REPUBLIC OF THE PHILIPPINES
DEPARTMENT OF JUSTICE
OFFICE OF THE CITY PROSECUTOR
BAGUIO CITY
Mr. NAGOYA
Complainant
Crim. Case No.
FOR: Violation of B.P. Blg. 22.
-versus-
Mr. NALINLANG
Respondent
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COUNTER-AFFIDAVIT
I, Mr. NALINLANG, of legal age, Filipino citizen and a resident of Baguio City,
after having been duly sworn to in accordance with law, do hereby depose and state
that:
1. I am the Respondent in the above-mentioned case;
2. I was an employed as staff of Mysterio Investment Firm but is no longer
connected with the said firm since January 2016;
3. There was no sufficient notice of dishonor because I have not received a copy
of the demand letter allegedly served through registered mail and received by
a “staff” of the Mysterio Investment Firm. In the case of Francisco Bax v.
People of the Philippines and Ilyon Industrial Corporation, G.R. No. 149858,
September 5, 2007, the Court held:
“Under BP 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 working days from receipt of the notice, to pay the
holder the check the amount due thereon or to make arrangement for its
payment. Absent proof that the accused received such notice, a prosecution
fir violation if the Bouncing Checks Law cannot prosper.”
4. Also, in the case of People of the Philippines v. Cora Abella Ojeda, G.R. Nos.
104238-58, June 3, 2004, it was held:
“it is clear from the foregoing that complainant merely presumed that
appellant received the demand letter prepared and sent by her lawyer. She
was not certain if appellant indeed received the notice of dishonor of the
checks. All she knew was that a demand letter was sent by her lawyer to the
appellant. In fact, right after complainant made that presumption, her lawyer
filed the criminal cases against appellant at the Fiscal’s office without any
confirmation that the demand letter supposedly sent through registered mail
was actually received by appellant.
With the evident lack of notice and dishonor of the checks, appellant cannot
be held guilty of violation of BP 22. The lack of such notice violated
appellant’s right to procedural due process. It is a general rule that when
service of notice is an issue, the person alleging that the notice was served
must prove the fact of service. The burden of proving receipt of notice rests
upon the party asserting it and the quantum of proof required for conviction in
this criminal case if proof beyond reasonable doubt.”
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As held in Lao v. Court of Appeals:
“It has been observed that the State, under this Statute, actually offers the
violator a compromise by allowing him to perform some act which operated to
preempt the criminal action, and if he opts to perform it, the action is abated.
This was also compared to certain laws allowing illegal possessors of
firearms a certain period of time to surrender the illegally possessed firearm
to the Government, without incurring criminal liability. In this light, the full
payment of the amount appearing in the check within five banking days from
notice of dishonor is a completed defense. The absence of the procedural
due process clearly enjoins that a notice of dishonor be actually served on
petitioner. Petitioner has the right to demand and the basic postulates of
fairness require – that notice of dishonor be actually sent to and received by
her to afford her the opportunity to avert prosecution under BP 22”
“Stated otherwise, responsibility under BP 22 was personal to appellant;
hence, personal knowledge of the notice of dishonor was necessary.
Consequently, while there may have been constructive notice to appellant
regarding the insufficiency of her funds in the bank, it was not enough to
satisfy the requirements of procedural due process.”
“Finally, it is worth mentioning that notice of dishonor is required under Sec. 2
of BP 22, which requires the drawer to pay the amount of the check within five
days from receipt of dishonor. Under said law, notice of dishonor is
necessary for prosecution. Without proof of dishonor, knowledge of
insufficiency of funds cannot be presumed and no crime can be deemed to
exist.”
WHEREFORE, in the interest of justice, it is respectfully prayed that the instant
complaint be DISMISSED for lack of merit.
FURTHER, the respondent respectfully prays for such and other reliefs as may
be deemed just and equitable in the premises.
IN WITNESS WHEREOF, I have hereunto affixed my signature below, this 16 th
day of April 2019 at Baguio City, Philippines.
Mr. NALINLANG
Affiant
SUBCRIBED AND SWORN to before me this 16 th day of April 2019 at Baguio
City, Philippines. I hereby certify that I have personally examined the affiant and that I
am satisfied that he voluntarily executed and understood his affidavit.
___________________________
Subscribing Officer/Notary Public
