Republic of the Philippines)

Province of Negros Oriental)s.s.

City of Dumaguete…….…)

COUNTER-AFFIDAVIT

THAT I, MARCELO BATAL, of legal age, Filipino, marrtied and a resident of

barangay Ajong, Sibulan, Negros Oriental, after having been duly sworn to in accordance
with law, do hereby depose and manifest:

That I am one of the respondents in Re: I.S. Case No. 2007-358, entitled Mengote
vs. Layan for Preliminary Investigation and I vehemnntluy DENIED the said accusation,
it being perjurious and preposterous without any factual and legal basis in our Penal
Code, because the whole and naked truth of this incident is as follows:

That last April 22, 2007 at about 11:00 oclock in the morning, more or less, I
parked my dump truck besides the barangay road going to Maningcao, Sibulan, aftyer I
delivered the hollow blocks to our neighbor, Lorna Calingacion;

That at about 3:00 oclock in the afternoon of the same date, I went up to barangay
Maningcao, Sibulan, Negros Oriental to get the proceeds of the sale of the coconuts sold
to copra buyer the person of Pedro Grafe;

That when I arrived hjome in Ajong, Sibulan at around 6:30 oclock in the
evening, more or less, I was surprised by there were several persons in front of our house
and there I was informed by my wife about the incident of bumping a certain Joselin
Mengote;

That I have no participation whatsoever of the said incident becsause I was in

barangay Maningcao, Sibulan at the time of the incident and I have several witnesses to
this effect; and for example if Pablo has committed the crime while include Juan de la
cruz who is innocent; this case is a malicious prosecution and may just filed to extort
money from the respondent herein;

That as can be gleaned from the affidavit of the witnesses of the private
complainant, it was plainly the fault of respondent Monny Layan who arrogantly switch
on the engine of the dump truck, despite being advised and stopped by Arnel Eumague
and Donald Jess Sison, but he insisted and start the engine without the permission of the
owner herein, hence the accident;

That the place of incident is the usual place where I parked my dump truck during
the day; however it will be transferred in the garage at the back of my house during
nightime and I donot know where Monny Layan got the key he used to start the truck;

In the other hand, the charge or complaint filed by the private complainant
Merlinda Mengote for Reckless Imprudence Resulting to Serious Physical Injuries is not
supported by proper evidence because the Medical Certificate attached to the complaint
and on the opinion of the Medico legal officer, the injuries of the victim wil require a
medical attendance for a period of only Thirty (30) days; and in order to justify the said
complaint for Reckless Imprudence resulting to Serious Physical in relation to Article 263
of the Revised Penal Code, paragraph 4, which states that x x x the physical injuries
inflicted shall have caused the illness or incapacity for labor of the injured person for
more than thirty days; and considering that it is only Thirty (30) days as ref lecxtyed in
the Medical Certificate, it should have been only Rteckless Imprudence Resulting to Less

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 Counter –Affidavit, Re: I.S. Case No. 2007-358, page (2).

Serious Physical Injuries in relation to Article 265 of the Revised Penal Code, which
provides that “Any person who shall inflict upon another physical injuries not described
in the preceding articles, but which shall incapacitate the offended party for labor for ten
days or more, or shall require medical attendance for the same, shall be guilty of less
serious physical injuries and shall suffer the penalty of arresty mayor or 1 month and 1
mday to 6 months;

That it appearing that this case falls under the Rules on Summary procedure and
whose maximum impossible penalty is not more than one (1) year, it is a mandatory
provisions of our existing laws that this case should pass the Lupon Pamayapa of
barangay Ajong, Sibulan, Negros Oriental befgore this will be entertain by any
government agency, now the Provincial Prosecution’s Office.

That pursuant to Section 18 of the Revised Rule on Summary Procedure, which

provides and to quote:
Section 18. Referral to Lupon, Cases requiring referral to the Lupon for conciliation
under the provision of Presidential Decreee No 1508 where there is no showing of
compliance with such requirement, shall be dismissed without prejudice, and may be
revived only after such requirement shall bhave been complied with.xx”.

That further, under Section 412 of Republic Act 7160, otherwise known as the
Local Government Code of 1991, Conciliation is a pre-condition to filing of complaint in
Court. Section 412 of R.A 7160 further states that: “Conciliation.-(a) Pre-condition to
filing of complaint in court.-No complaint, petition, action, orf proceeding involving any
matter within the authority of the lupon shall be filed or instituted dirctly in court or any
other government office for adjudicatyion, ujnless there has bee a confrontation between
the parties before the lupon chairman or the pangkast, and that no conmciliation or
settlement has been reached as certified by the lupon secretary or panmgkat secretary as
attested to by the lupon or pangkat chairtman or unless the settlement has been repudiated
by the parties thereto”.

Furthermore, under Supreme Court Administrative Circular No. 14-93 addressed

to all First and Second Level Courts, more particularly No., II-4 which provides: (4). If
mediation or conciliation efforts before the Punong Barangay proved unsuccessful, there
having been no agreement to arbitrate (Sec. 410 (b), Revised Katarungang Pambarangay
Law, Sec. 1 c, (1), Rule III, Katarungang Pambarangay rules), or where the respondent
fails to appear at the mediation proceeding before the Punong Barangy (3 rd para, Section
8, a, Rule VI, Katarungang Pambarangay Rules, the Punong Barangay shall not cause the
issuance of this stage of a certification to file action, because it is now mandatory for
him to constitute the Pangkat before whom mediation, comnciliation or arbitration
proceddings shall be held.” Likewise, Rule IV of the aforementioned Adm. SC Circular
No. 14-93, provides that “A case filed in Court without compliance with prior barangay
conciliation which is a pre-copndition for fromal adjudication (Section 412 (a) of the
revised Katarungang Pambarangay Law) may be dismissed upon motion of defendantys
not for lack of jurisdiction of the court but for failure to state a c ause of action or
prematurity (Royales vs. IASC, 127 SCRA 470; Gonzales vs. CA, 151 SCRA 2890.

That the private complainat herein failed to avail the aformentioned mandatory
provisions of law, that was why there is no Certification to file Action issued in
accordance with the said law can be found on the records, hence this case should be
DISMISSED aside from the fact the herein respondent Marcelo Batal has no participation
of the alleged incident, as shown from the testimonies of the witness for the government.

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Counter Affidavit Re: I.S. Case no. 2007-358, page (3).

This affidavit is executed freely and voluntarily and to attest the veracity and
truthfulness of the aforementioned statements.

IN WITNESS WHEEOF, I have hereunto affixed my signature this ___day of June

2007, at Dumaguete City, Negros Oriental.

MARCELO BATAL
(Affiant)

OATH AND CERTIFICATION

SUBSCRIBED AND SWORN to before me, this ___day of June 2000, at

Dumagfuete City, Negros Oriental. Further, I hereby certify that I have fully examined
the affiant and I am convinced that he has read and understood the contents of his
affidavit and that the same was executed freely and voluntarily.