Republic of the PhilippinesCITY PROSECUTIONS OFFICEBacoor City

RICO GOJAR GIDOCComplainant,

-versus-I.V.-27-INV-136-00302-030For: Qualified Theft and Malicious Mischief

ALEJANDRO L. FERMINRespondents,

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RESOLUTION

Submitted for resolution is the charge for attempted homicide under the Revised Penal Code.

According to the complainant on his affidavit, the respondent is his lessor on his apartment. Allegedly the respondent met him to inform him that the latter will terminate the contract of lease. During their meeting, the complainant alleges that the respondent asked him to sign a document stating that he acknowledge the termination of contract of lease as well as the surrender of the key with the note on the lower left of the said letter that the key will be given by the respondent personnel named Vic duly signed by the respondent. After a few days, the complainant went to the said apartment to check its status when unfortunately he was shocked when he discovered the damages on his apartment as well as the missing furniture inside.

The complainant also present his witness Jinky Vale who stated that she actually saw the respondent together with some of his personnel removing the ceiling, tables water meters, electrical line, etc. and placing the same in the truck outside he house.

The respondent on the other hand denies the allegation of the complainant and present his own copy of the acknowledgement letter showing that the complainant actually received the key, however, his copy has no notes that the key will be surrendered by a person named Vic. He alleges that he observe all the diligence required to safeguard the house. He also deny any participation or involvement on what happens to the complainants house.

The respondent likewise present his witness stating that there was no ceiling, tables etc. remove from the house.

Based on the foregoing, this office finds probable cause to charge the respondent of the crime of Malicious Mischief

Based the gathered facts as well as the evidence presented. The first question is that whether the crime was indeed committed. The pictures presented shows that there was in fact a damages on the apartment of the complainant, hence the crime was indeed probably committed.

Now the second question is that whether the respondent is probably guilty of the crime charge. This office respectfully submitted that the respondent is probably guilty of Malicious Mischief and not of Qualified Theft.

In the case at bar, it is admitted by the complainant that the respondent is a lessor of his apartment together with his personal effects such as the tables. It is therefore clear that the kind of possession of the respondent on the said articles is juridical possession and not mere physical or material possession. well settled is the rule that the crime is estafa by abuse of confidence when the possession of the property involved is juridical one and qualified theft by grave abuse of confidence when the possession is physical or material possession. Hence, this office finds no probable cause for he charge of qualified theft.

With the charge of Malicious Mischief, this office finds no probable cause against the respondent.

The crime of malicious mischief as defined by Art. 327 of the Revised Penal Code means:

"thewillfuldamagingofanotherpropertybyanyactnotconstitutingarsonorcrimesofdestructionduetohate,revengeormerepleasureofdestroying"

It cannot be inferred on the facts given as well as the pictures submitted that the act of destroying or damaging was due to hate, revenge or mere pleasure of destroying the same. The complainant does not alleged nor give any motive for the respondent to damage or destroy his property. There was even no allegation that the respondent acted for revenge, or due to hatred, or for the mere pleasure of destroying the property. Absent any of the foregoing, this office cannot presume such circumstances required by the provisions of Art. 327.

In the case of Sy Thiong Shiou vs Sy Chim, GR No. 174168, March 30, 2009, the Supreme Court held that:

The term probable cause does not mean actual and positive cause nor does it import absolute certainty. It is merely based on opinion and reasonable belief. Thus, a finding of probable cause does not require an inquiry into whether there is sufficient evidence to procure conviction. It is enough that it is believed that the act or omission complained of constitutes the offense charged."

WHEREFORE, it is hereby recommended that this case be dismissed.