Bank trio replies-2

Yesterday I cited the late filing of the counter-affidavits of the three employees of the Bank of the Philippine Islands who were charged with qualified theft and falsification of commercial instrument. After the trio presented their defenses, Joe Marie Sy forthwith replied on August 11, 2014. That is one week after the counter-affidavits were filed.

Sy sought to “Expunge from the Records the Counter-Affidavits of the Respondents” contending that these were filed two days after the deadline set by the Rules on Criminal Procedure.

Sy cited the Rules that the respondents had only ten days after receipt of the complaint to file their counter, that is not later than August 2. The trio presumably did not ask for time extension to file their counter-affidavits. Thus Sy asked the prosecutor to expunge or remove from the records the counter-affidavits.

This means that the counter-affidavits are held to be nonexistent. The implication is that the prosecutor will rule solely on the basis of Sy’s complaint and the respondent employees can no longer dispute Sy’s assertions until trial.

Maybe we will know later how the trio can wiggle out of their time-barred affidavits. That will add to our legal education.

Nevertheless, Sy went on to refute the claims and arguments of the three BPI employees, attacking the defenses I cited yesterday “without abandoning our objection to the belated submission of the counter-affidavits.”

Sy detailed the several defects of the check of P2 million that he said to be a forgery and the failure of the employees to detect them despite their collective claim that they had examined the check thoroughly.

He placed the check under meticulous scrutiny pointing out its defects in contrast to the claim of the BPI employees that the check was genuine. However, this fact is difficult to determine without the original which Sy claims he had been asking BPI to produce. It will be to the advantage of the trio if this check is presented. On the other hand, if the check is faked, its presentation will be disastrous to their case. In fact, Sy argued that “if they fail or refuse to do so, the presumption would be that the ‘evidence’ is adverse if produced.’”

Sy insisted that since the trio “have no problem producing the original” and “inasmuch as BPI had already issued a certified true copy of the check, it means that the original exists and had already been found.”

That would be dramatic suspense when that check is presented. I think the case revolves on its presentation.

But for our edification is the rebuttal of the defense claim that the “P2 million is owned by the bank” and therefore there was no theft. Indeed, if BPI owned the money then BPI would have filed a case against them. But BPI did not.

Sy contends that “qualified theft and falsification are public offenses where the real offended party is the State and not BPI or Joe Marie Sy” so that “anybody who has evidence of their commission” can file the case. As such this case is of public interest as well.

Sy then made several examples to differentiate public from private crimes. The illustrations suggest that “even if the employer (like BPI) refuses to sue, a case can be filed by anyone because qualified theft and falsification are crimes against the State.”

On the defense that the money was owned by BPI and not Sy, and that there was no “trust and confidence relationship” existing between Sy and the trio, the rebuttal claims “it does not matter…since Qualified Theft is a public offense…” and that Sy “has the evidence to prove it.”

Sy also said  that if the money allegedly taken by the trio belonged to the bank and not to a specific account of a depositor then the defense is correct. However in his case, the money was taken from his deposit. The P2 million was deducted from that deposit. Indeed, BPI did not lose money, but Sy claims he did.

On the defense that there was no “trust and confidence relationship” between Sy and the charged employees, Sy said “it is absurd to say that the trust and confidence exists only between BPI and its depositors but does not extend to the employees of the bank.” He contends the trio is considered “extensions, conduits and representatives of the bank… and banks officers are custodians of bank deposits… expected to safeguard those funds… It is outlandish to say that complainant trusts only BPI and not its employees.”

Let’s continue next week.*

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