Professional Documents
Culture Documents
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
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
6- Parties have the capacity to sue and be sued and may be served with
processes at aforementioned address and through counsels of records;
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).
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.
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.
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 R- Motion for Extension of Time to file Petition for Review dated
June 30, 2009.
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.
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.
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).
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).
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
ISSUE NO.4
ISSUE NO. 5
THERE WAS NO EVIDENCED THAT THE ACCUSED ACTUALLY RECEIVED THE DEMAND
LETTERS.
ISSUE NO. 6
ISSUE NO. 7
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.
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.
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 .
ISSUE NO. 2
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.
ISSUE NO. 3
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.
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.
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.
ISSUE NO.4
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.
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
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.
ISSUE NO. 7
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.
PRAYERS
NESTOR BARBOSA
Counsel for Petitioner
402, PNB Builging Naga City
PTR No. 12345
IBP No. 32142
Roll No. 34896
MCLE Compliance No. 11-0011484
RTC Branch 58
Makati City
Nestor Barbosa