2011 Bar Exams Trial Memorandum

On April 8, 2012

Jonna Bueno filed an action for damages of P500,000.00 against Gloria Supermart, Inc. before
the Regional Trial Court of Quezon City for the injuries that her son, Ricky, suffered at its
supermarket, for the expense, and for the emotional pain that it brought to him and his mother.
Consider the following testimonies that the witnesses from either side presented at the trial of the
case. Assume that you are the lawyer either for Bueno or for Gloria Supermart and write a trial
memorandum for the side you have chosen to represent. You would want to convince the trial
court to decide the case in your clients favor.

Excerpts from Transcript of Stenographic Notes

Bueno vs. Gloria Supermart, Inc., Civil Case No. 27-112011, Hearing of June 7, 2011.

DIRECT EXAMINATION OF PLAINTIFFS WITNESS

COURT STAFF: (After swearing in the witness) State your name and personal circumstances.
WITNESS:

I am Jonna Bueno, 35 years old, married, and a resident of 89 Little

Baguio St., San Juan City, Metro Manila. I am an accountant.

ATTY. REX BELTRAN: Your Honor, we are offering the testimony of Ms. Bueno to prove that
her son, Ricky, slipped on the wet floor of Gloria Supermart by reason of the gross negligence of
its management and employees, causing him to suffer excruciating pain from a fractured arm and
undergo great discomfort and depression. Ms. Bueno herself incurred an enormous medical
expense and suffered from mental stress.
COURT: What do you say counsel?

ATTY. EMIL SUNGA: Subject to cross, Your Honor.

COURT: Proceed, Atty. Beltran.
ATTY. BELTRAN:
Q.

Ms. Bueno, do you know the defendant Gloria Supermart?

A.

Yes, sir.

Q.

Why do you know it?

A.
I have been buying our groceries and other things from Gloria Supermart for the past 20
years.
Q.

Where is Gloria Supermart located?

A.

On Ortigas Avenue, San Juan, Metro Manila, just two blocks from our condominium.

Q.

Do you remember where you were at about 10 a.m. on May 11, 2010?

A.

Yes, Sir.

Q.

Where were you?

A.

I was at Gloria Supermart.

Q.

What were you doing there?

A.
I was about to cook spaghetti for my son Ricky when I realized I didnt have any tomato
sauce so I went to Gloria Supermart to buy tomato sauce and some other things we needed in the
house.
Q.

Did you have any companion?

A. Yes, my boy Ricky.

Q.

How old was Ricky at that time?

A.

His birthday is May 2, 2005. He was 5 years old already.

Q.

How did you do your shopping for groceries with Ricky on tag?

A.
I had a cart. He would sometimes ride on it or walk along the aisles with me. At times, I
will ask him to pick safe things from the shelves and put them in the cart. He also grabs goodies
that he likes.

Q.
Do you remember anything unusual that happened while you and Ricky were picking up
groceries at the shelves?
A.
Q.

Yes, a small ball rolled along the aisle and Ricky ran after it.
Was he able to catch the ball?

A.
No. Although Ricky had gone some distance down the aisle from where I stood, I saw
him slip with a heavy bang on a wet section of the aisle.
Q.

What happened to him after he slipped?

A.

He shrieked from pain in his right wrist which he used to stop his fall.

Q. What did you do after you saw Ricky fall down the floor, looking hurt?
A.
I immediately came to his side to help him. I also asked a store clerk who came around
to help me carry Ricky to my car so I could bring him to the hospital. I did not get to finish my
shopping.
Q.

Did the store clerk help you?

A.

Yes, Sir. But he was not very friendly. Afterwards, I brought Ricky to the

Philippine Orthopedic Hospital.

Q.
You said that Ricky slipped on a wet floor section of the aisle. How did you know that the
section you referred to was wet?
A.

I saw the puddle of liquid on the floor.

Q.

Did you get to know what kind of liquid it was?

A.

It was syrup that seeped out from a leaking bottle in a nearby shelf.

Q.

Was there any supermarket cleaner nearby when you came near that puddle of syrup?

A.

None sir.

Q.

Did you see any supermarket grocery clerk around?

A.
None, Sir. There should have been someone to warn people of that puddle of syrup on
the floor.
Q.
Did you see any sign near that puddle or around it, warning customers of the danger it
presents?

A.

None, Sir, although I heard someone shout, Hoy, bata, ingat! May basa diyan!

ATTY. SUNGA: I move to strike out that testimony. It is hearsay.

ATTY. BELTRAN: It is admissible as a res gestae statement, Your Honor.
COURT: Strike out the answer.
Q.
You said that you brought your son, Ricky, to the Philippine Orthopedic Hospital, who
attended to your son at the hospital?
A.
Dr. John D. Lim, an orthopedic surgeon. He was the physician at the emergency room. I
think he is in his mid-forties.
Q.

You said it was his right wrist that Ricky complained of. How did you know that?

A.
He pointed to it while crying from pain. After we brought him to the Philippine
Orthopedic Hospital, I saw the doctor operate on his right wrist to restore the position of a
fractured bone. Later, the doctor showed me an x-ray picture of the wrist bone before and after
the operation.
Q.

How long did Ricky stay in the hospital?

A.
The doctor required Ricky to stay overnight at the hospital for pain management and
care. He ordered his release on the following day.
Q.
Based on your observation, how long did it take for Ricky to recover the use of his right
wrist?
A.

About six weeks.

Q.

How did your son take these things that happened to him?

A.
He complained of great pain at the beginning. Later, he moved with discomfort and
difficulty, unable to use both hands.
Q.

How about you, Ms. Bueno? How did you take these events?

A.
He is my son. I mentally suffered more pain than he did. He is my only son. I dont know
what I would do if I lose him. My husband and I waited for years before we had Ricky. And then
this happens.
Q.
How much expense, if any, did you incur for the hospitalization and medical treatment of
Ricky?

A.
I spent P22,840.00 for doctors fee, hospitalization, and medicine. We also bought toys
for Ricky to distract him from the pain that he suffered. We spent approximately P5,000.00.
Q.

Do you have evidence of these expenses?

A.

Yes, Sir, here are my receipts

[Note: Assume that the marking and presentation of the receipts for the expenses mentioned
above, although omitted here, were done right.]
ATTY. BELTRAN: That is all for the witness.
COURT: Cross.

CROSS-EXAMINATION BY ATTY. SUNGA

ATTY. SUNGA:
Q.

Ms. Bueno, you said that you brought your son Ricky to Gloria Supermart on May

11, 2010. Did you need him to be there whenever you buy your groceries?
A.

No, Sir, but I did not have anyone to leave him home with.

Q.
But when you took him there, you of course are aware that the supermarket did not have
a leave-your-child service?
A.

Yes, Sir.

Q.
Consequently, you were aware that the responsibility for looking after Rickys needs and
safety while in the supermarket is primarily in your hands as his mother?
A.
Yes, Sir, but supermarkets always expect children to come with their parents and so it has
to make sure that the place is safe for children.
Q.
But do you agree that, as his mother, he is safer when he stays by your side in a public
place like a supermarket?
A.

Yes, Sir.

Q.

Still, you let him slip away from your control, when he ran after that ball?

A.
Yes, Sir, but the supermarket should keep their eyes open for things like loose balls
running down their aisles, drawing children away from their parents, and letting them slip on
carelessly spilled liquids.
Q.
But did you not notice that the aisles of Gloria Supermart have sales clerks that attend to
inquiries and needs of its customers?
A.
Not all the time. When my son had his accident, no one was around to prevent it from
happening.
ATTY. SUNGA: That is all, Your Honor.

Excerpts from Transcript of Stenographic Notes

Bueno vs. Gloria Supermart, Inc., Civil Case No. 27-112011, Hearing of June 14, 2011

DIRECT EXAMINATION OF DEFENDANTS WITNESS

COURT STAFF: (After swearing in the witness) State your name and personal circumstances.
WITNESS; I am Rene Castro, 55 years old, married, and a resident of 12 V.G. Cruz, Sampaloc,
Manila. I am a supermarket supervisor.
ATTY. EMIL SUNGA: Your Honor, we are offering the testimony of Mr. Castro to prove that
Gloria Supermart exercised proper diligence in making its premises safe for its customers; that
the accident involving Ricky was something it could not reasonably anticipate and so beyond its
control; that, in any event, Ricky and her mother contributed to Ricky slipping on the floor and
suffering physical injury and pain; and that Gloria Supermart provided immediate help and
assistance to Ricky and her mother.
COURT: What do you say counsel?
ATTY. BELTRAN: Subject to cross, Your Honor.
COURT: Proceed Atty. Sunga.
ATTY. SUNGA:
Q.
Mr. Castro, you said that you are a supermarket supervisor. For whom do you work as
supermarket supervisor?

A.
Q.

I have been with Gloria Supermart for 5 years already, Sir.

Do you know the plaintiff Jonna Bueno?

A.

Yes, Sir, she has been a customer at our supermarket.

Q.

Do you recall seeing her at your supermarket about 10 a.m. on May 11, 2010?

A.

Yes, Sir.

Q.

Why do you recall seeing her there at that time and on that date?

A.

Because her son Ricky had an accident and I was around.

Q.

Did you see how the accident happened?

A.
No, Sir, but I was just at the next aisle fixing the new stocks of instant noodles. When I
heard the commotion, I quickly walked down there and saw Ricky lying on the floor, crying with
pain. Her mother, Ms. Bueno, was trying to minister to him.
Q.

What else did you see?

A.

Some items from a nearby shelf had fallen down the floor.

Q.

What were these items?

A.
There were a couple of bottles of syrup, mostly in plastic bottles, except one glass bottle
that had broken and spilled part of its contents on the floor.
Q.

To what do you account this?

A.
I could infer from the position of Ricky that he bumped into the shelf containing syrup
bottles and knocked off some of them.
Q.

Did you speak to Ms. Bueno about it?

A.
I talked to her at the hospital while we were waiting for Rickys treatment to be finished
and I asked her what happened.
Q.

What did she say?

A.
She said that Ricky saw a ball rolling down the aisle and he ran after it. Somehow, he
slipped on the floor and hurt his arm. She was so flustered.
Q.

Are children allowed in your supermarket?

A.
All supermarkets allow customers to bring their children into the store. It is often a
necessity for them. It is understood of course that their parents would look after them, preventing
them from misbehaving, causing damage to the merchandise, or getting injured.
Q.
Ms. Bueno said that Ricky slid on the floor because some syrup seeped out of a leaking
bottle in one of the shelves. Do you know anything about it?
A.

Yes, sir. What she said is not true. The syrup must have come from one of the

bottles that Ricky knocked off from the shelf when he ran wild down the aisle, supposedly
running after a loose ball. There can be no other explanation.
Q.

What did you do then?

A.
I helped Ms. Bueno pick up Ricky, intending to bring him to a hospital but his mom
insisted that we take him to her car so she can drive him quickly to the hospital. I carried Ricky
to her car and accompanied them to the hospital.
Q.

Did Ms. Bueno tell you anything while you were in the car?

A.

She was blaming the supermarket for the accident.

Q.

Did you reply to her?

A.
No, Sir, I said nothing to upset her because she was driving and was worried about her
child.
ATTY. SUNGA: That is all, Your Honor.

CROSS-EXAMINATION BY ATTY. BELTRAN

ATTY. BELTRAN:
Q.
Mr. Castro, You said that you did not actually see the accident when it happened, is that
right?
A.

Yes, Sir.

Q.

In fact, you were in another aisle at that time?

A. Yes, Sir.
Q.
So when you said that Ricky bumped into the shelf containing syrup bottles and knocked
off some of them, you were merely speculating on what could have happened, right?

A.

Yes, Sir, but the scene suggested it.

Q.
Since you did not see what actually happened at that aisle, is it possible for some other
person to have knocked off those bottles?
A.
Yes, Sir, that is possible but not likely since I did not see any person leave the place in
haste.
Q.

So, it is also possible that the syrup on the floor, spilled by someone else, caused

Ricky to slip as he was running after some ball before you showed up?
A.

Yes, that is possible, but unlikely. The shelves are carefully stocked.

Q. Do accidents resulting in injury happen in your supermarkets?

A.
Yes but not so often; about one accident a year, if I remember right. These things are
unavoidable because hundreds of people come to the supermarket everyday.
Q.

How about shoplifting, does this happen often?

A.

Every now and then, Sir. Its normal for supermarkets.

Q.
So naturally you must have some procedure for dealing with events like accidents or
shoplifting?
A.

Yes, Sir.

Q.

To protect your rights and interests, is that correct?

A.

Yes, Sir.

Q.
Since Ricky had this serious accident that you claim was not your fault as the scene
suggested, did your supermarket bother to take pictures of the puddle on the floor and the bottles
of syrup that you said Ricky had knocked off?
A.

No, Sir.

ATTY. BELTRAN: That is all for the witness.

LAWS AND JURISPRUDENCE

FAMILY CODE

PARENTAL AUTHORITY

ART. 209. Pursuant to the natural right and duty of parents over the person and property of
their unemancipated children, parental authority and responsibility shall include the caring for
and rearing of such children for civic consciousness and efficiency and the development of their
moral, mental and physical character and well-being.
Art. 20. Parental authority and responsibility may not be renounced or transferred except in the
cases authorized by law.
Art. 220. The parents and those exercising parental authority shall have with respect to their
unemancipated children or wards the following rights and duties:
(1) To keep them in their company, to support, educate and instruct them by right precept and
good example, and to provide for their upbringing in keeping with their means;
xxx

xxx

xxx

(8) To impose discipline on them as may be required under the circumstances; and
(9) To perform such other duties as are imposed by law upon parents and guardians.
Art. 221. Parents and other persons exercising parental authority shall be civilly liable for the
injuries and damages caused by the acts or omissions of their unemancipated children living in
their company and under their parental authority subject to the appropriate defenses provided by
law.

CIVIL CODE
PERSONAL LIABILITY
Art. 20. Every person who, contrary to law, willfully or negligently causes damage to another,
shall indemnify the latter for the same.
NUISANCE
Art. 694. A nuisance is any act, omission, establishment, business, condition of property, or
anything else which:

(1) Injures or endangers the health or safety of others; or xxx

xxx

xxx

Art. 697. The abatement of a nuisance does not preclude the right of any person injured to
recover damages for its past existence.
Attractive Nuisance
One who maintains on his premises dangerous instrumentalities or appliances of a character
likely to attract children in play, and who fails to exercise ordinary care to prevent children
from playing therewith or resorting thereto, is liable to a child of tender years who is injured
thereby, even if the child is technically a trespasser in the premises. (Hidalgo Enterprises,
Inc., v. Balandan, et al., L-3422, June 13, 1952, 91 Phil. 488)
QUASI-DELICTS
Art. 2176. Whoever by act or omission causes damage to another, there being fault or
negligence, is obliged to pay for the damage done. Such fault or negligence, if there is no preexisting contractual relation between the parties, is called a quasi-delict and is governed by the
provisions of this Chapter.
An accident pertains to an unforeseen event in which no fault or negligence attaches to the
defendant. xxx
On the other hand, negligence is the omission to do something which a reasonable man, guided
by those considerations which ordinarily regulate the conduct of human affairs, would do, or the
doing of something which a prudent and reasonable man would not do. xxx
Accident and negligence are intrinsically contradictory; one cannot exist with the other. Accident
occurs when the person concerned is exercising ordinary care, which is not caused by fault of
any person and which could not have been prevented by any means suggested by common
prudence. (Jarco Marketing Corporation v. Court of Appeals, G.R. No. 129792, December 21,
1999, 321 SCRA 375)
The doctrine of res ipsa loquitor applies where (1) the accident was of such character as to
warrant an inference that it would not have happened except for the defendants negligence; (2)
the accident must have been caused by an agency or instrumentality within the exclusive
management or control of the person charged with the negligence complained of; and (3) the
accident must not have been due to any voluntary action or contribution on the part of the person
injured. (Child Learning Center, Inc. v. Tagorio, G.R. No. 150920, November 25, 2005, 476
SCRA 236)
The test for determining whether a person is negligent in doing an act whereby injury or damage
results to the person or property of another is this: could a prudent man, in the position of the
person to whom negligence is attributed, foresee harm to the person injured as a reasonable
consequence of the course actually pursued? (Philippine National Construction Corporation v.
Court of Appeals, G.R. No. 159270, August 22, 2005, 467 SCRA 569)

Art. 2179. When the plaintiffs own negligence was the immediate and proximate cause of his
injury, he cannot recover damages. But if his negligence was only contributory, the immediate
and proximate cause of the injury being the defendants lack of due care, the plaintiff may
recover damages, but the courts shall mitigate the damages to be awarded.
Contributory negligence is conduct on the part of the injured party, contributing as a legal cause
to the harm he has suffered, which falls below the standard which he is required to conform for
his own protection.
xxx

xxx

xxx

It is an act or omission amounting to want of ordinary care on the part of the person injured
which, concurring with the defendants negligence, is the proximate cause of the injury.
(National Power Corporation v. Heirs of Noble Casionan, G.R. No. 165969, November 27,
2008, 572 SCRA 71)
Proximate cause is defined as that cause, which, in natural and continuous sequence,
unbroken by any efficient intervening cause, produces the injury, and without which the result
would not have occurred. (Ramos v. C.O.L. Realty Corporation, G.R. No. 184905, August 28,
2009, 597 SCRA 526)
Art. 2180. The obligation imposed by Article 2176 is demandable not only for ones own acts or
omissions, but also for those of persons for whom one is responsible.
xxx

xxx

xxx

The owners and managers of an establishment or enterprise are likewise responsible for
damages caused by their employees in the service of the branches in which the latter are
employed or on the occasion of their functions.
xxx

xxx

xxx

The responsibility treated of in this article shall cease when the persons herein mentioned prove
that they observed all the diligence of a good father of a family to prevent damage.
DAMAGES
Art. 2197. Damages may be:
(1) Actual or compensatory;
(2) Moral;
(3) Nominal;
(4) Temperate or moderate;

(5) Liquidated; or
(6) Exemplary or corrective.
Art. 2199. Except as provided by law or by stipulation, one is entitled to an adequate
compensation only for such pecuniary loss suffered by him as he has duly proved. Such
compensation is referred to as actual or compensatory damages.
Art. 2203. The party suffering loss or injury must exercise the diligence of a good father of a
family to minimize the damages resulting from the act or omission in question.
Art. 2214. In quasi-delicts, the contributory negligence of the plaintiff shall reduce the damages
that he may recover.
The underlying precept on contributory negligence is that a plaintiff who is partly responsible for
his own injury should not be entitled to recover damages in full but must bear the consequences
of his own negligence. (National Power Corporation v. Heirs of Noble Casionan, G.R. No.
165969, November 27, 2008, 572 SCRA 71)
In Phoenix Construction, Inc., v. Intermediate Appellate Court, where we held that the legal and
proximate cause of the accident and of Dionisios injuries was the wrongful and negligent
manner in which the dump truck was parked but found Dionisio guilty of contributory
negligence on the night of the accident, we allocated most of the damages on a 20-80 ratio. In
said case, we required Dionisio to bear 20% of the damages awarded by the appellate court,
except as to the award of exemplary damages, attorneys fees and costs.
(Estacion v.
Bernardo, G.R. No. 144723, February 27, 2006, 483 SCRA 222)
Art. 2217. Moral damages include physical suffering, mental anguish, fright, serious anxiety,
besmirched reputation, wounded feelings, moral shock, social humiliation, and similar injury.
Though incapable of pecuniary computation, moral damages may be recovered if they are the
proximate result of the defendants wrongful act for omission.
Art. 2219. Moral damages may be recovered in the following and analogous cases:
xxx

xxx

xxx

(2) Quasi-delicts causing physical injuries;

xxx

xxx

xxx

RULES OF COURT
EVIDENCE

Sec. 36.Testimony generally confined to personal knowledge; hearsay excluded. A witness can
testify only to those facts which he knows of his personal knowledge; that is, which are derived
from his own perception, except as otherwise provided in these rules.
Where the statements or writings attributed to a person who is not on the witness stand are being
offered not to prove the truth of the facts stated therein but only to prove that those statements
were actually made or those writings were executed, such evidence is not covered by the hearsay
evidence rule.(Cornejo, Sr., vs. Sandiganbayan, G.R. No. 58831, July 31, 1987, 152 SCRA 559)
Under the doctrine of independently relevant statements, only the fact that such statements were
made is relevant, and the truth or falsity thereof is immaterial. The hearsay rule does not apply.
(People v. Gumimba et al., G.R. No. 174056, February 27, 2007, 517 SCRA 25)
Sec. 42. Part of res gestae. Statements made by a person while a startling occurrence is taking
place or immediately prior or subsequent thereto with respect to the circumstances thereof, may
be given in evidence as part of res gestae. xxx
A declaration made spontaneously after a startling occurrence is deemed as part of the res gestae
when (1) the principal act, the res gestae is a startling occurrence; (2) the statements were made
before the declarant had time to contrive or devise; and (3) the statements concern the occurrence
in question and its immediately attending circumstances. (Zarate v. Regional Trial Court, Branch
43, Gingoog City, Misamis Oriental, G.R. No. 152263, July 3, 2009, 591 SCRA 510)
Sec. 48. General rule. The opinion of witness is not admissible, except as indicated in the
following sections.
Sec. 3. Disputable presumptions. The following presumptions are
satisfactory if uncontradicted, but may be contradicted and overcome by other evidence:
xxx
(d) That a person takes ordinary care of his concerns;
(q) That the ordinary course of business has been followed;
(y) That things have happened according to the ordinary course of nature and ordinary nature
habits of life;
In every tort case filed under Article 2176 of the Civil Code, plaintiff has to prove by a
preponderance of evidence: (1) the damages suffered by the plaintiff; (2) the fault or negligence
of the defendant or some other person for whose act he must respond; and (3) the connection of
cause and effect between the fault or negligence and the damages incurred. (Child Learning
Center, Inc. v. Tagorio, G.R. No. 150920, November 25, 2005, 476 SCRA 236)

2012 BAR EXAMINATIONS

LEGAL ETHICS AND PRACTICAL EXERCISES
28 October 2012

2:30 P.M. - 5:00 P.M.

Set B
INSTRUCTIONS

The following questionnaire consists of FIFTEEN (15) pages, including this page.
You are presented with a hypothetical case trial scenario plus research materials (provisions of
law and jurisprudence) that you may want to use in your work. These materials are designed to
provide sufficient basis for your Memorandum. But you are free to include such laws, rules and
principles not provided that you feel will enhance your work. Some of these materials may be
irrelevant. Consequently, use your judgment in writing only what is relevant to the position you
take.
You are given three things: (a) the case trial scenario, (b) a Draft Pad and (c) Answer Pad. You
are free to jot notes or place helpful markings like underlines on the case trial scenario and the
enclosed materials. Use the Draft Pad for making a draft of your Memorandum as this will
permit you to freely edit and rewrite your work. Editing and rewriting are essential to sound
Memorandum Writing.
Budget your time well. The bells will be rung three times. First bell will be rung one hour before
the end of the exam to signal the need for you to begin transferring your work to your Answer
Pad. Second bell will be rung 15 minutes before the end of the exam to allow you to wrap up
your work. And the third bell will be rung to signal the end of the exam. The Answer Pad will be
collected whether you are finished or not. The time pressure is part of the exam.
You may prefer to skip the preparation of a draft and write your Memorandum directly on your
Answer Pad. That is allowed.
Quality of writing, not length, is desired.
Corrections even on your final Memorandum on the Answer Pad are allowed and will not result
in any deduction. Still, it is advised that you write clearly, legibly and in an orderly manner.
You will not be graded for a technically right or wrong Memorandum but for the quality of your
legal advocacy.
The test is intended to measure your skills in:
1. communicating in English - 20%;
2. sorting out and extracting the relevant facts - 15%;

3. identifying the issue or issues presented- 15%; and

4. constructing your arguments in support of your point of view - 50%.
HAND IN YOUR ANSWER PAD. THERE IS NO NEED TO RETURN THE DRAFT PAD
AND THIS QUESTIONNAIRE TO THE HEAD WATCHER.
GOODLUCK!!!
_____________________________________
MARTIN S. VILLARAMA, JR.
Chairperson
2012 Bar Examinations Committee
PLEASE CHECK THAT THIS SET CONTAINS FIFTEEN (15) PAGES INCLUDING
THESE (INSTRUCTIONS) PAGES.
WARNING: NOT FOR SALE OR UNAUTHORIZED USE
LEGAL ETHICS AND PRACTICAL EXERCISES
Mr. Henry Chao is charged before the Metropolitan Trial Court (MeTC) Manila with five (5)
counts of Violation of Batas Pambansa Big. 22 (B.P. 22). Consider the factual scenario from the
testimonies of complainant Mr. Ben Que and accused Mr. Henry Chao.
Assume to be the Defense Counsel and prepare a MEMORANDUM FOR THE ACCUSED
for your client, Mr. Henry Chao.
Testimony of Mr. Ben Que
(After the cases were called for joint trial)
P. Prosecutor : Good Morning, Your Honor. Appearing for the prosecution. Ready.
D. Counsel : Good Morning, Your Honor. Appearing as counsel for the accused. Ready.
P. Prosecutor : We are calling to the witness stand, the complainant, Mr. Ben Que, who will
prove the commission of the offense.
Court Staff : Mr. Ben Que, do you swear to tell the truth, the whole truth and nothing but the
truth in this proceeding?
Witness : Yes, sir.
Court Staff : State your name, age, status and other personal circumstances.

Witness : I am Ben Que, 60 years old, married, and a resident of 123 Tridalo Street,
Mandaluyong City
P. Prosecutor : Mr. Que, do you know Mr. Henry Chao who is the accused in this case and, if
so, under what circumstances?
Witness : Yes, sir. He is the Manager of Atlas Parts. Last June 01, 2011, accused borrowed
from me the amount of P 50,000.00, with 5/o monthly interest, payable in five (5) equal
monthly installments of P 12,500.00. He said that the money will be used to pay for their stocks.
P. Prosecutor : Did you execute a document to evidence your transaction?
Witness : As per our agreement, he issued and delivered to me five ( 5) checks.
D. Counsel : Your Honor, please. For the record, I take exception to the statement of the
witness that he received checks from the accused. If we closely examine these instruments, it
will show that they are NOW slips, that is , Negotiable Order of Withdrawal slips. These are not
bills of exchange within the meaning of the Negotiable Instruments Law, and therefore, cannot
be considered as checks.
P. Prosecutor : Your Honor, they are still bank instruments. Complainant Mr. Que specifically
required the issuance of checks to facilitate and ensure the payment of the obligation, and the
accused issued and delivered them for that purpose. Violation of the Bouncing Checks Law is
malum prohibitum. The law was enacted to maintain faith in bank instruments for utilization in
commercial transactions. We have to apply the spirit of the law.
COURT : Observation noted.
P. Prosecutor : When and where did the accused execute and hand over to you these five (5)
instruments?
Witness : On June 01, 2011, at my house in Mandaluyong City, after I gave him in cash the P
50,000.00 that he loaned.
P. Prosecutor : And where are these instruments now?
Witness : Here sir. (Witness handling them to the prosecutor.)
P. Prosecutor : May I manifest for the record the observation that the instruments are of the
same size and material as the normal checks and have these check-like features:
NOW Account No. 123456
Atlas Parts
PAY TO: Mr. Ben Que

No. 0001
Date: July 1,
2011
P 12,500.00

PESOS: Twelve Thousand Five

Hundred Pesos
Sgd. Henry
Chao
Alloy Bank
Pasong Tamo Branch
Makati
P. Prosecutor : Do you know whose signature is that appearing on the lower right side of this
instrument and all the four (4) others, as well?
Witness : Those are the signatures of the accused Henry Chao. I personally saw him sign them
and thereafter, handed the five (5) instruments to me.
P. Prosecutor : May I request that No. 0001 dated July 1, 2011 in the amount of P 12,500.00 be
marked as Exhibit A for the prosecution; No. 0002 dated August 1, 2011 also in the same amount
as Exhibit B; No. 0003 dated September 2, 2011 as Exhibit C; No. 0004 dated October 1, 2011 as
Exhibit D; and No. 0005 dated November 1, 2011 as Exhibit E.
COURT : Mark them as requested.
P. Prosecutor : What did you do with these instruments which represented the installment
payments of accused for his loan obligation?
Witness : On their respective due dates, I deposited each of them to my Savings Account at
BOD Bank, Manila City Hall Branch in Manila, but all of them were dishonored by the drawee,
Alloy Bank, for the reason "Account Closed."
P. Prosecutor : What proof do you have that these instruments were dishonored?
Witness : I received several debit advices from BOD Bank together with the returned slips
with a stamp at the back stating as follows:

DISHONORED/RETURNED
Reason: Account Closed
Officer: Mr. M

P. Prosecutor : May I request that the stamps of dishonor and the reason "Account Closed"
appearing at the back of each instrument be correspondingly marked as Exhibits A-1 to E-1,
respectively.
COURT : Mark them accordingly.
D. Counsel : I move to strike out this particular testimony for being hearsay. This witness is
not competent to testify on these matters pertaining to bank records.
COURT : Does the defense deny that all five (5) instruments were dishonored and returned to
the witness?
D. Counsel : No, Your Honor. But these matters should be testified on by the bank personnel.
COURT : Motion to strike is denied.
P. Prosecutor : What action did you take?
Witness : After each dishonor, I personally went to Mr. Chao and demanded that he make good
his commitment, but he merely ignored my demands.
P. Prosecutor : What did you do then after all the five (5) instruments were dishonored and
your demands ignored?
Witness : I consulted a lawyer and he advised me to send a formal demand letter to the
accused, which I did. On January 2, 2012, I sent the letter by registered mail to Mr. Henry Chao
to his office address at 007 Malugay Street, Malabon City giving him five (5) days to make good
his promise.
Here is the registry receipt.
P. Prosecutor : I request that the demand letter be marked as Exhibit F and that the Registry
Receipt No. 321 dated January 2, 2012 posted at Mandaluyong City Post Office be marked as
Exhibit G for the prosecution.
COURT : Mark it then.
P. Prosecutor : Do you know if accused actually received your letter sent by registered mail?
Witness : I assumed that he had received it because the registered letter was not returned to
me.
D. Counsel : I take exception to that statement. Your Honor, because jurisprudence require
actual receipt by the drawer of the demand before any criminal liability can attach.
P. Prosecutor : May I clarify, Your Honor, that the five (5) days from notice of dishonor given
to the drawer of a check to make arrangement for payment by the drawee of the amount of the

dishonored checks is to forestall the existence of a prima facie evidence of knowledge of the
insufficiency of funds. But here, the reason of the dishonor is "Account Closed," and not just
insufficiency of funds. In short, there is actual proof of lack of credit with drawee bank. The
account is already closed and accused cannot even make a deposit anymore.
COURT : The manifestation is noted.
P. Prosecutor : Has the accused paid the amounts covered by the dishonored instruments?
Witness : No, sir. He has arrogantly refused to make any payment.
P. Prosecutor : No further questions.
COURT : Cross.
D. Counsel : With the Court's permission. You earlier stated that accused Henry Chao is the
Manager of Atlas Parts and that the money borrowed was used to pay for their stocks, is that
correct?
Witness : Yes, sir. That is what he told me.
D. Counsel : So, it is clear that the money loaned from you was not used by the accused for his
benefit?
Witness : I do not know how he used it. The fact is that I lent the money to him.
D. Counsel : Regarding the demand letter that you allegedly sent to accused, do you have the
registry return card showing that accused received the letter?
Witness : No, sir. But I have the registry receipt. Since the letter was not returned to sender, it
is presumed that it was received by the addressee.
D. Counsel : Is it not a fact that you have filed another collection suit against Atlas Parts
seeking to recover the same P 50,000.00 covered by the dishonored slips?
Witness : Yes, sir. That is true because I want to recover my money from either of them.
D. Counsel : No further questions, Your Honor.
Testimony of Mr. Henry Chao
(After oath and formal of fer of testimony.)
D. Counsel : Do you own NOW Account No. 123456 maintained at Alloy Bank, Pasong Tamo
Branch?

Witness : No, sir. That is owned by my employer Atlas Parts and, as the Manager, I am the
signatory.
D. Counsel : Mr. Chao, in June 2011 when you issued the dishonored NOW slips, did you
derive any personal benefit from the amount loaned?
Witness : No, sir. The money was used to pay an account payable.
D. Counsel : During the due dates of the NOW slips that you issued to Mr. Que, were you still
the Manager of Atlas Parts?
Witness : Not anymore, sir, because in the middle of June 2011, I resigned as Manager, and I
was not aware of the dishonor.
D. Counsel : Did you receive the demand letter sent to you by Mr. Que after the dishonor?
Witness : No, sir.
COURT : Cross?
P. Prosecutor : With the kind permission of the Court. Mr. Chao, is it not a fact that Mr. Que
specifically required you to issue checks to pay the monthly installment of the loan?
Witness : Yes, sir.
P. Prosecutor : You will agree with me that without those five (5) checks, or NOW slips as you
call them, Mr. Que will not lend money to you?
Witness : Yes, sir.
P. Prosecutor : You will also agree that the demand letter of Mr. Que was delivered to yo'ur
office address because that is the address that you gave to Mr. Que in connection with your
transaction?
Witness : Yes, sir. That is possible, but I was not able to receive it because I had already resigned
and I could not do anything anymore.
P. Prosecutor : That is all, Your Honor.
LAWS AND JURISPRUDENCE
A. BATAS PAMBANSA BLG. 22
AN ACT PENALIZING THE MAKING OR DRAWING AND ISSUANCE OF A CHECK
WITHOUT SUFFICIENT FUNDS OR CREDITS AND FOR OTHER PURPOSES.

Section 1. Checks without sufficient funds. - Any person who makes or draws and issues any
check to apply on account or for value, knowing at the time of issue that he does not have
sufficient funds in or credit with the drawee bank for the payment of such check in full upon its
presentment, which check is subsequently dishonored by the drawee bank for insufficiency of
funds or credit or would have been dishonored for the same reason had not the drawer, without
any valid reason, ordered the bank to stop payment, shall be punished by imprisonment of not
less than thirty (30) days but not more then one (1) year or by a fine of not less than but not more
than double the amount of the check which fine shall in no case exceed Two Hundred Thousand
Pesos, or both such fine and imprisonment at the discretion of the court.
The same penalty shall be imposed upon any person who, having sufficient funds in or credit
with the drawee bank when he makes or draws and issues a check, shall fail to keep sufficient
funds or to maintain a credit to cover the full amount of the check if presented within a period of
ninety (90) days from the date appearing thereon, for which reason it is dishonored by the
drawee bank.
Where .the check is drawn by a corporation, company or entity, the person or persons who
actually signed the check in behalf of such drawer shall be liable under this Act.
Section 2. Evidence of knowledge of insufficient funds. - The making, drawing and issuance of a
check, payment of which is refused by the drawee because of insufficient funds in or credit with
such bank when presented within ninety (90) days from the date of the check, shall be prima
facie evidence of knowledge of such insufficiency of funds or credit unless such maker or drawer
pays the holder thereof the amount due thereon, or makes arrangements for payment in full by
the drawee of such check within five (5) banking days after receiving notice that such check has
not been paid by the drawee.
Section 3. Duty of drawee; rules of evidence. - It shall be the duty of the drawee of any check,
when refusing to pay the same to the holder thereof upon presentment, to cause to be written,
printed, or stamped in plain language thereon, or attached thereto, the reason for drawee's
dishonor or refusal to pay the same. Provided, that where there are no sufficient funds in or credit
with such drawee bank, such fact shall always be explicitly stated in the notice of dishonor or
refusal. In all prosecutions under this Act, the introduction in evidence of any unpaid and
dishonored check, having 'the drawee's refusal to pay stamped or written thereon or attached
thereto, with the reason therefor as aforesaid, shall be prima facie evidence of the making or
issuance of said check, and the due presentment to the drawee for payment and the dishonor
thereof, and that the same was properly dishonored for the reason written, stamped or attached
by the drawee on such dishonored check.
Notwithstanding receipt of an order to stop payment, the drawee shall state in the notice that
there were no sufficient funds in or credit with such bank for the payment in full of such check, if
such be the fact.
B. NEGOTIABLE INSTRUMENTS LAW

ACT NO. 2031

AN ACT ENTITLED "THE NEGOTIABLE INSTRUMENTS LAW."
Section 1. Form of negotiable instruments. - An instrument to be negotiable must conform to the
following requirements:
(a) It must be in writing and signed by the maker or drawer;
(b) Must contain an unconditional promise or order to pay a sum certain in money;
(c) Must be payable on demand, or at a fixed or determinable future time;
(d) Must be payable to order or to bearer; and
(e) Where the instrument is addressed to a drawee, he must be named or otherwise indicated
therein with reasonable certainty.
Section 126. Bill of exchange, defined. - A bill of exchange is an unconditional order in writing
addressed by one person to another, signed by the person giving it, requiring the person to whom
it is addressed to pay on demand or at a fixed or determinable future time a sum certain in money
to order or to bearer.
Section 185. Check, defined. - A check is a bill of exchange drawn on a bank payable on demand.
Except as herein otherwise provided, the provisions of this Act applicable to a bill of exchange
payable on demand apply to a check.
C. RULES OF COURT
RULE 132
Section 34. Offer of evidence. - The court shall consider no evidence which has not been
formally offered. The purpose for which the evidence is offered must be specified.
Section 35. When to make offer. - As regards the testimony of a witness, the offer must be made
at the time the witness is called to testify.
Documentary and object evidence shall be offered after the presentation of a party's testimonial
evidence. Such offer shall be done orally unless allowed by the court to be done in writing.
JURISPRUDENCE
Isip vs. People
G. R. No. 170298, June 26, 2007, 525 SCRA 735
The concept of venue of actions in criminal cases, unlike in civil cases, is jurisdictional. The
place where the crime was committed determines not only the venue of the action but is an

essential element of jurisdiction. It is a fundamental rule that for jurisdiction to be acquired by

courts in criminal cases, the offense should have been committed or any one of its essential
ingredients should have taken place within the territorial jurisdiction of the court. Territorial
jurisdiction in criminal cases is the territory where the court has jurisdiction to take cognizance
or to try the offense allegedly committed therein by the accused. Thus, it cannot take jurisdiction
over a person charged with an offense 13llegedly committed outside of that limited territory.
Furthermore, the jurisdiction of a court over the criminal case is determined by the allegations in
the complaint or information. And once it is so shown, the court may validly take cognizance of
the case. However, if the evidence adduced during the trial shows that the offense was committed
somewhere else, the court should dismiss the action for want of jurisdiction.
Alferez vs. People
G.R. No. 182301, January 31, 2011, 641 SCRA 116
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. Big. 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.
Lozano vs. Hon. Martinez
G.R. Nos. L-63419, L-66839-42, L-71654, L-74524-25, L-75122-49, L-75812-13, L-75765-67
and L-75789, December 18, 1986, 146 SCRA 323
The gravemen of the offense punished by B.P. 22 is the act of making and issuing a worthless
check or a check that is dishonored upon its presentation for payment. It is not the non-payment
of an obligation which the law punishes. The law is not intended or designed to coerce a debtor
to pay his debt. The thrust of the law is to prohibit, under pain of penal sanctions, the making of
worthless checks and putting them in circulation. Because of its deleterious effects on the public

interest, the practice is proscribed by law. The law punishes the act not as an offense against
property, but an offense against public order.
Ambito vs. People
G.R. No. 127327, February 13, 2009, 579 SCRA 69
The mere act of issuing a worthless check - whether as a deposit, as a guarantee or even as
evidence of pre-existing debt - is malum prohibitum.
Under B.P. Big. 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. Big. 22.
Gosiaco vs. Ching
G.R. No. 173807, April 16, 2009, 585 SCRA 471
B.P. Big. 22 imposes a distinct civil liability on the signatory of the check which is distinct from
the civil liability of the corporation for the amount represented from the check. The civil liability
attaching to the signatory arises from the wrongful act of signing the check despite the
insufficiency of funds in the account, while the civil liability attaching to the corporation is itself
the very obligation covered by the check or the consideration for its execution. Yet these civil
liabilities are mistaken to be indistinct. The confusion is traceable to the singularity of the
amount of each.
If we conclude, as we should, that under the current Rules of Criminal Procedure, the civil action
that is impliedly instituted in the B.P. Big. 22 action is only the civil liability of the signatory, and
not that of the corporation itself, the distinctness of the cause of action against the signatory and
that against the corporation is rendered beyond dispute. It follows that the actions involving these
liabilities should be adjudged according to their respective standards and merits. In the . B. P.
Big. 22 case, what the trial court should determine is whether or not the signatory had signed the
check with knowledge of the insufficiency of funds or credit in the bank account, while in the
civil case the trial court should ascertain whether or not the obligation itself is valid and
demandable. The litigation
of both questions could, in theory, proceed independently and simultaneously without being
ultimately conclusive on one or the other.

- END - NOTHING FOLLOWS -