By ROGER M. BALANZA
The Davao Regional State Prosecutor has affirmed findings of the Davao City Prosecution indicting a Davao City doctor for robbery in a complaint leveled by an owner of a nursing review center.
In an October 11, 2010 resolution, State Prosecutor Antonio Arellano ordered the prosecution for robbery of Dr. Nestor Arce, Jr. of the Mind’s Nest Nursing Review Center in Davao City. Also to be prosecuted are Nestorito Arce and Riz Budo.
The State Prosecutor’s resolution came after respondents appealed the findings of the city prosecution indicting them for robbery based on the complaint of William Santos, owner of Multi-Education Review Group Experts (MERGE), Inc.
The resolution also dismissed Dr. Arce’s claim that he is co-owner of Merge, and being a business partner could not be charged with robbery.
“The act of the Respondents-Appellants, in the guise of being business partners, of just barging into their alleged joint business establishment and carting away some equipment and furnitures without the prior knowledge and consent of their supposed partners does not appear to be a sound and rational business practice. Besides, when the said properties were hauled and delivered to another location solely owned and operated by one of the Respondents who operates another Review Center similar to and competitive with that operated by the Complainant-Appellee, the element of intent to gain is very evident. Hence, inspite of the Respondents-Appellant’s counter allegation of co-ownership which is merely a matter of defense, the Investigating Prosecutor’s finding of existence of probable cause is unassailable,” said the Arellano resolution.
“The Appeal is hereby DISMISSED for lack of merit. The assailed Resolution INDICTING the Respondents-Appellants for ROBBERY is AFFIRMED. The City Prosecution Office of Davao is accordingly directed to proceed with its prosecution of the case in Court,” said Arellano in the Resolution.
Dr. Arce, Jr. had been arrested by police authorities at the Ninoy Aquino International Airport (NAIA) in July this year for the robbery involving nearly one million pesos worth of property.
Dr. Nestor Arce Jr., along with two others, had been charged with Robbery in an Uninhabited Place before the Municipal Trial Court in Cities (MTCC) Branch 11 in Davao City in Crim. Case No. 136,986-C-2010.
Dr. Arce was arrested by the NAIA Police Center for Aviation Security (PCAS) on July 3, 2010 while about to board a flight to Davao City, according to Police Chief Inspector Christopher Melchor of the PCAS.
Dr. Arce along with brother Nestorito Arce and Riz Budo had been slapped the robbery charge by Santos for the loss of various office equipment and airconditioning units, among other equipments, worth about P900,000 in May in 2009.
MERGE is a review center holding office at AMYA building along Quimpo Avenue in Davao City. Its office had been padlocked after suspending operations. Merge filed the complaint after a company official found the office forcibly opened and the furniture and equipment missing on May 2009.
In a resolution dated March 3, 2010, Jose Garcia, Prosecutor 11, of the Davao City Prosecution Office, found probable cause to charge the Arces and Budo with Robbery in an Uninhabited Place .
In its complaint, MERGE said Dr. Arce ordered his brother, Nestorito, and Budo to haul off using hired hands the office equipment, including furniture, airconditioning units, sound system and others, from the MERGE office, which had been padlocked after suspending its operation between December 2008 and April 2009.
The Criminal Investigation and Detection Group in its investigation report had fingered the three as behind the robbery, based on testimonies of witnesses.
The equipment were carried off by the three using Dr. Arce’s Toyota Innova wagon and a Lawin PUJ vehicle to Mind’s Nest Inc, a review center located at Roxas Avenue, of which Dr. Arce is a stockholder.
In his resolution, prosecutor Garcia said Dr. Arce claimed that he is an associate or partner of MERGE and that he contributed money to purchase the equipment for the center.
But Garcia, in the resolution, said “there is no convincing evidence to prove that Dr. Arce is a business partner.” He said a Merge board resolution submitted as evidence did not mention Dr. Arce as a “business partner” but a mere branch associate.
“He relies mainly on his belief that he is a ‘business partner’ of Merge and part owner of the things he took forcibly out of the review center,” said Garcia.
Dr. Arce, Jr., Nestorito Arce and Budo had posted bail after the doctors arrest in Manila.
Republic of the Philippines
DEPARTMENT OF JUSTICE
Office of the Regional Prosecutor
2nd Floor Room 205 Hall of Justice Building
Candelaria Ave., Ecoland, Davao City
Telephone No. (082) 2978947; Telefax No. (082) 2976149
E-mail Address: DOJ_ORP11@yahoo.com
DR. NESTOR ARCE, JR. A-RPO XI N0.2010-G-043
NESTORITO ARCE and RIZ BUDO, NPS NO. XI-02-INV-091-03150
versus FOR: ROBBERY
Complainant-Appellee Date of Promulgation: 11 October 2010
This has reference to the Petition for Review taken on the Resolution of the City Prosecution Office of Davao in NPS Docket No. XI-02-INV-091-03150 which found probable cause to indict Respondents-Appelees Dr. Nestor Arce Jr., Nestorito Arce, and Riz Budo for the crime of Robbery in a private building under Article 302 of the Revised Penal Code. Respondent Charlie Santos, on the other hand, was dropped from the charge.
The Complaint was instituted by Complainant-Appellee William Santos, the Manager of Merge, Inc., a corporation duly organized for the purpose of operating a Nursing Licensure Exminations Review Center. Its review center is located at AMYA Building, Ecoland, Davao City duly furnished with office equipment, furniture, airconditioning units, sound system, cofta chairs, office tables, stand fans, and curtains, among others. The Complainant-Apellee alleges that the Review Center temporarily suspended its operation sometime in December 2008 up to April 2009 after the review sessions were conducted for the November 2008 Nursing Board Examination. During the suspension of operations, the Review Center of the Merge Inc., at the AMYA Building was padlocked to secure the office equipment therein.
Complainant-Appellee further claims that when he went to inspect the Review Center on May 2009, he was shocked to discover that the padlocks to the review center had been destroyed, the doors forcibly opened, and the equipment, furniture, and other office fixtures were missing. When he inquired from the personnel of the AMYA building, Joezi Jane Javellana, the secretary of AMYA, revealed to him that on or about the last week of April 2009 at about 5:00 P.M., she saw Charlie Santos with other companions hauling mono-block chairs from Merge, Inc. to a vehicle parked in front of the building. Another person, Edgar Cerna, a messenger and utility worker of AMYA, also saw Charlie Santos, Jemuel Burias and other persons haul mono-block chairs taken from the center to a waiting Toyota Innova and a Lawin Jeepney. During the inquiry conducted by the CIDB, Jemuel Burias revealed that he was hired to pull-out office equipment from AMYA building inside the review center of Merge, Inc. to the ALU Building particularly at the Mind’s Nest Review Center owned by Dr. Nestor Arce, Jr., located at Roxas Avenue, Davao City. Burias said that it was Charlie Santos, per instruction of Dr. Nestor Arce., Jr., who went to his residence and offered him a three-day work with a daily rate of P 200 with free lunch and snacks. He further revealed that on the first day of work, he went to Merge Review at AMYA building with Nestorito “Jig” Arce, Charlie Santos, Riz Budo, and alias “Arlon” and that it was Nestorito “Jig” Arce who ordered alias “Arlon” to forcibly open the door using a screw driver. Upon gaining entry, Nestorito “Jig” Arce then ordered the group to haul and load the furniture and equipment to the Toyota Innova and Lawin Tamaraw, and transferred the same to the Mind’s Nest Review Center. The hauling lasted for three (3) days.
The Investigating Prosecutor after conducting the requisite preliminary investigation, resolved to indict the Respondents-Appellants when he found the existence of probable cause against them. He likewise denied the Motion seeking reconsideration of the finding of probable cause.
Hence this appeal.
In their Appeal, Respondents-Appellants proffered the following grounds for review, to wit:
1. That the City Prosecutor erred in finding that the subject properties are not owned by Dr. Nestor Arce., Jr;
2. That the City Prosecutor erred in finding that the Accused took the subject properties with force upon things;
3. That the City Prosecution erred in finding probable cause to hold Dr. Nestor Arce., Jr. for trial when in fact he was not present when the alleged incident happened.
In gist, Respondent-Appellant Dr. Nestor Arce, Jr., insists that he cannot be charged of Robbery because he is a co-owner of the properties taken from the Merge’s Review Center. He claims that he is a business partner of Merge, Inc., in a certain business which is the operation of the Review Center. In fact, Merge authorized its President, Jerry Gil S. Murao and/or Dr. Nestor Arce, its Davao City Branch Partner to open current and/or savings account necessary for the operation of the Company. Dr. Nestor Arce., Jr. argues that he cannot be said to be a mere employee or teacher of Merge’s Review Center. He contributed money to further the operation of the Review Center, and issued checks in favor of Merge, Inc. as his share in the operational expenses of the Review Center, and for the purchase of some equipment and materials. Moreover, Dr. Arce avers that he recieves a share from the profits. In fact, on 15 December 2008, he received the amount of P4,009,823.61, representing his share in the profit of the Review Center. He emphasizes that a mere teacher cannot receive such big amount for a 4-month review for the Nursing Board Examinations. He claims that such big amount is proof of profit sharing, which is normal in a partnership or in joint venture agreements.
After a thorough review of the records in the light of the allegations and counter-allegations of the Parties, this Office finds the assailed Resolution to be untainted with any reversible error. Indeed, the claim of the Respondents-Appellants that Dr. Nestor Arce., Jr. is a business partner of the Complainant-Appellee does not find any solid support from the evidence on record. The act of the Respondents-Appellants, in the guise of being business partners, of just barging into their alleged joint business establishment and carting away some equipment and furnitures without the prior knowledge and consent of their supposed partners does not appear to be a sound and rational business practice. Besides, when the said properties were hauled and delivered to another location solely owned and operated by one of the Respondents who operates another Review Center similar to and competitive with that operated by the Complainant-Appellee, the element of intent to gain is very evident. Hence, inspite of the Respondents-Appellant’s counter allegation of co-ownership which is merely a matter of defense, the Investigating Prosecutor’s finding of existence of probable cause is unassailable.
Finally, on the issue of Respondent-Appellant’s failure to attach in his Petition a copy of the Motion to Defer Proceedings as required by the rules, the undersigned in the exercise of his discretionary authority under Section 12 of the 2000 NPS Rules on Appeal opted to give due course to the Appeal consistent with the ruling of the Court in Juaban vs. Bancale (GR No. 156011, 03 July 2008) that it is “far better and more prudent course of action….to excuse a technical lapse and afford parties a review of the case on appeal to attain the ends of justice rather than dispose of the case on a technicality and cause a grave injustice to the parties, giving a false impression of speedy disposal of cases while actually resulting in more delay, if not a miscarriage of justice.”
WHEREFORE, the Appeal is hereby DISMISSED for lack of merit. The assailed Resolution INDICTING the Respondents-Appellants for ROBBERY is AFFIRMED. The City Prosecution Office of Davao is accordingly directed to proceed with its prosecution of the case in Court.
Davao City, Philippines
ANTONIO B. ARELLANO