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REPUBLIC OF THE PHILIPPINES

COURT OF APPEALS
MANILA
JEREMIAH R. CRUZ
Petitioner,
CA GR SP NO. 1234455
--versus-RTC Baguio B-58 Appealed Crim.
CaseNo. 08-886-88 (04691-693)
MTC Baguio B-62 Crim. Case
Nos.332415-17 (inclusive)
SUMMERS XINDANG DAOWAN,
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 Sta. Escolastica, Baguio City
represented in this case by his counsel of records, Atty.
Christine Joy D. Prestoza, with office address at Room 201,
First Floor, POA Building, Upper Session Road, Baguio City;
4- Private
respondent
Summers
Xindang
Daowan
( complainant in the court a quo) is likewise of legal age, with
postal and office address at No. 54 Dizon Subdivision,
Baguio City, represented in this case by the Minog law

Offices, c/o Atty. Mylannie S. Minog 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, Baguio City), on the joint decision
April 23, 2014 ( 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, 2015 a copy of the
Regional Trial Court ( RTC B-58 Baguio City) decision dated
March 11, 2015 ( ANNEX J).
9- Petitioner filed his Motion for Reconsideration on April 2,
2015 ( hereto attached as ANNEX N); He received on June
24, 2015 ( hereto attached as ANNEX Q) denying his Motion
For Reconsideration. He had until July 9, 2015 to file a
petition for review on certiorari ( hereto attached as ANNEX
R). Undersigned counsel filed on July 6, 2015 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, 2015 or up to August 8, 2015 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, 2015
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 A- MeTC Baguio City Branch 62, Criminal Case
No.332415 for Check No. 0248301 in the amount of P
25,000.00;
ANNEX B- MeTC Criminal Case No. 332416 for Check No.
0248302 in the amount of P 25,000.00
ANNEX C- MeTC Criminal Case No.332417 for Check No.
0248303 in the amount of P 150,000.00;
ANNEX D- Affidavit - complaint with Annexes of Private
complainant Summers Xindang Daowan dated December
2003;
ANNEX E- Judicial Affidavit of Summers Xindang Daowan
dated March 9, 2010;
ANNEX F- Counter-Affidavit of accused Jeremiah Cruz Dated
November 9, 2010;

ANNEX G- Judicial Affidavit of accused Jeremiah Cruz dated


November 9, 2010;
ANNEX H- Accused formal offer of exhibits dated December
15, 2010;
ANNEX I- Comments to the accused Formal offer of Exhibits
dated February 22, 2011;
ANNEX J- Certified true copy of the Joint-Decision of MeTC
Branch 62, Baguio City, dated February 22, 2011
ANNEX K- Accused- Appellants Memorandum dated July 15,
2011;
ANNEX L- Memorandum of Private Complainant Summers
Xindang Daowan dated July 15, 20011;
ANNEX M2014;

Decision of RTC Branch 58 dated March 11,

ANNEX N- Motion for Reconsideration of Accused-Appellant


Jeremiah Cruz dated March 27,2014;
ANNEX O- Opposition to the Motion for Reconsideration dated
May 25, 2014;
ANNEX P- Reply to Opposition dated June 1,2014;
ANNEX Q- Order Dated June 8, 2014, denying the Motion for
Reconsideration filed by accused Jeremiah Cruz;
ANNEX R- Motion for Extension of Time to file Petition for
Review dated June 30, 2014.
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, 2013, 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. Mylannie S. Minog, to the latters another client
in Makati, herein private respondent (complainant in the
court a quo) Ms. Summers XIndang Daowan;
20- To strike the Financial Deal, an Agreement ( Exhibit 5)
was forged between accused Landowner, complainant
Financier and counsel- MInog Law Offices.
21- Complainant Luisito Cuison advance an amount of Ten
Thousand Pesos ( Php 10,000.00) thru the insinuation of
Atty. Minog 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,
2010 in the amount of P 25,000.00 (ANNEX C of the
Affidavit Complaint of Summers Daowan, ANNEX D of the
Petition) as advance payment for future interest.
2- Equitable PCI Bank Check No. 0248302 dated August 23,
2010 in the amount of P 25,000.00 ( ANNEX D, ditto) as
attorneys fees for Atty. Minog as counsel of herein
accused in the Court of Appeals Case;
3- Equitable PCI Bank Check No. 0248303 dated August 30,
2010 in the amount of P 150,000.00 ( ANNEX E, ditto) as
to Principal.
22- It was agreed that Summers Xindang Dowan, 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 30,2013 ( Paragraph 1Agreement Consideration Portion) Exhibits 5-B and 5-C.

23- However complainant Daowan 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, 2013. 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, 2013 and November
20,2013 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 Baguio City Prosecutors Office per
Resolution dated March 29, 2014 ( Exhibit 6) which was
subsequently dismissed by the Department of Justice per
resolution dated August 15, 2014 (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 Baguio 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 2013, forged between the complainant
Summers Daowan, the Financier, accused Jeremiah Cruz,
the Landowner and Minog 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 5-C.
34- The Agreement is the contract and the law between the
parties. The Agreement is a contract properly executed by
the parties prepared by Atty. Mylannie Minog. 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 5C of the Agreement. More so that it was prepared by counsel
of Summers Daowan, 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, 2013 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, 2013, however
the accused received the money from the Land Bank only on
November 18 and 20, 2013. It was only after the checks
from Land Bank were cleared after November 20, 2013 that
he deposited P 200,000.00 but complainant already earlier
sought for encashment on November 5, 2013.
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, 2015, 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 Baguio Prosecutors Office


referring to Exhibit 6 states:
75- The resolution stamped dated April 20, 2015 of the City
Prosecutors Office of Baguio, 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, 2014 ( ANNEX J) and the RTC decision dated March 11,
2015 (ANNEX M) as well as the RTC ORDER dated June 8,
2015 (ANNEX Q)) be reversed and set aside and the case
be DISMISSED.
Other reliefs are prayed for.
Baguio City, March 10, 2016

CHRISTINE JOY D. PRESTOZA


Corroborating Counsel for the Defendant Spouses
PTR No. 38492 / 1-4-16 / Baguio City

Roll of Attorney No. 68352 / 1-4-16 / Baguio City


IBP Lifetime Membership No. 03923 / Baguio-Benguet
MCLE Compliance No. III-006 / 1-10-16
Copy furnished by registered mail due to distance and lack
of material time and personnel at the time of service.
MINOG Law Offices
Atty. Mylannie S. Minog
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
Baguio City
RTC Branch 58
Baguio City

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