1) The Situation in Plain Terms

A person accused of theft in the Philippines often receives a subpoena from the Office of the City/Provincial Prosecutor (or an investigative office acting for it) requiring the recipient—called the respondent—to submit a counter-affidavit and supporting evidence. This usually means a criminal complaint has been filed and the prosecutor is conducting a preliminary investigation to determine whether probable cause exists to file the case in court.

The most important practical points:

A subpoena is not an arrest warrant.
Ignoring it can allow the prosecutor to resolve the case without the respondent’s side, increasing the risk of charges being filed.
The response is typically time-bound (often around 10 days from receipt, subject to the subpoena’s stated deadline and prosecutorial discretion).

2) Theft Under Philippine Law: What the Accusation Usually Claims

2.1 Definition and Elements (Revised Penal Code, Article 308)

Theft is generally the taking of personal property belonging to another without consent, with intent to gain, and without violence/intimidation against persons and without force upon things (those features usually shift the case toward robbery).

To convict for theft, the prosecution commonly tries to establish these core elements:

Taking of personal property
The property belongs to another
The taking was without consent
There was intent to gain (animus lucrandi)
The taking was without violence or intimidation and without force upon things (as understood for robbery)

2.2 Qualified Theft (Article 310) – Common in Workplace Cases

Many employee-related complaints are framed as qualified theft, which is theft attended by circumstances such as:

By a domestic servant, or
With grave abuse of confidence (frequently alleged against employees with access/trust)

Qualified theft carries a higher penalty than simple theft—often described as two degrees higher than the corresponding penalty for simple theft based on value. This is why workplace allegations can become extremely high-stakes even when the underlying facts are disputed.

2.3 Penalties and Value Thresholds

Penalties for theft depend heavily on (a) value, and (b) whether it is qualified. Monetary thresholds for property crimes were adjusted by law (notably through reforms that updated peso amounts to modern values). Because exact brackets matter for bail, risk assessment, and negotiation posture, the best practice is to treat value as a critical factual issue and verify it against receipts, inventory records, appraisals, and audit trails.

3) What Kind of Subpoena Is It?

“Subpoena” can mean different things. The first step is identifying which type was received.

3.1 Prosecutor’s Subpoena (Most Common in Theft Complaints)

This typically comes with:

A copy of the complaint-affidavit
Supporting affidavits and annexes (CCTV stills, inventory reports, statements)
An order to file a counter-affidavit and evidence within a stated period
Sometimes a setting for a clarificatory hearing (or a note that one may be called)

This is part of preliminary investigation under the Rules of Criminal Procedure.

3.2 Court-Issued Subpoena (Rule 21 – Subpoena Ad Testificandum / Duces Tecum)

A court subpoena is often issued in a pending case and may require the person to:

Testify (subpoena ad testificandum), and/or
Produce documents/objects (subpoena duces tecum)

Court subpoenas have different tactical considerations, including the possibility of a motion to quash under specific grounds (e.g., unreasonable, oppressive, irrelevant, privileged).

3.3 “Invitation” From Police/NBI/Law Enforcement

Sometimes a letter is styled as an “invitation” or “request for appearance.” It may precede a complaint or accompany an investigation. Such communications can affect risk, but they are not always the formal preliminary investigation subpoena that triggers a counter-affidavit deadline. The letterhead, case number, and attachments usually reveal which it is.

4) Immediate Steps Upon Receipt: The First 48 Hours Matter

4.1 Confirm Authenticity and Contents

Check for:

The issuing office (City/Provincial Prosecutor, DOJ unit, court branch)
Case number / I.S. number (Investigation Slip) for prosecutor cases
The deadline and mode of filing
Whether the complaint and annexes are complete
Whether it demands appearance, documents, or both

4.2 Calendar the Deadline and Assume It Is Real

In prosecutor subpoenas, missing the deadline can lead to the case being submitted for resolution without the respondent’s evidence. Even a strong defense weakens if it is not timely filed.

4.3 Preserve Evidence Immediately (Do Not “Clean Up”)

Common evidence in theft allegations includes:

CCTV footage (request copies; note retention periods)
Timekeeping logs, access logs, biometrics
Inventory cards, receiving reports, delivery receipts
POS logs, cash count sheets, audit reports
Chat messages/emails assigning custody or authorizing movement of items
Photos of storage areas/locks/keys
Witness names and contemporaneous notes

Preservation means copying and securing, not altering. Alteration can be portrayed as consciousness of guilt.

4.4 Avoid Uncounseled Statements

Even if the subpoena is not custodial interrogation, statements made casually to HR, security, supervisors, complainants, or investigators can be turned into admissions. Written explanations, apology messages, or “settlement” chats can be misread as confession. The safest approach is disciplined, factual communication.

4.5 Identify the Exact Property and the Exact Theory

The defense strategy changes depending on whether the accusation is:

Single-item taking
Inventory shortage attributed to one person
Cash discrepancy
Alleged “pilferage” caught on video
Possession of allegedly stolen items
Abuse of access (keys, passwords, stockroom control)

Pin down: what, when, where, how, value, ownership, and who claims custody.

5) The Preliminary Investigation Process: What Happens After the Subpoena

5.1 Purpose: Probable Cause, Not Guilt Beyond Reasonable Doubt

Preliminary investigation determines whether there is sufficient ground to believe a crime was committed and the respondent is probably guilty—enough to justify filing an Information in court.

5.2 Typical Flow in Theft Complaints

Complaint-affidavit filed by complainant
Prosecutor issues subpoena to respondent with complaint attachments
Respondent files counter-affidavit and evidence
Complainant may file reply-affidavit
Respondent may file rejoinder (if allowed/necessary)
Prosecutor may call a clarificatory hearing
Prosecutor issues a Resolution (dismissal or filing)
If filing is recommended, Information is filed in court
Court evaluates probable cause for issuance of warrant of arrest (or summons in limited instances) and sets bail

5.3 Consequences of Not Filing a Counter-Affidavit

Failure to submit does not automatically mean guilt, but it often results in:

The prosecutor resolving the case using only complainant evidence
Greater risk of an adverse resolution
Reduced opportunity to explain exculpatory documents (authorizations, turnover records, CCTV context)

6) Building the Response: The Counter-Affidavit as the Core Weapon

6.1 What a Strong Counter-Affidavit Does

A good counter-affidavit:

Directly addresses each element of theft
Presents a coherent factual narrative with dates, persons, and documents
Attacks credibility and reliability of complainant evidence (CCTV gaps, chain of custody, inventory methodology)
Raises legal defenses (no intent to gain, claim of right, consent/authority, misidentification)
Shows lack of probable cause—not merely denial

6.2 Structure (Common Practice Format)

Caption (Office of Prosecutor, I.S. No., parties)
Introductory statements (identity, capacity, receipt of subpoena)
Facts (chronological, specific, document-backed)
Issues (what must be proven; what is missing)
Defenses
- Factual defenses (did not take; authorization; mistaken identity)
- Legal defenses (no intent to gain; not “property of another”; consent)
- Procedural defenses (jurisdiction, barangay conciliation where applicable)
Evidence discussion (annexes, witnesses)
Prayer (dismissal for lack of probable cause)
Verification and jurat (sworn before authorized officer)

6.3 Evidence Attachments: “Annex” Discipline

Label each attachment clearly (Annex “A”, “B”, etc.)
Cite them in the narrative (“as shown in Annex ‘C’…”)
Provide legible copies
If video is involved: provide a link/drive only if allowed; otherwise submit through accepted media and describe authenticity
Include affidavits of witnesses where possible, not just the respondent’s word

6.4 Common High-Impact Exhibits in Theft/Qualified Theft Cases

Proof of authorization (emails, memos, job orders)
Turnover records / accountability forms
Key-control logs; stockroom access protocols
Audit methodology critiques (how shortage was computed)
CCTV context (full clip, not still frames)
Purchase receipts proving ownership or lawful possession
Messages showing complainant bias, threats, or coercion
Employment records relevant to “abuse of confidence” allegations (actual duties vs claimed access)

7) Substantive Defenses That Commonly Break Theft Allegations

7.1 “No Taking” or “No Participation”

The item never left the premises; later found
Custody was shared; access was not exclusive
Multiple persons had keys/passwords
CCTV does not show a completed taking (only handling)

7.2 “Not Property of Another” / Ownership and Possession Complexities

Property belonged to the respondent (proof of purchase)
Property was issued to the respondent (company-issued equipment disputes)
The complainant cannot establish ownership (weak documentation)

7.3 “With Consent / Authority”

A frequent defense in workplace or family settings:

Permission was granted expressly or impliedly
Standard operating practice allowed removal for work, repair, delivery
Authority came from a superior or policy (and was followed)

7.4 “No Intent to Gain” (Animus Lucrandi)

Intent to gain can be negated or cast into doubt by:

Immediate return or attempt to return (context matters)
The item was moved for safekeeping or work-related use
Lack of concealment; transparent conduct inconsistent with theft
Misunderstanding of custody rules (still risky, but relevant to intent)

7.5 “Claim of Right” (Good-Faith Belief of Entitlement)

A good-faith belief that one had a right to the property can undercut criminal intent. This is fact-intensive and must be supported by communications, agreements, prior practice, or documentation.

7.6 Mistaken Identity / Unreliable Identification

CCTV clarity issues, angle, timestamp, continuity gaps
Witness bias, delayed reporting, inconsistent statements
No independent corroboration (inventory records weak; chain of custody broken)

7.7 For Qualified Theft: Attack “Abuse of Confidence”

Qualified theft frequently hinges on the narrative that the respondent was trusted with the property.

Common lines of attack:

The respondent did not have the claimed custody/control
Trust relationship is overstated; access was broad and non-exclusive
Alleged “confidence” is inconsistent with actual work setup
Loss is consistent with systemic control failure, not individual theft

8) Procedural and Technical Defenses Worth Checking Early

8.1 Venue and Jurisdiction

The complaint should be filed in the proper place tied to where the crime occurred (often where the taking happened). Mis-venue arguments can matter, especially if used tactically with factual disputes.

8.2 Katarungang Pambarangay (Barangay Conciliation) Issues

Some disputes between individuals residing in the same city/municipality may require barangay conciliation before court filing, depending on the nature of the case and exceptions. For theft allegations, applicability depends on factors such as:

Where parties reside
Whether an exception applies (e.g., urgency, detention, certain offenses, public officer issues, etc.)
The offense and penalty level context

Because theft is a public offense, barangay proceedings—where applicable—typically affect filing mechanics, not the substance of criminal liability, and exceptions are common. Still, a missed conciliation requirement (when required and no exception applies) can be a procedural lever.

8.3 Defects in the Complaint-Affidavit

Examples:

Pure conclusions without personal knowledge
Missing essential dates/places/acts
Evidence contradictions (inventory report vs witness statement)
Hearsay as the sole basis (common in “shortage” cases)

8.4 Prescription (Time Limits)

Theft and qualified theft prescribe depending on the imposable penalty and circumstances. Prescription arguments are technical but can be decisive in older disputes.

9) If the Subpoena Demands Documents or Testimony (Duces Tecum / Ad Testificandum)

9.1 Obligations and Limits

A subpoena requiring production of documents is not limitless. Grounds to challenge can include:

Irrelevance or overly broad demand
Unreasonable or oppressive compliance burden
Privileged communications (e.g., attorney-client)
Protected/confidential materials under law or valid privacy constraints

9.2 Data Privacy Considerations (Workplace Records, CCTV, Personal Data)

Employers and parties handling CCTV, biometrics, and personal data must be careful with dissemination. The recipient responding to a subpoena should:

Produce only what is requested and relevant
Avoid unnecessary disclosure of third-party data
Keep a record of what was provided and under what authority

10) Outcomes After Filing the Counter-Affidavit

10.1 Possible Prosecutor Resolutions

Dismissal (lack of probable cause)
Filing of Information (probable cause found)
Recommendation for a lesser/different offense (depending on facts)

10.2 Remedies After an Adverse Resolution

Common procedural paths include:

Motion for reconsideration (where allowed by the office’s practice/rules)
Appeal / Petition for Review to the DOJ (time-limited, rule-driven)
Requests for reinvestigation in certain circumstances, especially after filing

These are technical and deadline-sensitive.

11) If an Information Is Filed in Court: Warrant, Bail, and Early Court Stages

11.1 Warrant of Arrest vs Summons

After the Information is filed, the judge independently evaluates probable cause for issuance of a warrant of arrest. A subpoena from the prosecutor does not authorize arrest. Arrest authority usually arises only after a judicial warrant (or a lawful warrantless arrest situation).

11.2 Bail Reality for Theft/Qualified Theft

Bail is generally available in theft cases (bail as a matter of right before conviction in many scenarios), but the amount depends on:

The offense charged
The value and penalty bracket
Bail schedules and judicial discretion

Qualified theft can carry heavier penalties, which influences bail computation and risk assessment.

11.3 Arraignment and Plea Options

Once in court:

The accused is arraigned and enters a plea
Pre-trial follows
Trial proceeds unless the case is dismissed or resolved through lawful means (including plea bargaining where permissible)

12) Special Situation: Arrest Without Warrant and Inquest (Often in Shoplifting-Style Cases)

When a person is arrested without a warrant (e.g., caught in the act), an inquest may occur. Key points:

The accused has rights under custodial investigation rules
The accused may request a regular preliminary investigation (often involving signing a waiver of certain timelines in the inquest framework)
Decisions during inquest can strongly affect detention risk and case trajectory

13) Settlement, Restitution, and “Affidavit of Desistance”: What They Do (and Don’t)

13.1 Restitution and Return of Property

Returning property or paying alleged losses can:

Reduce complainant hostility
Improve the optics of good faith
Potentially affect prosecutorial discretion and mitigation arguments

But it generally does not automatically extinguish criminal liability for theft, which is an offense against the State.

13.2 Affidavit of Desistance

An affidavit of desistance is not a magic dismissal tool. Prosecutors may still proceed if evidence supports probable cause. It may help when:

The case rests on a shaky complainant narrative
The complainant’s withdrawal collapses the evidentiary base

14) Practical Checklist: What to Do and What to Avoid

14.1 Do

Calendar deadlines and file on time
Secure full copies of the complaint and annexes
Preserve and copy CCTV and logs immediately
Obtain sworn statements from defense witnesses
Address each element of theft and each factual allegation
Attach documents with clear annex labeling and citations
Keep communications factual and minimal

14.2 Don’t

Ignore the subpoena
Send apology or “settlement” messages that can be framed as admission
Confront or threaten complainant/witnesses
Fabricate documents or alter records
Rely on bare denial without documentary and witness support

15) Sample Forms and Drafting Templates (Adapt to the Case)

15.1 Simple Filing Cover (Concept)

Case caption and I.S. number
List of documents filed: Counter-Affidavit, Annexes, Witness Affidavits
Date, signature, contact details
Proof of service if required by local practice

15.2 Request for Extension (Concept)

Grounds commonly cited:

Need to secure CCTV copies / company records
Need to obtain notarized affidavits of witnesses
Need to collate documentary annexes

Keep it short, respectful, and specific about requested additional days.

15.3 Counter-Affidavit Skeleton (Concept Outline)

Respondent identity and receipt of subpoena
Narrative of facts with dates/times
Point-by-point response to allegations
Legal discussion on missing elements (taking, intent, consent, ownership)
Qualified theft rebuttal (no abuse of confidence / no custody)
Discussion of documentary annexes
Prayer for dismissal for lack of probable cause
Signature, verification, jurat

16) The Core Strategy: Attack Probable Cause With Facts + Law

A theft accusation often survives preliminary investigation when it is supported by a simple, persuasive story (e.g., “only one person had access; item went missing; CCTV shows removal”). The defense wins at this stage by breaking that story through:

Alternative access and control failures
Authority/consent and documented practice
No intent to gain supported by conduct and records
Evidence integrity issues (CCTV continuity, inventory method, chain of custody)
Value disputes and ownership uncertainties
Qualified theft overreach (trust relationship claimed vs reality)

A timely, well-structured counter-affidavit—with sworn witness support and disciplined documentary annexes—often makes the difference between dismissal and a filed criminal case.