REPUBLIC OF THE PHILIPPINES

National Capital Judicial Region

METROPOLITAN TRIAL COURT
Makati City, Branch XX

PEOPLE OF THE PHILIPPINES,

Plaintiff,

Versus Criminal Case No. XX-XXX

For: Violation of BP 22
MR. HENRY CHAO,
Accused.

X--------------------------------------X

MEMORANDUM
For the Accused

COMES NOW THE ACCUSED, through the undersigned counsel, unto this
Honorable Court most respectfully submits and presents this Memorandum in
the above-titled case and aver that:

STATEMENT OF THE CASE

Mr. Henry Chao is charged before the Metropolitan Trial Court (MeTC) Makati,
Manila with FIVE COUNTS of BOUNCED CHECKS as defined under Batas Pambansa (BP 22)
or the Anti-Bouncing Checks Law. Arising from, incident to, or in connection with his
former position as a Manager of Atlas Parts.

STATEMENT OF FACTS

That on June 01, 2011, the accused who is the manager of Atlas Parts borrowed
money from Mr. Ben Que the amount of P50, 000.00 with 5% monthly interest, payable in
five equal monthly installments of P12,500.00, the money will be used to pay for Atlas
Parts’ stocks, evidenced by a five (5) checks issued by the accused for that effect.
 That the said checks by which it represents installments of payments of the accused
obligations was deposited in BOD Manila City hall branch but the said check was
dishonored by the drawee, Alloy Bank, for the reason "Account Closed."

That the plaintiff alleged that he sent a formal demand letter to the accused on
January 2, 2012 via registered mail, addressed to his former office at 007 Malugay Street,
Malabon City giving the accused five (5) days to make good his promise.

The plaintiff alleged that the accused received it because the registered letters was
not return to the plaintiff.

On the other hand, the accused denies the allegation of the plaintiff stating among
others that he did not received the demand letter sent by the plaintiff after the dishonor.

That at the time when the slips was become due and demandable, the accused is no
longer the manager of the Atlas Parts and was not aware of the notice of dishonor.

That the continuing failure of plaintiff to prove beyond reasonable doubt that
accused actually received the notice of dishonor and likewise his refusal to admit that the
period for filing a complaint grounded on BP 22 has already prescribed, compels the
accused to file this motion praying for the dismissal of the case.

STATEMENT OF ISSUES

1. Whether or not the plaintiff was able to prove beyond reasonable doubt that
accused actually received the notice of dishonor.

2. Whether or not the presentation of the plaintiff’s registered receipt and the
return card allegedly sent to the accused is sufficient enough to prove the guilt of the
accused.

3. Whether or not the plaintiff still has locus standi considering that the period to
file a complaint grounded on BP 22 already expired.

ARGUMENTS

1. The accused did not actually received the notice of dishonor.

 2. The presentation of registry receipt and the return card allegedly sent to the
accused is not sufficient to prove the guilt of the accused.

3. The plaintiff no longer has standing to sue since the prescribed four-year period
to file a case grounded on BP 22 already expired.

DISCUSSION

1. Under B.P. 22, the prosecution must prove not only that the accused issued a
check that was subsequently dishonored. It must also establish that the accused was
actually notified that the check was dishonored:

In the case of Ambito vs. People, G.R 127327, Febraury 13, 2009, 579 SCRA 69,
the court Held that:

Under B.P. Blg. 22, the prosecution must prove not only that the accused issued a check that
was subsequently dishonored. It must also establish that the accused was actually notified
that the check was dishonored, and that he or she failed, within five (5) banking days from
receipt of the notice, to pay the holder of the check the amount due thereon or to make
arrangement for its payment. Absent proof that the accused received such notice, a
prosecution for violation of the Bouncing Checks Law cannot prosper.

The absence of a notice of dishonor necessarily deprives an accused an opportunity to

preclude a criminal prosecution. Accordingly, procedural due process clearly enjoins that a
notice of dishonor be actually sent to and received by the accused. The accused has a right
to demand – and the basic postulates of fairness require – that the notice of dishonor be
actually sent to and received by the same to afford him/her the opportunity to avert
prosecution under B.P. Blg. 22.

In the given Case, considering the accused had already resigned as a manager of
Atlas Parts in the middle of June 2011, which is before the NOW slips was dishonored, the
accused failed to actually received the notice of dishonor, hence, the absent proof that the
accused received such notice, a prosecution for violation of the Bouncing Checks Law
cannot prosper. Absence of a notice of dishonor necessarily deprives an accused an
opportunity to preclude a criminal prosecution.
2. The presentation of registry receipt and the return card allegedly sent to accused is not
sufficient to prove the guilt of the accused:

In the case of Alferez vs. People G.R 182301, January 31, 2011, 641 SCRA 116,
the Court Held that:

In this case, the prosecution merely presented a copy of the demand letter, together with
the registry receipt and the return card, allegedly sent to the petitioner. However, there
was no attempt to authenticate or identify the signature on the registry return card.
Receipts for registered letters and return receipts do not by themselves prove receipt; they
must be properly authenticated to serve as proof of receipt of the letter, claimed to be a
notice of dishonor. To be sure, the presentation of the registry card with an
unauthenticated signature, does not meet the required proof beyond reasonable doubt that
petitioner received such notice. It is not enough for the prosecution to prove that a notice
of dishonor was sent to the drawee of the check. The prosecution must also prove actual
receipt of said notice, because the fact of service provided for in the law is reckoned from
receipt of such notice of dishonor by the drawee of the check. The burden of proving notice
rests upon the party asserting its existence. Ordinarily, preponderance of evidence is
sufficient to prove notice. In criminal cases, however, the quantum of proof required is
proof beyond reasonable doubt. Hence, for B.P. Blg. 22 cases, there should be clear proof of
notice. Moreover, for notice by mail, it must appear that the same was served on the
addressee or a duly authorized agent of the addressee. From the registry receipt alone, it is
possible that petitioner or his authorized agent did receive the demand letter. Possibilities,
however, cannot replace proof beyond reasonable doubt. The consistent rule is that penal
statutes have to be construed strictly against the State and liberally in favor of the accused.
The absence of a notice of dishonor necessarily deprives the accused an opportunity to
preclude a criminal prosecution. As there is insufficient proof that petitioner received the
notice of dishonor, the presumption that he had knowledge of insufficiency of funds cannot
arise.

In the given case, the prosecution only presented a registry receipt and presumed
that it was received by the accused on the ground that the registered letter was not
returned to the plaintiff. The prosecution must also prove actual receipt of said notice,
because the fact of service provided for in the law is reckoned from receipt of such notice of
dishonor by the drawee of the check, hence it fails to prove that the accused actually
received the demand letter and that no criminal liability attached.
3. The plaintiff no longer has standing to sue since the prescribed four-year period to file
a case grounded on BP 22 already expired:

BP 22, as a special law penalized by imprisonment of not less than thirty days but
not more than one year, is covered by Act No. 3326 entitled “An Act to Establish
Prescription for Violations of Special Acts and Municipal Ordinances and to Provide When
Prescription Shall Begin”. Section 1 thereof states that the prescriptive period for those
punished by imprisonment for more than one month, but less than two years shall be four
(4) years from the day of the commission of the violation of the law, or if not known at that
time, from the discovery thereof and the institution of judicial proceedings for its
investigation and punishment. Furthermore, the prescription shall be interrupted when
proceedings are instituted against the guilty person, and shall begin to run again if the
proceedings are dismissed for reasons not constituting jeopardy.

In the given case, being that the said issuance was dated last June 1, 2011, their
complaint dated August 29, 2019, or more than eight (8) years later, is no longer of merit
since the four (4) year prescription period to file has already elapsed by then, there being
no previous proceedings instituted against the respondent within the four-year period.

PRAYER
WHEREFORE, premises considered, accused respectfully prays to the honorable
court that judgment of ACQUITTAL be rendered in his favor.

Cagayan de Oro City, 26th day of September, 2019.

ATTY. GLAD MUSTIOLA C. BANAAG

ATTY. JERRY MAE I. LORONO
ATY. JENNY LYN O. MAHINAY
JJG LAW FIRM
Counsel for the Accused
HENRY CHAO
Cagayan de Oro City, Misamis Oriental, Philippines
Contact No/s: 09050340191, 09267871647& 09175282385
Email address: lawfirm_jjg@gmail.com

By:

JJG LAW FIRM

Notary Public
Roll No. XXXXXX
IBP No. XXXXXXX
PTR No. XXXXXX
 EXPLANATION

In compliance with Section 11, Rule 13 of the Revised Rules of Court, personal
service of copy of Trial Memorandum could not be effected except by service through
registered mail due to distance and personnel constraints.

ATTY. GLAD MUSTIOLA C. BANAAG

ATTY. JERRY MAE I. LORONO
ATY. JENNY LYN O. MAHINAY

Copy Furnished:(By Registered Mail)

METROPOLITAN TRIAL COURT
Makati City, Branch XX

ATTY. KIMBERLY TAN

ATTY. FRANCIS TAGADIAD
ATTY. JC VILLAVER
Counsel for Plaintiff
123 Tridalo Street, Mandaluyong City
Cagayan de Oro City, Misamis Oriental, Philippines