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REPUBLIC OF THE PHILIPPINES

THIRD JUDICIAL REGION


MUNICIPAL TRIAL COURT IN CITIES
BRANCH I
City of San Fernando, Pampanga

THE PEOPLE OF THE PHILIPPINES,

-versus- CRIM CASE NO. 00-1769 to


00-1773
FOR: VIOL. OF BP BLG. 22

NELSON SAMBAT CALINGO,


Accused.
x- - - - - - - - - - - - - - - - - - - - x

DEMURRER TO EVIDENCE
(With prior leave of court)

ACCUSED, NELSON SAMBAT CALINGO, through the


undersigned counsel, with prior leave of court, most
respectfully submits this Demurrer to Evidence:

PREFATORY STATEMENT

Proof beyond reasonable doubt charges


the prosecution with the immense
responsibility of establishing moral
certainty. The prosecution's case must rise
on its own merits, not merely on relative
strength as against that of the defense.
Should the prosecution fail to discharge
its burden, acquittal must follow as a
matter of course.1

TIMELINESS

On a Joint Order dated 30 May 2018, the Honorable Court


granted the Motion for Leave to File Demurrer to Evidence of
the defense and gave a non-extendible period of ten (10) days
within which to file the same. The undersigned counsel
received a copy of the said Order on 7 June 2018. Thus, it has
until 18 June to submit its Demurrer to Evidence considering
that 17 June 2018 falls on a Sunday.

1 Capistrano Daayata et al vs. People of the Philippines, G.R. No. 205745, March 8, 2017
People vs. Nelson S. Calingo
Demurrer to Evidence (with Leave of Court)

STATEMENT OF THE CASE

Accused Nelson Sambat Calingo was charged with five (5)


informations of violation of Batas Pambansa Blg. 22 (BP 22)
provided as follows:

For Criminal Case No. 00-1769:

That on or about the 24th day of March 1999,


in the municipality of San Fernando, province of
Pampanga, Philippines and within the
jurisdiction of this Honorable Court, the above-
named accused NELSON CALINGO did then and
there willfully and feloniously make, draw, issue
and deliver Philippine National Bank Sto. Tomas
Branch Check No. 0000047335 dated/post
dated June 29, 1999 in the amount of TWELVE
THOUSAND EIGHTY ONE PESOS (P12,081.00)
Philippine Currency, in favor of AU Credit
Corporation for valuable consideration said
accused knowing fully well that she/he had no
sufficient funds in or credit with the drawee
bank to cover the amount of the said check in
full upon its presentment such that when the
said check was presented to the drawee bank
for encashment the same was dishonored and
returned for the reason that it was drawn
against an “Account Closed” and despite
repeated demands made upon the accused to
redeem or make good of the said check or pay
its cash equivalent, accused failed and refused
and still fails and refuses to do so, to the
damage and prejudice of the said AU Credit
Corporation in the total amount aforestated.

Contrary to law.

San Fernando, Pampanga, June 22, 2000.

For Criminal Case No. 00-1770

That on or about the 24th day of March 1999, in


the municipality of San Fernando, province of
Pampanga, Philippines and within the
jurisdiction of this Honorable Court, the above-
named accused NELSON CALINGO did then and
there willfully and feloniously make, draw, issue
and deliver Philippine National Bank Sto. Tomas

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People vs. Nelson S. Calingo
Demurrer to Evidence (with Leave of Court)

Branch Check No. 0000047336 dated/post


dated July 29, 1999 in the amount of TWELVE
THOUSAND EIGHTY ONE PESOS (P12,081.00)
Philippine Currency, in favor of AU Credit
Corporation for valuable consideration said
accused knowing fully well that she/he had no
sufficient funds in or credit with the drawee
bank to cover the amount of the said check in
full upon its presentment such that when the
said check was presented to the drawee bank
for encashment the same was dishonored and
returned for the reason that it was drawn
against an “Account Closed” and despite
repeated demands made upon the accused to
redeem or make good of the said check or pay
its cash equivalent, accused failed and refused
and still fails and refuses to do so, to the
damage and prejudice of the said AU Credit
Corporation in the total amount aforestated.

Contrary to law.

San Fernando, Pampanga, June 22, 2000.

For Criminal Case No. 00-1771

That on or about the 24th day of March 1999, in


the municipality of San Fernando, province of
Pampanga, Philippines and within the
jurisdiction of this Honorable Court, the above-
named accused NELSON CALINGO did then and
there willfully and feloniously make, draw, issue
and deliver Philippine National Bank Sto. Tomas
Branch Check No. 0000047332 dated/post
dated August 29, 1999 in the amount of
TWENTY FIVE THOUSAND FOUR HUNDRED
SIXTY SEVEN PESOS (P25,467.00) Philippine
Currency, in favor of AU Credit Corporation for
valuable consideration said accused knowing
fully well that she/he had no sufficient funds in
or credit with the drawee bank to cover the
amount of the said check in full upon its
presentment such that when the said check was
presented to the drawee bank for encashment
the same was dishonored and returned for the
reason that it was drawn against an “Account
Closed” and despite repeated demands made
upon the accused to redeem or make good of

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People vs. Nelson S. Calingo
Demurrer to Evidence (with Leave of Court)

the said check or pay its cash equivalent,


accused failed and refused and still fails and
refuses to do so, to the damage and prejudice
of the said AU Credit Corporation in the total
amount aforestated.

Contrary to law.

San Fernando, Pampanga, June 22, 2000.

For Criminal Case No. 00-1772

That on or about the 24th day of March 2000, in


the municipality of San Fernando, province of
Pampanga, Philippines and within the
jurisdiction of this Honorable Court, the above-
named accused NELSON CALINGO did then and
there willfully and feloniously make, draw, issue
and deliver Philippine National Bank Sto. Tomas
Branch Check No. 0000047333 dated/post
dated September 29, 1999 in the amount of
TWENTY FIVE THOUSAND FOUR HUNDRED
SIXTY SEVEN PESOS (P25,467.00) Philippine
Currency, in favor of AU Credit Corporation for
valuable consideration said accused knowing
fully well that she/he had no sufficient funds in
or credit with the drawee bank to cover the
amount of the said check in full upon its
presentment such that when the said check was
presented to the drawee bank for encashment
the same was dishonored and returned for the
reason that it was drawn against an “Account
Closed” and despite repeated demands made
upon the accused to redeem or make good of
the said check or pay its cash equivalent,
accused failed and refused and still fails and
refuses to do so, to the damage and prejudice
of the said AU Credit Corporation in the total
amount aforestated.

Contrary to law.

San Fernando, Pampanga, June 22, 2000.

For Criminal Case No. 00-1773

That on or about the 24th day of March 2000, in


the municipality of San Fernando, province of

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People vs. Nelson S. Calingo
Demurrer to Evidence (with Leave of Court)

Pampanga, Philippines and within the


jurisdiction of this Honorable Court, the above-
named accused NELSON CALINGO did then and
there willfully and feloniously make, draw, issue
and deliver Philippine National Bank Sto. Tomas
Branch Check No. 0000047334 dated/post
dated October 29, 1999 in the amount of
TWENTY FIVE THOUSAND FOUR HUNDRED
SIXTY SEVEN PESOS (P25,467.00) Philippine
Currency, in favor of AU Credit Corporation for
valuable consideration said accused knowing
fully well that she/he had no sufficient funds in
or credit with the drawee bank to cover the
amount of the said check in full upon its
presentment such that when the said check was
presented to the drawee bank for encashment
the same was dishonored and returned for the
reason that it was drawn against an “Account
Closed” and despite repeated demands made
upon the accused to redeem or make good of
the said check or pay its cash equivalent,
accused failed and refused and still fails and
refuses to do so, to the damage and prejudice
of the said AU Credit Corporation in the total
amount aforestated.

Contrary to law.

San Fernando, Pampanga, June 22, 2000.

When accused was arraigned in a language known and


understood by him, he pleaded NOT GUILTY to the offenses
charged and trial ensued.

PROSECUTION’S EVIDENCE

To establish the guilt of the accused, the prosecution


presented its lone witness in the person of ADELIO GATDULA,
manager and authorized representative of private complainant
AU Credit Corporation. In the course of his testimony, he
identified Exhibit “A” to “A-1” (Affidavit of Complaint), Exhibits
“B” to “B-4” (Philippine National Bank Sto. Tomas Branch Checks
with Nos. 0000047335, 0000047336, 0000047332,
0000047333, 0000047334) for all five (5) counts of violation of
BP 22, Exhibit “D” to “D-3” (Demand letter with Registry Return
Receipt) and Exhibit “E” (Promissory Note dated 24 March
1999).

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People vs. Nelson S. Calingo
Demurrer to Evidence (with Leave of Court)

Upon the conclusion of the cross-examination of Mr.


Gatdula, last 27 September 2016, the prosecution was given
ten (10) days from said date or until 6 October 2016 within
which to file a Formal Offer of Documentary Exhibits. However,
after a span of almost two (2) years, it is only on 25 April 2018
when the prosecution has submitted its written Formal Offer of
Documentary Exhibits despite the very lengthy period afforded
to it by this Honorable Court. On 30 May 2018 via a Joint Order,
the Honorable Court denied the admission of the prosecution’s
Formal Offer of Documentary Exhibits and declared the same to
be waived. Thereafter, the prosecution was deemed to have
rested its case.

ISSUE

On the basis of the foregoing premises and solely on the


testimony of the lone witness Mr. Adelio Gatdula, the issue to be
resolved is WHETHER OR NOT THE PROSECUTION WAS ABLE TO
PROVE THE GUILT OF THE ACCUSED BEYOND REASONABLE
DOUBT for violation of five (5) counts of Batas Pambansa Blg.
22.

DISCUSSION

It is the humble submission of the defense that the


prosecution has failed to prove the guilt of the accused beyond
reasonable doubt to warrant a conviction against the accused
as contained in the reasons stated below:

To be liable for violation of B.P. [Blg.] 22, the following


essential elements must be present: (1) the making,
drawing, and issuance of any check to apply for account
or for value; (2) the knowledge of the maker, drawer, or
issuer that at the time of issue he does not have
sufficient funds in or credit with the drawee bank for the
payment of the check in full upon its presentment; and
(3) the subsequent dishonor of the check by the drawee
bank for insufficiency of funds or credit or dishonor for
the same reason had not the drawer, without any valid
cause, ordered the bank to stop payment. (Emphasis
supplied)

In the case at bar, the prosecution has failed to prove


indeed that an act in violation of BP 22 was committed by the
accused for the reason that such original checks were not
admitted on record due to the denial of the prosecution’s formal
offer of documentary exhibits.

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People vs. Nelson S. Calingo
Demurrer to Evidence (with Leave of Court)

The effect of the belated filing of the Prosecution’s Formal


Offer of Documentary Exhibits which ultimately led to its non-
admission/waiver produced the effect that no documentary
evidence can be appreciated in favor of the prosecution.

The case The Heirs of Pedro Pasag et. al. vs. Sps. Lorenzo
and Florentina Parocha et. al.2 is instructive on this matter:

“The Rules of Court provides that "the court


shall consider no evidence which has not
been formally offered." A formal offer is
necessary because judges are mandated to rest
their findings of facts and their judgment only
and strictly upon the evidence offered by the
parties at the trial. Its function is to enable the
trial judge to know the purpose or purposes for
which the proponent is presenting the evidence.
On the other hand, this allows opposing parties
to examine the evidence and object to its
admissibility. Moreover, it facilitates review as
the appellate court will not be required to
review documents not previously scrutinized by
the trial court.

Strict adherence to the said rule is not a


trivial matter. The Court in Constantino v.
Court of Appeals ruled that the formal offer of
one’s evidence is deemed waived after
failing to submit it within a considerable
period of time. It explained that the court
cannot admit an offer of evidence made after a
lapse of three (3) months because to do so
would "condone an inexcusable laxity if not
non-compliance with a court order which, in
effect, would encourage needless delays and
derail the speedy administration of justice."
(Emphasis and underscoring supplied)

It is to be noted that the existence and contents of the


five (5) checks allegedly issued by the accused are the
subject of the abovementioned cases. Hence, it is
paramount that the original of the said checks must
have been presented, formally offered and admitted into
the records of the instant cases. In the absence thereof,
the same shall prove fatal to the cause of the
prosecution. (Emphasis and underscoring supplied)

2 G.R. No. 155483, April 27, 2007.

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People vs. Nelson S. Calingo
Demurrer to Evidence (with Leave of Court)

Corpus delicti refers to the fact of the commission of the


crime charged or to the body or substance of the crime.3
Following this principle, it is respectfully submitted that the
admission in evidence of the subject checks and other
documentary exhibits are mandatory in order to sustain the
allegation of guilt of the accused.

Further, since the other documentary exhibits were also


not admitted, even the civil liability of the accused could not be
proven by mere allegation of the private complainant since it
was not corroborated by secondary evidence. Testimony alone
by the private complainant cannot logically prove his case. The
Honorable Court cannot rely on the self-serving allegations of
the private complainant if unsubstantiated by any other
admissible competent evidence.

Thus, in view of the foregoing premises, it is humbly


reiterated that the prosecution failed to prove the guilt of the
accused beyond reasonable doubt.

Conviction in criminal actions demands proof beyond


reasonable doubt. Rule 133, Section 2 of the Revised Rules on
Evidence states:

Section 2. Proof beyond reasonable doubt. - In a


criminal case, the accused is entitled to an
acquittal, unless his guilt is shown beyond
reasonable doubt. Proof beyond reasonable
doubt does not mean such a degree of proof as,
excluding possibility of error, produces absolute
certainty. Moral certainty only is required,
or that degree of proof which produces
conviction in an unprejudiced mind.
(Emphasis and underscoring supplied)

There being gross insufficiency of prosecution evidence,


the prosecution has not proven the guilt of the accused beyond
reasonable doubt.

In the case People vs. Go et. al.4, the Supreme Court


enunciated that:

Demurrer to the evidence is "an objection


by one of the parties in an action, to the
effect that the evidence which his
adversary produced is insufficient in point
of law, whether true or not, to make out a
3 Engr. Anthony V. Zapanta vs. People of the Philippines, G.R. No. 170863, March 20, 2013
4 GR No. 191015, August 6, 2014

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People vs. Nelson S. Calingo
Demurrer to Evidence (with Leave of Court)

case or sustain the issue. The party


demurring challenges the sufficiency of
the whole evidence to sustain a verdict.
The court, in passing upon the sufficiency of the
evidence raised in a demurrer, is merely
required to ascertain whether there is
competent or sufficient evidence to sustain the
indictment or to support a verdict of guilt. x x x
Sufficient evidence for purposes of frustrating a
demurrer thereto is such evidence in character,
weight or amount as will legally justify the
judicial or official action demanded according to
the circumstances. To be considered sufficient
therefore, the evidence must prove: (a) the
commission of the crime, and (b) the precise
degree of participation therein by the
accused." Thus, when the accused files a
demurrer, the court must evaluate
whether the prosecution evidence is
sufficient enough to warrant the
conviction of the accused beyond
reasonable doubt. (Emphasis and
underscoring supplied)

PRAYER

WHEREFORE, premises considered, the undersigned


most respectfully prays that the accused be acquitted, and that
the above-captioned criminal case filed against him be
dismissed for failure of the prosecution to prove his guilt
beyond reasonable doubt.

Other reliefs under the circumstances are likewise prayed


for.

City of San Fernando, Pampanga.

14 June 2018.

OCAMPO LAW OFFICE


Rm 206 2nd Floor Queensland
Bldg. Maligaya Village, Dolores,
City of San Fernando, Pampanga
Tel. No. (045) 436-44-56

By:

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People vs. Nelson S. Calingo
Demurrer to Evidence (with Leave of Court)

NOEL M. LUZUNG
Collaborating counsel for the accused
Attorney’s Roll No. 68081/ 5-26-17
PTR No. 8967504/ 1-3-18
IBP Lifetime Member # 017038
Deadline for initial MCLE Compliance:
April 14, 2019. Pursuant to MCLE
Governing Board Order 1-2008

NOTICE OF SUBMISSION / COPY FURNISH

MR. JOEL GAMBOA


MTCC Branch 1
City of San Fernando, Pampanga

PROS. CONRADO SALOMEO


Public Prosecutor
Office of the City Prosecutor
City of San Fernando, Pampanga

Greetings of joy and good peace!

Please submit the foregoing DEMURRER TO EVIDENCE for


the kind consideration of the Honorable Court immediately
upon receipt hereof without any further argument.

NOEL M. LUZUNG

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