(ORIGINAL) No 5684414 REPUBLIC OF THE PHILIPPINES JUDICIARY OFFICIAL RECEIPT CASE No. : L PAYOR : ALAPIDE PARTICULARS : CTC7 FUND AMOUNT ~— PAYMENT DETAILS SAJ-CL/MISC 2.80 CASH DE-MISC/SUMMONS 67.20 CASH sexaeussezess Nothing Follows *#eteseneeeennt TOTAL AMOUNT PAID: 70.00 AMOUNT IN WORDS: Seventy AND 00/100 ONLYREPUBLIC OF THE: PINLIPPINES. WATIONAL CAPITAL JUDICIAL REGION METROPOLITAN TRIAL COURT OF METRO MANILA BRANCH XXXV-QUEZON CITY PEOPLE OF THE PHILIPPINES, Plaintiff, © Bio. 2 G8 count - versus - MANUEL ALAPIDE Y BOSANTE, Accused . ORDER @ Motion for Leave of Court to Fil a For resolution with the attached Demurrer to Evidence and the Comment/Opposition thereto of the Prosecution nm his Dem an failed to present sufficie offense that accused was furnished a prosecution through its sole witness Demand Letter MM") and a Certif 0 sho. that the demand letter was received by one Baby Garcia and not the accusec himself, contrary to the jurisprudence existing for BP 22 cases As for Ms, Dela jpiemental Affidavit wherein another jned by one Lawrence Yap, was presented, with the 5 signctire of Manuel Alapide together with the handwritten word “received” and with a d: t accompanying 2 page Statement of Account with the Dishonor. gnature of the accused same cannot operate as a Noti only of ona page and there was no mention thereon of the amount at his outstanding ssued were not ver overdue already and that the Metro That eau that the attache as far as the ¢ checks subjed t of the inf concerned because sublet of the information are not among those that were indicated as bounced n statement of — account. Only Check ~—_ nos. 57157,457158,457259 and 457160, which were listed in Su 457156 the Affidavit-Complaint tishonor However, Check Nos ag7160 were alreacy somgl 7dismissed in the Resolution of the QC Prosecutor's Office while Check Nos. 457357 and 457158 were no longer included in the charge as admitted in the Affidavit-Complaint (Exh. “PP”) and the Supplemental Affidavit Exh. “QO") as said checks were already the subject of offsetting or a return of the goods m by the accused. The rest of the checks subject of the compiaint or information were indicated in the ctatement 3: jecks only and not th dishonored checks and therefore the said demand letter and statement of account do not operate as a notice of dishonor citing the ruling in Dornagsang vs Court of Appeals, G.R. No. 239292,347 SCRA 75, to the effect that “where there are no sufficient funds in or credit with such drawee bank, such fact shall always be explicitly stated in the notice of dishonor or refusal, a mere oral notice or demand to pay would appear to be insufficient for conviction under the law. This allegedly means that the notice of dishonor must clearly indicate that the checks were dishonored or refused payment by the drawee bank. Hence their prayer that their Demurrer to evidence be granted and the cases herein be dismissed 32 By way of Comment/Opposition, the Prosecution reiterated that their witness Ms, Jesusa Dela Cruz testified on the receipt of the Notice of dishonor and demand to pay on the accused which was received by his staff-Baby Garc's and the sending of demand letter on accused by Laurence Oliver Yap on Octaner g,2007 (*UL") where it is indicated t at his account with them long overdue while his Metrobank checks issued that bounces were not reniace (sic) as of this day”-which was personally re by the his signature therein. That in the said letter were attached the Statement of ‘Account of the accused and the listings of the bounced checks, both of which (uU-1" and “UU-2") were actually received by the accused as shown by his signature appearing therein. Thus under the title bounced checks (stopped payment) appearing in the third line is check no. 457157 which Is Exn. “A anc on the fourth line is check nos. 457158 which is Exh. "B” and under the sub-heading UNCLEARED/HOLD CHECKS are check nos. 457165 which is Exh."C” up to the jast check, check no. 457275 which is their Exh. “LL”. That in fact, starting with check no. 0457165 dated December 1s, 2005 the account of the accused nad already been closed. Thus their prayer for the denial of the accused’ Demurrer to Evidence for alieged lack of merit. used as shown by The point in issue now in the cases at bar is the sufficienc; of the prosecution’s evidence to warrant the conviction of the accused To constitute the violation of the foregoing provision, the following elements must be present: a. The making, drawing or issuance of any check to apply on account or for value; b. The knowledge of the maker, drawer or issuer that at the time of issue there are no sufficient funds in or credit with the drawee bank for payment of such check in full upon its presentment; and a jae 1)¢. The subsequent dishonor of the check by the drawee bank for ‘sufficiency of funds or credit or dishonor for the same reason nad not the drawer, without any valid cause, ordered the bank to stop payment The parties delimited the element that is not allegedly proven by the prosecution to element no. 2- which is the knowledge of the maker, drawer or issuer that at the time of issue there are no sufficient funds in or credit with the drawee bank for payment of such check in full upon its presentment, hence the Court would only limit its discussion to the said element Anent this requirement, the jurisprudence has always been: To hold accused fiable for violation of BP 22, it is not enough that the check issued vas dishonored. It must also be shown beyond reasonable doubt that the gsuer knew of the insufficiency of funds at the time the check was issued Thus, as explained in the case of King vs. Peop! °To hold the person liable under BP 22, itisnot enough to that the check issued was subsequently dishonored. It must De shown further that the person who issued the check knew at the time of issue that he does not h ‘ficient funds in or credit with the drawee bank for the payment of such check in full ups its presentment.” Because the element involves a state of mind which is difficult to establish, Section 2 of the law creates prima facie presumption of such knowledge as follows. Sec. 2. Evidence of knowledge of insufficient funds.- The making, drawing, and issuance of a check payment of which is refused by the drawee because of insufficient funds in or credit with such bank, when presented within ninety (50) days from the date of the check, shall be prima tacie evidence of knowledge of sucn nsufficiency of funds or credit uniess such maker or drawer pays the holder thereof the amount due thereon, or mate arrangements ‘or payment in full by the drawee of such check within five (5) banking days after receiving notice that such check Nas not been paid by the drawee." in other words,the prima facie presumption arises when a check is issued and was thereafter Mishonored for insufficiency of fund. But the law also provides that the presumption does not arise when the issuer pays the amount of the check or makes arrangement for its payment within five {s) banking davs sfter receiving notice that such check has not been paid by the drawer. Verily, BP 2 gives the accused an opportunity to satisfy the amount indicated in the check and thus avert criminal prosecution. Veri Also, a5 provided under Batas Pambansa Big. 22 the prosecution must prove not only that the accused issued 3 check that was subsequent Uishonored. ft must also establish that the accused was actually notified ‘hat Ao ardcheck was dishonored, and that he or she failed, within five 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 Check Law cannot prosper inthe instant case, itis shown beyond doubt that the demand letter se by Atty. Antonio Reyes, counse! for Roberts Automotive & industrial Parts Manufacturing Corp. dated April 10, 2008 demanding payment for forty three (ua) checks in the aggregate sum of Pa,095,754 ‘14 within five (5) banking days from receipt thereof, was never received personally by the accused himself but a certain Baby Garcia, who isan alleged staff of accused. ed of the notic As additional proof of th alleged receipt of the accu dishonor, they ate making use ot the Octoper 9, 2007 \etter af Laurence Otiver (Exh. RR") and the attached two (2) page Statement of Account CRR-2" and “pR-2") referring this time to forty nine (49 ) checks in the aggregate amount oT 3,073,600.07 said October 9, 2007 letter of Mr. Yap reads as follows, to wit: "This is to inform you that your outstanding account with us is now iong overdue while your Metro Bank checks that you issued to us that bounced were not yet replaced (sic) as of this day In this regard, we would like to request your good office to settle those accounts within three (3) days from the date of the receipt ot this letter |! be compelled vise, much to our regret, w 0 refer this case to ovr sthenw ayer tor appropriate lega! ation Attached herewith is our 31 We are lacking forwa The said Demand Letter of Mr. Yap, does not comply with the requirement of Sec, 2. of BP Big. 22 as a form of Notice of dishonor on accused. First, the wordings jiself is equivocal- meaning it could be subject to different interpretations and it would indicate that there has been a practice entered into by the parties where the accused would replace the checks that he issued to the private corporation once his checks pounced, and the matter of accused's Issuing replacement checks as a form of settlement with the complainant would seem acceptable to the complainant-corporation This is supported by some of the checks subject matter of these cases ¥ here in the dorsal portions thereof are ritten the handwritten words “Replacement Thus, what the ferter clearly V conveys is that the account f accused wh lu spaplaced” as of the date of the letter Second, the period he gave for tt accused ta settle his account is 0 three (3) days and does nat comply with the five (5) Cay period required BY ; soySection 2 of 8.P.22. Third, the demand-latter itself does not contain the ata required ot a Notice of dishonor such as the number of checks issued; tate of issuance of the check; the date when the check would fall due and the reason for the dishonor such as the usual Banking terms-A/C; DAIF or DAUD. Only the attached Statement of Account contain the data Bounced Checks (DAIF) for the first set; Bounced Checks (Stopped Payment) for the 2” set of checks and Uncleared/Hold Checks for the remaining set. Thus as far as the court is concerned the said attached document is merely treated as the usual customary Statement of Account issued by the company to its client, but not the required Notice of dishonor strictly considered under Ser 2 of BP Big. 22 Inthe case of Domagsang vs. Court of Appeals, G. R. No. 139292 December 5, 200,347 5CRA7S the Supreme Court held swhile, indeed, Section 2 of B.P. Big. 22 does not sta that the notice of dishonor be in writing, taken in conjunction, however, with Section 3 of the law, 2, “that where there are no sufficient funds in or credit with such drawee bank, such fact shail always be explicitly stated in the notice of dishonor or refuscl,"a_mere oral notice demand to pay would appear to be insufficient for conviction under the law. The Court is convinced that both the spirit and letter of the Bouncing Checks Law would require for the act to be punished thereunder not only that the accused issued a check that is dishonored, but that likewise the accused has actually been notified in writing of the fact of dishonor. The consistent rule is that penal statutes have to be construed strictiy against the State and 'perally in favor of the accused."{ Underlining supplied Moreover, the Provisional Receipts covering the transactions bets parties were not also submitted by the prosecution, and as far as the evidence of the defense submitted and marked as Exhibits, in those prov sional receipts were mentioned the corresponcing checks issued per their transaction, rence the theory that the company allowed accused to issue replacement checks in lieu of the originals is established. Thus, the evidence of the prosecution fell short in establishing the fact of personal receipt of the accused of the notice of dishonor which is crucial for the prosecution of these cases. The demand letter was sent through registered mail which was not received by the accused but someone aise Though admittedly the fact of dishonor was Jater known to the 9) y jond reasonahie doubt the precise sate when such Tact accused. Obviously, there is no f dete was not established 5: was made known to m rucial five (s) day period prescribed in Section 2 of BP 22 would gtartandenc in Danao v. Court of Appeals’, the Supreme Court eid Lat "if there is no proof as te when such neti sirawer, then the presiimption or prima facie evidence provided in Section > of B.P. Big, 22 cannet arise, since there would simply be no way reckoning the crucial 5-day pened.” as received by therima facie evic it at the time he issued the checks @ suffi it th jt must be stres fe by the Thus, the presumption oF f the insufficiency of funds or credi accused oF did not arise and for this digmissal of the criminal aspect jse must be proved beyond trictly construed again nt ground te warrant ced that every eason alone will + of these cases sonable do: t cannot et tha state and liberal! element of the off presumed as penal statutes ar in favor of the accused the Bouncing Che the punishable must come clearly within both tre gpint ano letter of the statute’, Hence the a finds for the cismissa\ of the criminal aspect fF these s Tinally, weil-sette t la that the guilt of the st pr wath moral certainty. A oe ppgnivan in tavar ot Tr? accused." It is the responsibility oF 2 prove ail de lanents © ect of 1a facie ca! the civil liability Anent the civil aspect of of the accused however WAS netablished by the prosecution as th? thirty ject matter of th etill remain unpaid x athe accused a day in court to aooemer, thus the Court deerned it proper t7 9 e tevidence raspect of tt ApiDe. is nereny ACQUITTED tor firr yCABOCHAN REYES AND CAPONES ty, Jose 8. Capuries(F9 ot: _ ORIGINAL Republic of the Philippines METROPOLITAN TRIAL COURT Branch 35, Quezon City PEOPLE OF THE PHILIPPINES, Plaintiff, -versus- CRIM. CASE NO. 35-151036-73 For: Violation of BP Blg. 22 (38 counts) MANUEL B. ALAPIDE, Accused. =<; MOTION TO DISMISS- PF a COMES NOW private complainani ROBERTS AUTOMOTIVE & INDUSTRIAL PARTS MANUFACTURING CORPORATION (Roberts AIPMC), through the undersigned counsel, and to the Honorable Court respectfully alleges: 1. That the criminal aspect of these cases has earlier been. dismissed by virtue of an Order dated April 30, 2015 granting the Demurrer to Evidence filed by the accused Manuel Alapide; 2. That private complainant Roberts AIPMC also desires that the civil aspect of these cases be dismissed; 3. That this motion is filed pursuant to the provision of Rule 17, Section 2 of the Rules of Court. WHEREFORE, it is respectfully prayed that an order be issued dismissing the civil aspect of the aforementioned cases. Pasay City for Quezon City, Philippines, June 8, 2016. CABOCHAN REYES & CAPONES f LAW OFFICES RIIRIEM KERGX COP Rm. 405, 4 Floor, Diplomat Condo. iertee Roxas Blvd. cor. Russel St., Pasay City Email add: ¢_r_c_law@yahoo.com Telefax No. 8535939rnd an cy "setocreapace wt M{CLE Compliance No.V-0020446/04-28-16 Attorney’s Roll No. 29671 At the behest MA. /DELA CRUZ (by virtue of ated February 28, 2013 which is attached to the records of the cases in Court) NOTICE OF HEARING and COPY FURNISHED ATTY. RAMON B. ROSELLO B51 L6o B. Lagman St., BF Resort Las Pinas City THE BRANCH CLERK OF COURT MTC, Branch 35 Quezon City Greetings: Kindly submit the foregoing Motion to Dismiss to the Honorable Court for its consideration and approval on June 23 , 2016 with or without the appearance of private complaint and/or its undersigned counsel Pasay City, June 8, 2016. JOSE B. EXPLANATION (Pursuant to Section 11, Rule 13 of the 1997 Rule of Civil Procedure) The foregoing Motion to Dismiss was served on adverse counsel by private courier (LBC) due to the time and distance constraints and lack of messengerial personnel to effect personal service. hep TE sia oF 1 ea as Pasay City for Quezon City, eI LL Sub fh ee OhareREPUBLIC OF THE PHILIPRRRRS: METROPOLL TRIAL COURT OF METRO MANILA * BRANCH 35 -- QUEZON CITY PEOPLE OF THE PHILIPPIN] ES, Plaintiff, ~ versus - CRIM. CASE NO. 13-151036-73 FOR: Violation of B.P. 22 (58 counts) MANUEL B. ALAPIDE, Accused. ORDER At bar is the Motion to Dismiss dated 8 June 2016 filed by the private complainant. In the hearing of 23 June 2016, the public prosecutor was given ample chance to file her Comment and/or Opposition but to date, she has not filed any pleading. ‘The Motion to Dismiss bears merit. The records reveal that the Demurrer to Evidence filed by the defense was granted and the accused was acquitted through the Order dated 30 April 2015, In the same Order, the Court found prima facie evidence on the existence of civil liability, and thereby set the case for reception of defense evidence Sec. 2 Rule 17 of the Rules of Civil Procedure provides that a case may be dismissed upon motion of plaintiff. The Motion to Dismiss was filed by Atty. Jose B. Capones, counsel for private complainant, through Ma. Jesusa N. > ta Crna, #8 authorize “epresentative who signed the said Motion to Dismiss. us coula on. ‘at private complainant is no longer interested in pursuing its monetary claim. against accused, IN VIEW THEREOF, the Motion to Dismiss is GRANTED. Lot these cases be removed from the criminal docket of this Court. SO ORDERED. In Chamber, Quezon City, Me lanila, 2 August 2016 - DUMLAO-ESCALANTE MARIA ¥LLA C) vi, Presfding Judge Copy furnished: Office of the Court Administrator—Supreme Court, Padre Faura, Manila (Manuel 8. Alapide { Accused) ~ Door B-2 Fernandez Tenement A. Bonifacio Avenuo, Cainta Rizal ~Ally- Ramon B. Rosello (Counsel for the Accused) ~ B-51, L-60-B Lagmen Street, BE Resort, Las Pifias City Roberts Automotive & Industrial Parts, Manufacturing Corp. rep by Ma. Jesusa N. Dela Cruz (Complainant)—32 Miller Street SEDM. Quen, 4p nee eee