Lapu-Lapu City prosecutor finds probable cause to charge motorcycle dealers

LTO-7 Regional Director Victor Caindec | CDN Digital file photo

CEBU CITY, Philippines — The Lapu-Lapu City Prosecutor has found probable cause to formally charge motorcycle dealers accused of “falsifying” documents which they submitted to the Land Transportation Office in Central Visays (LTO-7).

Assistant Prosecutor Antonio Aseniero recommended the filing of complaints for the violation of the Anti-Cyber Crime Prevention Act of 2012 and Article 172 of the Revised Penal Code or the falsification of documents against Marvin Ken Du, Carl Ryan Lim, Iwih Jane Du, and Cassandra Alexis Du.

Marvin is the chairman of the board of directors of DESMI while Lim is the company president. Iwih Jane, on the other hand, is the corporate secretary while Cassandra Alexis is a member of the board of directors.

However, Aseniero recommended for the dismissal of the complaints against the employees of their Gun-ob branch in Lapu-Lapu City who were identified as Mary Fe Heruela, Bryll Christian Villalfon, Marc Jaylord Nieves, Angelito Tabada “for lack of probable cause.”

In a joint resolution, Aseniero said, LTO-7 Director Victor Emmanuel Caindec, who acted as complainant in the case, failed to present proof that the five were already employed by DESMI when the alleged falsification happened sometime in January 2020.

Aseniero’s recommendation signed on November 10, 2021 was approved by City Prosecutor Ruso Zaragoza and copies of which were sent to all of the respondents and Caindec.

A copy of the order was recently received by LTO-7.

Acts of the Corporation

The respondents maintain their innocence as they claim to having “separate personalities” from the corporation that they are working for.

In his counter affidavit, Marvin Du said, “a Corporate officer may not be held criminally liable for the alleged acts of the corporation.”  He said that they can only be held liable “if they performed overt acts and have active participation.”

“That, as a Corporation, DESMI has a personality separate and distinct from its Directors, stockholder’s officers and employees. Thus, all acts performed by the Directors, stockholders, officers and employees of DESMI in pursuit of the latter’s business solely pertain to and are attributable to only the Corporation,” he said.

Du added that the two sales invoices in question were issued using the name of DESMI and not the respondents.

As the company chairman, Du said, he does not involve himself in the issuances of invoices nor does he have any knowledge about this since “he neither participates now dip his fingers in the daily branch operation and activities of DESMI Gun-ob, Lapu-Lapu City Branch.”

Du said he is based in Cagayan de Oro City.

Two Sales Invoices

The filing of the complaint against Du and the other respondents started from a question which Caindec raised on the different cash sales invoices  which their Gun-ob branch issued to a customer and which they sent to LTO-7.

“There exists two versions of one sales invoice, one issued to the customer and one reported to the LTO 7. To reiterate, this was not mentioned nor addressed by the lengthy answer of the Respondents,” Caindec said.

Caindec added that following a review of the two invoices, they found that different dates and purchase amounts were reflected on the two documents.

“However these unrecognizable differences were not addressed by the Respondents in their lengthy answer. Hence, it would be more prudent for the same case to be subjected to a full-blown trial,” Caindec said.

“In other words, wala gyod nila gitubag ang pasangil nga nanikas sila.”

Caindec said cash sales invoice that are issued by the sellers are considered a commercial and official document.

“In falsification of public documents or official documents, it is not only necessary that there be present the idea of gain or intent to injure a third person because in the falsification of a public document, what is punished is the violation of the public faith and the destruction of the truth as therein solemnly proclaimed,” said Caindec, who earlier launch a campaign against fraudulent schemes by motorcycle dealers.

“All cases filled by the LTO 7, both with recommendations to indict and those dismissed by the prosecution, have one common point: The allegations of LTO 7 on the existence of two invoices containing the same details of the transaction, one to indicate cash and the other as a charge sales, have never been contested by the accused dealers,” he said.

Fraud

Last June 2021, Caindec filed a complaint at the Mandaue City Prosecutor’s Office against Du Ek Sam Inc., DesmarkCorporation, DES Marketing Inc., Premio Corporation, and DES Strong Inc. whom he accused of abusing LTO’s MAIRDOEs (manufacturers, assemblers, importers, rebuilders, dealers, and other entities) system.

In September of the same year, the Department of Finance also endorsed to BIR a copy of Caindec’s complaint against the motorcycle dealers.

Three months later or on December 2021, Senator Richard Gordon, chairperson of the Senate Blue Ribbon Committed, urged the Bureau of Internal Revenue (BIR) to file tax fraud charges against five motorcycle dealers for defrauding the government of billions of pesos from their sales.

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/ dcb