Republic of the Philippines

Municipal Trial Court

Branch II
Davao City


BEN QUE
COMPLAINANT,

Criminal Case No. 11100
- versus- FOR: VIOLATION OF BP. 22


HENRY CHAO
ACCUSED

x --------------------------------------x


M E M O R A N D U M
For the Accused


COMES NOW THE ACCUSED, through the undersigned counsel, unto this
Honorable Court most respectfully submits and present s 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.

A R G U M E N T S
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. Ordinarily,
preponderance 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.
22 cases, there should be clear proof of notice. Moreover, for notice by mail, it must
appear that the same was served on the addressee or a duly authorized agent of the
addressee. From the registry receipt alone, it is possible that petitioner or his
authorized agent did receive the demand letter. Possibilities, however, cannot replace
proof beyond reasonable doubt. The consistent rule is that penal statutes have to be
construed strictly against the State and liberally in favor of the accused. The absence
of a notice of dishonor necessarily deprives the accused an opportunity to preclude a
criminal prosecution. As there is insufficient proof that petitioner received the notice of
dishonor, the presumption that he had knowledge of insufficiency of funds cannot arise.

In the given case, the prosecution only presented a registry receipt and presumed that it
was received by the accused on the ground that the registered letter was not returned to
the complainant. 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, hence it fails to prove that the accused actually
received the demand letter and that no criminal liability attached.

P R A Y E R
WHEREFORE, premises considered, accused respectfully prays to the
honorable court that judgment of ACQUITTAL be rendered in his favor.


Davao City, 18
st
day of October, 2014.

GESTOPA LAW OFFICE
Counsel of the Defendant
Dumanlas,Buhangin,Davao City

By:

Gestopa, Michael B.
Notary Public
Roll No. 153645
IBP No. 4747658
PTR No. 645454







EXPLANATION

In compliance with Section 11, Rule 13 of the Revised Rules of Court, personal
service of copy of Trial Memorandum could not be effected except by service through
registered mail due to distance and personnel constraints.


Gestopa, Michael B.



Copy Furnished:(By Registered Mail)


ATTY. CEDIE PANGANIBAN
Counsel of the Plaintiff
2
ND
FLOOR CVA Building
R. Magsaysay Avenue, Davao City