244556089 Legal Memo 1 - cases PDF

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Republic of the Philippines Municipal Trial Court Branch II Davao CityBEN QUE COMPLAINANT,Criminal Case No. 11100 versus- FOR: VIOLATION OF BP. 22 HENRY CHAO ACCUSEDx --------------------------------------xM E M O R A N D U MFor the AccusedCOMES NOW THE ACCUSED, through the undersigned counsel, unto...

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Republic of the Philippines Municipal Trial Court Branch II Davao City BEN QUE COMPLAINANT, Criminal Case No. 11100 FOR: VIOLATION OF BP. 22

- versus-

HENRY CHAO ACCUSED x --------------------------------------x

MEMORANDUM For the Accused

COMES NOW THE ACCUSED, through the undersigned counsel, unto this Honorable Court most respectfully submits and presents this Memorandum in the above-titled case and aver that: STATEMENT OF THE CASE Mr. Henry Chao is charged before the Metropolitan Trial Court (MeTC) Manila With Five (5) counts of Violation of Batas Pambansa Bilang 22 (BP 22). STATEMENT OF FACTS That on June 01, 2011, the accused who is the manager of atlas parts borrowed money from the amount of P50, 000.00 with 5% monthly interest, payable in five equal monthly instalments of P12, 500.00, the money will be used to pay for their stocks, evidenced by a five (5) checks issued by the accused for that effect.

That the said checks by which it represents instalments of payments of the accused obligations was deposited in BOD Manila City hall branch but said check was dishonored by the drawee, Alloy Bank for the reason of account closed.

That the complainant alleged that he sent a demand letter thru registered mail to the accused on January 2, 2012 in his office at Malugay Street, Malabon City.

The complainant alleged that the accused received it because the registered letters was not return to the complainant. On the other hand, the accused averred that the instruments are Now slips that is a negotiable order of withdrawal slips and are not considered bills of exchange within the meaning of the negotiable instruments law and therefore cannot be considered as checks.

The accused also denies the allegation of the complainant stating among others that he did not received the demand letter sent by the complainant after the dishonor.

That at the time when the slips was become due and demandable, the accused no longer the manager of the atlas parts and was not aware of the notice of dishonor. STATEMENT OF ISSUES 1. Whether or not the accused did actually notify that the slips presented was dishonored. 2. Whether or not the presentation of complainants’ registry receipt and the return card allegedly sent to accused is sufficient to prove the guilt of the accused. ARGUMENTS 1. The accused did not actually notify of the notice of dishonored 2. The presentation of registry receipt and the return card allegedly sent to accused is not sufficient to prove the guilt of the accused

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

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

Under B.P. Blg. 22, the prosecution must prove not only that the accused issued a check that was subsequently dishonored. It must also establish that the accused was actually notified that the check was dishonored, and that he or she failed, within five (5)

banking days from receipt of the notice, to pay the holder of the check the amount due thereon or to make arrangement for its payment.

Absent proof that the accused

received such notice, a prosecution for violation of the Bouncing Checks Law cannot prosper. The absence of a notice of dishonor necessarily deprives an accused an opportunity to preclude a criminal prosecution. Accordingly, procedural due process clearly enjoins that a notice of dishonor be actually sent to and received by the accused. The accused has a right to demand – and the basic postulates of fairness require – that the notice of dishonor be actually sent to and received by the same to afford him/her the opportunity to avert prosecution under B.P. Blg. 22.

In the Given Case, since the accused resigned as a manager of atlas parts in the middle of June 2011, before the Now slips was dishonored, the accused did not actually received the notice of dishonor, hence, absent proof that the accused received such notice, a prosecution for violation of the Bouncing Checks Law cannot prosper. Absence of a notice of dishonor necessarily deprives an accused an opportunity to preclude a criminal prosecution.

2. The presentation of registry receipt and the return card allegedly sent to accused is not sufficient to prove the guilt of the accused: In the case of Alferez vs. People G.R 182301, January 31, 2011, 641SCRA116 the Court Held that: In this case, the prosecution merely presented a copy of the demand letter, together with the registry receipt and the return card, allegedly sent to petitioner. However, there was no attempt to authenticate or identify the signature on the registry return card. Receipts for registered letters and return receipts do not by themselves prove receipt; they must be properly authenticated to serve as proof of receipt of the letter, claimed to be a notice of dishonor. To be sure, the presentation of the registry card with an unauthenticated signature, does not meet the required proof beyond reasonable doubt that petitioner received such notice. It is not enough for the prosecution to prove that a notice of dishonor was sent to the drawee of the check. The prosecution must also prove actual receipt of said notice, because the fact of service provided for in the law is reckoned from receipt of such notice of dishonor by the drawee of the check. The burden of proving notice rests upon the party asserting its existence. preponderance

Ordinarily,

of evidence is sufficient to prove notice. In criminal cases, however,

the quantum of proof required is proof beyond reasonable doubt. Hence, for B.P. Blg....