Comment To Revive

Republic of the Philippines
National Capital Judicial Region

METROPOLITAN TRIAL COURT OF MANILA
BRANCH 30
For
BRANCH 42
QUEZON CITY
PEOPLE OF THE
PHILIPPINES,
Plaintiff, CRIM. CASE NO. M-QZN-17-
- versus - 13525-39-CR
CHARITO IBAÑEZ, FOR: VIOLATION OF B.P. 22

Accused.
x----------------------x
COMMENT/OPPOSITION
(Re: Motion to Revive Criminal Cases dated 21 October 2020)
ACCUSED CHARITO IBAÑEZ (Ibañez), through the undersigned

counsel, and unto this Honorable Court, most respectfully states:
1. The undersigned is yet to receive the Prosecution’s Motion to

Revive Criminal Cases dated 21 October 2020. The undersigned only came
to know about the said motion thru the Accused. Service to the accused
when represented by counsel does not constitute proper service of the said
motion hence, the period to file Comment thereto has not commenced.
2. Nonetheless, for purposes of expediency, the Accused shall

address the issues brought about by the filing of the instant motion by the
Prosecution.
The Motion to Revive Criminal

Case is defective, and must be
considered by the Honorable Court
as a mere scrap of paper.
3. It must be noted that running of the prescriptive period to oppose

the instant motion is counted from the time the adverse party’s counsel
Page 1 of 5
received the pleading filed by the adverse counsel, as provided for under
Sec. 2, Rule 13 of A.M. 19-10-20-SC.
3. Noting the pronouncement of the Court in Co v. New Prosperity

Plastic Products (G.R. No. 183994, June 30, 2014) , [w]hen a party is
represented by a counsel, notices of all kinds emanating from the court
should be sent to the latter at his/her given address. Section 2, Rule 13 of the
Rules analogously provides that if any party has appeared by counsel,
service upon the former shall be made upon the latter.
4. Thus, inferring from the above-mentioned rule and jurisprudence,

there is defective service of the motion on the part of the complainant for not
adhering to the Rules of Court, as amended.
Lack of Notice of Hearing is a fatal

defect to the Motion to Revive
Criminal Case.
5. Moreover, the instant motion was not set for hearing. The lack of
notice of hearing is a fatal defect.
6. In the case of National Commercial Bank of Saudi Arabia vs.

Court of Appeals (G.R. No. 124267, January 31, 2003) citing Pallada v.
Regional Trial Court of Kalibo, Aklan Branch 1 (304 SCRA 440 (1999))
the Court rule that a motion that does not comply with the requirements of
Sections 4 and 5 of Rule 15 of the Rules of Court is a worthless piece of
paper which the clerk of court has no right to receive and which the court
has no authority to act upon.
8. Thus, inferring from the above-mentioned rationale, the Motion

must not be given due course by the Honorable Court for having to be both
defective in its service and the lack of notice of hearing.
9. The instant motion is therefore deemed not served on account of

defective service and not filed for failure to set the same for hearing.
There is already a lapse of one (1)

year to revive the case against
Ibañez.
9. In addition, the Motion being a mere scrap of paper, prescription

has already ran against the prosecution to revive the case against Ibañez.
10. On 25 October 2019, this Honroable Court provisionally

dismissed the instant case.
11. Rule 117, Sec. 8 of the Rules of Court provides:
Page 2 of 5
Sec. 8. Provisional dismissal. - A case shall not be provisionally
dismissed except with the express consent of the accused and
with notice to the offended party.
The provisional dismissal of offenses punishable by

imprisonment not exceeding six (6) years or a fine of any
amount, or both, shall become permanent one (1) year after
issuance of the order without the case having been revived.
With respect to offenses punishable by imprisonment of more
than six (6) years, their provisional dismissal shall become
permanent two (2) years after issuance of the order without the
case having been revived.
12. In the case of People v. Lacson (G.R. No. 149453, April 01,
2003) the Court laid down the conditions sine qua non to the application of
the time-bar rule, to wit: a) the prosecution with the express conformity of
the accused or the accused moves for a provisional (sin perjuicio) dismissal
of the case, or both the prosecution and the accused move for a provisional
dismissal of the case; b) the offended party is notified of the motion for a
provisional dismissal of the case; c) the court issues an order granting the
motion and dismissing the case provisionally; and, d) the public prosecutor
is served with a copy of the order of provisional dismissal of the case.
13. Inferring from the records of the case, it can easily be gleaned
therefrom that the conditions for the application of the time-bar rule have
been complied with.
14. Violations of BP 22 is punishable by imprisonment of not less

than thirty days but not more than one (1) year or by a fine of not less than
but not more than double the amount of the check which fine shall in no case
exceed Two Hundred Thousand Pesos, or both such fine and imprisonment
at the discretion of the court. Settled is the rule that crimes punishable by
imprisonment of not more than six (6) years or a fine of any amount, or both,
when provisionally dismissed, should be revived on or before the lapse of 1
year from the date of provisional dismissal.
15. The instant motion, being a mere scrap of paper is therefore,

inexistent. As such, there is nothing on record that will show that the above-
captioned case has been timely revived. The instant case should therefore
DISMISSED WITH FINALITY.
Assuming arguendo that the

Motion to Revive Criminal Case is
NOT defective, Ibañez cannot be
considered in default due to
Fortuitous Event.
Page 3 of 5
14. Pursuant to the Order provisionally dismissing the instant case,
Ibañez agreed to make monthly payments to Ulaye in the amount of nine
thousand six hundred (9,600.00) pesos, which Ibañez has been compliant
with.
15. However, the Covid-19 pandemic affected Ibanez’ resources and

her ability to pay.
16. To this, Ulaye agreed and did not deposit the check for the month
of March and April 2020.
17. During the month of June 2020, Ibañez started to comply with her
obligation.
18. Assuming there was default of payment on the part Ibañez for
March and April 2020, the same was caused by a fortuitous event.
19. A fortuitous event is an event which could not be foreseen or

which, though foreseen, were inevitable (Article 1174, Civil Code), which
can be characterized as: a) by nature of acts of God, which is absolutely
independent of human intervention; or, b) by the act of man or force
majeure, which is an event arising from legitimate or illegitimate acts of
persons other than the obligor.
20. For a fortuitous event be considered, the following requisites must

concur: a) must be independent of the will of the obligor; b) it must be either
unforeseeable or inevitable; c) must be of such a character as to render it
impossible for the obligor to fulfill his obligation in a normal manner; and,
d) obligor must be free from any participation in the aggravation of the
injury to the obligee.
21. The Court propounded in Nakpil & Sons, et. al. v. CA (G.R. No.
L-47851, October 3, 1986), that the fortuitous event must not only be the
proximate cause but it must be the only and sole cause.
22. It can thus be inferred from the foregoing that due to the pandemic
brought about by COVID-19, any default, if any, by Ibanez was caused
solely by the pandemic.
23. Despite knowing that Ibañez had difficulty in acquiring the

monetary needs to fulfill her obligation, Ulaye still wanted to deposit for the
month of April 2020.
24. Ibañez paid for the amount owing to Ulaye for the months of
March and April 2020.
Page 4 of 5
25. As a matter of good faith, Ibañez offers to pay Ulaye the full
amount of the remaining obligation, amounting to nineteen thousand two
hundred (19,200) pesos on 3 November 2020.
26. Such rendering of the full payment of the obligation has been
communicated by Ibañez to Ulaye, to which Ulaye has acceded.
PRAYER
WHEREFORE, premises considered, it is respectfully prayed that

this Honorable Court to DENY the Motion to Revive the Criminal Cases
and DISMISS the above-captioned case with finality.
Other reliefs as may be just and equitable under the premises are
likewise prayed for.
Manila, Philippines, 5 November 2020
UNIVERSITY OF THE EAST LEGAL AID CLINIC

Counsel for Accused
3 Floor, Dalupan Building,
rd
University of the East, 2219,

C.M. Recto Ave., Manila City
Telephone No. 7355471 loc. 32
Email: [email protected]
ROLANDO G. ASUNCION, JR.

Roll No. 72075
IBP No. 100595, 1-2-2020, Pasig City
PTR No. 9297263, 1-3-2020, Quezon City
MCLE Compliance No. VI-0026524
24 May 2019 – 14 April 2022/ IBP, Pasig City
Copy furnished:
OFFICE OF THE CITY PROSECUTOR

MANILA CITY
LEONARDO B. ULAYE, JR.

REPRESENTATIVE OF
PRIVATE COMPLAINANT
Page 5 of 5

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Republic of the Philippines

National Capital Judicial Region

CHARITO IBAÑEZ, FOR: VIOLATION OF B.P. 22

ACCUSED CHARITO IBAÑEZ (Ibañez), through the undersigned

1. The undersigned is yet to receive the Prosecution’s Motion to

2. Nonetheless, for purposes of expediency, the Accused shall

The Motion to Revive Criminal

3. It must be noted that running of the prescriptive period to oppose

3. Noting the pronouncement of the Court in Co v. New Prosperity

4. Thus, inferring from the above-mentioned rule and jurisprudence,

Lack of Notice of Hearing is a fatal

6. In the case of National Commercial Bank of Saudi Arabia vs.

8. Thus, inferring from the above-mentioned rationale, the Motion

9. The instant motion is therefore deemed not served on account of

There is already a lapse of one (1)

9. In addition, the Motion being a mere scrap of paper, prescription

10. On 25 October 2019, this Honroable Court provisionally

11. Rule 117, Sec. 8 of the Rules of Court provides:

The provisional dismissal of offenses punishable by

14. Violations of BP 22 is punishable by imprisonment of not less

15. The instant motion, being a mere scrap of paper is therefore,

Assuming arguendo that the

15. However, the Covid-19 pandemic affected Ibanez’ resources and

19. A fortuitous event is an event which could not be foreseen or

20. For a fortuitous event be considered, the following requisites must

23. Despite knowing that Ibañez had difficulty in acquiring the

WHEREFORE, premises considered, it is respectfully prayed that

Manila, Philippines, 5 November 2020

UNIVERSITY OF THE EAST LEGAL AID CLINIC

University of the East, 2219,

ROLANDO G. ASUNCION, JR.

OFFICE OF THE CITY PROSECUTOR

LEONARDO B. ULAYE, JR.

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