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COURT OF APPEALS
MANILA
JEREMIAH R. CRUZ
Petitioner,
CA GR SP NO. 1234455
--versus-RTC Baguio B-58 Appealed Crim.
CaseNo. 08-886-88 (04691-693)
MTC Baguio B-62 Crim. Case
Nos.332415-17 (inclusive)
SUMMERS XINDANG DAOWAN,
OFFFICE OF THE
GENERAL
Respondents
X------------------------------------------X
PETITION FOR REVIEW ON CERTIORARI
Petitioner, by counsel and unto this Honorable Court of Appeals
most respectfully alleges, that:
NATURE OF THE PETITION
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
3- Petitioner ( accused in the court a quo) is of legal age,
married and a resident of Sta. Escolastica, Baguio City
represented in this case by his counsel of records, Atty.
Christine Joy D. Prestoza, with office address at Room 201,
First Floor, POA Building, Upper Session Road, Baguio City;
4- Private
respondent
Summers
Xindang
Daowan
( complainant in the court a quo) is likewise of legal age, with
postal and office address at No. 54 Dizon Subdivision,
Baguio City, represented in this case by the Minog law
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ISSUE NO. 3
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 THREE CHECKS HE WAS ARRAIGNED
IS INVOLVED.
ISSUE NO.4
Page 8 of 19
DISCUSSION OF ISSUES
ISSUE NO. 1
BOTH THE COURT A QUO AND THE REGIONAL TRIAL
COURT/JUDGE
ACONVINIENTLY
IGNORED
THE
CONTRACT BETWEEN THE PARTIES THAT THE 3 CHECKS
OF THE ACCUSED SHALL BE CLEARED CONDITIONED
UPON THE RELEASE OF THE FUND FROM THE LAND
BANK CASE WITH THE COURT OF APPEALS, MAKING THE
COMPLAINANT A HOLDER IN BAD FAITH.
32- Attached to the accused Formal Offer of Exhibits
( ANNEX H in this Petition) are Exhibits 1 upto 17, inclusive
and one among the Exhibits is the Agreement (Exhibits 5)
executed on May 2013, forged between the complainant
Summers Daowan, the Financier, accused Jeremiah Cruz,
the Landowner and Minog Law Officers the lawyer of the
complainant.
33- We beg being repetitious but the Agreement ( Exhibit 5) in
pertinent portion states: that the Financier will lend
landowner the sum of P150,000.00 which the latter
covenants to pay upon release of the payment for the sugar
land by Land Bank with an interest of P25,000.00 and
Page 9 of 19
ISSUE NO. 2
Page 10 of 19
Page 11 of 19
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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.
59- In criminal cases however, the quantum of proof requires,
is proof beyond reasonable doubt. Hence for BP 22 cases,
there should be clear proof of notice. Moreover it is a general
rule that when service of notice is sought to be serve by
mail, it should appear that the conditions for the validity of
such service depends had existence otherwise the evidence
is insufficient to establish the fact of service.
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.
Page 14 of 19
ISSUE NO. 5
THERE WAS NO EVIDENCED THAT THE ACCUSED
ACTUALLY RECEIVED THE DEMAND LETTERS.
Page 15 of 19
ISSUE NO. 6
THERE WAS NO TESTIMONY IN RECORDTHAT WOULD
WARRANT A SHOWING THAT ACCUSED ACTUALLY
RECEIVED THE DEMAND LETTER AS MANDATED IN Caras
vs CA, 366 SCRA 371.
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)
It must be ACTUALLY RECEIVED ( Caras vs CA 366
SCRA
371).
ABSENCE
OF
THESE
DUAL
REQUIREMENTS IS FATAL TO THE PROSECUTION.
70-
ISSUE NO. 7
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