime, shall suffer:

1. The penalty next lower in degree than that

prescribed by law for the crime he threatened to commit, if
the offender shall have made the threat demanding money or
imposing any other condition, even though not unlawful, and
said offender shall have attained his purpose. If the offender
shall not have attained his purpose, the penalty lower by two
degrees shall be imposed.

Art. 312. Occupation of real property or usurpation of

real rights in property. - Any person who, by means of
violence against or INTIMIDATION of persons, shall take
possession of any real property or shall usurp any real rights
in property belonging to another, in addition to the penalty
incurred for the acts of violence executed by him shall be
punished by a fine from P50 to P100 per centum of the gain
which he shall have obtained, but not less than P75 pesos.

If the value of the gain cannot be ascertained, a fine

from P200 to P500 pesos shall be imposed.
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 "The requisites of usurpation are that the accused took possession
of another's real property or usurped real rights in another's property; that
the possession or usurpation was committed with violence or intimidation
and that the accused had animo lucrandi. In order to sustain a conviction
for "usurpacion de derecho reales," the proof must show that the real
property occupied or usurped belongs, not to the occupant or usurper, but
to some third person, and that the possession of the usurper was obtained
by means of INTIMIDATION or violence done to the person ousted of
POSSESSION of the property." (CONCHITA QUINAO vs. PEOPLE OF
THE PHILIPPINES, G.R. No. 139603, July 14, 2000)

In a recent case, the Supreme Court defined "INTIMIDATION" as

follows:

"There is intimidation when one of the parties is

compelled by a reasonable and well-grounded fear of an
imminent and grave evil upon his person or property, or upon
the person or property of his spouse, descendants or
ascendants, to give his consent. Material violence is NOT
indispensable for there to be intimidation. Intense fear
produced in the mind of the victim which restricts or hinders
the exercise of the will is sufficient." (JOSEPH ANTHONY
M. ALEJANDRO vs. ATTY. JOSE A. BERNAS (G.R. No.
179243, September 7, 2011)

In the case at bar, when Manny tried to lawfully enforce his

possession over the said property, the respondent retaliated by way of
INTIMIDATION and THREATENED to SHOOT and KILL Manny
unless he leaves the property. In view of the menacing attitude presented
by the respondent, Manny was compelled by INTENSE FEAR to give up
lawful possession and immediately leave the premises.

In his COUNTER-AFFIDAVIT, respondent claimed that the

"primary issue" of the case is "whether or not the general power of
attorney dated August 14, 199 executed by Complainant Zenaida in favor
of Carmen is genuine" xxx (page 6 thereof).

Clearly, the respondent is trying to MISLEAD the Honorable Office

to the real issue of this case which is whether or not the respondent, in
unlawfully claiming possession of the real property owned by the
complainants, is guilty of estafa, falsification or usurpation.

According to the respondent in his Counter Affidavit:

Respondent Fedalizo is legally occupying the subject

property since year 2003 continuously up to the present by
virtue of a LEASE TO OWN AGREEMENT, and that his
possession is never under the tolerance of Complaint
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 Zenaida. Respondent Florante is NOW LEGAL OWNER OF
THE LITIGATED PROPERTY. Evidence show that sometime
in June 2003, Carmen, in behalf of complainant Zenaida,
agreed to sell, transfer and convey unto respondent Florante
by way of rent to own/lease purchase agreement the said
subject property. (page 13 thereof, emphasis ours.)

To reiterate, complainants categorically deny having made Carmen

their agent and the complainants categorically deny having authorized
Carmen to sell the said property to any person.

Where is this alleged "lease to own agreement"? NONE.

Where are the receipts of the payments made by the respondent and
duly acknowledged by the complainants? NONE. The Respondent
claimed that he was allegedly an officer of the BIR, as such, he could
have easily asked for receipts of the payments which he allegedly made in
favor of the complainant. Non-presentation thereof simply shows that
there were really no payments made by the respondent to speak of.

Where is the alleged "evidence" that will show that the complainant
allegedly authorized any other person to sell the subject property in favor
of the respondent? NONE.

Respondent goes as far as saying that the complainants "ratified"

the agreement when said complainants have never met the respondent as
they are residing abroad. In all, respondent's defense is based on his
BARE ALLEGATIONS. It is basic that such bare allegations,
unsubstantiated by evidence are not equivalent to proof, under the Rules
of Court. (Manzano v. Perez 362 SCRA 430 (2001)

The respondent could easily prove any of his alleged claims by

simply presenting before the Honorable Office the "lease to own
agreement" instead of showing various documents which has really no
bearing to the real issue of this case.

It is elementary that a VERBAL "agreement for the sale of real

property or of an interest therein" is UNENFORCEABLE. (Art. 1403 of
the Civil Code) In the present case, respondent is actually trying to
impress upon the Honorable Office that the complainants, through an
agent, allegedly made a VERBAL PROMISE to him that they will be
selling to him the subject property. This is totally false.

WHAT IS UNDISPUTED IS THE FACT THAT THE

RESPONDENT FAILED TO PRESENT ANY CONCRETE EVIDENCE
THAT HE LAWFULLY POSSESSES THE AFORESAID PROPERTY
EITHER AS LESSEE OR OWNER, HENCE, HIS POSSESSION
THEREOF IS ILLEGAL.
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 On the other hand, complainants have more than sufficiently
established their ownership over the aforesaid property as evidenced by
the attached annexes in their Complaint-Affidavit.

The respondent is clearly fabricating lies in order to mislead the

Honorable Office to the plain and simple truth: that the respondent, with
intent to gain, deceitfully took over possession of the property of the
complainants. At the very least, he should be considered a squatter and
should be evicted immediately from the premises.

It must be noted that previously, the respondent resorted to acts of

intimidation in order to gain possession of the property. Thus, since 2003,
his possession of the property was through his threat of shooting and
killing the complainants or their representatives as they threaten his
unlawful enjoyment of the property. Complainants were unable to do any
affirmative action against the respondent in view of the fact that they were
residing and working abroad.

Presently, respondent now claims to be the "LEGAL OWNER OF

THE LITIGATED PROPERTY" and is ordering the complainants to issue
him a deed of sale over the property claiming he has already fully paid the
property. All of these are based on the BARE and SELF-SERVING
ALLEGATIONS of the respondent.

FROM USURPER TO OWNER, this is what the respondent is

trying to accomplish. The respondent might have thought that since he
has been occupying the property since 2003, he should now be declared
the owner thereof. And what better way to do this is to falsify documents.

Respondent hinges his claim of ownership over the "GENERAL

power of attorney" (GPA) that complainant Zenaida allegedly issued in
favor of Carmen way back in 1995.

It must be emphasized that the alleged GPA merely conferred acts

of ADMINISTRATION in favor of Carmen. Basic in the law on agency
that the power to sell is an act of STRICT DOMINION which requires a
SPECIAL POWER OF ATTORNEY. (Art. 1878 (5) of the Civil Code.)

At any rate, complainant Zenaida categorically DENIES having

executed such general power of attorney in favor of Carmen. The alleged
GPA is clearly a FALSIFIED document as evidenced by the fake signature
of complainant Zenaida.

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such fake GPA only to serves to prove the crime of estafa and or
falsification committed by the respondent.

Article 172 of the Revised Penal Code (RPC) punishes any private
individual who commits any of the acts of falsification enumerated in Art.
171 of the Code in any public or official document or letter of exchange
or any other kind of commercial document. The acts of falsification
enumerated in Art. 171 are:

1. Counterfeiting or imitating any handwriting,

signature, or rubric;
2. Causing it to appear that persons have participated
in any act or proceeding when they did not in fact
participate;
3. Attributing to persons who have participated in an
act or proceeding statements other than those in fact
made by them;
4. Making untruthful statements in a narration of
facts;
5. Altering true dates;
6. Making any alteration or intercalation in a genuine
document which changes its meaning;
7. Issuing in an authenticated form a document
purporting to be a copy of an original document
when no such original exists, or including in such
copy a statement contrary to, or different from, that
of the genuine original; or
8. Intercalating any instrument or note relative to the
issuance thereof in a protocol, registry or official
book.

Essentially, the elements of the crime of Falsification of

Commercial Document under Art. 172 are: (1) that the offender is a
private individual; (2) that the offender committed any of the acts of
falsification; and (3) that the act of falsification is committed in a public,
official or commercial document.

The GPA in question is considered a public document, having been

notarized by a notary public with the solemnities required by law. (see
DANILO D. ANSALDO, vs. PEOPLE OF THE PHILIPPINES, G.R. No.
159381, March 26, 2010.)

MORE IMPORTANTLY, THE CRIME OF FALSIFICATION WAS

A NECESSARY MEANS TO COMMIT ESTAFA. (Domingo vs. People,
G.R. No. 186101, October 12, 2009) It has been held that whenever a
person carries out on a public, official, or commercial document any of
the acts enumerated in Art. 171 of the RPC as a necessary means to
perpetrate another crime, such as estafa or malversation, a COMPLEX

6
CRIME is formed by the two crimes. (Ambito v. People, G.R. No.
127327, February 13, 2009)

Under Art. 48 of the RPC, a complex crime refers to: (1) the
commission of at least two grave or less grave felonies that must both (or
all) be the result of a single act; or (2) one offense must be a necessary
means for committing the other (or others).

The falsification of a public, official, or

commercial document may be a means of
committing estafa, because before the falsified
document is actually utilized to defraud another,
the crime of falsification has already been
consummated, damage or intent to cause damage
not being an element of the crime of falsification
of public, official, or commercial document. In
other words, the crime of falsification has already
existed. Actually utilizing that falsified public,
official, or commercial document to defraud
another is estafa. But the damage is caused by the
commission of estafa, not by the falsification of
the document. Therefore, the falsification of the
public, official, or commercial document is only a
necessary means to commit estafa. (Domingo vs.
People, supra, citing 2 Reyes, THE REVISED
PENAL CODE 226, 2006)

In general, the elements of estafa are: (1) that the accused

defrauded another (a) by abuse of confidence or (b) by means of deceit;
and (2) that damage or prejudice capable of pecuniary estimation is
caused to the offended party or third person. Deceit is the false
representation of a matter of fact, whether by words or conduct, by false
or misleading allegations, or by concealment of that which should have
been disclosed; and which deceives or is intended to deceive another so
that he shall act upon it, to his legal injury.

In the case before us, all the elements of estafa are present. Once
respondent acquired the possession of the real property by means of
intimidation, he is now cementing his claim of ownership through deceit
by way of the falsified notarized document. Up to now, respondent is in
possession of the aforesaid property, to the damage and prejudice of the
complainants.

Without a doubt, the falsification of the public document was a

necessary means to commit ESTAFA. At that time, the offense of
falsification is already considered consummated even before the falsified
document is used to defraud another. (see DOMINGO vs. PEOPLE, G.R.
7
No. 186101, October 12, 2009). Clearly, there is probable cause to charge
the said respondents for the crime falsification, estafa and/or usurpation.

To reiterate, the main purpose of this preliminary investigation is

merely to establish PROBABLE CAUSE. (DRILON vs. COURT OF
APPEALS (G.R. No. 115825, July 5, 1996)

Probable cause is meant such set of facts and circumstances which

would lead a reasonably discreet and prudent man to believe that the
offense charged in the Information, or any offense included therein, has
been committed by the person sought to be arrested. 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. A finding of
probable cause needs only to rest on evidence showing that more likely
than not a crime has been committed and that it was committed by the
accused. Probable cause demands more than bare suspicion; it requires
less than evidence which would justify conviction. (Okabe v. Hon.
Gutierrez, in his capacity as Presiding Judge of RTC, Pasay City, Branch
119, et al., 473 Phil. 758, 781 (2004)

PRAYER

WHEREFORE, complainant respectfully prays to the Honorable

Office that the foregoing complaint/s estafa, falsification, grave threath
and/or usurpation against the respondent be forthwith filed with the proper
court for trial.

IN WITNESS WHEREOF, I have hereunto set my hand this

_________________ at Quezon City.

FAK SUNG (MANNY) QUIJANO CHANG

Complainant

SUBSCRIBED AND SWORN TO before me, this _____________,

in Quezon City. I hereby certify that I have personally examined the
affiants and I am satisfied that they have voluntarily executed and
understand their affidavit.

PROSECUTOR