REPUBLIC OF THE PHILIPPINES

COURT OF APPEALS
MANILA

SALVADOR REYES
Petitioner,
CA GR SP NO. 1234455
--versus-- 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 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

Luisito Cuison dated December 2003;

ANNEX E- Judicial Affidavit of Luisito Cuison dated March 9, 2007;

ANNEX F- Counter-Affidavit of accused Salvador Reyes Dated November

9, 2007;

ANNEX G- Judicial Affidavit of accused Salvador Reyes 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- Appellants Memorandum dated July 15, 2008;

ANNEX L- Memorandum of Private Complainant Luisito Cuison dated

July 15, 2008;

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

ANNEX N- Motion for Reconsideration of Accused-Appellant Salvador

Reyes 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 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 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:

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

NONITO Q. PASUELO, JR.

Counsel for Petitioner
Suite 007, 2nd Floor, Pasuelo Tower
MEGAWORLD, Iloilo City
Roll No. 66199
IBP No. 011 Lifetime
PTR No. 70 - 1/2/06 Iloilo
MCLE Compliance IV No. 001234
Issued on January 12, 2015

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