Republic of the Philippines
National Capital Judicial Region
METROPOLITAN TRIAL COURT
Manila City
Branch XVI (16)
PEOPLE OF THE PHILIPPINES,
Plaintiff,
Crim. Case No. 19-06053-57-CR
-versus- For: Violation of BP 22 (5cts)
FERNANDO GOMEZ DE
LIAÑO y AMORANTO,
Accused.
x-----------------------------------------x
COUNTER-AFFIDAVIT
I, FERNANDO AMORANTO GOMEZ DE LIAÑO, of legal
age, Filipino, and with permanent residence at No. 73 Masikap
Extension corner Magsila Street, Central District, Quezon City, after
having been sworn to in accordance with law, do hereby depose and
state that:
1. Paragraph 1 of the Complaint-Affidavit is specifically
denied. I have not violated Batas Pambansa Blg. 22 nor Article 318 of
the Revised Penal Code, for a number of reasons, as will be discussed
hereunder.
2. Paragraphs 2 to 4 of the Complaint-Affidavit are
admitted.
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3. Paragraphs 5 to 5.01.5 are specifically denied for lack of
knowledge sufficient to form a belief as to the truth or falsity thereof.
The whole truth of the matter is, prior to the issuance of the checks
involved herein, I was able to make good my commitment to pay the
monthly installments for nine months. Thereafter, I experienced
financial difficulty due to decline in business operations and personal
misfortunes.
4. Because of the said financial difficulty, I immediately
called my uncle, the complainant, and pleaded for him to temporarily
suspend the encashment of checks. The complainant neither denied
nor granted my pleas, instead he no longer communicated with me
since then.
5. In the meantime, to cover the unpaid balance of Two
Hundred Sixty-Six Thousand Six Hundred Sixty-Eight Pesos
(P266,668.00), I paid the complainant Three Hundred Thousand
Pesos (P300,000.00) through cash deposit to his Metrobank Account,
evidenced by a Deposit Slip dated 03 January 2020. A copy of the said
receipt is attached herewith as ANNEX “1”.
6. In view thereof, the essence of this case, which is the
obligation to pay the value of the bounced checks, had already been
extinguished. Hence, this instant complaint should rightfully be
dismissed by this Honorable Court.
7. The Supreme Court held, in the landmark case of Geoffrey
F. Griffith vs. Court of Appeals (G.R. No. 129764; March 12, 2002) and in
the more recent case of Ariel T. Lim vs. People of the Philippines (G.R.
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No. 190834; November 26, 2014), that although the gravamen of
violation of B.P. 22 is the act of issuing a worthless check, there
would be injustice if the debtor would be criminalized despite
payment of the amount of the checks.
8. Thus, in the Geoffrey Griffith and Ariel Lim cases, the High
Court said:
“While we agree with the private respondent that the
gravamen of violation of B.P. 22 is the issuance of worthless checks
that are dishonored upon their presentment for payment, we
should not apply penal laws mechanically. We must find if the
application of the law is consistent with the purpose of and reason
for the law. Ratione cessat lex, et cessat lex. (When the reason for the
law ceases, the law ceases.) It is not the letter alone but the spirit of
the law also that gives it life. This is especially so in this case where
a debtor’s criminalization would not serve the ends of justice but in
fact subvert it. The creditor having collected already more than a
sufficient amount to cover the value of the checks for payment of
rentals, via auction sale, we find that holding the debtor’s president
to answer for a criminal offense under B.P. 22 two years after said
collection is no longer tenable nor justified by law or equitable
considerations.
In sum, considering that the money value of the two
checks issued by petitioner has already been effectively paid
(xxx), we find merit in this petition. We hold that petitioner
herein could not be validly and justly convicted or sentenced for
violation of B.P. 22.”
xxxx
(Emphasis and underscoring supplied)
9. Clearly, my payment of P300,000.00 on 03 January 2020
covers the entire value of the five checks involved herein. Effectively,
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there is no more valid and justifiable reason to convict or sentence me
for violation of B.P. 22.
10. Furthermore, it was only upon receipt of notice of the
Honorable Metropolitan Trial Court of Manila City Branch 16 dated
11 October 2019 that I learned that complainant actually deposited
the checks that I previously asked him not to deposit, and that he
proceeded to file a criminal case against me.
11. Thus, paragraphs 6 to 10 are specifically denied for lack of
knowledge sufficient to form a belief as to the truth or falsity thereof.
I was never aware of any notice of dishonor or demand letter sent to
me, whether at the principal address of Tectum Realty Inc. or my
residential address.
12. The complainant claims to have served several notices of
dishonor to me from February 2019 to March 7, 2019. However, not a
single notice was ever brought to my attention. More importantly,
none of the alleged recipients mentioned by the complainant have the
authority to receive summons, letters, or any mail matter addressed
to me.
13. The first recipient is a certain “Lucas Ramirez” who
allegedly received notices of dishonor both through registered mail
and private messenger at 48 Ipo Street, Quezon City. However, the
messenger’s Sinumpaang Salaysay attached in the complaint-affidavit
as Annex G-2, and Philpost Certificate attached in the complaint-
affidavit as Annex H, clearly describes the recipient Lucas Ramirez as
the security guard of the building.
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14. On the other hand, another Sinumpaang Salaysay by the
private messenger attached in the complaint-affidavit as Annex I-2
alleges “Nicole Zilabbo” as the recipient of a notice of dishonor served
at 73 Masikap Extension, Quezon City. Nicole Zilabbo was identified
allegedly as a “kasamahan”, while the Philpost Certificate attached in
the complaint-affidavit as Annex J, for service on the same address,
indicates that the recipient of the notice is a certain security guard
called “Taldo”.
15. Clearly, none of the foregoing persons identified as
recipients has the authority to receive any mail matter on my behalf.
Yet, the complainant insists on claiming that I have already been duly
served with notice of dishonor, when in truth, I discovered that
complainant deposited the checks only upon receipt of this
Honorable Court’s Order dated 11 October 2019.
16. The Supreme Court had repeatedly declared that for the
conviction of a violation of B.P. 22, the prosecution must prove that
the notice of dishonor is received by the addressee himself or a
person authorized by him.
17. In the recent case of Elizabeth Alburo vs. People of the
Philippines (G.R. No. 196289, August 15, 2016), the High Court
enunciated:
“(xxx) The absence of proof that petitioner received any
notice informing her of the fact that her checks were dishonored
and giving her five banking days within which to make
arrangements for payment of the said checks prevents the
application of the disputable presumption that she had knowledge
of the insufficiency of her funds at the time she issued the
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checks. Absent such presumption, the burden shifts to the
prosecution to prove that petitioner had knowledge of the
insufficiency of her funds when she issued the said checks,
otherwise, she cannot be held liable under the law.
The giving of the written notice of dishonor does not only
supply proof for the second element arising from the presumption
of knowledge the law puts up, but also affords the offender due
process. The law thereby allows the offender to avoid prosecution if
she pays the holder of the check the amount due thereon, or makes
arrangements for the payment in full, of the check by the drawee
within five banking days from receipt of the written' notice that the
check had not been paid. Thus, the absence of a notice of dishonor
is a deprivation of petitioner's statutory right.
Anent the demand letter sent through registered mail, the
same was not proven beyond reasonable doubt that petitioner
received the same. Although the Registry Return Card shows that
the letter was received and signed for by a Jennifer Mendoza who
identified herself as a house helper of petitioner, it was not
proven that the same person is a duly authorized agent of the
addressee or the petitioner. For notice by mail, it must appear that
the same was served on the addressee or a duly authorized agent
of the addressee. To establish beyond reasonable doubt that the
issuer of the check indeed received the demand letter is highly
important because it creates the presumption that the same issuer
knew of the insufficiency of the funds. It is also essential for the
maker or drawer to be notified of the dishonor of her check, so she
could pay the value thereof or make arrangements for its payment
within the period prescribed by law. To assume that because the
Registry Receipt Card appears to have the signature of a person
other than the addressee and that same person had given the letter
to the addressee, is utterly erroneous and is not proof beyond
reasonable doubt as required in criminal cases.
Thus, there being no clear showing that petitioner actually
knew of the dishonor of her checks, this Court cannot with moral
certainty convict her of violation of B.P. 22. The failure of the
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prosecution to prove that petitioner was given the requisite notice
of dishonor is a clear ground for her acquittal.
xxxx
(Emphasis and underscoring supplied)
18. As can be gleaned from the aforementioned case, the
Supreme Court gave emphasis that service to a person other than the
addressee is not valid and does not amount to proof beyond
reasonable doubt so as to convict the accused for violation of B.P. 22.
To hold otherwise would clearly do injustice to the accused.
19. Moreover, in so holding, the High Court was under the
context of receipt by a house helper. As a house helper, this person is a
permanent resident of the given address of the house owner. In fact,
it is even common in our country for a house helper to extend its work
to some personal affairs of the house owner. Yet, the High Court
deemed the service to the house helper as not valid, absent proof that
he or she is a duly authorized agent of the addressee.
20. If service to a house helper is not a valid service of notice,
with more reason that the services enumerated in the Complaint-
Affidavit should be stricken down as invalid. The recipients indicated
therein, i.e. Security Guards and alleged “kasamahan,” are obviously
without authority to act on behalf of the accused.
21. As there is no valid service of notice of dishonor to the
accused, an indispensable element of violation of B.P. 22 is evidently
lacking. In Jesusa Dela Cruz vs. People of the Philippines (G.R. No.
163494, August 3, 2016), the Supreme Court pronounced:
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“The return card provides that the letter was received by one
Rolando Villanueva, without even further proof that the said
person was the petitioner's duly authorized agent for the purpose
of receiving the correspondence. (xxx)
xxxx
Clearly, the prosecution failed to establish the presence of all the
elements of violation of B.P. Blg. 22. The petitioner is acquitted
from the 23 counts of the offense charged. The failure of the
prosecution to prove the receipt by the petitioner of the requisite
written notice of dishonor and that she was given at least five
banking days within which to settle her account constitutes
sufficient ground for her acquittal.
xxxx
(Emphasis and underscoring supplied)
22. In view of the foregoing, it is unmistakably clear that
there is no violation of B.P. 22 in this case. With the payment of the
value of the checks, and the lack of valid service of notice of
dishonor, conviction in this instant case is effectively barred.
23. I affirm under oath the truthfulness of the foregoing
allegations and attest to the genuineness and due execution of the
document hereto attached.
IN WITNESS HEREOF, I have hereunto affixed my signature
on 07 February 2020 in Pasig City
SUBSCRIBED AND SWORN to before me this 07 February
2020 in Pasig City, affiant exhibiting to me her LTO Driver’s License
No. _____________ and SSS ID with No. __________ as competent
proof of his identity.
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Doc No. ____;
Page No. ____;
Book No. ____;
Series of 2020.
