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46.

Petition for Review ( to CA from decision of RTC)

REPUBLIC OF THE PHILIPPINES COURT OF APPEALS MANILA SALVADOR REYES Petitioner, --versus-CA GR SP NO. 1234455 RTC Makati B-58 Appealed Crim. Case No. 08-886-88 (04-691-693) MeTC Makati B-62 Crim. Case Nos. 332415-17 (inclusive)

LUISITO A. CUISON, OFFFICE OF THE GENERAL Respondents X------------------------------------------X PETITION FOR REVIEW ON CERTIORARI

Petitioner, by counsel and unto this Honorable Court of Appeals most respectfully alleges, that: NATURE OF THE PETITION 1- This is a petition for review under Rule 42 ( and Section 3 (b), Rule 22 of the Revised Rules on Criminal Procedure) is a mode of appeal from the decision of the Regional Trial Court rendered in the exercise of its appellate jurisdiction. 2- Final judgment or order of the Regional Trial Court in an appeal from the final judgment or order of a Metropolitan Trial Court, Municipal Trial Court, may be appealed to the Court of Appeals through Petition for Review under this rule, whether the appeal involves question of fact, of law or mixed question of fact and law.

THE PARTIES 3- Petitioner ( accused in the court a quo) is of legal age, married and a resident of San Jose, Milaor, Camarines Sur, represented in this case by his counsel of records, Atty. Nestor Barbosa, with office address at Suite 402, PNB Building , 4400 Naga City; 4- Private respondent Luisito Cuison ( complainant in the court a quo) is likewise of legal age, with postal and office address at No. 54 Maligaya Corner Mapagbigay Sts. Quezon City, represented in this case by the San Buenaventura law Offices, c/o Atty. Leopoldo San

Buenaventura and Atty. Myra S.J. San Buenaventura, with office address at unit 7/F Vernida 1 Condominium, 120 Amorsolo St., Legaspi Village, 1229 Makati City. 5- Public respondent Office of the Solicitor General impleaded being the government office which handles appealed criminal cases at this level, with office address at 134 Amorsolo St., Legaspi Village, Makati City; 6- Parties have the capacity to sue and be sued and may be served with processes at aforementioned address and through counsels of records; MATERIAL DATES SHOWING TIMELINESS OF THE PETITION 7- This originated as an appeal from the Metropolitan Trial Court ( MeTC Branch 62, Makati City), on the joint decision April 23, 2008 ( hereto attached as ANNEX J ) convicting the accused, herein petitioner, on three counts for violation of BP 22 based on the information (hereto attached ANNEXES A, B, and C). 8- Petitioner received on March 25, 2009 a copy of the Regional Trial Court ( RTC B-58 Makati City) decision dated March 11, 2009 ( ANNEX J). 9- Petitioner filed his Motion for Reconsideration on April 2, 2009 ( hereto attached as ANNEX N); He received on June 24, 2009 ( hereto attached as ANNEX Q) denying his Motion For Reconsideration. He had until July 9, 2009 to file a petition for review on certiorari ( hereto attached as ANNEX R). Undersigned counsel filed on July 6, 2009 by registered mail his seasonable Motion for Extension of Time to File Petition For Review on Certiorari praying for additional thirty (30) days from July 9, 2009 or up to August 8, 20009 within which to file their intended Petition for Review. He paid the requisite docket fees, and other fees by postal money orders attached to the said motion. 10- The Thirty (30) day period shall expire on August 8, 2009 but without waiting for the said expiry date, he now filed this instant petition. 11- This petition was not filed for delay. It is one which raises substantial issues and thus, is worthy of consideration, the Regional Trial Court having rendered the assailed decision in a way that is not in accord with facts, law and applicable decisions of the Supreme Court. 12- The Honorable Regional Trial Court did not discuss the merits of these evidences on records or did it resolve the serious errors and assigned issues which are quite serious and must deserve better treatment . 13- The RTC readily bruised and set these aside, these issues upon hasty conclusion by adopting the facts narrated by the Metropolitan Trial Court, a narration of facts which were augmented by the Regional Trial Court comedy of errors by inserting new additional facts not borne by the records.

14- While the MeTC inserted new facts and made new evidence not submitted by the parties, they were adopted by the Regional Trial Court which grotesquely even made it worst by also adding new facts not borne by the records nor submitted by the parties. In short, both the MeTC and the RTC become insertors of new facts and even if assuming arguendo that the facts were established, thoug doubtfully, that with due respect and without malice, both the decisions of the MeTC and the RTC did not correct the facts which all the more cause us to belief, reasonably that the facts of the case has been distorted such that had it been so understood, acquittal of the accused could have earlier been held, with grave abuse of discretion equivalent to lack of jurisdiction. 15- Guided among others by the case of People vs. Escober ( 157 SCRA 541 ) it was held:

Every Decision of a court of Record shall clearly and distinctly state the facts and the law on which it is based . Decision at bar falls short of this standard. Without the concrete relation or statement in the judgment of the facts alleged and prove at the trial, it is not possible to pass upon and determine the issues raised in litigation..In as much as when the facts held to prove are not set forth in a judicial controversy, it is possible to administer justice to apply the law to the points argued, or to uphold the rights of the litigants who has the law on his side. . ( at page 556) Section 9 of Article X of the 1973 Constitution directed that . Speed in the administration of Justice, however is not the sole concern of courts and judges. More than this is essentiality of justice and fairness which is the primordial objective of the courts. Respondent judge lamentably disregarded the latter for the former 16- In order to better appreciate the contention of the petitioner, this Honorable Court may need to look into the evidence and require the same to be brought before it. It is respectfully, submitted that this could be done in this case by away of exception to the general rule. 17- While it is well entrenched doctrines that questions of fact are not proper subjects of appeal by certiorari as this mode of appeal is confined to questions of law, it is nonetheless subject to exceptions which have been laid down in the number of decisions of this Honorable Court : viz (1) When conclusion is a finding grounded entirely on speculation, surmises and conjectures; (2) When inference made is manifestly mistaken, absurd or impossible; (3) Where there is grave abuse of discretion; (4) When the judgment is based on misapprehension of facts ; (5) When findings of facts are conflicting; (6) When the court in making its findings, went beyond the issues of the case and the same is contrary to the admissions of both appellant and appellee; (7) When the findings of the Court of Appeals are contrary to those of trial court; (8) When the findings of facts are conclusions without citations of specific evidence on which they are based; (9) When the facts set forth in the petition as well as in the petitioners main and reply briefs are not disputed by the respondents; and (10) When the findings of facts of the Court of Appeals is premised on the supposed absence of evidence and is contradicted by the evidence on record. ( underlining

supplied, Goyena vs. Gustilo, GR No. 147148, January 13, 2003). It is from the above exceptions that this Petition is anchored. SUMMARY LIST OF RELEVEANT PLEADINGS ANNEXES AND EXHIBITS ANNEX AMeTC Makati City Branch 62, Criminal Case No.332415 for Check No. 0248301 in the amount of P 25,000.00; ANNEX BMeTC Criminal Case No. 332416 for Check No. 0248302 in the amount of P 25,000.00 ANNEX CMeTC Criminal Case No.332417 for Check No. 0248303 in the amount of P 150,000.00; ANNEX DAffidavit - complaint with Annexes of Private complainant Luisito Cuison dated December 2003; ANNEX EANNEX FANNEX GANNEX HANNEX IANNEX JANNEX KANNEX LANNEX MANNEX N27,2009; ANNEX OANNEX PJudicial Affidavit of Luisito Cuison dated March 9, 2007; Counter-Affidavit of accused Salvador Reyes Dated November 9, 2007; Judicial Affidavit of accused Salvador Reyes dated November 9, 2007; Accused formal offer of exhibits dated December 15, 2007; Comments to the accused Formal offer of Exhibits dated February 22, 2008; Certified true copy of the Joint-Decision of MeTC Branch 62, Makati City, dated Accused- Appellants Memorandum dated July 15, 2008; Memorandum of Private Complainant Luisito Cuison dated July 15, 2008; Decision of RTC Branch 58 dated March 11, 2009; Motion for Reconsideration of Accused-Appellant Salvador Reyes dated March

Opposition to the Motion for Reconsideration dated May 25, 2009; Reply to Opposition dated June 1,2009;

ANNEX QOrder Dated June 8, 2009, denying the Motion for Reconsideration filed by accused Salvador Reyes;

ANNEX R-

Motion for Extension of Time to file Petition for Review dated June 30, 2009.

STATEMENT OF FACTS AND OF THE CASES (For immediate reference purposes, petitioner adopt Exhibits 1 up to 17 inclusive, as the Exhibits referred to in this statements of facts and cases, said exhibits found as attached to ANNEX H- Accused Formal Offer of Exhibits in this petition). 18- On May 30, 2008, in an urgent need for a lawyer before the Court of Appeals in CA GR CV NO. 76604, between Land Bank vs. Salvador and Cicilia Reyes, ( Exhibit 3) your Petitioner ( accused in the court a quo) secured the services of Atty. Pol San Buenaventura to be his counsel in the said case. Said counsel become interested in the money aspect of the case. 19- Accused who had no money to finance the expenses and with few friends in the city was introduced by his said counsel, Atty. Leopoldo San Buenaventura, to the latters another client in Makati, herein private respondent (complainant in the court a quo) Mr.Luisito Cuison. 20- To strike the Financial Deal, an Agreement ( Exhibit 5) was forged between accused Landowner, complainant Financier and counsel- San Buenaventura Law Offices. 21- Complainant Luisito Cuison advance an amount of Ten Thousand Pesos ( Php 10,000.00) thru the insinuation of Atty. San Buenaventura and with the idea coming from them,. They both assisted the accused to secure a checking account with the said bank as they both knew of the financial predicament of the accused. Thus, the financial assistance partly materialized when accused was required to issueThree (3) Postdated Checks, namely: 1- Equitable PCI bank Check No. 0248301 dated August 30, 2003 in the amount of P 25,000.00 (ANNEX C of the Affidavit Complaint of Luisito Cuison, ANNEX D of the Petition) as advance payment for future interest. 2- Equitable PCI Bank Check No. 0248302 dated August 23, 2003 in the amount of P 25,000.00 ( ANNEX D, ditto) as attorneys fees for Atty. Pol San Buenaventura as counsel of herein accused in the Court of Appeals Case; 3- Equitable PCI Bank Check No. 0248303 dated August 30, 2003 in the amount of P 150,000.00 ( ANNEX E, ditto) as to Principal. 22- It was agreed that Luisito Cuison, the complainant holds the checks subject to certain conditions as contained in the Agreement (Exhibit 5), that: That the financier will lend LAND OWNER the sum of P 150,000.00 which the latter covenants to pay upon the release of the payment for the subject sugar land for the

LAND BANK with an interest of P25,000.00 Pesos for attorneys fees which will be covered by three postdated checks all dated August 30,2003 ( Paragraph 1-Agreement Consideration Portion) Exhibits 5-B and 5-C.

23- However complainant Cuison failed to deliver the P 150,000.00 instead he was only able to give P 15,000.00 evidenced by receipt dated May 30, 2003 (Exhibit 8). Accused demanded for the balance of P135,000.00 but Cuison failed to give him said balance because the latter was then always out of town. 24- Accused ordered for the stop-payment, (Exhibit 17), of the checks because Cuison and Atty. San Buenaventura abandoned the case, and failed to make good the release of the collections of the said Land Bank Case, where collection of which is the very source also of the amount to be deposited to cover up the postdated checks which was very clear in the portion of the Memorandum of Agreement ( Exhibit 5-B and Exhibit 5-C). 25- Meantime accused secured the services of a new counsel to assist him in the Court of Appeals case versus Land Bank because the period is almost to expire in the filing of his briefs. 26- Surprisingly and in violation of the agreement, complainant Cuison presented the checks to the bank on November 5, 2003. He failed to en cash the checks because at that time however, accused have not even collected yet any amount from Land Bank which Bank being the main and only source of cash agreed upon for clearing of the checks.

27- It was only later on, or November 18, 2003 and November 20,2003 when accused was able to collect. These later dates of collections are evidenced by payment release vouchers ( Exhibit 13 and Exhibit 14) respectively. For failure to have the checks cleared, three (3) cases for bouncing checks were filed. 28- Having failed to encash the checks, a separate case for estafa and violation of BP 22 was simultaneously filed by the complainant. 29- The case for Estafa involving the same checks were dismissed by the Makati City Prosecutors Office per Resolution dated March 29, 2004 ( Exhibit 6) which was subsequently dismissed by the Department of Justice per resolution dated August 15, 2006 (Exhibit 7). 30- The substance of the resolution states that :

All told, the obligations arising from the issuance of the subject checks, if any would refer to a liability that is merely civil in nature ( pp. 2 Resolution dated March 29, 2004, Exhibit 6-A).

31- The three (3) cases for violation of BP 22 were docketed as MeTC Makati City Branch 62, Criminal Case No. 332415 for check No. 0248301 in the amount of P25,000.00; MeTC Criminal Case No. 332416 for check no. 0248302 in the amount of P25,000.00 and MeTC Criminal Case No. 332417 for check no. 0248303 in the amount of P150,000.00; ASSIGNMENT OF ISSUES

ISSUE NO. 1 BOTH THE COURT A QUO AND THE REGIONAL TRIAL COURT/JUDGE ACONVINIENTLY IGNORED THE CONTRACT BETWEEN THE PARTIES THAT THE 3 CHECKS OF THE ACCUSED SHALL BE CLEARED CONDITIONED UPON THE RELEASE OF THE FUND FROM THE LAND BANK CASE WITH THE COURT OF APPEALS, MAKING THE COMPLAINANT A HOLDER IN BAD FAITH. ISSUE NO. 2 COMPLAINANT WHO WAS INSTRUMENTAL FOR THE OPENING OF THE DEPOSIT OF TEN THOUSAND PESOS IN ORDER FOR THE ACCUSED TO HAVE A CHECKING ACCOUNT FROM WHERE THREE CHECKS TOTALLING TWO HUNDRED THOUSAND PESOS WERE ISSUED, CANNOT FEIGN IGNORANCE ON THE KNOWLEDGE THAT THE ACCUSED LACK SUFFICIENCY OF FUNDSWHEN THE CHECKS WERE ISSUED UP TO THE POINT OF FAILED ENCASHMENT. ISSUE NO. 3 ACCUSED WAS CONVICTED OF ENTIRELY DIFFERENT CHECKS NOT APPEARING ON THE RECORDS OF THE CASE. THERE IS THEREFORE NO EVIDENCE AGAINST HIM IN SO FAR AS THE THREE CHECKS HE WAS ARRAIGNED IS INVOLVED. ISSUE NO.4 THERE WAS NO AFFIDAVIT OF MAILING OR SERVICE BY MAIL WHICH IS REQUIRED IN PROSECUTING VIOLATION OF BP 22 ( CABRERA VS PEOPLE, GR NO. 150618, JULY 24, 2003) WITHOUT WHICH THE CASE MUST BE DISMISSED. ISSUE NO. 5 THERE WAS NO EVIDENCED THAT THE ACCUSED ACTUALLY RECEIVED THE DEMAND LETTERS.

ISSUE NO. 6 THERE WAS NO TESTIMONY IN RECORDTHAT WOULD WARRANT A SHOWING THAT ACCUSED ACTUALLY RECEIVED THE DEMAND LETTER AS MANDATED IN Caras vs CA, 366 SCRA 371. ISSUE NO. 7 RELATED ESTAFA CASE MILITATES DISMISSAL OF THE BOUNCING CHECKS CASES

DISCUSSION OF ISSUES

ISSUE NO. 1 BOTH THE COURT A QUO AND THE REGIONAL TRIAL COURT/JUDGE ACONVINIENTLY IGNORED THE CONTRACT BETWEEN THE PARTIES THAT THE 3 CHECKS OF THE ACCUSED SHALL BE CLEARED CONDITIONED UPON THE RELEASE OF THE FUND FROM THE LAND BANK CASE WITH THE COURT OF APPEALS, MAKING THE COMPLAINANT A HOLDER IN BAD FAITH. 32- Attached to the accused Formal Offer of Exhibits ( ANNEX H in this Petition) are Exhibits 1 upto 17, inclusive and one among the Exhibits is the Agreement (Exhibits 5) executed on May 2003, forged between the complainant Luisito Cuison, the Financier, accused Salvador Reyes, the Landowner and San Buenaventura Law Officers the lawyer of the complainant. 33- We beg being repetitious but the Agreement ( Exhibit 5) in pertinent portion states: that the Financier will lend landowner the sum of P150,000.00 which the latter covenants to pay upon release of the payment for the sugar land by Land Bank with an interest of P25,000.00 and P25,000.00 for attorneys fees which will be covered by three postdated checks all dated August 30,2003. ( Par. 1 of the Agreement Consideration Portion) Exhibit 5-B and 5C. 34- The Agreement is the contract and the law between the parties. The Agreement is the a contract properly executed by the parties prepared by Atty. Leopoldo San Buenaventura. Clear is the law and jurisprudence that a contract is the law between the parties and it remains valid and enforceable unless declared otherwise by a competent court in a proceeding filed for that purpose.

35- The Supreme Court in the case of Department of Health vs. HTMC Engineers Company ( 480 SCRA 229)once more emphasized the unsullied rule and doctrine that: x x x A contract properly executed by the parties continue to be the law between the said parties and should be complied with in good faith; From the moment of perfection, the parties are bound not only to the fulfillment of what has been expressly stipulated, but also to all the consequences which, according to their nature maybe in keeping with good faith, usage and law. x x x .

36- This is precise reason why , accused keep on constantly emphasizing the conditions of paragraphs Exhibit 5-B and 5-C of the Agreement. More so that it was prepared by counsel of Luisito Cuison, the complainant. The parties are bound to comply with the provisions therein specially on manner and terms of payment of the postdated checks. Failure of the complainant to comply with the provisions therein that the release of the Land Bank proceeds shall be the source of the payment of the checks, he becomes the wrongdoer. 37- So that the complainant caused the encashment of the checks on November 5, 2003 when there was yet no release of fund from the land bank case, he made the pedestal of a wrongdoer.

ISSUE NO. 2 COMPLAINANT WHO WAS INSTRUMENTAL FOR THE OPENING OF THE DEPOSIT OF TEN THOUSAND PESOS IN ORDER FOR THE ACCUSED TO HAVE A CHECKING ACCOUNT FROM WHERE THREE CHECKS TOTALLING TWO HUNDRED THOUSAND PESOS WERE ISSUED, CANNOT FEIGN IGNORANCE ON THE KNOWLEDGE THAT THE ACCUSED LACK SUFFICIENCY OF FUNDSWHEN THE CHECKS WERE ISSUED UP TO THE POINT OF FAILED ENCASHMENT. 38- As clearly stated in the memorandum of Agreement Exhibit 5, the payment of the check is conditioned upon the release of the payment of the sugarland to be made by Land Bank ( Exhibits 5-B and 5-C). 39- The checks were deposited November 5, 2003, however the accused received the money from the Land Bank only on November 18 and 20, 2003. It was only after the checks from Land Bank were cleared after November 20, 2003 that he deposited P 200,000.00 but complainant already earlier sought for encashment on November 5, 2003. 40- In other words the check were presented earlier than the supposed Land bank release which was the primordial agreement.

41- In the case of Magno vs. CA, 210 SCRA 471, no violation of BP 22 is committed where complainant was told by the drawer that he does not have sufficient funds. 42- Here in the instant case the manner of payment or arrangement for the payment in full was already made and agreed upon long before the checks were issued and even before the checks existed because it was the very complainant and their counsel who are themselves the wrongdoer by failing to comply with what the agreement prepared by said counsel contained. 43- Leading Supreme Court Decision handed down in June 2004 in Elvira Yu vs. CA 403 SCRA 300, which has a significantly and completely changes the criminal aspects and has totally removed the same from the coverage of BP 22.

ISSUE NO. 3 ACCUSED WAS CONVICTED OF ENTIRELY DIFFERENT CHECKS NOT APPEARING ON THE RECORDS OF THE CASE. THERE IS THEREFORE NO EVIDENCE AGAINST HIM IN SO FAR AS THE THREE CHECKS HE WAS ARRAIGNED IS INVOLVED. 44- In our accused appellants memorandum, petitioner has already raised and invited the attention of this appellate RTC Court on grotesque errors by the MeTC judge. The RTC decision on this appeal compounded on more erroneous facts. 45- The attention of the court was already invited when accused in his appeal memorandum raised as issue no. 1 the fact that : Accused was convicted of entirely different checks not appearing on the records of the case. There is therefore no evidence against him in so far as the 3 checks he was arraigned is invoved. 46- On these points alone, the MTC decision should have been reversed by the Regional Trial Court or have at least corrected the body and dispositive portion of the decision. 47- There is no evidence against the accused for violation of the provisions of BP 22 anent the checks subject of conviction. He must be acquitted. The most important portion of the decision is the dispositive portion which renders the verdict. And the verdict is that accused is convicted of checks not litigated by the parties. This only shows that there was no evidence sufficient to convict the accused. Although the law presumes that the court has done its duty faithfully and regularly. Yet the MTC court in this instant case did not convict the accused on the checks he was arraigned but on different checks. This goes to show that there was no evidence against the accused. He must be acquitted.

48- Making the facts worse, the RTC decision adopted the findings of facts made by the MeTC without reviewing the checks in correlation of the amount involved, but instead added and recited more grotesque facts. 49- According to the RTC decision dated March 11, 2009, this court adopts the findings of the MTC and according to RTCs own findings, the prosecution testified that the accused issued 3 postdated checks. 50- These findings of facts are distorted because checks presented by the prosecution and marked as ANNEX C, is check no. 248301 for P 25,000.00. There was no such kind of check no. 248301 which such correlated amount of P150,000.00. The point here is that, with due respect and without malice, and if only to emphasize erroneous decision, this court did not actually adopt the factual evidence submitted in the MTC but instead inserted new facts and new amount referring to a new and wrong check number which sustained and affirmed the conviction of the accused. 51- If the factual evidence is overlooked by no less than the RTC Judge as contained in its own decision, we can only conclude that : the findings of facts is manifestly mistaken, grotesque, erroneous, absurd and impossible. Either the judge did not read the case or was in a hurry and have overlooked the very checks suspect of conviction. Worse the RTC decision even adopted the MTC findings of facts by the RTC decision making new facts not borne by then records. And these were done by the RTC when it adopted without even the slightest correction of the facts and augmented by making a literal adoption of the MeTC joint decision despie assignment of ISSUE No. 1 as an error which was raised in the Accused Appellants Memorandum ( ANNEX K). 52- If facts alone are erroneous, then with more reason that the conclusion is erroneous and the jurisprudence applied is inapplicable or mistaken. 53- Compounding the error is the evidence that according to the RTC decision, check no. 0248303 is P 25,000.00 ( ANNEX M-2). This is again erroneous because according to the information, ( ANNEX C this petition), check no. 0248303 is P 150,000.00. 54- As previously held in People versus Escober, ( 157 SCRA 541 ) it was held: Every decision of a court of record shall clearly and distinctly state the facts and the law on which it is based..Decision at bar falls short of this standard. Without the concrete relation or statement in the judgment of the facts alleged and proved at the trial it is not possible to pass and determine the issues raised in litigation. . . .In as much as when the facts held to prove are not set forth in a judicial controversy it is

impossible to administer justice, to apply the law to the points argued, or to uphold the rights of the litigants who has the law on his side. (at p. 556)

ISSUE NO.4 THERE WAS NO AFFIDAVIT OF MAILING OR SERVICE BY MAIL WHICH IS REQUIRED IN PROSECUTING VIOLATION OF BP 22 ( CABRERA VS PEOPLE, GR NO. 150618, JULY 24, 2003) WITHOUT WHICH THE CASE MUST BE DISMISSED.

55- This case from the very inception should have been dismissed. 56- Who made the demand letter? There was no affidavit of mailing. 57- Importantly also, a careful scrutiny of the demand letter, the alleged complainant admitted during cross-examination that he did not know who mailed the demand letter. This likewise constitute a ground for outright dismissal of this case. 58- This augured more the outright dismissal of the case. The Supreme Court held : that in filing of BP 22 cases when the demand letter was sent by registered mail and there was no affidavit of mailing or affidavit of service, dismissal is warranted. 59- In criminal cases however, the quantum of proof requires, is proof beyond reasonable doubt. Hence for BP 22 cases, there should be clear proof of notice. Moreover it is a general rule that when service of notice is sought to be serve by mail, it should appear that the conditions for the validity of such service depends had existence otherwise the evidence is insufficient to establish the fact of service. 60- The Supreme Court held in criminal cases that a registry return receipt alone is not sufficient to constitute proof of mailing. Testimony or proof of actual receipt that the letter was actually sent and received is a co-receipt required the mandatory obligation on the part of the prosecution to present the testimony of the actual sender by presenting an Affidavit of Service of Mailing.

ISSUE NO. 5 THERE WAS NO EVIDENCED THAT THE ACCUSED ACTUALLY RECEIVED THE DEMAND LETTERS.

61- The omission or neglect on the part of the prosecution to present evidence that would establish the actual receipt by the accused of the demand letter which could have served as notice to her is fatal to its cause. ( Caras vs CA 366 SCRA 371). 62- It is because the start of the 5-day period cannot be reckoned with. The five-day period is so important because it is from said date that the cause of action against the accused starts to run. Absent the start of t 5-day period, there is no case against the accused. 63- Be it remembered that there is no testimony on records which would warrant a showing that accused received the demand letter. Even the alleged postman was not presented to testify and identify the signature in the registry return card. 64- Even the alleged registry return card signature of the accused in the allege Registry Return Receipt which prosecution wanted so much to impress that it was the signature of the accused is obviously and patently different from all the signatures of the accused scattered in each and every pleading of the records of the case. 65- In fact the accused himself denied having received the demand letter and denied having signed the Registry Return Card. These denials were not controverted by the prosecution. The prosecution even failed to present the actual postman who allegedly delivered the demand letter. 66- Prosecution must rely on the strength of its own evidence and not on the weakness of that of the defence. ( People vs. Cui Jr., 162 SCRA 223). 67- It has to be borne in mind that in our criminal jurisdiction, it is not the defense who should prove the case. Prosecution must to rely on her own evidence inspective of the defense. Because the burden of proof rest entirely on the prosecution, who failed to establish the same, irrespective of the evidence of the defense. 68- Well entrenched is the rule that the conviction of the accused person must rest not on the weakness of the defense but on the strength of the evidence presented by the prosecution which it failed to prove.

ISSUE NO. 6 THERE WAS NO TESTIMONY IN RECORDTHAT WOULD WARRANT A SHOWING THAT ACCUSED ACTUALLY RECEIVED THE DEMAND LETTER AS MANDATED IN Caras vs CA, 366 SCRA 371. 69- Missing in the records are the twin and dual requirements that the Notice of Dishonor. Must be ACTUALLY SERVED ( Lao vs CA 274 SCRA 572 by an Affidavit of Service ( Cabrera vs People, GR No. 150168, July 24,2003) It must be ACTUALLY RECEIVED ( Caras vs CA 366 SCRA 371). ABSENCE OF THESE DUAL REQUIREMENTS IS FATAL TO THE PROSECUTION.

70- It must be served and must actually be received. 71- That there was failure to ACTUALLY serve the notice of dishonor and there was failure to present any written proof that the notice of dishonor or demand letter was ACTUALLY RECEIVED by the accused . 72- The proof for the dual requirements that the written notice and written demand was ACTUALLY SERVED and that it was ACTUALLY RECEIVED were missing in the records. There was no proof that the demand letter was actually served and that it was actually received.

73- These stringent requirements are also clearly and precisely mandated both in the Supreme Court in cases of Cabrera vs People (July 24, 2003) and in the cases of Lao vs CA (274 SCRA 572). ISSUE NO. 7 RELATED ESTAFA CASE MILITATES DISMISSAL OF THE BOUNCING CHECKS CASES 74- In fact the resolution of the Makati Prosecutors Office referring to Exhibit 6 states: 75- The resolution stamped dated April 20, 2006 of the City Prosecutors Office of Makati, dismissing the Estafa Case involving the same checks involved in these cases upon conclusion that: all told, the obligation arising from the issuance of the subject checks, if any, would refer to a liability that is merely civil in nature. 76- The allegations contained in the Accused-Appellants memorandum in so far as the same

may be applicable are adopted as an integral part of this discussion.

NON FORUM SHOPPING CERTIFICATE That petitioner have not commenced any other action or proceeding involving the same issues in the Supreme Court, the Court of Appeals or any tribunal or agency; and that to the best of his knowledge, no such action or proceeding is pending in the Supreme Court, the Court of Appeals or any divisions, thereof or any tribunal or agency; and that if he should thereafter learn that similar action or proceeding has been filed or is pending before the Supreme Court, the Court of Appeals or different divisions thereof, or any other tribunal or agency, he undertakes to promptly inform the aforesaid courts and such other tribunal or agency. PRAYERS WHEREFORE, premises considered it is most respectfully prayed that the MeTC Joint Decision dated April 23, 2008 ( ANNEX J) and the RTC decision dated March 11, 2009 (ANNEX M) as well as the RTC ORDER dated June 8, 2009 (ANNEX Q)) be reversed and set aside and the case be DISMISSED. Other reliefs are prayed for. Naga City for Manila July 22, 2009

NESTOR BARBOSA Counsel for Petitioner 402, PNB Builging Naga City PTR No. 12345 IBP No. 32142 Roll No. 34896 MCLE Compliance No. 11-0011484 Copy furnished by registered mail due to distance and lack of material time and personnel at the time of service. San Buenaventura Law Offices Atty. Myka San Buenaventura Raha Sulayman Building, 108 Benetiz St. Legaspi Village, Makati, 1229 Makati City.

OFFICE of the Solicitor General Legaspi Village, Makati City Metrapolitan Trial Court MeTC Branch 62 Makati City RTC Branch 58 Makati City Nestor Barbosa