Petition For Review
Petition For Review
Petition For Review
COURT OF APPEALS
MANILA
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.
20- To strike the Financial Deal, an Agreement ( Exhibit 5) was forged
between accused Landowner, complainant Financier and counsel-
San Buenaventura Law Offices.
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:
25- Meantime accused secured the services of a new counsel to assist him
in the Court of Appeals case versus Land Bank because the period is
almost to expire in the filing of his briefs.
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
ISSUE NO. 2
ISSUE NO. 3
ISSUE NO.4
ISSUE NO. 5
ISSUE NO. 7
DISCUSSION OF ISSUES
ISSUE NO. 1
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.
35- The Supreme Court in the case of Department of Health vs. HTMC
Engineers Company ( 480 SCRA 229)once more emphasized the
unsullied rule and doctrine that:
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
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.
43- Leading Supreme Court Decision handed down in June 2004 in Elvira
Yu vs. CA 403 SCRA 300, which has a significantly and completely
changes the criminal aspects and has totally removed the same from the
coverage of BP 22.
ISSUE NO. 3
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.
50- These findings of facts are distorted because checks presented by the
prosecution and marked as ANNEX C, is check no. 248301 for P
25,000.00. There was no such kind of check no. 248301 which such
correlated amount of P150,000.00. The point here is that, with due
respect and without malice, and if only to emphasize erroneous decision,
this court did not actually adopt the factual evidence submitted in the
MTC but instead inserted new facts and new amount referring to a new
and wrong check number which sustained and affirmed the conviction of
the accused.
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:
ISSUE NO.4
55- This case from the very inception should have been dismissed.
56- Who made the demand letter? There was no affidavit of mailing.
57- Importantly also, a careful scrutiny of the demand letter, the alleged
complainant admitted during cross-examination that he did not know
who mailed the demand letter. This likewise constitute a ground for
outright dismissal of this case.
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.
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
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.
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
69- Missing in the records are the twin and dual requirements that the
Notice of Dishonor.
Must be ACTUALLY SERVED ( Lao vs CA 274 SCRA 572 by an
Affidavit of Service ( Cabrera vs People, GR No. 150168, July
24,2003)
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.
73- These stringent requirements are also clearly and precisely mandated
both in the Supreme Court in cases of Cabrera vs People (July 24, 2003)
and in the cases of Lao vs CA (274 SCRA 572).
ISSUE NO. 7
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
RTC Branch 58
Makati City