Demurrer - Nelson Calingo.docx

REPUBLIC OF THE PHILIPPINES THIRD JUDICIAL REGION MUNICIPAL TRIAL COURT IN CITIES BRANCH I City of San Fernando, Pampanga THE PEOPLE OF THE PHILIPPINES, -versus-

CRIM CASE NO. 00-1769 to 00-1773 FOR: VIOL. OF BP BLG. 22

NELSON SAMBAT CALINGO, Accused. x- - - - - - - - - - - - - - - - - - - - x DEMURRER TO EVIDENCE (With prior leave of court) ACCUSED, NELSON SAMBAT CALINGO, undersigned counsel, with prior leave of respectfully submits this Demurrer to Evidence:

through the court, most

PREFATORY STATEMENT Proof beyond reasonable doubt charges the prosecution with the immense responsibility of establishing moral certainty. The prosecution's case must rise on its own merits, not merely on relative strength as against that of the defense. Should the prosecution fail to discharge its burden, acquittal must follow as a matter of course.1 TIMELINESS On a Joint Order dated 30 May 2018, the Honorable Court granted the Motion for Leave to File Demurrer to Evidence of the defense and gave a non-extendible period of ten (10) days within which to file the same. The undersigned counsel received a copy of the said Order on 7 June 2018. Thus, it has until 18 June to submit its Demurrer to Evidence considering that 17 June 2018 falls on a Sunday. 1 Capistrano Daayata et al vs. People of the Philippines, G.R. No. 205745, March 8, 2017

People vs. Nelson S. Calingo Demurrer to Evidence (with Leave of Court)

STATEMENT OF THE CASE Accused Nelson Sambat Calingo was charged with five (5) informations of violation of Batas Pambansa Blg. 22 (BP 22) provided as follows: For Criminal Case No. 00-1769: That on or about the 24th day of March 1999, in the municipality of San Fernando, province of Pampanga, Philippines and within the jurisdiction of this Honorable Court, the abovenamed accused NELSON CALINGO did then and there willfully and feloniously make, draw, issue and deliver Philippine National Bank Sto. Tomas Branch Check No. 0000047335 dated/post dated June 29, 1999 in the amount of TWELVE THOUSAND EIGHTY ONE PESOS (P12,081.00) Philippine Currency, in favor of AU Credit Corporation for valuable consideration said accused knowing fully well that she/he had no sufficient funds in or credit with the drawee bank to cover the amount of the said check in full upon its presentment such that when the said check was presented to the drawee bank for encashment the same was dishonored and returned for the reason that it was drawn against an “Account Closed” and despite repeated demands made upon the accused to redeem or make good of the said check or pay its cash equivalent, accused failed and refused and still fails and refuses to do so, to the damage and prejudice of the said AU Credit Corporation in the total amount aforestated. Contrary to law. San Fernando, Pampanga, June 22, 2000. For Criminal Case No. 00-1770 That on or about the 24th day of March 1999, in the municipality of San Fernando, province of Pampanga, Philippines and within the jurisdiction of this Honorable Court, the abovenamed accused NELSON CALINGO did then and there willfully and feloniously make, draw, issue and deliver Philippine National Bank Sto. Tomas 2

People vs. Nelson S. Calingo Demurrer to Evidence (with Leave of Court)

Branch Check No. 0000047336 dated/post dated July 29, 1999 in the amount of TWELVE THOUSAND EIGHTY ONE PESOS (P12,081.00) Philippine Currency, in favor of AU Credit Corporation for valuable consideration said accused knowing fully well that she/he had no sufficient funds in or credit with the drawee bank to cover the amount of the said check in full upon its presentment such that when the said check was presented to the drawee bank for encashment the same was dishonored and returned for the reason that it was drawn against an “Account Closed” and despite repeated demands made upon the accused to redeem or make good of the said check or pay its cash equivalent, accused failed and refused and still fails and refuses to do so, to the damage and prejudice of the said AU Credit Corporation in the total amount aforestated. Contrary to law. San Fernando, Pampanga, June 22, 2000. For Criminal Case No. 00-1771 That on or about the 24th day of March 1999, in the municipality of San Fernando, province of Pampanga, Philippines and within the jurisdiction of this Honorable Court, the abovenamed accused NELSON CALINGO did then and there willfully and feloniously make, draw, issue and deliver Philippine National Bank Sto. Tomas Branch Check No. 0000047332 dated/post dated August 29, 1999 in the amount of TWENTY FIVE THOUSAND FOUR HUNDRED SIXTY SEVEN PESOS (P25,467.00) Philippine Currency, in favor of AU Credit Corporation for valuable consideration said accused knowing fully well that she/he had no sufficient funds in or credit with the drawee bank to cover the amount of the said check in full upon its presentment such that when the said check was presented to the drawee bank for encashment the same was dishonored and returned for the reason that it was drawn against an “Account Closed” and despite repeated demands made upon the accused to redeem or make good of 3

People vs. Nelson S. Calingo Demurrer to Evidence (with Leave of Court)

the said check or pay its cash equivalent, accused failed and refused and still fails and refuses to do so, to the damage and prejudice of the said AU Credit Corporation in the total amount aforestated. Contrary to law. San Fernando, Pampanga, June 22, 2000. For Criminal Case No. 00-1772 That on or about the 24th day of March 2000, in the municipality of San Fernando, province of Pampanga, Philippines and within the jurisdiction of this Honorable Court, the abovenamed accused NELSON CALINGO did then and there willfully and feloniously make, draw, issue and deliver Philippine National Bank Sto. Tomas Branch Check No. 0000047333 dated/post dated September 29, 1999 in the amount of TWENTY FIVE THOUSAND FOUR HUNDRED SIXTY SEVEN PESOS (P25,467.00) Philippine Currency, in favor of AU Credit Corporation for valuable consideration said accused knowing fully well that she/he had no sufficient funds in or credit with the drawee bank to cover the amount of the said check in full upon its presentment such that when the said check was presented to the drawee bank for encashment the same was dishonored and returned for the reason that it was drawn against an “Account Closed” and despite repeated demands made upon the accused to redeem or make good of the said check or pay its cash equivalent, accused failed and refused and still fails and refuses to do so, to the damage and prejudice of the said AU Credit Corporation in the total amount aforestated. Contrary to law. San Fernando, Pampanga, June 22, 2000. For Criminal Case No. 00-1773 That on or about the 24th day of March 2000, in the municipality of San Fernando, province of 4

People vs. Nelson S. Calingo Demurrer to Evidence (with Leave of Court)

Pampanga, Philippines and within the jurisdiction of this Honorable Court, the abovenamed accused NELSON CALINGO did then and there willfully and feloniously make, draw, issue and deliver Philippine National Bank Sto. Tomas Branch Check No. 0000047334 dated/post dated October 29, 1999 in the amount of TWENTY FIVE THOUSAND FOUR HUNDRED SIXTY SEVEN PESOS (P25,467.00) Philippine Currency, in favor of AU Credit Corporation for valuable consideration said accused knowing fully well that she/he had no sufficient funds in or credit with the drawee bank to cover the amount of the said check in full upon its presentment such that when the said check was presented to the drawee bank for encashment the same was dishonored and returned for the reason that it was drawn against an “Account Closed” and despite repeated demands made upon the accused to redeem or make good of the said check or pay its cash equivalent, accused failed and refused and still fails and refuses to do so, to the damage and prejudice of the said AU Credit Corporation in the total amount aforestated. Contrary to law. San Fernando, Pampanga, June 22, 2000. When accused was arraigned in a language known and understood by him, he pleaded NOT GUILTY to the offenses charged and trial ensued. PROSECUTION’S EVIDENCE To establish the guilt of the accused, the prosecution presented its lone witness in the person of ADELIO GATDULA, manager and authorized representative of private complainant AU Credit Corporation. In the course of his testimony, he identified Exhibit “A” to “A-1” (Affidavit of Complaint), Exhibits “B” to “B-4” (Philippine National Bank Sto. Tomas Branch Checks with Nos. 0000047335, 0000047336, 0000047332, 0000047333, 0000047334) for all five (5) counts of violation of BP 22, Exhibit “D” to “D-3” (Demand letter with Registry Return Receipt) and Exhibit “E” (Promissory Note dated 24 March 1999).

5

People vs. Nelson S. Calingo Demurrer to Evidence (with Leave of Court)

Upon the conclusion of the cross-examination of Mr. Gatdula, last 27 September 2016, the prosecution was given ten (10) days from said date or until 6 October 2016 within which to file a Formal Offer of Documentary Exhibits. However, after a span of almost two (2) years, it is only on 25 April 2018 when the prosecution has submitted its written Formal Offer of Documentary Exhibits despite the very lengthy period afforded to it by this Honorable Court. On 30 May 2018 via a Joint Order, the Honorable Court denied the admission of the prosecution’s Formal Offer of Documentary Exhibits and declared the same to be waived. Thereafter, the prosecution was deemed to have rested its case. ISSUE On the basis of the foregoing premises and solely on the testimony of the lone witness Mr. Adelio Gatdula, the issue to be resolved is WHETHER OR NOT THE PROSECUTION WAS ABLE TO PROVE THE GUILT OF THE ACCUSED BEYOND REASONABLE DOUBT for violation of five (5) counts of Batas Pambansa Blg. 22. DISCUSSION It is the humble submission of the defense that the prosecution has failed to prove the guilt of the accused beyond reasonable doubt to warrant a conviction against the accused as contained in the reasons stated below: To be liable for violation of B.P. [Blg.] 22, the following essential elements must be present: (1) the making, drawing, and issuance of any check to apply for account or for value; (2) the knowledge of the maker, 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. (Emphasis supplied) In the case at bar, the prosecution has failed to prove indeed that an act in violation of BP 22 was committed by the accused for the reason that such original checks were not admitted on record due to the denial of the prosecution’s formal offer of documentary exhibits.

6

People vs. Nelson S. Calingo Demurrer to Evidence (with Leave of Court)

The effect of the belated filing of the Prosecution’s Formal Offer of Documentary Exhibits which ultimately led to its nonadmission/waiver produced the effect that no documentary evidence can be appreciated in favor of the prosecution. The case The Heirs of Pedro Pasag et. al. vs. Sps. Lorenzo and Florentina Parocha et. al.2 is instructive on this matter: “The Rules of Court provides that "the court shall consider no evidence which has not been formally offered." A formal offer is necessary because judges are mandated to rest their findings of facts and their judgment only and strictly upon the evidence offered by the parties at the trial. Its function is to enable the trial judge to know the purpose or purposes for which the proponent is presenting the evidence. On the other hand, this allows opposing parties to examine the evidence and object to its admissibility. Moreover, it facilitates review as the appellate court will not be required to review documents not previously scrutinized by the trial court. Strict adherence to the said rule is not a trivial matter. The Court in Constantino v. Court of Appeals ruled that the formal offer of one’s evidence is deemed waived after failing to submit it within a considerable period of time. It explained that the court cannot admit an offer of evidence made after a lapse of three (3) months because to do so would "condone an inexcusable laxity if not non-compliance with a court order which, in effect, would encourage needless delays and derail the speedy administration of justice." (Emphasis and underscoring supplied) It is to be noted that the existence and contents of the five (5) checks allegedly issued by the accused are the subject of the abovementioned cases. Hence, it is paramount that the original of the said checks must have been presented, formally offered and admitted into the records of the instant cases. In the absence thereof, the same shall prove fatal to the cause of the prosecution. (Emphasis and underscoring supplied) 2 G.R. No. 155483, April 27, 2007. 7

People vs. Nelson S. Calingo Demurrer to Evidence (with Leave of Court)

Corpus delicti refers to the fact of the commission of the crime charged or to the body or substance of the crime.3 Following this principle, it is respectfully submitted that the admission in evidence of the subject checks and other documentary exhibits are mandatory in order to sustain the allegation of guilt of the accused. Further, since the other documentary exhibits were also not admitted, even the civil liability of the accused could not be proven by mere allegation of the private complainant since it was not corroborated by secondary evidence. Testimony alone by the private complainant cannot logically prove his case. The Honorable Court cannot rely on the self-serving allegations of the private complainant if unsubstantiated by any other admissible competent evidence. Thus, in view of the foregoing premises, it is humbly reiterated that the prosecution failed to prove the guilt of the accused beyond reasonable doubt. Conviction in criminal actions demands proof beyond reasonable doubt. Rule 133, Section 2 of the Revised Rules on Evidence states: Section 2. Proof beyond reasonable doubt. - In a criminal case, the accused is entitled to an acquittal, unless his guilt is shown beyond reasonable doubt. Proof beyond reasonable doubt does not mean such a degree of proof as, excluding possibility of error, produces absolute certainty. Moral certainty only is required, or that degree of proof which produces conviction in an unprejudiced mind. (Emphasis and underscoring supplied) There being gross insufficiency of prosecution evidence, the prosecution has not proven the guilt of the accused beyond reasonable doubt. In the case People vs. Go et. al.4, the Supreme Court enunciated that: Demurrer to the evidence is "an objection by one of the parties in an action, to the effect that the evidence which his adversary produced is insufficient in point of law, whether true or not, to make out a 3 Engr. Anthony V. Zapanta vs. People of the Philippines, G.R. No. 170863, March 20, 2013 4 GR No. 191015, August 6, 2014 8

People vs. Nelson S. Calingo Demurrer to Evidence (with Leave of Court)

case or sustain the issue. The party demurring challenges the sufficiency of the whole evidence to sustain a verdict. The court, in passing upon the sufficiency of the evidence raised in a demurrer, is merely required to ascertain whether there is competent or sufficient evidence to sustain the indictment or to support a verdict of guilt. x x x Sufficient evidence for purposes of frustrating a demurrer thereto is such evidence in character, weight or amount as will legally justify the judicial or official action demanded according to the circumstances. To be considered sufficient therefore, the evidence must prove: (a) the commission of the crime, and (b) the precise degree of participation therein by the accused." Thus, when the accused files a demurrer, the court must evaluate whether the prosecution evidence is sufficient enough to warrant the conviction of the accused beyond reasonable doubt. (Emphasis and underscoring supplied) PRAYER WHEREFORE, premises considered, the undersigned most respectfully prays that the accused be acquitted, and that the above-captioned criminal case filed against him be dismissed for failure of the prosecution to prove his guilt beyond reasonable doubt. Other reliefs under the circumstances are likewise prayed for. City of San Fernando, Pampanga. 14 June 2018. OCAMPO LAW OFFICE Rm 206 2nd Floor Queensland Bldg. Maligaya Village, Dolores, City of San Fernando, Pampanga Tel. No. (045) 436-44-56 By: 9

People vs. Nelson S. Calingo Demurrer to Evidence (with Leave of Court)

NOEL M. LUZUNG Collaborating counsel for the accused Attorney’s Roll No. 68081/ 5-26-17 PTR No. 8967504/ 1-3-18 IBP Lifetime Member # 017038 Deadline for initial MCLE Compliance: April 14, 2019. Pursuant to MCLE Governing Board Order 1-2008 NOTICE OF SUBMISSION / COPY FURNISH MR. JOEL GAMBOA MTCC Branch 1 City of San Fernando, Pampanga PROS. CONRADO SALOMEO Public Prosecutor Office of the City Prosecutor City of San Fernando, Pampanga Greetings of joy and good peace! Please submit the foregoing DEMURRER TO EVIDENCE for the kind consideration of the Honorable Court immediately upon receipt hereof without any further argument. NOEL M. LUZUNG

10