Republic of the Philippines

Department of Justice
National Prosecution Service
Office of the City Prosecutor
Quezon City

___________________________
Complainant,

-versus- I.S. No. ______________

For : BP 22 (2 Counts)

_______________________________,
Respondent.
x-----------------------------------------------x

COUNTER-AFFIDAVIT

I, ___________________, Filipino, of legal age, with residence address

at _________________________, after having been sworn in accordance with
law, hereby depose and state that:

1. I am the respondent in I.S. No. ______________ now pending

before the Office of the City Prosecutor of Quezon City, entitled
_____________________ for the alleged violation of Batasan
Pambansa Blg. 22 (“BP 22”) for two (2) counts, and I am executing
this Counter-Affidavit in order to controvert the allegations in said
complaint.

2. Sometime in 2009 and 2010, I issued and signed the

following checks for cash and gave the same to Complainant
_______________________, as follows:
Check Date of Check Amount
East West Bank Check
No. ___________
East West Bank Check
No. _____________

3. I understand from the allegations of the Complaint Affidavit

that the foregoing checks had been dishonored.

4. However, no notice of the dishonor of such checks was ever

addressed or served to me.

5. Contrary to the false and misleading insinuations of

Complainant Francisco. I have never received his alleged demand
letters dated 04 March 2010, 08 June 2010 and 25 June 2010
(Annexes B, E and G of the Complaint).

6. I understand that the elements of an offense for violation of

BP 22 are as follows:

1. The accused makes, draws or issues any check to apply to

account or for value.
2. The check is subsequently dishonored by the drawee bank
for insufficiency of funds or credit; or it would have been
dishonored for the same reason had not the drawer, without
any valid reason, ordered the bank to stop payment.
3. The accused knows at the time of the issuance that he or
she does not have sufficient funds in, or credit with, drawee
bank for the payment of the check in full upon its
presentment.1

7. I have been told that to hold a person liable for violation of

BP 22, it is not enough that he issued the check that was
subsequently dishonored. It must also be shown beyond
reasonable doubt that the person who issued the check knew "at
the time of issue that he does not have sufficient funds in or credit
with the drawee bank for the payment of such check in full upon
its presentment."2

8. However, because this element involves a state of mind

which is difficult to establish, Section 2 of BP 22 creates a prima
facie presumption of such knowledge, as follows:

Sec. 2. Evidence of knowledge of insufficient funds.–

The making, drawing and issuance of a check payment
of which is refused by the drawee because of
insufficient funds in or credit with such bank, when

1
People vs. Laggui, 171 SCRA 305, 310 [1989].
2
Betty King vs. People, G.R. No. 131540, December 2, 1999

2
 presented within ninety (90) days from the date of the
check, shall be prima facie evidence of knowledge of
such insufficiency of funds or credit unless such
maker or drawer pays the holder thereof the amount
due thereon, or make arrangements for payment in
full by the drawee of such check within five (5)
banking days after receiving notice that such check
has not been paid by the drawee.

9. In other words, the prima facie presumption arises when a

check is issued. But the law also provides that the presumption
does not arise when the issuer pays the amount of the check or
makes arrangement for its payment "within five banking days after
receiving notice that such check has not been paid by the drawee."

10. Verily, BP 22 gives the accused an opportunity to satisfy the

amount indicated in the check and thus avert prosecution. I was
informed that this is a complete defense.

11. I have been told that this opportunity, however, can be used
only upon receipt by the accused of a notice of dishonor.3

12. In the instant case, I have not received nor had any
knowledge of any notice of dishonor with respect to the
aforementioned checks.

13. In fact, Annexes B, E and G of the Complaint Affidavit by

themselves show that there was no receipt of any notice of
dishonor by me. There are no written notations therein bearing my
signature.

14. Annex C is unavailing considering that by the testimony of

_______________ himself the letter (Annex B of the Complaint) was
received by a certain _____________ and not me.

15. Annex F is unavailing considering that the Postal

Corporation Certification (Annex F of the Complaint Affidavit) does
not indicate that I received Registered Letter No. __________ or that
I had refused to receive the same.

16. Annex H is also unavailing considering that by the

testimony of ______________ himself the letter (Annex G of the
Complaint Affidavit) was received by a certain ______________ and
not me. In fact, by his own account, _____________ refused to
receive the letter and therefore there can be no receipt to speak of.

17. There is therefore absolutely no showing that Complainant’s

alleged notices of dishonor were ever received by Respondent
herein.

3
Lina Lim Lao v. Court of Appeals, 274 SCRA 572, 594, June 20, 1997

3
18. The absence of a notice of dishonor necessarily deprives me
as the accused Respondent herein of an opportunity to preclude
criminal prosecution under said law. Accordingly, procedural due
process clearly enjoins that a notice of dishonor be actually served
on me. I have a right to demand — and the basic postulates of
fairness require — that the notice of dishonor be actually sent to
and received by me to afford me the opportunity to avert
prosecution under BP 22.

19. Accordingly, I am not liable for any violation of BP 22.

20. It is also well to stress that Annexes C and H of the

Complaint Affidavit are defective for having been notarized without
presenting any competent proof of identity. In both cases, Efren C.
Gilbaliga used his Tax Identification Number or TIN No.
106874610000.

21. Under Rule IV, Section 2(b) of A.M. No. 02-8-13-SC, the
2004 Rules on Notarial Practice (the “Notarial Rules”), a notarial
act may be performed only if the signatory is personally known to
the notary public or identified through competent evidence of
identity, thus:

“Section 2. Prohibitions. – x x x

“(b) A person shall not perform a notarial act if the

person involved as signatory to the instrument or
document -

“(1) is not in the notary's presence personally at the

time of the notarization; and
“(2) is not personally known to the notary public or
otherwise identified by the notary public through
competent evidence of identity as defined by these
Rules.”

22. In addition, Rule II, section 2 of the 2004 Notarial Rules

explicitly requires that an affiant be “personally known to the
notary public or identified by the notary public through competent
evidence of identity as defined by (such) Rules.”4

23. Under Rule II, Section 12 of the same Notarial Rules,

“competent evidence of identity” has been defined as either a
“current identification document issued by an official agency
bearing the photograph and signature of the individual” or oath or
affirmation of credible and impartial witnesses, to wit:

“Section 12. Competent Evidence of Identity. - The

phrase "competent evidence of identity" refers to the
identification of an individual based on:
4
Emphasis and underscoring supplied.

4
 “(a) at least one current identification document issued
by an official agency bearing the photograph and
signature of the individual; or
“(b) the oath or affirmation of one credible witness not
privy to the instrument, document or transaction who
is personally known to the notary public and who
personally knows the individual, or of two credible
witnesses neither of whom is privy to the instrument,
document or transaction who each personally knows
the individual and shows to the notary public
documentary identification.”

24. In this case, there is no showing that _________________ has and

had shown the notary competent evidence of identity in the form of
at least one current identification document issued by an official
agency bearing the photograph and signature of the individual

25. Considering the foregoing, the affidavits of __________________

(Annexes C and H of the Complaint Affidavit) are fatally defective
for being in violation of the 2004 Notarial Rules. Said certificate
cannot therefore be given any consideration or weight whatsoever.

26. Furthermore, the affidavits of ____________________ (Annexes C and

H of the Complaint Affidavit) are also procedurally defective for
being filed in violation of the Rules on Criminal Procedure
(“Rules”).

27. I understand from my counsel that it is settled that the affidavits of

witnesses should be subscribed and sworn to before any
prosecutor or government official authorized to administer oath.

28. Section 3 (a), Rule 112 of the Rules cannot be any clearer and
categorical in providing that:

“SEC. 3. Procedure. – The preliminary investigation

shall be conducted in the following manner:

(a) The complaint shall state the address of the

respondent and shall be accompanied by the affidavits of
the complainant and his witnesses, as well as other
supporting documents to establish probable cause. They
shall be in such number of copies as there are
respondents, plus two (2) copies for the official file. The
affidavits shall be subscribed and sworn to before any
prosecutor or government official authorized to
administer oath, or, in their absence or unavailability,
before a notary public, each of whom must certify
that he personally examined the affiants and that he
is satisfied that they voluntarily executed and
understood their affidavits.”(Emphasis Supplied)

29. In violation of Section 3 (a), Rule 112, the affidavits of

___________________ (Annexes C and H of the Complaint Affidavit)

5
 were all purportedly subscribed and sworn to before a certain
notary public by the name of ____________________.
30. I am told by my legal counsel, however that such recourse to
subscribe before a notary public is only allowed when it is shown
that prosecutors or government officials authorized to administer
oaths were absent or unavailable. Section 3 (a), Rule 112 cannot
be any clearer in stating that:

“x x x in their absence or unavailability, before a notary

public, each of whom must certify that he personally
examined the affiants and that he is satisfied that they
voluntarily executed and understood their affidavits”

31. There is however no indication in the affidavits of

_____________________ (Annexes C and H of the Complaint Affidavit)
that prosecutors or government officials authorized to administer
oaths were actually absent or unavailable at that time of said
affidavits execution on July 06, 2010. It is also highly impossible
that on such date, which was a Tuesday, not one prosecutor or
government official authorized to administer oaths in Quezon City
was present or available.

32. Accordingly, _______________ should have sworn to the contents of

his affidavits both dated July 06, 2010 before any fiscal, state
prosecutor or government official upon filing thereof as mandated
by the Rules.

33. It is well to add that even presuming arguendo that

__________________ would be allowed to swear before a notary
public, notary __________________ still failed to certify “that (he)
personally examined the (affiant) and that (he) is satisfied that (he)
voluntarily executed and understood (his) affidavits” as explicitly
required by Section 3 (a), Rule 112.

34. Considering the foregoing, the affidavits of __________________

(Annexes C and H of the Complaint Affidavit) are procedurally
flawed, mere scraps of paper, and cannot be given any
consideration by this Honorable Office. Said affidavits cannot
therefore be given any consideration or weight whatsoever.

35. With respect to East West Bank Check No. __________________

dated 28 October 2009, I understand that I cannot be held liable
for BP 22 based on the same as obligation subject thereof was
novated. Complainant __________________ himself admitted in
Paragraph 4 of his Complaint Affidavit that:

“Subsequently, __________________, for valuable consideration,

drew, made and issued in my favor, and delivered to me an East
West Bank (Katipunan St., Ignatius Branch) Check No.
0000577206 dated 31 May 2010 and covering a total amount of
Thirteen Million Four Hundred Fifty Thousand Pesos
(Php13,450,000.00). This latter check was meant to be a
replacement check for the first check above that
bounced.”(Emphasis Supplied)

6
36. Having asserted to have accepted a replacement check,
Complainant __________________ agreed not to collect anymore from
the first check issued (East West Bank Check No. 0000592946
dated 28 October 2009). The requisites for novation to take place
have been fulfilled to wit: (1) a previous valid obligation; (2)
agreement of all the parties to the new contract; (3) extinguishment
of the old contract; and (4) validity of the new one.

37. Accordingly, I have been told that the foregoing novation legally
prevents the rise of criminal liability out of the alleged dishonor as
long as it occurs prior to the filing of the criminal information.

38. Finally, it is well to stress that this Honorable Office has no

jurisdiction over the instant Complaint for alleged commission of
the crime of violation of BP22.

39. Please note that in Paragraphs 2 and 4 of the Complaint Affidavit,

Complainant __________________ miserably fails to allege where the
subject checks were made, issued, drawn or delivered.

40. The truth of the matter is that these checks were made, issued and
delivered in another City. With respect to East West Bank Check
No. __________________ dated 28 October 2009, I had issued and
delivered the same to Complainant Francisco at a meeting at his
office in Lhuillier building along N. Garcia St., Makati City. With
respect to East West Bank Check East West Bank Check No.
0000577206 dated 31 May 2010, I had delivered the same to the
brother of Complainant Francisco, a certain Rey Francisco at his
office in Medical Plaza Ortigas, Pasig City.

41. I understand that in the case of Que v. People of the Philippines

(154 SCRA 160 [1987] cited in the case of People v. Grospe, 157
SCRA 154 [1988]) that 'the determinative factor (in determining
venue) is the place of the issuance of the check."

42. In fact, I have been informed that the Ministry of Justice, citing
the case of People v. Yabut (76 SCRA 624 [1977], laid down the
following guidelines in Memorandum Circular No. 4 dated
December 15, 1981, the pertinent portion of which reads:

"(1) Venue of the offense lies at the place where the check
was executed and delivered; (2) the place where the check
was written, signed or dated does not necessarily fix the
place where it was executed, as what is of decisive
importance is the delivery thereof which is the final act
essential to its consummation as an obligation; . . . (Res. No.
377, s. 1980, Filtex Mfg. Corp. vs. Manuel Chua, October 28,
1980)." (See The Law on Bouncing Checks Analyzed by
Judge Jesus F. Guerrero, Philippine Law Gazette, Vol. 7.
Nos. 11 & 12, October-December, 1983, p. 14).

7
43. As the checks were executed, made, issued, and delivered in
Makati City and Pasig City, the venue of the offense lies in those
cities and not in Quezon City.
44. Anent the foregoing, it is at once clear that Complainant Francisco
has accused me falsely and a dismissal of the instant Complaint is
warranted under the premises.

IN WITNESS WHEREOF, I have hereunto set our hand this

_______th day of ____________ at Quezon City.

__________________
Affiant

SUBSCRIBED AND SWORN TO before me this _________th day of

___________ 2010 at Quezon City, Philippines.

Asst. City Prosecutor

CERTIFICATION

I hereby certify that I have personally examined the affiant and I

am fully satisfied that he has read and understood the contents of his
counter-affidavit.

Asst. City Prosecutor