Republic of the Philippines

Department of Justice
OFFICE OF THE CITY PROSECUTOR
Quezon City

Pilar P. Brooks
Complainant,
I.S. NO. XV-03-INV-18A-00034
-for-
SYNDICATED ESTAFA under
Art. 315, RPC, in Relation to PD 1689
-versus-

MARLYN BARTOLOME,
JENNIFER B. PALOMO,
FERDINAND B. PALOMO,
MICHAEL A. SORIA,
YOHAN CASTANEDA,
NIDA FRANCISCO
Respondents.
x----------------------------------------------x

RESOLUTION
For resolution is a complaint filed by Pilar B. Brooks (Complainant) against Marlyn
Bartolome, Jenifier B. Palomo, Ferdinand B. Palomo, Michael A. Soria, Yohan Castaneda, and
Nida Francisco (Respondent) for Syndicated Estafa committed by the latter in Quezon City.
FOR THE COMPLAINANT
In the Complaint Affidavit, the complainant Pilar P. Brooks (“Brooks”), narrated that
Brooks employed Marlyn Bartolome (“Bartolome”) in her household for twenty years, more or
less. Bartolome introduced her two children to Brooks when they were little. Brooks accorded
extraordinary care and affection to the family of the respondent. Complainant Brooks alleged
that, due to feigned pleas and promises of Jennifer B. Palomo (“Jennifer”), daughter of
Bartolome, she took Jennifer into her household and allowed her to manage a business,
authorized her to transact on Brook’s bank accounts, and to look after some of Brook’s
properties. Brooks also alleged that she invested in the construction Business of Ferdinand B.
Palomo (“Ferdinand”), son of Bartolome, based on the persistent pleas of the latter and on his
deceitful promise of risk-free, high return of investment, and on the sibling’s prodding and
persuasion.
The private complainant stated that sometime in 2015, Jennifer, Ferdinand and Marlyn, in
cahoots with Soria, Castaneda, and Francisco wooed Brooks to buy Kat and Kutix Salon,
allegedly owned then by Soria. Jennifer and Bartolome represented with Brooks that the business
was profitably seasoned and was doing briskly, and that it was built on its owned land, which
would be included in the sale, and which Soria affirmed. Succumbing to the mother-daughter-
son calculated goading, Brooks paid Michael Soria, through Yohan Castaneda who was armed
with Special Power of Attorney (SPA), at Brooks’ house, Php 3,200,000.00for the Kat and Kutix
Salon: Php 2,900,000.00 in Manager’s Check, which Brooks purchased from BPI Family Bank;
Php 300,000.00 in Brook’s personal check.
According to Brooks, she completely trusted Jennifer and Bartolome to have full control
of the business and its finances. On June 27, 2017, the complainant claimed that while Brooks
was in the United States on her regular visit to her children, Jennifer, in connivance with
Bartolome, Ferdinand and other cohorts, took her cash and jewelries with an estimated amount of
Php 50,000,000.00 by the use of force.
This prompted the complainant to verify her investment in: (a) Kat and Kutix Salon, (b)
Jennifer’s supposed recruitment agency, (c) Ferdinand’s supposed construction business, (d)
Brooks’ bank accounts, and (e) titles to properties. She found out that Kat and Kutix Salon has
been registered in Jennifer’s name, despite the presence of Business Transfer Agreement to
Brook. It was followed and reinforced by a similar agreement dated July 8, 2015, stating the
amount of Php 3,200,000.00 as Contract Price, which was not indicated in the first instrument.
The two instruments stated that Brooks was the buyer.
The private complainant, further alleged that, having gained Brooks’ trust and favor,
Jennifer wasted no time in conning Brooks into parting with Brooks’ money amounting to Php
2.500,000.00 allegedly as investment in what Jennifer claimed was a recruitment agency she was
putting up, luring Brooks with lofty promises of safe business and high returns. The complainant
maintained that Jennifer made a series of unauthorized withdrawals from Brooks’ account with
BPI Family Bank Shorthorn Branch by forging Brooks’ signature, while she was in the US from
April 15, 2017 to June 26, 2017.
Given the foregoing, Brooks is strongly convinced that Respondents Bartolome, Jennifer
and Ferdinand had conspired to defraud her, and steal from her. The complainant alleged that,
the rest of the respondents participated and conspired with the three respondents to deceive and
defraud Brooks in buying a supposed seasoned salon business. As stated by the complainant in
her Complaint, Soria knew that Kat and Kutix Salon was not the seasoned business and did not
sit on its own land as claimed. Francisco, on his part, she allowed to enter into a lease contract
with Jennifer, knowing that it was Brooks who bought the property, as evidenced by the Sale
Agreement and Business Transfer Agreement. Francisco, also allowed respondent Bartolome, to
reopen Kat and Kutix, using another name, “RJ Trend Setter Salon”, without informing Brooks
in surreptitious derogation and violation of their Barangay agreement to close Kat and Kutix and
maintain its closure until Brooks has prepared to operate it, or has sold it to others.
The complainant strongly believed that the private respondents conspired with one
another to commit syndicated estafa against the complainant by misrepresentation and by
appropriating for themselves the revenue from the business.
FOR THE RESPONDENTS
 In the Counter-Affidavit of Respondent Nida M. Francisco (“Francisco”), she denied the
allegations of complainant Brooks in her Complaint. She denied that she conspired with the other
respondents in the alleged Syndicated Estafa. Francisco admitted that she is the Building
Administration Manager of SUPERPALENGKE located at Grants & Benefits St., GSIS Village,
Quezon City owned by Seahorse Realty Corp. and have been managing the said building since it
was constructed.
Respondent Francisco reiterated that, she does not know Pilar Brooks until she met her in
the barangay, on August 3, 2016. Francisco narrated that Pilar told her that she is the owner of
Kat and Kutix Salon and Spa and claimed that she bought it from certain Michael Soria, whom
the respondent does not know.
Francisco admitted that she agreed with Jennifer to lease as bare, stall No. DS-27 of the
SUPERPALENGKE Building for a monthly rental of Php 48,000.00, in first week of January
2015, which she would use for her salon business. The transaction between them went on
smoothly.
The private respondent narrated that sometime in the early of third quarter of 2016, an old
lady named Pilar called her and identified herself as the owner of the Salon. Pilar further claimed
that she is going to install CCTV cameras inside and outside the stall. Francisco refused to install
CCTV cameras and explained to Brooks that she has no right to the stall since she is not the
owner thereof because as far as her record is concerned, it is Jennifer Palomo who owns the
business. Having relied on the documents presented by Jennifer, such as DTI business
registration, attached in the counter-affidavit of Francisco as annexed “1” and Barangay Business
Clearance of the Salon attached as annexed “2”, Francisco believed that the owner of the Salon is
the private respondent Jennifer and not the complainant.
Subsequently, Francisco claimed that, the representatives of Pilar who identified
themselves as the police detail, body guard and counsel of Pilar, went to Francisco’s office, and
threatened her to accede and do what they demanded, otherwise, they will file a complaint of
Syndicated Estafa against her along with Jennifer and her mother.
In Kontra-Salaysay of Ferdinand Palomo, Marlyn Bartolome and Jenifer Palomo, they
denied the allegations of the private complainant in her Complaint against them. The respondents
questioned the competency of the complainant and claimed that she can easily be defrauded, as
she cannot anymore ascertain what is right from wrong because of her age. They further alleged
that the complainant does not have money worth Php 50,000,000.00 or more.
Ferdinand denied having any transaction with the complainant, nor with his mother and
sister, with regard to the business salon. Respondent Ferdinand claimed that he does not
personally know and does not have any transaction with Yohan Castaneda, Michael Soria and
Nida Francisco. The respondent admitted that when it comes to the construction of the Salon, he
helped her sister in the finishing of the Salon, inside and out, as he was an Engineer and he is
engaged in small construction business.
 In Kontra-Salaysay of Bartolome, the respondent alleged that it is Yohan Castaneda who
defrauded the complainant and not them. Bartolome admitted that her daughter borrowed Php
250,000.00 from her as the former wants to open a salon business. Bartolome lent Php
250,000.00 to her daughter, which came from her alleged savings as a domestic helper and care
giver from year 2000 to 2003 and as a freelance maid in Singapore from year 2006 to 2014.
Respondent Bartolome claimed that she earned 1,600 Singaporian dollar every month or more or
less Php 52,800.00.
That starting on July 1, 2017, Bartolome manages the salon business of her daughter
because the private complainant filed a case of Qualified Theft against Jennifer. Respondent
Bartolome specifically denied the allegation stated in paragraph No. 2 of the Complaint, for the
reason that the respondent does not have any negotiation with the complainant with regard to the
salon business. She further denied, that they reported to Pilar that the business was doing great,
and the earnings, net of expenses, were intact in a bank account.
Bartolome argued that the salon was registered in the name of her daughter since
February 5, 2015, as stated in DTI Registration attached as annex “K” in the Complaint
Affidavit. She claimed that at the time of the execution of Business Transfer Agreement, the
salon business was already registered in the name of Jennifer.
The respondent contended that the business owned by Michael Soria referred in the
Business Transfer Agreement (attached as Annex “B”) is “KAT & KUTIX SALON AND SPA”,
while the salon business of her daughter, named as “KAT & KUTIX SALON”. The respondent
argued that by mere looking at its business names, it can be gleaned that the two business salons
are not the same and are distinct from each other. Further, it can be seen in the Agreement that
the salon which was sold by Soria to the complainant is without consideration, as no amount was
stated.
The private respondent also questioned the Agreement, dated July 8, 2015, between the
complainant and Soria (attached as Annex “A”). She claimed that what the parties entered into is
only a Contract of Pledge in the amount of Php 3,200,000.00, and not Contract of Sale. To wit:
“NOW AND THEREFORE and for the consideration of the foregoing premises and
covenant that both parties agreed under the following terms and conditions as follows:
1. That the SECOND PARTY use the said store/property with no payment until the time
that the FIRST PARTY paid the fullness of the said amount.
2. That the FIRST PARTY will only recover the said store/property upon the
completion of payment of the said amount.”
The respondent reiterated that the complainant should have exercised due diligence in
entering into a transaction with other people because swindler proliferates.
The private respondent also assailed the validity of the Manager’s Check because the
complainant was not able to present evidence that it was encashed or withdrew by Soria.
 Bartolome claimed the allegations of the complainant, stated in Paragraphs 6, 7, 8 and 9
of the Complaint, are not true and correct but mere accusations.
Private respondent Jennifer Palomo, repleads by reference all the foregoing allegations in
her Kontra-Salaysay. In addition, Jennifer alleged that in the month of September 2014, she first
met Yohan Castaneda in a certain Salon and they had a little conversation. Castaneda introduced
himself as make-up artist in ABS-CBN and he managed a business salon but it did not flourish
because she had disagreement with the owner. According to Jennifer, she was convinced to built
her own salon business because of Castaneda’s flowery words and of the latter’s assistance.
Since, Jennifer and Castaneda are always together, the latter and the complainant became close
with each other.
Jennifer Palomo averred that in the month of February 2015, she entrusted to Castaneda
her salon business because at that time she needs to focus on her pregnancy. Jennifer left blank
checks to Castaneda to be used for the payment of the bills of her salon. Subsequently, despite of
the trust she reposed to Castaneda, the private respondent claimed that the former tricked and
defrauded her. Jennifer claimed that Castaneda withdrew money from her BPI bank account and
misappropriated it for his own use.
In December 2015, the private complainant informed Jennifer that Castaneda sold to the
Brooks his salon business located at Grants St. Super Palengke Commercial Complec, GSIS
Village Brgy. Sangandaan, Quezon City. Both of them had an argument. Mrs. Brooks alleged
that Jennifer should pay her Php 50,000.00 per month in exchange for the payment she handed
over Castaneda. Jennifer decided not to file a case against Castaneda because the cost of the
litigation is expensive.
The respondents prayed that the Complaint against them shall be dismissed on the ground
that the Complainant have not established nor even particularly alleged that they committed
syndicated estafa under paragraph 1, Article 315 of the Revised Penal Code in relation to PD No.
1689. They further alleged that they did not participate in the sale transaction as their names do
not appear in the Agreement, and it was Castaneda and Soria whom defrauded the complainant.
Jennifer also specifically denied in her Kontra Salaysay, paragraph 3 of the Complaint
Affidavit of the complainant. She claimed that she did not participate in the commission of the
crime of Qualified Theft.
REPLY OF THE COMPLAINANT
In the Reply-Affidavit of the complainant, Brooks specifically denied all the points raised
in Respondents’ Kontrata Salaysay. The complainant alleged that the respondents could not have
raised by themselves the amount needed to put up Kat & Kutix.
As to the Php 50,000,000.00, Brooks meant she lost some Php 30,000,000.00 in
principal, and some Php 20,000,000.00 in promised returns or earnings in her investments in
Ferdinand, and her stolen prized jewelries. Brooks alleged that she had money because she sold
her property in Tagaytay in 2011 for Php 106,666,500.00.
 Since the private respondents concertedly denied taking anything from Brooks, the latter
presented the sworn statements of Jennifer’s cohorts in the commission of the crime of Qualified
Theft to support her claim.
Moreover, the complainant, offered controverting evidence with regard to the allegation
of Jennifer in her Kontra Salaysay that she never made unauthorized withdrawals against
Brooks’ account. The complainant claimed that at least 8 withdrawals made to appear signed by
the Brooks, but clearly forgeries, were made in her account. According to her, there was no way
BPI Family Bank Shorthorn could have confirmed with Brooks while she was in the U.S. first,
brooks did not use her own phone when in the States since the local number would not work.
Second, the bank would not likely authorize to make an overseas call to confirm a withdrawal,
much less for eight times. Brooks claimed that it was obviously unauthorized and forged. The
complainant reiterated that the elderly woman to whom the Bank spoke was not her but was
Bartolome.
Brooks maintained that it was Jennifer who introduced Castaneda to her, who she
claimed wanted to sell his Parlor because he wanted to leave for abroad for good. Brooks
discovered documents from Jennifer’s belongings turned over to her by authorities when they
inspected Jennifer’s room in Brook’s house during the fallout of June 27, 2017, the copies of
DTI Certificate, Barangay Clearance, and Business Permit in Michael Ando Soria’s name, all
bearing the same numbers as that of DTI Certificate and Barangay Clerance in Jennifer’s name,
all details except name and address. The complainant alleged that the DTI Certificate in the name
of Michael Ando Soria bears the same Certificate number. 03275826, and issue date, February 5,
2015, as that of Jenifer’s. In Soria’s DTI Certificate, the signatory is Gregory Domingo. A
research on DTI’s official websit would reveal that Peter Favila served as DTI Secretary from
2005-2010, while Gregory Domingo served as DTI Secretary from July 2010 to December 2015.
Thus, Soria’s DTI Certificate appears falsified. In the business permit, both the name and address
look superimposed, as they appear in blue ink and in different font compared to the rest of
entries, which are in violet ink and in different font.
Brooks pieces the puzzle together that Jennifer indeed registered Kat & Kutix with DTI,
and then Soria and Castaneda, whom Francisco claim to be one and the same person during their
Barangay conference, falsified the documents to make similar copies now in Soria’s name, so
that they could present to Brooks as proof of ownership of business to convinve Brooks to buy
Kat & Kutix, get the money, and later on Soria and Castaneda would disappear, and Jennifer
would dispute the sale claiming she owned the property using her own DTI Certificate, denying
Brooks the property after they have taken her money.
REJOINDER OF THE RESPONDENTS
In the respective Rejoinder-Affidavits filed individually by Francisco, Bartolome and
Palomo Siblings, the respondents refuted the allegations of the complainant in her Reply-
Affidavit as false and malicious accusation. They alleged that the Complainant is fabricating
claims to make up stories, harass them and to mislead this honourable office.
 Francisco claimed that she never mentioned that Soria and Castaneda are the same before
the Barangay Conference. She also opposed to the alleged agreement between her and
complainant to close the salon for a meantime. The private respondent claimed that the allegation
of the complainant that she allowed Kat & Kutix to reopen under a different business name is
false. Lastly, the private respondent questioned her involvement in the criminal case and claimed
that she was only drag into this case because she refused to comply and accede to the demands of
the counsel of the complainant.
The respondents Bartolome and Palomo siblings averred that this criminal case was
resorted to by the complainant in order to harass them. Ferdinand denied the allegation of the
complainant that the latter invested to his construction business. He also claimed that the
investment construction presented by the complainant, attached as annexes “D” and “E” of the
complaint, are self-serving and falsified.
The respondents averred that the complainant miserably failed to specify and prove her
allegations that they committed the crime of syndicated estafa since the elements of the crime
were not established.
ISSUE
Whether there is a probable cause to charge the Respondents for the violation of
syndicated estafa under PD No.1689.
DISCUSSION
After careful evaluation of the evidence presented and submitted, undersigned finds no
probable cause to charge the Respondents for violation of Article 315 of the Revised Penal Code
in relation to Presidential Decree No. 1689.
The complainant claimed that the respondents are guilty of the crime of estafa
particularly in paragraph 1 (b) and paragraph 2 (a) of the Revised Penal Code.
Article 315 of the Revised Penal Code defines the crime Estafa:
Art. 315. Swindling (estafa). - Any person who shall defraud another by any means
mentioned herein below shall be punished by:

1st. The penalty of prision correccional in its maximum period to prision mayor in its minimum
period, if the amount of the fraud is over 12,000 pesos but does not exceed 22,000 pesos, and if
such amount exceeds the latter sum, the penalty provided in this paragraph shall be imposed in
its maximum period, adding one year for each additional 10,000 pesos; but the total penalty
which may be imposed shall not exceed twenty years. In such cases, and in connection with the
accessory penalties which may be imposed under the provisions of this Code, the penalty shall be
termed prision mayor or reclusion temporal, as the case may be.

Fraud may be committed by any of the following means:

1. With unfaithfulness or abuse of confidence, namely:
 (b) By misappropriating or converting, to the prejudice of another, money, goods, or any
other personal property received by the offender in trust or on commission, or for
administration, or under any other obligation involving the duty to make delivery of or to
return the same, even though such obligation be totally or partially guaranteed by a bond;
or by denying having received such money, goods, or other property.
2. By means of any of the following false pretenses or fraudulent acts executed prior to or
simultaneously with the commission of the fraud:  
(a) By using fictitious name, or falsely pretending to possess power, influence,
qualifications, property, credit, agency, business or imaginary transactions, or by means
of other similar deceits.

In relation to the foregoing, Section 1 of PD 1689 qualifies the offense of Estafa if it is

committed by a syndicate, viz:

Section 1. Any person or persons who shall commit estafa or other forms of swindling as
defined in Articles 315 and 316 of the Revised Penal Code, as amended, shall be
punished by life imprisonment to death if the swindling (estafa) is committed by a
syndicate consisting of five or more persons formed with the intention of carrying out the
unlawful or illegal act, transaction, enterprise or scheme, and the defraudation results in
the misappropriation of moneys contributed by stockholders, or members of rural banks,
cooperatives, "samahang nayon(s)," or farmers' associations, or funds solicited by
corporations/associations from the general public.

When not committed by a syndicate as above defined, the penalty imposable shall be
reclusion temporal to reclusion perpetua if the amount of the fraud exceeds 100,000
pesos.

Synthesizing the two provisions of law, the elements of Syndicated Estafa, therefore, are
as follows: (a) Estafa or other forms of swindling, as defined in Articles 315 and 316 of the RPC,
is committed; (b) the Estafa or swindling is committed by a syndicate of five (5) or more
persons; and (c) the defraudation results in the misappropriation of moneys contributed by
stockholders, or members of rural banks, cooperatives, "samahang nayon(s)," or farmers'
associations, or of funds solicited by corporations/associations from the general public.
In the case of Hao v. People, G.R. No. 183345, September 17, 2014, it noted that simple
estafa and syndicated estafa are not two entirely different crimes. Simple estafa is a crime
necessarily included in syndicated estafa. An offense is necessarily included in another offense
when the essential ingredients of the former constitute or form part of those constituting the
latter.
Since the complainant alleged that there is conspiracy to commit estafa, it is suitable to
resolve this issue by determining first whether there is a probable cause against the Respondents
to commit simple estafa.
Estafa with Abuse of Confidence
To establish probable cause of the first form of estafa known as “Estafa with Abuse of
Confidence”, under Paragraph 1(b) Article 315 of the Revised Penal Code, the following
elements must be present: (1) that money, goods, or other personal properties are received by the
offender in trust, or on commission, or for administration, or under any other obligation
involving the duty to make delivery of, or to return, the same; (2) that there is a misappropriation
or conversion of such money or property by the offender or a denial of the receipt thereof; (3)
that the misappropriation or conversion or denial is to the prejudice of another; and (4) that there
is a demand made by the offended party on the offender.
All the elements are not present in this case because the complainant did not present any
evidence that she entrusted her alleged business salon to Jennifer. Under the Rules of Court, he
who asserts, not he who denies, must prove. There is a presumption that the alleged offender is
presumed innocent until proven otherwise. Complainant Brooks failed to present evidence
showing facts the she delivers money, goods, or other personal properties to Jenifer with regard
to the establishment of Kat & Kutix Salon. Under the Rules of Evidence, all the allegations
without showing proof are mere hearsay. The complainant attaches a copy of Agreement (Annex
“A”), copy of Transfer of Business Interest (Annex “B”), copy of a Manager’s check (Annex
“C”) and a copy of SPA (Annex “D”). The attached documents refer to her transaction between
herself and Castaneda and Soria only, not between Brooks and Bartolome, Ferdinand or Jennifer.
As correctly argued by Bartolome and Palomo siblings in their Counter-Affidavit, their names do
not appear in any of the presented documents.
Due to the failure of the complainant to prove the existence of the first element of Estafa
with Abuse of Confidence, the more fundamental reason why the remaining elements likewise
negates the possibility of its existence. Since the first element is not present, the remaining
elements are obviously and unquestionably not present.
Estafa by means of Deceit
However, if the elements under paragraph 1 (b) of Article 315 of the Revised Penal Code
are not present in this case, it does not mean that estafa does not exists anymore. The second
form of estafa under Paragraph 2 (a) of the Revised Penal Code is known as, “Estafa by means of
Deceit”. To establish probable cause of the second form the following elements must be present:
(a) that there must be a false pretense or fraudulent representation as to the offender's power,
influence, qualifications, property, credit, agency, business or imaginary transactions; (b) that
such false pretense or fraudulent representation was made or executed prior to or simultaneously
with the commission of the fraud; (c) that the offended party relied on the false pretense,
fraudulent act, or fraudulent means and was induced to part with his money or property; and (d)
that, as a result thereof, the offended party suffered damage.
As reiterated in the case of a “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 which deceives or is intended to deceive another so that he
shall act upon it to his legal injury”.
 The first element is present in this case, private respondent Soria, represented himself as
the owner of Kat & Kutix Salon located at Grants St. Super Palengke Commercial Complex,
GSIS Village Brgy. Sangandaan, Quezon City. Soria claimed that he is engaged in a salon
business. In estafa by means of deceit, there must be evidence that the pretense of the respondent
that he possesses business, is false. In the absence of proof that the representation of the
respondent was actually false, criminal intent to deceive cannot be inferred. The complainant
presented two documentary evidence to prove her claim, and these are: (a) Agreement attached
as Annex “A” and (b) Business Transfer Agreement attached as annex “B”. The complainant
claimed that the documents presented by Soria were fake. To make the documents appear to be
true, Soria, through the help of Jennifer, falsified the document and submitted it to the
complainant to show proof that the owner of Kat & Kutix Salon is really Soria. To strengthen her
allegation that the documents presented were falsified, the complainant stated it in her Reply-
Affidavit, to wit:
“Brooks maintained that it was Jennifer who introduced Castaneda to her, who
she claimed wanted to sell his Parlor because he wanted to leave for abroad for
good. Brooks discovered documents from Jennifer’s belongings turned over to her
by authorities when they inspected Jennifer’s room in Brook’s house during the
fallout of June 27, 2017, the copies of DTI Certificate, Barangay Clearance, and
Business Permit in Michael Ando Soria’s name, all bearing the same numbers as
that of DTI Certificate and Barangay Clerance in Jennifer’s name, all details
except name and address. The complainant alleged that the DTI Certificate in the
name of Michael Ando Soria bears the same Certificate number. 03275826, and
issue date, February 5, 2015, as that of Jenifer’s. In Soria’s DTI Certificate, the
signatory is Gregory Domingo. A research on DTI’s official websit would reveal
that Peter Favila served as DTI Secretary from 2005-2010, while Gregory
Domingo served as DTI Secretary from July 2010 to December 2015. Thus,
Soria’s DTI Certificate appears falsified. In the business permit, both the name
and address look superimposed, as they appear in blue ink and in different font
compared to the rest of entries, which are in violet ink and in different font.”
Failure of the private respondents to refute in their Rejoinder Affidavit such allegations
stated by the complainant in her Reply-Affidavit, may result to admission of the allegations.
In this case, such false pretense or fraudulent representation was made or executed prior
to or simultaneously with the commission of the fraud. The second element is also present in this
case because the complainant would not have been entered into such transaction without the
prior false pretense or fraudulent representation of the respondent. The intent to deceive the
complainant manifests from the start.
The third element is that the offended party relied on the false pretense, fraudulent act, or
fraudulent means and was induced to part with his money or property. The private complainant
stated that sometime in 2015, Jennifer, Ferdinand and Marlyn, in cahoots with the other
respondents wooed Brooks to buy Kat and Kutix Salon, allegedly owned then by Soria. Jennifer
and Bartolome represented with Brooks that the business was profitably seasoned and was doing
briskly, and that it was built on its owned land, which would be included in the sale, and which
Soria affirmed. Succumbing to the mother-daughter-son calculated goading, Brooks paid
Michael Soria, through Yohan Castaneda who was armed with Special Power of Attorney (SPA),
at Brooks’ house, Php 3,200,000.00 for the Kat and Kutix Salon: Php 2,900,000.00 in Manager’s
Check, which Brooks purchased from BPI Family Bank; Php 300,000.00 in Brook’s personal
check.
In the Complaint-Affidavit of the complainant and which was admitted by the
respondents as true and correct, Brooks stated that she employed Bartolome in her household for
twenty years, more or less. Brooks also allowed the Palomo siblings to live and stay in her
household. Brooks permitted Jennifer to manage a business, authorized her to transact on
Brook’s bank accounts, and to look after some of Brook’s properties. The family did not deny
such facts. The complainant also presented the letter of Jennifer to Brooks attached as annex “E”,
it can be adduced in the letter that Jennifer really appreciates all the things that Brooks did for
them.
Considering the foregoing, Brooks accorded extraordinary care and affection to the
family of the respondents. The complainant reposed her trust and confidence to the respondents.
This is the reason why Brooks purchased the said salon business. The complainant believed that
the pretenses and representations of Soria are true because Jennifer, whom she trusted so much,
introduced the former to the complainant. As proof of payment, Brooks attached a copy of the
Manager’s check (annex “C”).
The contention of the private respondents that it is Jennifer who is the owner of Kat &
Kutix Salon is without merit. To prove that Jennifer is the true owner of Kat & Kutix Salon, she
offered the copy of her Certificate of Business Name Registration issued by the Department of
Trade and Industry. However, it must be noted that any documentary evidence, such as titles or
certificates, are not conclusive proof of ownership and can be rebutted by a contrary evidence,
such as forgery of falsification.
The last element is also present in this case. As a result of such false pretenses and
representations, the offended party suffered damage. The complainant allows Jennifer and her
mother to manage the business, operate its transaction and to have access on its finances, since
she trusted them so much. The complainant relied on their promises that they will remit the
profits of the business to her and that there is a quick return of investment. However, the private
respondents misappropriate the profit by using it for their own benefit and did not remit it to
Brooks. The complainant obviously suffered damage through such fraudulent representation and
false pretense.
Syndicated Estafa
The first element of syndicated estafa is now settled. Estafa by means of deceit under
paragraph 2 (a) of the Revised Penal Code was committed by the respondents against the
complainant.
 Under the second element of Syndicated Estafa, the Estafa or swindling is committed by
a syndicate of five (5) or more persons. With regard to the second element, the complainant
failed to prove that the respondents conspired and confederated with one another to steal from,
and defraud, Brooks in such business transaction. Despite the existence of fraud, some of the
respondents must be omitted from this case as their alleged participation in the commission of
Estafa is unconvincing. Marlyn Bartolome, Ferdinand Palomo and Nida Francisco must not be
impleaded in this case.
On Bartolome’s part, the complainant was not able to present evidence that she conspired
with Jennifer, nor Castaneda and Soria, in the commission of fraud against her. Bartolome is not
involved in such transaction, because she only replaces her daughter in managing the Kat &
Kutix Salon as the latter is in jail facing a charge of qualified theft entitled People of the
Philippines v. Palomo docketed as Criminal Case No. R-QZN-17-08042-CR. Assuming
arguendo, that Bartolome participated in the commission of false pretense and fraudulent
representation, her participation will still not prosper. It must be noted that the second element of
Estafa by means of Deceit is, “such false pretense or fraudulent representation was made or
executed prior to or simultaneously with the commission of the fraud”. The complainant failed
to proved that the false pretense or fraudulent representation of private respondent Bartolome
was made or executed prior to or simultaneously with the commission of the fraud.
More so, on Francisco’s part. The allegations of the complainant against Francisco is
only limited to the construction business of the private respondent, and not on his participation in
the Salon Business of his sister. The only contribution of Francisco is that he made finishing
touches in the said Salon Business. Nothing shows in the Complaint-Affidavit and Reply-
Affidavit that the complainant and Francisco had even a single conversation regarding the
alleged salon business.
The complainant alleged that Francisco defrauded her to invest in his construction
business. Brooks should have done it in a separate criminal action, as this is a different case. The
complainant cannot just file a single complaint of Syndicated Estafa against different persons,
having different matters and transactions with her. Since, Brooks accusation against Francisco is
a different transaction, she cannot implead the latter in this complaint, as he has no participation
in the alleged sale of Kat & Kutix Salon business.
Nida Francisco must also be omitted in her complaint. She acted in good faith because
she only relied to the Certificate of Business Name Registration, issued by the Department of
Trade and Industry, presented by Jennifer. Nida is not required to go beyond what appears on the
certificate. As an innocent lessor, she may safely rely on the correctness of the certificate and she
is not obliged to determine the legality of the certificate.
Considering the foregoing, the alleged Estafa is not committed by a syndicate of five (5)
or more persons. The qualified persons involved in conspiracy are Jennifer, Castaneda and Soria.
They are only 3 persons. Thus, the second element is absent in this case.
The third element of Syndicated Estafa is, the defraudation results in the
misappropriation of moneys contributed by stockholders, or members of rural banks,
cooperatives, "samahang nayon(s)," or farmers' associations, or of funds solicited by
corporations/associations from the general public.
In the case of Galvez v. Court of Appeals, G.R. No. 187919, February 20, 2013, the
Supreme Court explained the third element of Syndicated Estafa, to wit:

“On review of the cases applying the law, we note that the swindling syndicate
used the association that they manage to defraud the general public of funds
contributed to the association. Indeed, Section 1 of Presidential Decree No. 1689
speaks of a syndicate formed with the intention of carrying out the unlawful
scheme for the misappropriation of the money contributed by the members of the
association. In other words, only those who formed and manage associations that
receive contributions from the general public who misappropriated the
contributions can commit syndicated estafa.

Gilbert Guy, et al., however, are not in any way related either by employment or
ownership to AUB. They are outsiders who, by their cunning moves were able to
defraud an association, which is the AUB. Theirs would have been a different
story, had they been managers or owners of AUB who used the bank to defraud
the public depositors.

This brings to fore the difference between the case of Gilbert Guy et al., and that
of People v. Balasa, People v. Romero, and People v. Menil, Jr.

In People v. Balasa, the accused formed the Panata Foundation of the

Philippines, Inc., a non-stock/non-profit corporation and the accused managed its
affairs, solicited deposits from the public and misappropriated the same funds.

We clarified in Balasa that although, the entity involved, the Panata Foundation,
was not a rural bank, cooperative, samahang nayon or farmers’ association, it
being a corporation, does not take the case out of the coverage of Presidential
Decree No. 1689. Presidential Decree No. 1689’s third "whereas clause" states
that it also applies to other "corporations/associations operating on funds solicited
from the general public." It is this pronouncement about the coverage of
"corporations/associations" that led us to the ruling in our 25 April 2012 Decision
that a commercial bank falls within the coverage of Presidential Decree No. 1689.
We have to note though, as we do now, that the Balasa case, differs from the
present petition because while in Balasa, the offenders were insiders, i.e., owners
and employees who used their position to defraud the public, in the present
petition, the offenders were not at all related to the bank. In other words, while in
Balasa the offenders used the corporation as the means to defraud the public, in
the present case, the corporation or the bank is the very victim of the offenders.

Balasa has been reiterated in People v. Romero, where the accused Martin
Romero and Ernesto Rodriguez were the General Manager and Operation
Manager, respectively, of Surigao San Andres Industrial Development
 Corporation, a corporation engaged in marketing which later engaged in soliciting
funds and investments from the public.1âwphi1

A similar reiteration was by People v. Menil, Jr., where the accused Vicente
Menil, Jr. and his wife were proprietors of a business operating under the name
ABM Appliance and Upholstery. Through ushers and sales executives, the
accused solicited investments from the general public and thereafter,
misappropriated the same.

The rulings in Romero and Menil, Jr. further guide us in the present case.
Notably, Romero and Menil, Jr. applied the second paragraph of Section 1 of
Presidential Decree No. 1689 because the number of the accused was below five,
the minimum needed to form the syndicate.

The second paragraph, Section 1 of Presidential Decree No. 1689 states:

When not committed by a syndicate as above defined, the penalty imposable shall
be reclusion temporal to reclusion perpetua if the amount of fraud exceeds
100,000 pesos.1âwphi1

Effectively, Romero and Menil, Jr. read as written the phrase "when not
committed by a syndicate as above defined," such that, for the second paragraph
of Section 1 to apply the definition of swindling in the first paragraph must be
satisfied: the offenders should have used the association they formed, own or
manage to misappropriate the funds solicited from the public.

In sum and substance and by precedential guidelines, we hold that, first,

Presidential Decree No. 1689 also covers commercial banks; second, to be within
the ambit of the Decree, the swindling must be committed through the
association, the bank in this case, which operate on funds solicited from the
general public; third, when the number of the accused are five or more, the crime
is syndicated estafa under paragraph 1 of the Decree; fourth, if the number of
accused is less than five but the defininf element of the crime under the Decree is
present, the second paragraph of the Decree applies (People v. Romero, People v.
Balasa); fifth, the Decree does not apply regardless of the number of the accused,
when (a) the entity soliciting funds from the general public is the victim and not
the means through which the estafa is committed, or (b) the offenders are not
owners or employees who used the association to perpetrate the crime, in which
case, Article 315 (2)(a) of the Revised Penal Code applies.”

It is clear that the last element is not present, as there are no funds solicited from the
general public. Therefore, the crime of Syndicated Estafa will not lie in this case.

Considering the foregoing, the evidence on record clearly and undoubtedly fails to
establish that there is probable cause to file a case of syndicated estafa against the respondents
due to lack of substantiation of its arguments and allegations.
 WHEREFORE, premises considered, undersigned respectfully recommends for the
dismissal of the charge for violation of Article 315 in relation to PD No. 1689.

June 25, 2019, Quezon City, Philippines.

RODERICK P. ROBLEDO

Assistant City Prosecutor

Copy Furnished:

PILAR P. BROOKS
No. 16 June Street, Congressional Village
Project 8, Quezon City

MARLYN BARTOLOME
55-D Road 23 Bahay Toro
Project 8, Quezon City

JENNIFER B. PALOMO
Barangay Liwanag
Tamauini, Isabela

FERDINAND B. PALOMO
55-D Road 23 Bahay Toro
Project 8, Quezon City

MICHAEL A. SORIA
Chateau Condominium, Barangay Lingunan, Valenzuela City
Alley 4, 44-D Loans Street, Barangay Sangandaan
Project 8, Quezon City

YOHAN CASTANEDA
39 Super Palengke Commercial Complex,
Grants Street, Barangay Sangandaan
Project 8, Quezon City

NIDA FRANCISCO
Super Palengke Commercial Complex
Grants Street, Barangay Sangandaan
Project 8, Quezon City