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Fiscal's decision

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1 Fiscal's decision on Mon Jul 25, 2011 12:12 pm

hope


Arresto Menor
Hi, Atty.!
Good morning, please enlighten me in the decision of the fiscal. Last March 2011 I filed cased of BP22 & estafa. This respondent issued 9 bounching checks to me. I sent demand letter for the first 5 checks pero hindi na sa mga sumunod na checks kasi nagfile na lang ako sa Fiscal's Office sa Makati. Then last Friday I received the decision, below is the decision.

Noticed of dishonor is required under both par. 2(d) Art.315 of the RPC and Sec.2 of BP 22. While the RPC prescribes that the drawer of the check must deposit the amount needed to cover his check within three days from the receipt of notice of dishonor, BP 22 on the other hand requires the maker or drawer to pay the amount of the check within five days from receipt of notice of dishonor. Under both laws notice of dishonor is necessary for prosecution (for estafa and violation of BP 22). Without proof of notice of dishonor, knowledge of insufficiency of funds cannot be presumed and no crime (whether estafa or violation of BP 22) can be deemed to exist.

In this case although complainant sent notices of dishonor to respondent the notices are only for UCPB Check # 6051,6052,6053 and Bank of Commerce Check # 005, 006. Thus, the criminal action arises only on the aforementioned five checks.

Wherefore premises considered it is respectfully recommended that respondent be charged with violation of BATAS PAMBANSA 22 (5 counts) and that the attached informations be approved for filing in court, while the complainant for estafa be dismissed as upon approval the same is hereby dismissed for lack of probable cause.
Ano po ba ang ibig sabihin nito yung 5 checks lang ang babayaran nya na ang worth ay 16 K lang compared to all the checks na worth 100K? Eh parang sobrang lugi naman yun kasi ang dami ko ng ginastos tapos yun lang.
Please give me advise kasi parang nakakasama naman ng loob itong decision na ito. Ano po ba ang dapat kong gawin?
Thank you po for all the advises Smile

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2 Re: Fiscal's decision on Mon Jul 25, 2011 1:13 pm

You may file a motion for reconsideration although the ruling (as far as my opinion is concerned)is right as there is no notice of dishonor given to the other checks. I wonder why you did not serve a notice for the other five checks as this is a condition precedent in filing a case for BP 22.

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3 Re: Fiscal's decision on Mon Jul 25, 2011 1:54 pm

hope


Arresto Menor
Hi, Lawddesign!
Thank you so much for the reply. My question is if I file again for motion for consideration will the decision be change?
Kung efile ko sa court ito do you think po ba na may laban ako? since closed account talaga sya so no need to send lots of demand letter kasi magaaksaya lang ako ng pera.
Puede ba ako lumapit sa PAO, saan po kaya ang office nila kasi nadiscourage naman ako ng husto dito. Puede pala magissue ng maraming bounced checks nde mapaparusahan at magbabayad kapag walang dishonor notice anong klaseng batas ito.
Salamat po ulit sa advise nyo Smile

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4 Re: Fiscal's decision on Mon Jul 25, 2011 2:06 pm

hope


Arresto Menor
Hi, lawddesign!
Honestly nde sinabi ng lawyer na pinagtanungan namin kasi pro bono lang siguro 3K lang ang binayad ko para sa complain affidavit na ginawa nila.
Can the decision of the fiscal's be use as an additional ground para mapatunayan na the respondent is really a swindler kasi 18 na yung nagrereklamo na katulad kong niloko and they file a syndicated estafa. Nauna lang kasi akong nagfile kaya nde ako nakasama sa kanila.
Puede po ba akong humabol sa kanila at sa tingin nyo po ba mahahabol ko yung pera ko?
Salamat po ulit ha sa mga info na binibigay nyo it's a great help po sa tulad ko na very minimal ang knowledge sa batas. Smile

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5 Re: Fiscal's decision on Tue Jul 26, 2011 10:58 pm

attyLLL


moderator
IMO, you have to serve a new notice of dishonor for the latter checks and file another complaint for bp 22.


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6 Re: Fiscal's decision on Wed Jul 27, 2011 12:18 pm

hope


Arresto Menor
Hi, Atty!

Thank you for your reply at least nabuhayan ako ulit ng pag-asa. Anyway ano po pala yung IMO sorry very slow ako sa legal terms.

Atty. may question po ako...

1. Puede po ba ako na lang yung gumawa ng Notice of Dishonor?

2. Puede ko lang po ba padala sa mail kasi nagtatago na po sila eh.

3. After nila mareceived yung notice puede po ba na dalhin ko na sa court ito?

Thank you po ulit Smile

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7 Re: Fiscal's decision on Wed Jul 27, 2011 11:27 pm

attyLLL


moderator
IMO in my opinion.

yes, it can be you. do not send it by mail. find a way to serve it directly. perhaps at the arraignment.

not to the court, but a new complaint at the prosecutor's office


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8 Re: Fiscal's decision on Thu Jul 28, 2011 2:25 pm

hope


Arresto Menor
Hi, Atty. LLL!

Thank you so much for the reply. Atty, I made some draft of Notice of Dishonor kindly tell me kung okay na ba ito or the court will accept this?



Complainant Name

Complainant Address

Respondent Name

Respondent Address

Dear,

This is to advise you that the checks you issued to me complainant name as payment for a loan obligation, which were dishonored by the drawee bank when presented for payment for the reason: “ACCOUNT CLOSED” to wit:

Drawee Bank Check No. Date Amount Reason for Dishonor

UCPB 0206054 May 31, 2010 Php. 3,750.00 Account Closed

UCPB 0206055 June 30, 2010 Php. 3,750.00 Account Closed

UCPB 0206056 July 31, 2010 Php. 3,750.00 Account Closed

UCPB 0206054 July 31, 2010 Php. 75,000.00 Account Closed

This letter is notice of dishonor pursuant to Batas Pambansa Blg.22, otherwise known as the “Bouncing Checks Law”.

Final demand is hereby made that you fully settle your obligation to me within ten (10) days from receipt hereof; otherwise I will be compelled to institute the appropriate criminal charges against you without any further notice.



Atty. marami pong salamat ha Smile


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9 Re: Fiscal's decision on Thu Jul 28, 2011 11:31 pm

attyLLL


moderator
attach photocopies of the dishonored checks, add the date of dishonor and change it to 5 working days, not 10. hand it during the arraignment and have someone witness it in case they refuse to accept it.


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10 Re: Fiscal's decision on Fri Jul 29, 2011 9:17 am

hope


Arresto Menor
Ok noted, thank you so much po for your help Smile

God bless you Atty. LLL, I include you in my prayer this morning even if I don't know you "I pray to God that He protect & bless the person behind the name of Atty. LLL Smile

Thank you again Smile

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11 Payment in the Court on Mon Aug 08, 2011 12:23 pm

hope


Arresto Menor
Hi, Atty.!

Good morning, tanong ko po kung yung ibabayad ko po sa court eh puede ko po idagdag don sa sisingilin ko sa taong nag-issue sa akin ng bounce checks.

Ganito po iyon last Friday po eh may nareceived akong letter sa MTC regarding don sa BP22 na Filing Fees po na worth 7,575 within 10 days dapat ko itong bayaran otherwise maarchived yung case ko daw then ang actual damages ng checks na babayaran sa akin ay 16,250 lang.

1. Kindly give feedback please kung babalik din sa akin yung filing fees na babayaran ko?

2. Kapag after a month saka pa lang ako nakapagbayad at medyo malaki yung 7,575 hindi na ba puede magfile ako?

Kindly advise naman po... thanks po Smile

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12 Re: Fiscal's decision on Fri Aug 12, 2011 7:31 pm

attyLLL


moderator
you have to add it to your prayer that you are claiming legal costs.


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13 Re: Fiscal's decision on Mon Aug 15, 2011 1:00 pm

hope


Arresto Menor
Hi, Atty.LLL!

Kanina pong umaga nagbayad na po ako ng 7,575 pero wala naman po silang binigay na form na kung saan puede kung ilagay yung prayer ko, sinulat ko na nga kagabi para kopyahin ko na lang kanina pero wala naman po. Kailan po ba yun ibibigay? sabi kasi nung clerk pagkabayad ko eh e-raraffle daw po kung kanina mapupunta yung case na fiscal tapos padadalhan ng subpoena.

Then another question po puede ko po ba pabago yung address ng respondent kasi nabenta na nya yung bahay , so kung puede sa office na lang po padala yung subpoena. Ano po ba yung need na docs para mabago po yung address?

Thanks po sa advise nyo Smile

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14 Re: Fiscal's decision on Mon Aug 15, 2011 5:54 pm

mangjayson


Arresto Menor
I'm also planning to file a BP 22 case by myself.. For your question regarding additional claims, I think you should have included it in the complaint you filed at the prosecutor. I'm not sure though. Very Happy I will not worry about those filing fees for now because if I win the case, I know the court will award me payment for the penalty which is double the amount of checks plus the actual amount of the checks that were issued to me.



Upon filing of the aforesaid joint criminal and civil actions, the offended party shall pay in full the filing fees based on the amount of the check involved, which shall be considered as the actual damages claimed. Where the complaint or information also seeks to recover liquidated, moral, nominal, temperate or exemplary damages, the offended party shall pay additional filing fees based on the amounts alleged therein. If the amounts are not so alleged but any of these damages are subsequently awarded by the court, the filing fees based on the amount awarded shall constitute a first lien on the judgment.

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15 Re: Fiscal's decision on Wed Aug 17, 2011 8:52 pm

attyLLL


moderator
mangjayson, the court will not give the penalty to you. that is for the state. but the court will also award you the civil damages.

hope, you will have to file a formal manifestation in court. re address, it is the responsibility of the accused to inform the court. but you may also inform the court of the new circumstances.


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16 Re: Fiscal's decision on Thu Aug 18, 2011 2:42 pm

mangjayson


Arresto Menor
attyLLL wrote:mangjayson, the court will not give the penalty to you. that is for the state. but the court will also award you the civil damages.

hope, you will have to file a formal manifestation in court. re address, it is the responsibility of the accused to inform the court. but you may also inform the court of the new circumstances.

so you mean, i will only get the amount indicated in the checks and not the double the check or P200,000 maximum penalty for each check??

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17 Re: Fiscal's decision on Thu Aug 18, 2011 11:13 pm

attyLLL


moderator
exactly. penalty is punishment. that belongs to the people of the philippines.


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18 Re: Fiscal's decision on Tue Oct 18, 2011 1:24 pm

hope


Arresto Menor
Hi, Atty.LLL!

Tanong ko lang po kung may law firm po kayo kasi like namin maghire ng lawyer na makaktulong sa amin or kung sino dito ang may law firm na puede tumulong sa amin.

Thanks po Smile

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19 Re: Fiscal's decision on Wed Oct 19, 2011 8:40 pm

attyLLL


moderator
you can send me an email at attylllaw @gmail.com


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20 Refiling of Case on Mon Jan 16, 2012 5:39 pm

hope


Arresto Menor
Hi, Atty.!

I would like to ask 2 questions po pero bigyan ko po muna kayo ng background. Di ba nagfile po ako before sa Fiscal's office ng BP 22 (9 checks) tapos sa resolution ay 5 lang nagrant na pabayaran kasi po yung remaining 4 ay walang notice of dishonor.

1. Now pag nagfile ako ulit na panibagong complain affidavit dapat po bang isalaysay ko ulit ung nangyari before as in yung katulad ng 1st complain affidavit ko or magstart na lang me don sa pagfile ko sa Fiscal's office na nadismis yung case kasi walang notice of dishonor.

2. Kapag nagfile po ako puede ko po bang isama sa complain affidavit ko yung mga expenses na nagastos ko sa case na ito as "Annexes" .

Thank you po your help Smile

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21 Re: Fiscal's decision on Wed Jan 18, 2012 10:34 pm

attyLLL


moderator
hope, i already answered this


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22 Re: Fiscal's decision Today at 5:48 pm

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