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Republic of the Philippines

OFFICE OF THE CITY PROSECUTOR


Makati
JUSTIN BENEDICT G. DELA ROSA,
Complainant,
versus

NPS No. XV-05-INV-14C-0699

MARILEN TIUKINHOY,
22

For: Violation of Batas Pambansa

Respondent,

MOTION FOR RECONSIDERATION


(Re: Resolution dated 2014)
MARILEN TIUKINHOY, respondent in NPS NO. XV, hereinafter
referred to as the Respondent, through undersigned counsel,
respectfully moves for the reconsideration of the Resolution dated
29 May 2013 of this Honorable Office recommending the filing of
the Complaint and finding probable cause in NPS No. XV-05-INV0699 and in support hereof respectfully states, that:
1. On 29 May 2013, this Honorable Office issued a Resolution, a copy
of which was received by the Complainant on 05 June 2014, which
reads:
WHEREFORE, finding probable cause violation of BATAS PAMBANSA 22 against
respondent Marilen Tiukinhoy, the undersigned respectfully recommends that
she be indicted for said crime and that the attached information be approved
and filed in court.

2. It is humbly submitted that the Resolution of this Honorable Office


may have been issued without a complete perusal of all relevant
facts, laws, and jurisprudence.

3. At the outset, it is necessary to point out that prior to the receipt


of the above mentioned resolution, the respondent never received
a copy of the subpoena or any kind of notice in relation to this
case, from your Honorable Office. There is nothing on record to
show that the respondent was furnished with, or had otherwise
received a copy of the subpoena and the affidavits of the
complainant before or after the resolution of the prosecution.
4. The receipt of the resolution came as a surprise to the
respondent. The respondent only knew of the forthcoming case
when she received the resolution recommending that she be
indicted for violation of B.P. 22.
5. The undersigned counsel was able to procure the documents of
the case upon his personal inquiry and request. To this date, the
respondent herein has not received a copy of the subpoena with
the complaint and supporting affidavits and documents, in
contravention to the directive of Section 3 (c) and (d) of the
Revised Rules of Criminal Procedure, which reads:
(b) Within ten (10) days after the filing of
investigating officer shall either dismiss it if
to continue with the investigation, or issue
respondent attaching to it a copy of the
supporting affidavits and documents.

the complaint, the


he finds no ground
a subpoena to the
complaint and its

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(c) Within ten (10) days from receipt of the subpoena with the
complaint and supporting affidavits and documents, the
respondent shall submit his counter-affidavit and that of his
witnesses and other supporting documents relied upon for his
defense. The counter-affidavits shall be subscribed and sworn to
and certified as provided in paragraph (a) of this section, with
copies thereof furnished by him to the complainant. The
respondent shall not be allowed to file a motion to dismiss in lieu
of a counter-affidavit.

6. Due to the non-receipt of the copy of the subpoena, respondent


was not duly notified of the nature and cause of the accusations
against her, and the prosecutors order to submit counter affidavit
and to appear on the date set for preliminary investigation. For
lack of notice and subsequently, failure to submit her counter
affidavit and to appear in the preliminary investigation,
respondent was deprived of her opportunity to squarely and
intelligently refute the allegations against her.
7.Nothing is more settled than the rule that in every litigation, the
parties thereto are entitled to due process and if there is a denial
thereof, then the validity of the proceedings is open to question. 1
The Supreme Court in the case of Ocampo vs. Abando 2, was
emphatic in declaring that:
In the context of a preliminary investigation, the right to due process of law
entails the opportunity to be heard. It serves to accord an opportunity for the
presentation of the respondents side with regard to the accusation.
Afterwards, the investigating officer shall decide whether the allegations and
defenses lead to a reasonable belief that a crime has been committed, and
that it was the respondent who committed it. Otherwise, the investigating
officer is bound to dismiss the complaint.
The essence of due process is reasonable opportunity to be heard and submit
evidence in support of one's defense. What is proscribed is lack of
opportunity to be heard. Thus, one who has been afforded a chance to
present ones own side of the story cannot claim denial of due process.

8. The Supreme Court, in the case of San Mateo vs. People of the
Philippines3, the Supreme Court considered the following
elements to determine whether there has been a violation of
B.P.22: (1) the making, drawing, and issuance of any check to
apply for account or for value; (2) the knowledge of the maker,
1 Andres Dy vs. The Honorable Court of Appeals, G.R. No. 93756, 22 March 1991

2 Saturnino Ocampo vs. Hon. Ephrem S. Abando, G.R. 176830, 11 February 2014
3 Erlinda San Mateo vs. People of the Philippines, G.R. 200090, 06 March 2013

9.

10.

drawer, or issuer that at the time of issue he does not have


sufficient funds in or credit with the drawee bank for the payment
of the check in full upon its presentment; and (3) the subsequent
dishonor of the check by the drawee bank for insufficiency of
funds or credit or dishonor for the same reason had not the
drawer, without any valid cause, ordered the bank to stop
payment.
Under the law and jurisprudence, the finding of probable cause
must necessarily rest on the sworn statement of the complaining
witnesses and other evidences on record.
Nowhere in the evidence on record, including the supporting
documents of the complainant can the fact of the service of the
notice of dishonor be found, indubitably the instant complaint
must fail for not complying with the second element of a violation
of B.P.22., to wit:
But the Court finds that the second element was not sufficiently established.
Section 26 of B.P. 22 creates the presumption that the issuer of the check was
aware of the insufficiency of funds when he issued a check and the bank
dishonored it. This presumption, however, arises only after it is proved that the
issuer had received a written notice of dishonor and that, within five days from
receipt thereof, he failed to pay the amount of the check or to make
arrangements for its payment.
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It has been the consistent ruling of this Court that receipts for registered letters
including return receipts do not themselves prove receipt; they must be properly
authenticated to serve as proof of receipt of the letters, 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 the accused received such notice. It is not enough for the prosecution
to prove that a notice of dishonor was sent to the accused. 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 accused. 4

11.
Clearly, the finding that the respondent had knowledge of
the insufficiency of her funds with the drawee bank for the
payment of the check in full upon its presentment, does not
appear on record or in any evidence adduced by the complainant
with this Honorable Office. Furthermore, it does not appear on
4 Id.

record that the notice of dishonor has been properly served and
authenticated, as required by jurisprudence.
12.
As can be gleaned from Annex C of the ComplaintAffidavit of Justine Benedict G. Dela Rosa, the demand letter was
effected through and received by the village security guard S/G
Reian De Leon Daria, and not to the respondent herein.
13.
Clearly, the service of the demand letter was non-compliant
with the mandatory directive of the rule on actual receipt of the
notice of dishonor. The respondent herein was not personally
handed a copy of the notice of dishonor.
14.
It is most respectfully submitted that the Honorable Office
erred in recommending that the respondent be indicted for
violation of B.P.22 for lack of an essential element of the crime.
15.
Based on the foregoing, it is evident that an Information for
Violation of B.P.22 must necessarily fail for lack of sufficient
evidence to establish a prima facie case and/or such must
necessarily preclude the finding of probable cause against the
respondent.
PRAYER
WHEREFORE, premises considered, the respondent, Marilen
Tiukinhoy, most humbly prays that the Resolution of this
Honorable Office dated 29 May 2014, finding probable cause
against the respondent for Violation of B.P.22 recommending that
that the Information for Violation of the B.P.22, be RECONSIDERED
and SET ASIDE and that the instant complaint be DISMISSED for
lack of evidence.
Other reliefs just and equitable under the premises are
likewise prayed for.
Makati for City for Makati City, 13 June 2012.

LEO MIGUEL A. ESCALONA


119 Rosalia St., Saint Michael
Village,
Talon Dos, Las Pinas City
IBP No.962487; 06 February 2014
PTR. No. 27188184; 06 February
2014
Roll No. 61822; Admitted to the Bar
April 2013
ENTRY OF APPEARANCE
THE BRANCH CLERK OF COURT
Metropolitan Trial Court
Branch 66, Makati City
Please enter the appearance of the undersigned as counsel
for the respondent Marilen S. Tiukinhoy,. Henceforth, kindly
address all pertinent notices to the undersigned at the address
given above.
Copy Furnished:
Justin Benedict G. Dela Rosa
Unit B 1606 Three Salcedo Place,
Tordesillas Street, Salcedo Village,
Makati City
EXPLANATION
Counsel furnished a copy of the motion to the other party by
registered mail due to time constraints and lack of office staff to
personally deliver it.

LEO MIGUEL A. ESCALONA