Republic of the Philippines

COURT OF APPEALS
Manila

MARLOWE BAVIERA,
Plaintiff,
CA-G.R. S.P. NO. 5-
2017
-versus-

PEOPLE OF THE PHILIPPINES,

Defendant.

x------------------------------------------------x

PETITION FOR REVIEW

(Rule 42)

PLAINTIFF, by counsel and to this

Honorable Court, respectfully alleges:

NATURE OF THE CASE

This is a petition for review pursuant to Rule

42 of the Rules of Court of the decision of the
Regional Trial Court of Manila, Branch 23, entitled
People of the Philippines vs. Marlowe Baviera, which
affirmed the decision of the Metropolitan Trial Court
of Manila, in Criminal Case No. 2017-10, wherein
Plaintiff was convicted for violation of B.P. No. 22 or
the Bouncing Checks Law, on the ground that the
RTC, in the exercise of its appellate jurisdiction,
committed in its decision errors of law and facts.

THE PARTIES

Plaintiff is of legal age with address at Unit

303 Helix Building, Pasig Line St., Paco, Manila and is
the defendant in said Criminal Case No. 2017-10,
MeTC BR. 2, Manila City, and the appellant in said
Criminal Case No. 2017-13, RTC Br. 23, Manila City.

Respondents are the plaintiff in Criminal

Case No. 2017-10, MeTC Br. 2, Manila City, and the
appellee in Criminal Case No. 2017-13, RTC Br. 23,
Manila City.

TIMELINESS OF PETITION

On April 25, 2017, Plaintiff received copy of

the decision of the RTC Br. 23 of Manila City in
Criminal Case No. 2017-13. Certified true copy of
said decision is attached hereto as ANNEX "A".

On April 30, 2017, Plaintiff filed his motion

for reconsideration of said decision, copy of which
motion for reconsideration is attached hereto as
ANNEX "B".

On May 11, 2017, Plaintiff received a copy

of the order of the trial court denying said motion for
reconsideration. Certified true copy of said order is
attached hereto as ANNEX "C".

Within the 15-day period from receipt of

said order marked as ANNEX "C", Plaintiff is filing
the instant petition for review with the Court of
Appeals, as shown from the face of said petition.

STATEMENT OF FACTS AND MATTERS

INVOLVED

The factual background and proceedings are

as follows:

1. Sometime on February 5, 2017, plaintiff

bought a brand-new 2016 Toyota Fortuner
SUV worth one million pesos (Php
1,000,000.00) from one Janet Lim Atutubo, a
 sales agent working for Toyota Motors-Otis
Branch. The contract of sale is herein attached
as ANNEX "C-1";

2. As payment for the car, plaintiff issued a

postdated Metropolitan bank (Metrobank)
check payable to Toyota Motors-Otis with the
amount of one million pesos (Php 1,000,000.00
only). The photocopy of said check herein
attached as ANNEX "D";

3. On February 8, 2017, Toyota Motors-Otis tried

to cash in the check but the same was
dishonored by the aforementioned bank
wherein the latter claimed that plaintiffs
account had insufficient funds.

4. Toyota Motors-Otis, through its branch

manager Peter Alan Tuwad, supposedly sent
called the plaintiff through his mobile phone
on February 9, 2017 to inform the latter to pay
the balance immediately. The plaintiff agreed
to pay the balance in a week since he did not
have the money available yet as he had been
recently fired from his job.

5. A week had passed and the plaintiff was not

able to pay. Due to this, Toyota Motors-Otis
supposedly sent multiple demand letters in
which none of them reached plaintiff in the
course of one (1) month. The plaintiff was not
able to reply to any of them. It then filed a
criminal action for B.P. No. 22 against the
plaintiff along before the MeTC Br. 2 along
with a civil action to recover the amount on
March 10, 2017 and was docketed as Criminal
Case No. 2017-10, herein attached as ANNEX
"G";
6. On March 24, 2017, the MeTC Br. 2 released a
judgment holding plaintiff guilty for violation
of B.P. No. 22, which decision is herein
attached as ANNEX "H";

7. On March 26, 2017, Plaintiff filed a motion for

reconsideration, herein attached as ANNEX
"I";

8. On March 30, 2017, Plaintiff received the

order of the MeTC Br. 2 of Manila City denying
the motion for reconsideration, herein
attached as ANNEX "J";

9. On April 10, 2017, Plaintiff filed an appeal

under Rule 40 of the Rules of Court to the RTC
Br. 23, Manila City and was docketed as Civil
Case No. 2017-13, which appeal is herein
attached as ANNEX "K";

10. On April 24, 2017, the RTC Br. 23, Tacloban

City released an order affirming in toto the
decision of the lower court, which order is
herein attached as ANNEX "L";

11. On April 30, 2017, Plaintiff filed a motion for

reconsideration for the order released April
25, 2017, which motion is herein attached as
ANNEX "M";

12. On May 10, 2017, the RTC Br. 23, Manila

City denied the motion for reconsideration
citing proper judgment on the part of the
lower court, which order is herein attached as
ANNEX "N";

13. On May 15, 2017, herein Plaintiff filed this

instant petition for review under Rule 42 of
the Rules of Court.
 ISSUE RAISED

Whether or not the plaintiff had received may be

held criminally liable for violation of B.P. No. 22

ERRORS COMMITTED BY TRIAL COURT

I. THE TRIAL COURT ERRED WHEN IT

AFFIRMED THE DECISION OF THE
LOWER COURT AFFIRMING THE
DECISION OF THE MeTC OF MANILA
CITY AS IT ASSUMED THAT THE
PHONE CALL WAS SUFFICIENT AS
NOTICE TO PLAINTIFF THAT THE
CHECK WAS DISHONORED.

II. THE TRIAL COURT ERRED WHEN IT IT

FAILED TO RECOGNIZE THAT
PLAINTIFF WAS NOT LAWFULLY
INFORMED OF THE DISHONORED
CHECK BY TOYOTA MOTORS-OTIS
SINCE PLAINTIFF HAD NEVER
RECEIVED THE DEMAND LETTERS.

GROUNDS OR REASONS FOR ALLOWANCE OF

APPEAL

1. The appeal should be granted as it was filed

within the reglementary period of 15 days.

2. The appeal should be granted as substantial

injustice was committed against the rights of the
plaintiff to be lawfully informed of his case, which
rights were ignored by the trial court.

DISCUSSION
 1. On May 11, 2017, herein plaintiff received the
order to the Regional Trial Court, Br. 23 of
Manila City denying the latter's motion for
reconsideration with regards the order of the
aforesaid court dated April 24, 2017, or 1 day
after the receipt of the order denying the
motion for reconsideration. Being that the
instant petition was filed within the
parameters of Rule 42 of the Rules of Court,
the same should be granted due course.

2. According to Domagsang vs. Court of

Appeals1, the court held that while Section 2 of
B.P. No. 22 indeed does not state that the
notice of dishonor be in writing, this must be
taken in conjunction with Section 3 of the law,
i.e., that where there are no sufficient funds
in or credit with such drawee bank, such fact
shall always be explicitly stated in the notice
of dishonor or refusal. A mere oral notice or
demand to pay would appear to be insufficient
for conviction under the law. In this case,
plaintiff had only received a phone call from
Toyota Motors-Otis branch manager Peter Alan
Tuwad which is not sufficient for conviction of
plaintiff.

3. It was held in Lao vs. Court of Appeals2 that a

notice of dishonor personally sent to and
received by the accused is necessary before
one can be held liable under B.P. 22. In that
case, the court stated that because no notice
of dishonor was actually sent to and received
by the petitioner, the prima facie presumption
that she knew about the insufficiency of funds
cannot apply. In this case, the plaintiff had not
received any of the demand letters not notices
of dishonor at his address.

1 G.R. NO. 139292, December 5, 2000.

2 G.R. No. 119178, June 20, 1997.

 PRAYER

WHEREFORE, premises considered, it is most

respectfully prayed of the Honorable Court that
judgment be rendered in favor of the Plaintiff and for
the grant of the following:

1. That the petition be given due course;

2. That after due proceedings, judgment be

rendered setting aside the questioned
decision and ordering annexes "H" and
"L" hereof be set aside and another one
be rendered, holding:

a. Plaintiff is acquitted from the criminal case.

b. Adjudging plaintiff free from liability for

damages and attorney's fees in the total
amount of fifty thousand pesos (PHP
1,000,000.00).

3. Plaintiff likewise prays for other reliefs

deemed just and equitable in the
premises are similarly prayed for.

Manila City, Philippines. 15th May 2017.

BY

ATTY. INIGO CELDRAN

Counsel for Plaintiff
Roll No. 5023
IBP No. 750 Lifetime
PTR No. 70 - 1/2/14 Quezon City
MCLE Compliance IV No. 001233
Issued on December 8, 2012
REPUBLIC OF THE PHILIPPINES)
City of Manila, Metro Manila) S.S.

VERIFICATION AND CERTIFICATION AGAINST

FORUM SHOPPING

I, Marlowe Baviera, of legal age, after having

been duly sworn, deposes and states that:

1. I am the Plaintiff in the above stated case;

2. I have caused the preparation of the said

complaint for collection of sum of money with
damages;

3. I have read the contents thereof and the facts

stated therein are true and correct of my
personal knowledge and/or on the basis of the
documents and records in my possession;
 4. I have not commenced any other action or
proceeding involving the same issues in the
any tribunal, agency or body;

5. To the best of my knowledge and belief, no

such action or proceeding is pending before
any tribunal, agency or body;

6. If I should thereafter learn that a similar

action has been filed before any tribunal,
agency or body, I undertake to report that fact
within five (5) days therefrom to this
Honorable Court.

Executed this 15th day of May, 2017 at

Manila City, Philippines.

Marlowe Baviera
Affiant
T.I.N. 165-444-888,
Manila City

SUBSCRIBED AND SWORN to before me, this

15th day of May 2017, affiant exhibiting to me his Tax
Identification Card as shown above below her name
as competent evidence of his identity.

ATTY. INIGO CELDRAN

Counsel for Plaintiff
Roll No. 5023
IBP No. 750 Lifetime
PTR No. 70 - 1/2/14 Quezon City
MCLE Compliance IV No. 001233
Issued on December 8, 2012

Doc. No. 9;
Page No. 4;
Book No. III;
Series of 2017.

Copy furnished:

CLERK OF COURT
RTC BR. 23
Manila City Hall, Manila

JOSE C. CALIDA
Solicitor General
Office of the Solicitor General
134 Amorsolo St., Legaspi Village, Makati City