REPUBLIC OF THE PHILIPPINES

DEPARTMENT OF JUSTICE
OFFICE OF THE CITY PROSECUTOR
CITY OF MANILA

BANGKO SENTRAL NG PILIPINAS

represented by Rolando Alejandro
Q. Agustin,
Complainant,

~ versus ~ I.S. No. 05D-08717-21

MA.FE PEREZ,
Respondent.
x-----------------------------------------x

REJOINDER AFFIDAVIT

I, MA. FE P. PEREZ, of legal age, married, Filipino and with

address at No. 1-A Vic Valley Compound, Tandang Sora, Quezon City,

after having been duly sworn to in accordance with law, hereby deposes

and state that:

1. In its attempt to show that the checks in question were issued for

value, the complainant points to the Compromise Agreement

executed between the BSP and the respondent herein as the

consideration for which the checks were issued.

However, the validity of this Compromise Agreement is cast in very

serious doubt. From the very start, I was extremely reluctant to

enter into the complainant’s proposed compromise agreement,

which the complainant entirely drew up, because the terms thereof

were unreasonable and iniquitous. At first, they were forcing me to

agree to pay the preposterous amount of P4,091,366.33 from an

original loan of P1,050,000.00. Firstly, they refused to consider the

 ~2~

previous payment of P130,000.00 I made to the lender-bank.

Secondly, they tacked on interests and penalties to the loan when

the same were never stipulated. Even when they lowered the

amount to P2,000,000.00, I was still unwilling to enter into the

agreement since they refused to return the collaterals that I gave to

cover the obligation for the reason that they lost the said

collaterals, more specifically the pieces of jewelry worth

P353,000.00. Moreover, I felt that I could not comply with their

condition to issue postdated checks since I did not have a current

account at the time and I feared that I would not be able to fund

the checks I would issue. However, due to false misrepresentations

and assurances, intimidation and unlawful threats upon me

exerted by the complainant, through its representatives, I was

constrained to enter into the Compromise Agreement, despite my

misgivings and the unreasonable terms of the one-sided agreement

that the complainant unilaterally prepared.

The sheer iniquitousness of the contract is evident in the fact that

they forced me to agree to forego my right to demand, as I have

repeatedly demanded, from the complainant “the return of the

registration certificates of the two (2) motor vehicles and the

twenty-one (21) pieces of jewelry covered by the chattel mortgages

which secured the subject loans since the Creditor neither received

the same from the Countryside Rural Bank (Real, Quezon), Inc. nor

retrieved them from the depositary bank.”1

The complainant very well knows that its claim that it “neither

received the same from the Countryside Rural Bank (Real,

Quezon), Inc. nor retrieved them from the depositary bank” is a

1
Par. 3, Amended Compromise Agreement
 ~3~

shameless falsehood. In a letter to me dated January 25, 2002, the

complainant, through its Deputy Director, Amor G. Malahito,

declared:

“This refers to your loan from the Countryside Rural Bank,

Inc. (Real, Quezon), in the original amount of EIGHT HUNDRED
FIFTY THOUSAND PESOS (P850,000.00) secured by a Chattel
Mortgage which matured on September 11, 1999.

Please be informed that said bank has endorsed and/or

assigned to the Bangko Sentral ng Pilipinas (BSP) all its rights
and interests over said loan accommodation including the
underlying collateral security. x x x x”

A photocopy of BSP’s letter is attached hereto and made an

integral part as Annex 1-Rejoinder.

What is readily evident here is that the complainant would like me

to pay the full amount of the loan (despite my previous payments

to the lender bank), but at the same time would like me to forego

and forget all about the collaterals I offered to secure the said

loans. It is apparent that the complainant would like to have its

cake and eat it, too. The complainant intended to unjustly enrich

itself.

Complainant claims that the movable collateral are lost. If indeed

the collaterals are lost, then it must have been lost in

complainant’s possession, since Deputy Director Malahito admits

that they were in complainant’s possession. Justice dictates that

the complainant should be held responsible for its loss. Be that as

it may, Article 2099 of the Civil Code holds the creditor liable for

their loss or deterioration. And inasmuch as the complainant is

said to be the successor-in-interest of the lender bank, it also

 ~4~

necessarily assumes the latter’s liability. If the complainant could

not return the collaterals to me, then the value of said collateral

should have been considered in the computation of the obligation.

This is what I requested them to do before the compromise

agreement was executed, but they completely ignored my pleas

and practically rammed the Amended Compromise Agreement

down my throat, knowing that they had me at a distinct

disadvantage they themselves created.

It must be emphasized that the value of the collaterals that the

complainant “lost” is equal to the amount of the original loan.

Without the illegal interests and penalties being charged by the

complainant, my obligation is fully paid. Thus, the Compromise

Agreement is not valid, not only because my consent thereto was

vitiated, but also because it lacks the required element of

consideration. Since the contract for which I issued the check is

invalid, then the checks themselves are not valid for not having

been issued for value. Despite this, the complainant would still

collect on the subject checks, unjustifiably enriching itself.

The Bouncing Checks Law was devised to safeguard the interest of

the banking system and the legitimate public checking account

user. It was not designed to favor or encourage those who seek to

enrich themselves through manipulation and circumvention of the

purpose of the law.2

2. In my Counter-Affidavit, I raised the issue that with respect to

Export & Industry Bank Checks Nos. 4691365 and 4691366,

2
Griffith vs. Court of Appeals, et al., G.R. No. 129764, March 12, 2002
 ~5~

dated February 28, 2005 and March 28, 2005, respectively, no

valid notice of dishonor was made upon me because I did not

receive any notice of dishonor after the checks’ alleged dishonor.

Hence, no criminal liability attaches thereon.

In its reply, the complainant argues that a demand letter dated

February 7, 2005 was sent to me, “calling attention to” the

aforementioned checks. Unfortunately, this does not meet the

requirements of the Bouncing Checks Law. The law requires that

before a person can be prosecuted for its violation, the check he

issued must have been presented for payment or deposit with the

drawee bank, and that said check was subsequently dishonored by

said drawee bank.3 Only after the occurrence of these two

requirements, would it be proper to notify the issuer regarding the

dishonor. In this case, the two aforementioned checks were never

presented to, and were not dishonored by, the drawee bank. It was,

therefore, highly irregular and improper for the complainant to

send a notice of dishonor to, or even to call the attention of, the

herein respondent regarding said checks. It was a premature move

that is not favored by law. Such being the case, no criminal

liability attaches as far as said checks are concerned.

Furthermore, the demand letter of February 7, 2005 mentioned

above, is fatally flawed in that it only gave me only five (5) days,

instead of the required five (5) banking days, within which to pay

the value of the checks. A defective notice of dishonor is

tantamount to no notice at all. Consequently, as there was no

notice of dishonor, the prima facie presumption that I knew of the

insufficiency of funds did not arise. It must be stressed that BP 22,

3
Section 1, BP 22
 ~6~

like all penal statutes, is construed strictly against the State and

liberally in favor of the accused.

3. Contrary to the pretenses of the complainant, I complied with the

requirement of the law to make arrangement for the payment of

the check upon receipt of the notice of dishonor. Thus, on the very

same day I received the demand letter dated February 7, 2005, I

immediately called the law office of Ongkiko, Kalaw Manhit and

Acorda to make arrangement for the payment of the checks. I was

able to talk to Atty. Fernando F. Manas who asked me to see him

to negotiate for the settlement of the checks that were dishonored.

This led to a meeting with Atty. Benjamin M. Panganiban of the

same law firm. Having made the required arrangement to settle the

amount of the checks after the notice of dishonor, the prima facie

presumption that I knew of the insufficiency of funds did not arise.

Hence, I am not criminally liable under BP 22.

4. The complainant denies that the subject checks were issued

merely as formality to evidence my obligation with the

complainant. However, the circumstances surrounding the

issuance of the checks clearly supports the fact that I was

persuaded by the complainant to issue the checks, despite my

reluctance, upon the assurance that the checks will merely stand

as evidence of my indebtedness.

As one of the conditions for the settlement of my obligation, the

complainant required me to issue post-dated checks to cover the

installment payments. I refused to do so, explaining to them that I

cannot issue any post-dated checks since I did not have any
 ~7~

existing current accounts. Besides, I made it very clear to them

that I am extremely reluctant to issue any kind of checks, as I may

not be able to fund the checks when they fall due. However, the

complainant assured me that the issuance of the checks was just a

formality and was really intended merely to evidence my obligation

to it and hence will not be considered as payment thereof. I was

further assured that if I could not fund the checks on or before

their maturity dates, all I have to do is to inform them of such fact

and they will readily withhold the presentment of the checks. Upon

these representations and assurances, I reluctantly issued the six

(6) postdated checks subject matter of this complaint, erroneously

assuming as it turned out, that we had a gentlemen’s agreement.

Subsequently, the drawee bank cleared Check No. 4691361, dated

October 29, 2004, in the amount of P200,000.00. However,

realizing that I could not fund the second check, Check No.

4691262, dated November 29, 2004, in the amount of

P360,000.00, in accordance with my understanding with the

complainant Bank, I immediately sent a letter to the complainant,

through Atty. Rolando A.Q. Agustin, Director of the Department of

Loans and Credit, advising it to hold in abeyance the deposit of the

check due to the failure of my source of funds to remit to me the

necessary amount to cover the face value of the check.

I was, thus, surprised when on February 14, 2005, I received a

letter from complainant’s counsel, the law office of Ongkiko, Kalaw

Manhit and Acorda, dated February 7, 2005, demanding payment

of the amount of P1,800,000.00 purportedly the entire balance of

my obligations under the Amended Compromise Agreement. I then

 ~8~

realized that the complainant had reneged on its commitment to

hold the deposit of my checks in abeyance when so advised.

It is clear from the above that upon the representation and

assurances of the complainant, the checks I issued were merely to

evidence my indebtedness with it and would not be considered as

payment thereof.

5. While it is true that the instant proceeding is only for the purpose

of finding probable cause, it is important to bear in mind that the

object of a preliminary investigation is to secure the innocent

against hasty, malicious and oppressive prosecutions, and to

protect him from an open and public accusation of crime, from the

trouble, expense and anxiety of a public trial, and also to protect

the State from useless and expensive prosecution.4

Thus, it behooves a prosecutor to weigh the evidence carefully and

to deliberate thereon to determine the existence of prima facie case

before filing the information in court. Anything less would be a

dereliction of duty.5

We are aware from experience that the letter of the law is one thing

and the implementation of the law is another thing, especially in

the problem of implementing the statutory provisions on

procedures in preliminary investigation. The tendency to take the

line of least resistance at times tempts the investigating officer to

overlook his primordial duty to screen the complaint at the first

instance to determine if there is sufficient evidence to sustain the

4
People vs. Poculan, 167 SCRA 176; Tandoc vs. Resultan, 175 SCRA 37
5
Bernardo vs. Mendoza, 90 SCRA 214
 ~9~

existence of probable cause. When this happens, preliminary

investigation will only prove to be an idle ceremony and an exercise

in futility. At this point, it is well to quote from the Supreme Court

decision in Salonga vs. Cruz-Paño, 134 SCRA 438, thus:

“x x x It is, therefore, imperative upon the fiscal or the

judge as the case may be, to relieve the accused from the pain of
going through a trial once it is ascertained that the evidence is
insufficient to sustain a prima facie case or that no probable cause
exists to form a sufficient belief as to the guilt of the accused.

x x x The judge or fiscal, therefore, should not go on with

the prosecution in the hope that some credible evidence might later
turn up during the trial, for this would be a flagrant violation of a
basic right which the courts are created to uphold. It bears
repeating that the judiciary lives up to its mission by vitalizing and
not denigrating constitutional rights. So it has been before. It
should continue to do so. (Mercado vs. Court of First Instance of
Rizal, 116 SCRA 93)”

6. I execute this affidavit to attest to the truth of the foregoing

narration for the purpose of seeking the dismissal of subject

charges against me.

IN WITNESS WHEREOF, I have hereunto affixed my signature on

this 30th day of June 2005, in the City of Manila.

MA. FE PEREZ
Affiant
 ~ 10 ~

SUBSCRIBED AND SWORN to before me this 30 th day of June

2005, in the City of Manila.

EXEQUIEL V. SISON, JR.

Assistant City Prosecutor

I HEREBY CERTIFY that I have personally examined the affiant

and that I am satisfied that she voluntarily executed and understood her
Rejoinder Affidavit.

EXEQUIEL V. SISON, JR.

Assistant City Prosecutor