REPUBLIC OF THE PHILIPPINES

COURT OF APPEALS
MANILA

ALEJANDRO MAKABAYAN
Petitioner,

CA GR SP NO. 111111
--versus-- RTC Makati A-11 Appealed Crim. Case
No. 01-111-11 (11-111-111)
MeTC Makati A-22 Crim. Case
Nos. 111111-17 (inclusive)
ERNESTO MADRIGAL,
OFFFICE OF THE SOLICITOR
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. Cinderella Isnow, with
office address at Suite 402, PNB Building , 4400 Naga City;

4- Private respondent Ernesto Madrigal ( complainant in the court a

quo) is likewise of legal age, with postal and office address at No.

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 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.

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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…”

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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 petitioner’s 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 Makati 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

Ernesto Madrigal dated December 2003;

ANNEX E- Judicial – Affidavit of Ernesto Madrigal dated March 9,

2007;

ANNEX F- Counter-Affidavit of accused Alejandro Makabayan Dated

November 9, 2007;

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ANNEX G- Judicial – Affidavit of accused Alejandro Makabayan
dated November 9, 2007;

ANNEX H- Accused formal offer of exhibits dated December 15,

2007;

ANNEX I- Comments to the accused Formal offer of Exhibits dated

February 22, 2008;

ANNEX J- Certified true copy of the Joint-Decision of MeTC Branch

62, Makati City, dated

ANNEX K- Accused- Appellant’s Memorandum dated July 15, 2008;

ANNEX L- Memorandum of Private Complainant Ernesto Madrigal

dated July 15, 2008;

ANNEX M- Decision of RTC Branch 58 dated March 11, 2009;

ANNEX N- Motion for Reconsideration of Accused-Appellant

Alejandro Makabayan dated March 27,2009;

ANNEX O- Opposition to the Motion for Reconsideration dated May

25, 2009;

ANNEX P- Reply to Opposition dated June 1,2009;

ANNEX Q- Order Dated June 8, 2009, denying the Motion for

Reconsideration filed by accused Alejandro Makabayan;

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. Alejandro and Ana Makabayan, ( 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.

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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 latter’s another client in
Makati, herein private respondent (complainant in the court a quo)
Mr. Ernesto Madrigal

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 Ernesto Madrigal 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 Ernesto Madrigal, 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 attorney’s
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 Ernesto Madrigal, 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 attorney’s 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 Ernesto Madrigal 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 Ernesto Madrigal

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 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 Ernesto Madrigal 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

Ernesto Madrigal 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

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 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.

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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 Ernesto Madrigal, the Financier,
accused Alejandro Makabayan, 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 attorney’s 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 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:

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 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
Ernesto Madrigal, 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.

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 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

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 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 RTC’s 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 Appellant’s 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:

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 “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

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 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.

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 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:

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75- The resolution stamped dated April 20, 2006 of the City
Prosecutor’s 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-Appellant’s

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

CINDERELLA ISNOW
Counsel for Petitioner
402, PNB Builging Naga City
PTR No. 12345
IBP No. 32142
Roll No. 34896
MCLE Compliance No. 11-0011484

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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

Metropolitan Trial Court

MeTC Branch 62
Makati City

RTC Branch 58
Makati City

Cinderella Isnow

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