Legal & Judicial Ethics, 2012 Bar — Question B

ESSAY

Mr. Henry Chao is charged before the Metropolitan Trial Court (MeTC) Manila with five (5) counts of Violation of Batas Pambansa Blg. 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% monthly interest, payable in five (5) equal monthly installments of P12,500.00. 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 No. 0001 Atlas Parts Date: July 1, 2011 PAY TO: Mr. Ben Que 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 134 BAR Q 8. A C|osed" 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 138 BAR Q &A - 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 your 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.

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