Delayed pardon

What is the value of an Affidavit of Desistance executed by the complainant pardoning the offender of the offense charged and declaring that he is no longer interested in pursuing his complaint? This is the case of two friends, Larry and Arnie who had their respective companies engaged in industries development and trading and marketing businesses respectively.

Sometime in February 1988, Larry convinced Arnie to invest in the importation of jute sacks from China which Larry said he could secure through a company in Hong Kong for P5.35 per piece and which already had a ready buyer for P12.25 per piece. Convinced, Arnie ordered through Larry one container load of 20,000 jute sacks for P137,000.

To pay for the importation, Larry told Arnie to open a letter of credit (L/C). So Arnie proceeded to his bank (CTB) together with Larry to open the said L/C. Since CTB required them to post a marginal deposit of P100,000 and submit the supporting customs document, Arnie encashed his check drawn on another bank and then returned with Larry to CTB. But they arrived after banking hours already so the L/C could not be opened anymore. Thus Larry suggested that the money be deposited to his account also in CTB. Arnie agreed after Larry signed an acknowledgment receipt of said amount to be returned to him if the transaction does not materialize.

While preparing the customs document, Arnie found that the actual cost of the jute sacks was not P5.35 but P16.15 per piece. Realizing that his business venture was a losing proposition, Arnie cancelled the importation and asked Larry to return the P100,000. But Larry failed to return the money despite repeated verbal and formal demands. So Arnie sued Larry for Estafa before the Regional Trial Court (RTC) relating the foregoing facts on the witness stand.

In defense, Larry testified that he did not misappropriate the P100,000 but used it for salaries, office and miscellaneous expenses of the space he and Arnie shared. He further declared that they had an oral agreement about a joint business venture where they will equally share whatever net profit they will realize from the business.

After trial, or on March 11, 1997, the lower court found Larry guilty of estafa after it had been established that he received the P100,000 in trust for purposes of opening an L/C in the importation of jute sacks with the obligation to return the same if the transaction failed to materialize; that Larry applied the said amount for purposes other than opening an L/C; and that despite demands, Larry failed to return the amount to the prejudice of Arnie.

Larry appealed the said decision to the Court of Appeals (CA). While the appeal is pending or on October 25, 1999 Arnie executed an Affidavit of Desistance pardoning Larry and declared that he was no longer interested in pursuing his complaint. So on April 10, 2000, the public prosecutor filed a manifestation to that effect attaching thereto Arnie’s Affidavit of Desistance and praying that the case be decided in the light of said affidavit.

The CA however rendered a decision nevertheless affirming the judgment of the trial court and sentenced Larry to imprisonment of 2 years 11 months and 11 days minimum to 15 years maximum. Was the CA correct?

Yes. The Affidavit of Desistance submitted by Arnie will not justify the dismissal of the action. By itself, an Affidavit of Desistance is not a ground for the dismissal of the action, once the action has been instituted in court. Here Arnie made the so-called pardon of Larry only more than two years after the trial court rendered its decision. No persuasive value can be attached to said desistance especially when executed as an afterthought. It would be a dangerous rule to reject the testimony taken before the court of justice simply because the witness who had given it later on changed his mind for one reason or another. Such a rule will make a solemn trial a mockery and place the investigation at the mercy of unscrupulous witnesses. Moreover if the case will be dismissed in view of Arnie’s Affidavit of Desistance, there is always the probability that it would later on be repudiated, and criminal prosecution would thus be interminable (Catalina vs. People, G.R. 167805, November 14, 2008).

Note: Books containing compilation of my articles on Labor Law and Criminal Law (Vols. I and II) are now available. Call tel. 7249445.

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