G.R. No. 168641 April 27, 2007 PEOPLE OF THE PHILIPPINES, Petitioner, vs. CLEMENTE BAUTISTA, Respondent.

DECISION AUSTRIA-MARTINEZ, J.: Before us is a Petition for Review on Certiorari filed by the People of the 1 Philippines assailing the Decision of the Court of Appeals (CA) dated June 22, 2005 in CA-G.R. SP No. 72784, reversing the Order of the Regional Trial Court (RTC), Branch 19, Manila and dismissing the criminal case for slight physical injuries against respondent on the ground that the offense charged had already prescribed. The undisputed facts are as follows. On June 12, 1999, a dispute arose between respondent and his co-accused Leonida Bautista, on one hand, and private complainant Felipe Goyena, Jr., on the other. Private complainant filed a Complaint with the Office of the Barangay of Malate, Manila, but no settlement was reached. The barangay chairman then 2 issued a Certification to file action dated August 11, 1999. On August 16, 1999, private complainant filed with the Office of the City Prosecutor (OCP) a Complaint for slight physical injuries against herein respondent and his co-accused. After conducting the preliminary investigation, Prosecutor Jessica Junsay-Ong issued a Joint Resolution dated November 8, 1999 recommending the filing of an Information against herein respondent. Such recommendation was approved by the City Prosecutor, represented by First Assistant City Prosecutor Eufrocino A. Sulla, but the date of such approval cannot be found in the records. The Information was, however, filed with the Metropolitan Trial Court (MeTC) of Manila, Branch 28 only on June 20, 2000. Respondent sought the dismissal of the case against him on the ground that by the time the Information was filed, the 60-day period of prescription from the date of the commission of the crime, that is, on June 12, 1999 had already elapsed. The MeTC ruled that the offense had not yet prescribed. Respondent elevated the issue to the RTC via a Petition for Certiorari, but the RTC denied said petition and concurred with the opinion of the MeTC. Respondent then filed a Petition for Certiorari with the CA. On June 22, 2005, the CA rendered its Decision wherein it held that, indeed, the 60-day prescriptive period was interrupted when the offended party filed a Complaint with the OCP of Manila on August 16, 1999. Nevertheless, the CA concluded that the offense had prescribed by the time the Information was filed with the MeTC, reasoning as follows: In the case on hand, although the approval of the Joint Resolution of ACP Junsay-Ong bears no date, it effectively terminated the proceedings at the OCP. Hence, even if the 10-day period for the CP or ACP Sulla, his designated alter ego, to act on the resolution is extended up to the utmost limit, it ought not have been taken as late as the last day of the year 1999.

Yet, the information was filed with the MeTC only on June 20, 2000, or already nearly six (6) months into the next year. To use once again the language of Article 91 of the RPC, the proceedings at the CPO was "unjustifiably stopped for any reason not imputable to him (the accused)" for a time very much more than the prescriptive period of only two (2) months. The offense charged had, therefore, already 3 prescribed when filed with the court on June 20, 2000. x x x (Emphasis supplied) The dispositive portion of the assailed CA Decision reads as follows: WHEREFORE, we hereby REVERSE and SET ASIDE the appealed Orders of both courts below and Criminal Case No. 344030-CR, entitled: "People of the Philippines, Plaintiff, -versus- Clemente Bautista and Leonida Bautista, Accused," is ordered DISMISSED. Costs de oficio. 4 SO ORDERED. Petitioner now comes before this Court seeking the reversal of the foregoing CA Decision. The Court gives due course to the petition notwithstanding the fact that petitioner did not file a Motion for Reconsideration of the decision of the CA before the filing of herein petition. It is not a condition sine qua non for 5 the filing of a petition for review under Rule 45 of the Rules of Court. The Court finds merit in the petition. It is not disputed that the filing of the Complaint with the OCP effectively interrupted the running of the 60-day prescriptive period for instituting the criminal action for slight physical injuries. However, the sole issue for resolution in this case is whether the prescriptive period began to run anew after the investigating prosecutors recommendation to file the proper criminal information against respondent was approved by the City Prosecutor. The answer is in the negative. Article 91 of the Revised Penal Code provides thus: Art. 91. Computation of prescription of offenses . - The period of prescription shall commence to run from the day on which the crime is discovered by the offended party, the authorities, or their agents, and shall be interrupted by the filing of the complaint or information, and shall commence to run again when such proceedings terminate without the accused being convicted or acquitted, or are unjustifiably stopped for any reason not imputable to him. The term of prescription shall not run when the offender is absent from the Philipppine Archipelago. (Emphasis supplied) The CA and respondent are of the view that upon approval of the investigating prosecutor's recommendation for the filing of an information against respondent, the period of prescription began to run again. The Court does not agree. It is a well-settled rule that the filing of the complaint with the 6 fiscals office suspends the running of the prescriptive period. The proceedings against respondent was not terminated upon the City Prosecutor's approval of the investigating prosecutor's recommendation that an information be filed with the court. The prescriptive period remains tolled from the time the complaint was filed with the Office of the Prosecutor until

such time that respondent is either convicted or acquitted by the proper court. The Office of the Prosecutor miserably incurred some delay in filing the information but such mistake or negligence should not unduly prejudice the 7 interests of the State and the offended party. As held in People v. Olarte, it is unjust to deprive the injured party of the right to obtain vindication on account of delays that are not under his control. All that the victim of the offense may do on his part to initiate the prosecution is to file the requisite 8 complaint. The constitutional right of the accused to a speedy trial cannot be invoked by the petitioner in the present petition considering that the delay occurred not in the conduct of preliminary investigation or trial in court but in the filing of the Information after the City Prosecutor had approved the recommendation of the investigating prosecutor to file the information. The Office of the Solicitor General does not offer any explanation as to the delay in the filing of the information. The Court will not be made as an unwitting tool in the deprivation of the right of the offended party to vindicate a wrong purportedly inflicted on him by the mere expediency of a prosecutor not filing the proper information in due time. The Court will not tolerate the prosecutors apparent lack of a sense of urgency in fulfilling their mandate. Under the circumstances, the more appropriate course of action should be the filing of an administrative disciplinary action against the erring public officials. WHEREFORE, the Petition is hereby GRANTED. The Decision of the Court of Appeals in CA-G.R. SP No. 72784 is hereby REVERSED and SET ASIDE and the Decision of the Regional Trial Court of Manila in Civil Case No. 02103990 is hereby REINSTATED. Let the Secretary of the Department of Justice be furnished a copy of herein Decision for appropriate action against the erring officials. SO ORDERED. MA. ALICIA AUSTRIA-MARTINEZ Associate Justice WE CONCUR: CONSUELO YNARES-SANTIAGO Associate Justice Chairperson ROMEO J. CALLEJO, SR. MINITA V. CHICO-NAZARIO Associate Justice Asscociate Justice ANTONIO EDUARDO B. NACHURA Associate Justice A TT E S TA T ION I attest that the conclusions in the above Decision had been reached in consultation before the case was assigned to the writer of the opinion of the Courts Division.

CONSUELO YNARES-SANTIAGO Associate Justice Chairperson, Third Division CERTIFICATION Pursuant to Section 13, Article VIII of the Constitution, and the Division Chairpersons Attestation, it is hereby certified that the conclusions in the above Decision had been reached in consultation before the case was assigned to the writer of the opinion of the Courts Division. REYNATO S. PUNO Chief Justice Footnotes 1 Penned by Associate Justice Salvador J. Valdez, Jr. (retired) and concurred in by Associate Justices Mariano C. Del Castillo and Magdangal M. De Leon; rollo, pp. 31-44. 2 Section 410 (c), Republic Act No. 7160, otherwise known as Local Government Code provides: Section 410. (c) Suspension of prescriptive periods of offense While the dispute is under mediation, conciliation, or arbitration the prescriptive periods for offenses and cause of action under existing laws shall be interrupted upon filing the complaint with the punong barangay. The prescriptive periods shall resume upon receipt by the complainant of the complaint or the certificate of repudiation or of the certification to file action issued by the lupon or pangk at secretary: Provided, however, That such interruption shall not exceed sixty (60) days from the filing of the complaint with the punong barangay. 3 Rollo, p. 42. 4 Id. at 43. 5 Almora v. Court of Appeals , 369 Phil. 23, 35 (1999); Commissioner of Internal Revenue v. Hantex Trading Co., Inc., G.R. No. 136975, March 31, 2005, 454 SCRA 301, 320. 6 Arambulo v. Laqui, Sr. , 396 Phil. 914, 923 (2000); Francisco v. Court of Appeals , 207 Phil. 471, 477 (1983); People v. Olarte, 125 Phil. 895, 902 (1967). 7 People v. Olarte, id. 8 Id.

G.R. No. 167571 November 25, 2008 LUIS PANAGUITON, JR., petitioner vs. DEPARTMENT OF JUSTICE, RAMON C. TONGSON and RODRIGO G. CAWILI, respondents. DECISION TINGA, J.: 1 This is a Petition for Review of the resolutions of the Court of Appeals dated 29 October 2004 and 21 March 2005 in CA G.R. SP No. 87119, which dismissed Luis Panaguiton, Jr.'s (petitioner's) petition for certiorari and his 2 subsequent motion for reconsideration. The facts, as culled from the records, follow. In 1992, Rodrigo Cawili (Cawili) borrowed various sums of money amounting to P1,979,459.00 from petitioner. On 8 January 1993, Cawili and his business associate, Ramon C. Tongson (Tongson), jointly issued in favor of petitioner three (3) checks in payment of the said loans. Significantly, all three (3) checks bore the signatures of both Cawili and Tongson. Upon presentment for payment on 18 March 1993, the checks were dishonored, either for insufficiency of funds or by the closure of the account. Petitioner made formal demands to pay the amounts of the checks upon Cawili on 23 3 May 1995 and upon Tongson on 26 June 1995, but to no avail. 4 On 24 August 1995, petitioner filed a complaint against Cawili and Tongson 5 for violating Batas Pambansa Bilang 22 (B.P. Blg. 22) before the Quezon City Prosecutor's Office. During the preliminary investigation, only Tongson 6 appeared and filed his counter-affidavit. Tongson claimed that he had been unjustly included as party-respondent in the case since petitioner had lent money to Cawili in the latter's personal capacity. Moreover, like petitioner, he had lent various sums to Cawili and in appreciation of his services, he was offered to be an officer of Roma Oil Corporation. He averred that he was not Cawili's business associate; in fact, he himself had filed several criminal cases against Cawili for violation of B.P. Blg. 22. Tongson denied that he had issued the bounced checks and pointed out that his signatures on the said checks had been falsified. To counter these allegations, petitioner presented several documents showing Tongson's signatures, which were purportedly the same as the 7 those appearing on the checks. He also showed a copy of an affidavit of adverse claim wherein Tongson himself had claimed to be Cawili's business 8 associate. 9 In a resolution dated 6 December 1995, City Prosecutor III Eliodoro V. Lara found probable cause only against Cawili and dismissed the charges against Tongson. Petitioner filed a partial appeal before the Department of Justice (DOJ) even while the case against Cawili was filed before the proper court. In 10 a letter-resolution dated 11 July 1997, after finding that it was possible for Tongson to co-sign the bounced checks and that he had deliberately altered his signature in the pleadings submitted during the preliminary investigation, Chief State Prosecutor Jovencito R. Zuo directed the City Prosecutor of

Quezon City to conduct a reinvestigation of the case against Tongson and to refer the questioned signatures to the National Bureau of Investigation (NBI). Tongson moved for the reconsideration of the resolution, but his motion was denied for lack of merit. On 15 March 1999, Assistant City Prosecutor Ma. Lelibet S. Sampaga (ACP Sampaga) dismissed the complaint against Tongson without referring the matter to the NBI per the Chief State Prosecutor's resolution. In her 11 resolution, ACP Sampaga held that the case had already prescribed 12 pursuant to Act No. 3326, as amended, which provides that violations penalized by B.P. Blg. 22 shall prescribe after four (4) years. In this case, the four (4)-year period started on the date the checks were dishonored, or on 20 January 1993 and 18 March 1993. The filing of the complaint before the Quezon City Prosecutor on 24 August 1995 did not interrupt the running of the prescriptive period, as the law contemplates judicial, and not administrative proceedings. Thus, considering that from 1993 to 1998, more than four (4) years had already elapsed and no information had as yet been filed against Tongson, the alleged violation of B.P. Blg. 22 imputed to him 13 had already prescribed. Moreover, ACP Sampaga stated that the order of the Chief State Prosecutor to refer the matter to the NBI could no longer be sanctioned under Section 3, Rule 112 of the Rules of Criminal Procedure because the initiative should come from petitioner himself and not the 14 investigating prosecutor. Finally, ACP Sampaga found that Tongson had no 15 dealings with petitioner. Petitioner appealed to the DOJ. But the DOJ, through Undersecretary Manuel A.J. Teehankee, dismissed the same, stating that the offense had 16 already prescribed pursuant to Act No. 3326. Petitioner filed a motion for 17 reconsideration of the DOJ resolution. On 3 April 2003, the DOJ, this time through then Undersecretary Ma. Merceditas N. Gutierrez, ruled in his favor and declared that the offense had not prescribed and that the filing of the complaint with the prosecutor's office interrupted the running of the 18 prescriptive period citing Ingco v. Sandiganbayan. Thus, the Office of the City Prosecutor of Quezon City was directed to file three (3) separate 19 informations against Tongson for violation of B.P. Blg. 22. On 8 July 2003, 20 the City Prosecutor's Office filed an information charging petitioner with 21 three (3) counts of violation of B.P. Blg. 22. 22 However, in a resolution dated 9 August 2004, the DOJ, presumably acting on a motion for reconsideration filed by Tongson, ruled that the subject offense had already prescribed and ordered "the withdrawal of the three (3) informations for violation of B.P. Blg. 22" against Tongson. In justifying its sudden turnabout, the DOJ explained that Act No. 3326 applies to violations of special acts that do not provide for a prescriptive period for the offenses thereunder. Since B.P. Blg. 22, as a special act, does not provide for the prescription of the offense it defines and punishes, Act No. 3326 applies to it, and not Art. 90 of the Revised Penal Code which governs the prescription of 23 offenses penalized thereunder. The DOJ also cited the case of Zaldivia v. 24 Reyes, Jr. , wherein the Supreme Court ruled that the proceedings referred

to in Act No. 3326, as amended, are judicial proceedings, and not the one before the prosecutor's office. 25 Petitioner thus filed a petition for certiorari before the Court of Appeals assailing the 9 August 2004 resolution of the DOJ. The petition was dismissed by the Court of Appeals in view of petitioner's failure to attach a proper verification and certification of non-forum shopping. The Court of Appeals also noted that the 3 April 2003 resolution of 26 the DOJ attached to the petition is a mere photocopy. Petitioner moved for the reconsideration of the appellate court's resolution, attaching to said 27 motion an amended Verification/Certification of Non-Forum Shopping. Still, the Court of Appeals denied petitioner's motion, stating that subsequent compliance with the formal requirements would not per se warrant a reconsideration of its resolution. Besides, the Court of Appeals added, the petition is patently without merit and the questions raised therein are too 28 unsubstantial to require consideration. In the instant petition, petitioner claims that the Court of Appeals committed grave error in dismissing his petition on technical grounds and in ruling that the petition before it was patently without merit and the questions are too unsubstantial to require consideration. 29 The DOJ, in its comment, states that the Court of Appeals did not err in dismissing the petition for non-compliance with the Rules of Court. It also reiterates that the filing of a complaint with the Office of the City Prosecutor of Quezon City does not interrupt the running of the prescriptive period for violation of B.P. Blg. 22. It argues that under B.P. Blg. 22, a special law which does not provide for its own prescriptive period, offenses prescribe in four (4) years in accordance with Act No. 3326. Cawili and Tongson submitted their comment, arguing that the Court of Appeals did not err in dismissing the petition for certiorari. They claim that the offense of violation of B.P. Blg. 22 has already prescribed per Act No. 3326. In addition, they claim that the long delay, attributable to petitioner and the 30 State, violated their constitutional right to speedy disposition of cases. The petition is meritorious. First on the technical issues. Petitioner submits that the verification attached to his petition before the Court of Appeals substantially complies with the rules, the verification being intended simply to secure an assurance that the allegations in the pleading are true and correct and not a product of the imagination or a matter of speculation. He points out that this Court has held in a number of cases that a deficiency in the verification can be excused or dispensed with, the defect 31 being neither jurisdictional nor always fatal. Indeed, the verification is merely a formal requirement intended to secure an assurance that matters which are alleged are true and correct the court may simply order the correction of unverified pleadings or act on them and waive strict compliance with the rules in order that the ends of justice may be 32 served, as in the instant case. In the case at bar, we find that by attaching

the pertinent verification to his motion for reconsideration, petitioner sufficiently complied with the verification requirement. Petitioner also submits that the Court of Appeals erred in dismissing the petition on the ground that there was failure to attach a certified true copy or duplicate original of the 3 April 2003 resolution of the DOJ. We agree. A plain reading of the petition before the Court of Appeals shows that it seeks the annulment of the DOJ resolution 33 dated 9 August 2004, a certified true copy of which was attached as Annex 34 "A." Obviously, the Court of Appeals committed a grievous mistake. Now, on the substantive aspects. 35 Petitioner assails the DOJ's reliance on Zaldivia v. Reyes , a case involving the violation of a municipal ordinance, in declaring that the prescriptive period is tolled only upon filing of the information in court. According to petitioner, 36 what is applicable in this case is Ingco v. Sandiganbayan, wherein this Court ruled that the filing of the complaint with the fiscal's office for preliminary investigation suspends the running of the prescriptive period. Petitioner also notes that the Ingco case similarly involved the violation of a special law, Republic Act (R.A.) No. 3019, otherwise known as the Anti-Graft 37 and Corrupt Practices Act, petitioner notes. He argues that sustaining the DOJ's and the Court of Appeals' pronouncements would result in grave injustice to him since the delays in the present case were clearly beyond his 38 control. There is no question that Act No. 3326, appropriately entitled An Act to Establish Prescription for Violations of Special Acts and Municipal Ordinances and to Provide When Prescription Shall Begin, is the law applicable to offenses under special laws which do not provide their own prescriptive periods. The pertinent provisions read: Section 1. Violations penalized by special acts shall, unless otherwise provided in such acts, prescribe in accordance with the following rules: (a) x x x; (b) after four years for those punished by imprisonment for more than one month, but less than two years; (c) x xx Sec. 2. Prescription shall begin to run from the day of the commission of the violation of the law, and if the same be not known at the time, from the discovery thereof and the institution of judicial proceedings for its investigation and punishment. The prescription shall be interrupted when proceedings are instituted against the guilty person, and shall begin to run again if the proceedings are dismissed for reasons not constituting jeopardy. We agree that Act. No. 3326 applies to offenses under B.P. Blg. 22. An offense under B.P. Blg. 22 merits the penalty of imprisonment of not less than thirty (30) days but not more than one year or by a fine, hence, under Act No. 3326, a violation of B.P. Blg. 22 prescribes in four (4) years from the commission of the offense or, if the same be not known at the time, from the discovery thereof. Nevertheless, we

cannot uphold the position that only the filing of a case in court can toll the running of the prescriptive period. It must be pointed out that when Act No. 3326 was passed on 4 December 1926, preliminary investigation of criminal offenses was conducted by justices of the peace, thus, the phraseology in the law, "institution of judicial 39 proceedings for its investigation and punishment," and the prevailing rule at the time was that once a complaint is filed with the justice of the peace for 40 preliminary investigation, the prescription of the offense is halted. 41 The historical perspective on the application of Act No. 3326 is illuminating. Act No. 3226 was approved on 4 December 1926 at a time when the function of conducting the preliminary investigation of criminal offenses was vested in the justices of the peace. Thus, the prevailing rule at the time, as shown in 42 43 the cases of U.S. v. Lazada and People v. Joson, is that the prescription of the offense is tolled once a complaint is filed with the justice of the peace for preliminary investigation inasmuch as the filing of the complaint signifies the 44 institution of the criminal proceedings against the accused. These cases 45 were followed by our declaration in People v. Parao and Parao that the first step taken in the investigation or examination of offenses partakes the nature 46 of a judicial proceeding which suspends the prescription of the offense. 47 Subsequently, in People v. Olarte, we held that the filing of the complaint in the Municipal Court, even if it be merely for purposes of preliminary examination or investigation, should, and does, interrupt the period of prescription of the criminal responsibility, even if the court where the complaint or information is filed cannot try the case on the merits. In addition, even if the court where the complaint or information is filed may only proceed to investigate the case, its actuations already represent the initial step of the 48 proceedings against the offender, and hence, the prescriptive period should be interrupted. 49 50 In Ingco v. Sandiganbayan and Sanrio Company Limited v. Lim, which involved violations of the Anti-Graft and Corrupt Practices Act (R.A. No. 3019) and the Intellectual Property Code (R.A. No. 8293), which are both special laws, the Court ruled that the prescriptive period is interrupted by the institution of proceedings for preliminary investigation against the accused. In the more recent case of Securities and Exchange Commission v. Interport Resources Corporation, et 51 al. , the Court ruled that the nature and purpose of the investigation conducted by the Securities and Exchange Commission on violations of the 52 Revised Securities Act, another special law, is equivalent to the preliminary investigation conducted by the DOJ in criminal cases, and thus effectively interrupts the prescriptive period. 53 The following disquisition in the Interport Resources case is instructive, thus: While it may be observed that the term "judicial proceedings" in Sec. 2 of Act No. 3326 appears before "investigation and punishment" in the old law, with the subsequent change in set-up whereby the

investigation of the charge for purposes of prosecution has become the exclusive function of the executive branch, the term "proceedings" should now be understood either executive or judicial in character: executive when it involves the investigation phase and judicial when it refers to the trial and judgment stage. With this clarification, any kind of investigative proceeding instituted against the guilty person which may ultimately lead to his prosecution should 54 be sufficient to toll prescription. Indeed, to rule otherwise would deprive the injured party the right to obtain 55 vindication on account of delays that are not under his control. A clear example would be this case, wherein petitioner filed his complaint-affidavit on 24 August 1995, well within the four (4)-year prescriptive period. He likewise timely filed his appeals and his motions for reconsideration on the dismissal of the charges against Tongson. He went through the proper channels, within the prescribed periods. However, from the time petitioner filed his complaint-affidavit with the Office of the City Prosecutor (24 August 1995) up to the time the DOJ issued the assailed resolution, an aggregate period of nine (9) years had elapsed. Clearly, the delay was beyond petitioner's control. After all, he had already initiated the active prosecution of the case as early as 24 August 1995, only to suffer setbacks because of the DOJ's flip-flopping resolutions and its misapplication of Act No. 3326. Aggrieved parties, especially those who do not sleep on their rights and actively pursue their causes, should not be allowed to suffer unnecessarily further simply because of circumstances beyond their control, like the accused's delaying tactics or the delay and inefficiency of the investigating agencies. We rule and so hold that the offense has not yet prescribed. Petitioner 's filing of his complaint-affidavit before the Office of the City Prosecutor on 24 August 1995 signified the commencement of the proceedings for the prosecution of the accused and thus effectively interrupted the prescriptive period for the offenses they had been charged under B.P. Blg. 22. Moreover, since there is a definite finding of probable cause, with the debunking of the claim of prescription there is no longer any impediment to the filing of the information against petitioner. WHEREFORE, the petition is GRANTED. The resolutions of the Court of Appeals dated 29 October 2004 and 21 March 2005 are REVERSED and SET ASIDE. The resolution of the Department of Justice dated 9 August 2004 is also ANNULLED and SET ASIDE. The Department of Justice is ORDERED to REFILE the information against the petitioner. No costs. SO ORDERED. DANTE O. TINGA Associate Justice WE CONCUR:

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LEONARDO A. QUISUMBING Associate Justice Chairperson CONCHITA CARPIO MORALES Associate Justice PRESBITERO J. VELASCO, JR. Associate Justice ARTURO D. BRION Associate Justice ATTESTATION I attest that the conclusions in the above Decision had been reached in consultation before the case was assigned to the writer of the opinion of the Court's Division. LEONARDO A. QUISUMBING Associate Justice Chairperson CERTIFICATION Pursuant to Section 13, Article VIII of the Constitution, and the Division Chairperson's Attestation, it is hereby certified that the conclusions in the above Decision were reached in consultation before the case was assigned to the writer of the opinion of the Court's Division. REYNATO S. PUNO Chief Justice Footnotes 1 Rollo, pp. 11-27. 2 Id. at 28-29. The resolutions were penned by Associate Justice Mariano C. Del Castillo, with Associate Justices Romeo A. Brawner and Magdangal M. De Leon, concurring. 3 Id. at 30-31; Complaint-Affidavit. 4 Id. 5 An Act Penalizing the Making or Drawing and Issuance of a Check Without Sufficient Funds or Credit and for Other Purposes. 6 Rollo, pp. 35-40. 7 Id. at 45-52; Affidavit of Adverse Claim, Affidavit of Withdrawal of Adverse Claim, Complaint-Affidavit. 8 Id. at 45-46. 9 Id. at 53-55. 10 Id. at 56-57. 11 Id. at 58-62. 12 Act to Establish Prescription for Violations of Special Acts and Municipal Ordinances and to Provide When Prescription Shall Begin. 13 Rollo, pp. 59-60.

Id. at 60; Nevertheless, it appears that a reinvestigation of the case was conducted for the purpose of referring the questioned signatures of Tongson. However, petitioner was unable to present the corresponding documents, particularly the original copies thereof, that could be referred to the NBI to rebut Tongson's defense of forgery. 15 Id. 16 Id. at 63-65. 17 CA rollo, pp. 59-69. 18 G.R. No. 102342, 3 July 1992, 211 SCRA 277. 19 Rollo, pp. 66-76. 20 Docketed as I.S. No. 95-12212. 21 Per letter of the Office of the Clerk of Court, Metropolitan Trial Court of Quezon City dated 10 July 2003, informing petitioner of the filing of the information charging him "for violation of B.P.Blg. 22 ((3) counts), and requiring him to pay filing fees. Id. at 77. 22 Id. at 78-83. 23 Rollo, p. 79. 24 Supra note 18. 25 CA rollo, pp. 2-16. 26 Rollo, p. 28. 27 CA rollo, pp. 79-86. 28 Id. at 29. 29 Id. at 106-126. 30 Id. at 130-140. 31 Id. at 19.Citing Shipside Incorporated v. Court of Appeals, 20 February 2001, 352 SCRA 334, and Commissioner of Internal Revenue v. La Suerte Cigar and Cigaret Factory, 4 July 2002, 384 SCRA 117. 32 Sps. Hontiveros v. RTC, Br. 25, Iloilo City, 368 Phil. 653, 666 (1999). 33 CA rollo, p. 2. The third paragraph of the petition reads: This is a Petition for Certiorari under Rule 65 of the 1997 Rules of Civil Procedure. Petitioner seeks the annulment of the Resolution of the Department of Justice (DOJ) dated 9 August 2004, which was rendered in excess of jurisdiction of with grave abuse of discretion amounting to lack or excess of jurisdiction. 34 CA rollo, pp. 17-21. Petitioner thus complied with the requirement that the petition "shall be accompanied by a clearly legible duplicate original or certified true copy of the judgment, order, resolution, or ruling subject thereof." (Rule 46, Sec. 3 of the Revised Rules of Court of the Philippines) 35 Supra note 18. 36 338 Phil. 1061 (1997). 37 Rollo, p. 22. 38 Id. at 23.

39 40

Act No. 3326, Sec. 2. People v. Joson, 46 Phil. 509 (1924). 41 See Concurring Opinion, Tinga, J.; Securities and Exchange Commission v. Interport Resources Corporation, et al., G.R. No. 135808, 6 October 2008. 42 9 Phil. 509 (1908). 43 46 Phil. 380 (1924). 44 9 Phil. 509, 511 (1908). 45 52 Phil 712 (1929). 46 Id. at 715. 47 19 Phil. 494 (1967). 48 Id. at 500. 49 338 Phil. 1061 (1997). 50 G.R. No. 168662, 19 February 2008, 546 SCRA 303. 51 Supra note 39. 52 Presidential Decree No. 178. 53 Concurring Opinion, Tinga, J. in Securities and Exchange Commission v. Interport Resources Corporation, et al., supra note 39. 54 Id. 55 People v. Olarte, 19 Phil. 494 , 500 (1967).

G.R. No. 116237 May 15, 1996 PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. FE ARCILLA y CORNEJO, accused-appellant. PUNO, J.:p 1 In an Information, dated August 5, 1992, accused FE ARCILLA y CORNEJO was charged with Parricide before the Regional Trial Court of Daraga, Albay, viz : That on or about 9:00 A.M. of May 1, 1992, at Brgy. Namantao, Daraga, Albay, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, with intent to kill and while armed with a fan knife, did then and there willfully, unlawfully and feloniously attack and stab her husband, ANTONIO F. ARCILLA, hitting and inflicting upon the latter fatal wound on his left chest, which injury directly caused and resulted to the death of said Antonio F. Arcilla, all to the damage and prejudice of the heirs of the deceased. CONTRARY TO LAW. 2 Accused pleaded not guilty and underwent trial. The evidence for the prosecution shows that accused Fe Arcilla y Cornejo and the victim, Antonio Arcilla, were married in Goa, Camarines Sur, on April 3 19, 1975. They had five (5) children. Accused was a teacher while Antonio was an employee of National Power Corporation in Daraga, Albay. In 1983, she left her family to work in Singapore. Her children remained in their conjugal home in Camarines Sur. Antonio, on the other hand, stayed most of the time in Albay. Unknown to the accused, Antonio developed an illicit affair with Lilia Lipio. The house of Lilia's parents in barangay Namantao, Daraga, Albay, served as their lovenest. Antonio sired two (2) children during his amorous union with Lilia. Eventually, the accused learned of her husband's infidelity. She returned to the country in 1988 but her return did not stop the illicit relationship between Lilia and Antonio. The illicit relationship came to a tragic end on May 1, 1992. At about 9:00 A.M. of said date, accused went to Lilia's residence in Namantao, Daraga, Albay looking for Antonio. It was the barangay's feast day and Lilia's family had a lot of guests. The accused found Antonio having a drinking spree with his friends in a kiosk, just a few meters away from Lilia's house. The meeting immediately started to be violent. Accused approached Antonio and slapped him. She then went inside Lilia's house and instructed Antonio to tell Lilia to join them. The three proceeded to the bedroom where the three (3) year-old son of Lilia and Antonio was sleeping. A heated altercation between accused and Antonio followed. Lilia left the bedroom and sat on a sofa in the receiving room. The sofa was about two (2) meters away and she

could see the bickering couple through the bedroom's door which was then half-closed. At the height of their arguments, the accused took a fan knife from her shoulder bag and stabbed Antonio on the chest, causing him to embrace her tightly. Lilia barged back to the room, held Antonio's belt at the back and pulled him away from accused. Accused was able to pull out the knife from Antonio's chest and she delivered a second thrust to Antonio. She hit him on the left thigh. Accused then fled with the fan knife. Blood stained her clothes. Antonio was rushed to the hospital where he died due to "hypovolemic shock due to massive hemorrhage secondary, to stab wound." Accused gave a different version. She testified that she received an urgent letter from her eldest daughter asking for money to pay her tuition fees. Thus, in the early morning of May 1, 1992, she went to see her husband in his office in Daraga, Albay. The security guard told her that Antonio was in Namantao. She proceeded to Lilia's residence and found Antonio drinking with some friends. Antonio advised her up go home and not to make a scene. Irked, she slapped him and then went inside Lilia's house. Antonio followed her up the bedroom where the three-year old son of Lilia was sleeping. Lilia joined the couple in the bedroom. Accused then asked them if the child was theirs. Lilia denied the accusation but Antonio boldly admitted that the boy was theirs. The admission provoked a heated verbal exchange between the accused and Antonio while Lilia brought the child outside the bedroom. The altercation became violent when Antonio pushed the accused and she hit the concrete wall and felt dizzy. Seeing a fan knife in a cabinet, she held it with her right hand and warned Antonio not to go near her or she would stab him. Antonio did not heed her warning. They grappled for the knife until Antonio was able to twist her left arm at her back. She managed to free her left arm and held the knife with both hands. However, Antonio moved behind her, wrapped his arms around her, held her hands and tried to force the knife towards her. She twisted her body and the knife struck Antonio's left thigh. Undaunted, Antonio tried to direct the knife towards her a second time. She bit his arm but his grip even tightened. Again, she twisted her body and, in the process, the knife struck Antonio. When his embrace loosened, she ran away. She chanced upon a barangay tanod who helped her surrender to the barangay captain of Namantao. She was then taken to the police headquarters in Daraga, Albay. The trial court gave more credence to the testimony of prosecution witness Lilia Lipio and convicted the accused. The dispositive portion of the trial 4 court's Decision, dated May 27, 1994, states: CONSIDERING THE FOREGOING RATIOCINA TION, the court hereby finds the accused FE ARCILLA Y CORNEJO to have committed beyond reasonable doubt the act of stabbing her lawfully wedded husband ANTONIO ARCILLA, resulting to the latter's untimely death. Accused is therefore declared GUILTY of the crime of parricide as defined and

penalized under Article 246 of the Revised Penal Code. She is hereby sentenced to suffer the penalty of RECLUSION PERPETUA and the accessory penalties provided by law. Having been found (guilty) of the capital offense, the bail bond filed for her provisional liberty is hereby cancelled and accused is ordered committed to the provincial jail. Accused is likewise hereby ordered to pay the heirs of the deceased victim ANTONIO ARCILLA, the sum of FIFTY THOUSAND (P50,000.00) PESOS for the fact of death; TWENTY THOUSAND ONE HUNDRED (P20,100.00) PESOS, as actual or compensatory damages; and another TWENTY THOUSAND (P20,000.00) PESOS, as moral damages. Costs against the accused. Subsequently, the trial court amended the dispositive portion of its Decision. Treating reclusion perpetua as a divisible penalty under Republic Act No. 7659, the trial court sentenced the accused as follows: CONSIDERING THE FOREGOING RATIOCINA TION, the Court finds the accused FE ARCILLA Y CORNEJO to have committed beyond reasonable doubt the act of stabbing her lawfully wedded husband ANTONIO ARCILLA, resulting to the latter's untimely death. A ccused is therefore truly and truthfully guilty of the crime of parricide. There being no aggravating or mitigating circumstance and after applying the Indeterminate Sentence Law, she is hereby sentenced to suffer the penalty of FOURTEEN (14) YEARS, EIGHT (8) MONTHS AND ONE (1) DAY OF RECLUSION TEMPORAL as minimum, to TWENTY-EIGHT (28) YEARS, (8) MONTHS AND ONE (1) DAY OF RECLUSION PERPETUA, as maximum, and all the accessory penalties provided by law. 5 xxx xxx xxx Hence, this appeal where appellant contends: FIRST ASSIGNED ERROR THE TRIAL COURT ERRED IN ADMITTING THE TESTIMONY OF LILIA LIPIO DESPITE THE ABSENCE OF A PUBLIC PROSECUTOR IN THE TAKING THEREOF. SECOND ASSIGNED ERROR THE TRIAL COURT ERRED IN GIVING CREDENCE TO THE TESTIMONY OF LILIA LIPIO RELATIVE TO THE CIRCUMSTANCES WHICH LED TO THE DEATH OF ANTONIO ARCILLA. THIRD ASSIGNED ERROR THE TRIAL COURT ERRED IN NOT GIVING CREDENCE TO THE TESTIMONY OF THE ACCUSED-APPELLANT RELATIVE TO THE CIRCUMSTANCES WHICH LED TO THE DEATH OF HER HUSBAND ANTONIO ARCILLA.

The appeal lacks merit. We reject the first contention of the appellant. The records do not show that the entire testimony of the prosecution star witness, Lilia Lipio, was given in the absence of the prosecuting fiscal. As explicitly stated by the trial judge in his Decision, viz : xxx xxx xxx From the records of Branch I of the Regional Trial Court, Prosecutor de Joya only attended the pre-trial of the case. The pre-trial was, however, waived by the defense. It appears that Prosecutor de Joya, after the pre-trial went back to Branch 2, as in fact he cross-examined a witness for the defense in People vs . Rogelio Andez . This case was heard after the hearing in instant case. So Prosecutor de Joya was absent for only a few minutes. He was not absent for all the time that Lilia Lipio took the witness stand . The Presiding Judge had a chance to talk to Prosecutor de Joya. According to him, he stayed at Branch I for not more than five (5) minutes, then, returned to Branch 2. When he returned to Branch 2, the private prosecutor was still conducting his direct examination on Lilia. (Emphasis supplied) The fleeting absence of Fiscal de Joya is not a sufficient ground to invalidate the testimony of Lilia Lipio as urged by appellant. To begin with, appellant herself did not object to the continuation of the testimony of Lipio despite the momentary absence of the prosecutor. Appellant has not also shown any prejudice caused to her by the incident. Through counsel, she was able to fully cross-examine Lipio and test her credibility. To be sure, appellant misappreciates the reason requiring the public prosecutor to be present in the trial of criminal cases. A crime is an offense against the State, and hence 6 is prosecuted in the name of the People of the Philippines. For this reason, section 5 of Rule 110 provides that "all criminal actions either commenced by complaint or by information shall be prosecuted under the direction and control of the fiscal. . . ." Only private crimes like adultery, concubinage, seduction, abduction, rape or acts of lasciviousness can be prosecuted at the 7 instance of the offended party. The presence of a public prosecutor in the trial of criminal cases is necessary to protect vital state interests at stake in the prosecution of crimes, fore most of which is its interest to vindicate the rule of law, the bedrock of peace of the people. As the representative of the State, the public prosecutor has the right and the duty to take all steps to protect the rights of the People in the trial of an accused. It ought to be self evident that the right belongs to the public prosecutor and not to the accused. The absence of a prosecutor cannot therefore be raised by an accused to invalidate the testimony of a state witness if he cannot prove personal prejudice as in the case at bar.

In her second assignment of error, appellant assails the credibility of Lilia Lipio. The records will show that Lilia Lipio was clear and categorical when 8 she testified on how Antonio was stabbed by accused. She declared: ATTY. NINOFRANCO: What happened when you entered the room? (LILIA LIPIO) After I entered the room Fe Arcilla asked Antonio Arcilla whether the child who was sleeping is the child of Antonio Arcilla with me? Q What did Antonio Arcilla answer or what was the answer of Antonio Arcilla? A Antonio Arcilla said: "yes, is it not that you knew it already." xxx xxx xxx Q How far were you from Antonio and Fe when you seated yourself in the receiving room? A More or less two meters. Q What happened while you were already seated in the receiving room. A Fe Arcilla asked Antonio Arcilla: "what do you like me to do, do I have to kill you." Q What was the answer of Antonio Arcilla? A Antonio Arcilla answered, "just do it." Q What else happened after that? A Antonio Arcilla was standing fronting Fe Arcilla. Q Where was he facing, was he looking at Fe Arcilla when he said that? A Yes, sir, but his face was a little bit lower. Q With that position of Antonio Arcilla so, what did Fe Arcilla do? A I saw Fe Arcilla opened her shoulder bag. Q What did he get from that bag? A That fan k nife. Q What did she do with the fan k nife? A She immediately stabbed Antonio Arcilla. Q Was Antonio Arcilla hit by that stabbing? A Yes, sir. Q Where, on what part of his body? A At this juncture witness pointing to her left breast . xxx xxx xxx

Q Now, after Fe Arcilla stabbed Antonio Arcilla on the left breast what else happened? A Antonio Arcilla was able to embrace Fe Arcilla. Q What did you do? A Inasmuch as the hands of Fe Arcilla could not extricate from the body of Antonio Arcilla what I did was to grab Antonio Arcilla by his belt on his back as there was blood oozing from his body. Q What happened when you grabbed Antonio Arcilla at his belt? A Fe Arcilla was able to pull the k nife and stabbed Antonio Arcilla again for the second time. Q Where was Antonio Arcilla hit with the second stab? A On the left thigh. (Witness pointing to his left thigh). Q After the second stab what did Fe Arcilla do? A She hurriedly went out of the house. xxx xxx xxx During her cross-examination, Lipio remained firm and certain on what 9 transpired that fateful day. She testified: ATTY. JACOB: Before Fe Arcilla stabbed Antonio Arcilla, nothing happened as to any conversation which took place between the two? (LILIA LIPIO) Only that altercation and Fe Arcilla even asked Antonio Arcilla: "What do you want me to do, do I have to kill you now?" Q That child who was sleeping inside the room was he awakened? A No, sir, my, child was not awakened but I told somebody to get my son and brought (sic ) him to me. Q You mean after the stabbing incident, your son was still sleeping? A Yes, sir. xxx xxx xxx Q You did not witness any commotion before the stabbing incident?

A No, sir, only the door was moved by them. Why, were they grappling for something? A No, sir, but Antonio Arcilla was able to embrace Fe Arcilla when Antonio Arcilla was stabbed by Fe Arcilla. Q And you witnessed all these? A Yes, sir and even my other child was able to witness it. My other child fainted. Q The one who was not asleep? A Yes, sir, my daughter. Q And you said that Fe Arcilla again stabbed Antonio Arcilla for the second time hitting him on the left thigh? A When Fe Arcilla pulled the knife from Antonio Arcilla's breast and then she thrust (sic ) it again on the left thigh. Q How, will you demonstrate? A At this juncture witness demonstrated how Antonio Arcilla was stabbed for the second time on the left thigh. Probably the intention of Fe Arcilla was to stab the genitals of Antonio Arcilla. Q But she failed? A Antonio Arcilla was hit on the left thigh. Q And he was facing Fe Arcilla? A Yes, sir, that is why he was able to embrace Fe Arcilla and even had a hard time in pulling the knife that is why I grabbed Antonio Arcilla on his back by pulling his belt. Q And so, you were at the back of Antonio Arcilla when he was stabbed for the second time? A Yes, sir, going out of the sala because Fe Arcilla passed by the sala as she was going out of the room Fe Arcilla passed by the right side. Q And so, let us get this clear Fe Arcilla stabbed Antonio Arcilla for the second time using the same hand? A Yes, sir, the same hand, the right hand. Q And it was done in the same manner by which she made the first thrust? A When she pulled the knife and made a thrust and he was hit on the left thigh.

Q But by then Fe Arcilla was closer to Antonio Arcilla than when she made the first thrust? A Yes, sir, because I was able to grab him and she was able to pull the knife and made the second thrust. Q Romeo Lipio your brother was inside the compound of your parent's house at that time of the incident? A Yes, sir, because he was in-charge of the cooking of the food. The records show that the demeanor of Lipio while on the witness stand impressed the trial judge . In his Decision, the trial judge declared: xxx xxx xxx The court is then called upon (to) choose between these two . . . opposing actions of incompatibles. The court is wary and conscious of this state of things, so that it was quite critical and keen in the observation of the witnesses when they took the witness stand. The court was then particularly watchful and paid strict attention when prosecution witness Fe Arcilla, the accused herself, testified. Lilia may be considered a biased witness considering that she was the other woman in the life of Antonio. They have lived together for quite a number of years and in fact begotten two children out of their relation. Fe Arcilla, however, could not be far behind. She may likewise be considered as a biased witness on the footing and level as Lilia, as she is the accused in this case. . .. As seen and sensed by the court through a careful analytic attention, Lilia was quite honest and sincere when she took the witness stand. She was emphatic in her testimony and straightforward. The court could not detect any evasiveness in her testimony. She was composed and cool. The court, on the other hand, could feel any (sic ) perceived that the accused was not disturbed by the incident which is quite unnatural. At times, she seemed to he amused and would smile, although there was nothing funny about the matter. For the nth time, we reiterate that the trial court's assessment of the credibility of witnesses deserves great respect since it has the important opportunity to observe first-hand the expression and demeanor of the 10 witnesses at the trial. We find no cogent reason to depart from this well settled rule. Anent the third assignment of error, we have examined the testimony of appellant and we are not convinced that the stabbing at bar was merely accidental and through the own doing of the victim. The location of the

victim's wounds, the position of the accused and the victim, and their relative strength negate the credence of appellant's story. Indeed, her claim that she twisted her body at an angle that allowed the knife to pass just below her armpit and pierce the victim's chest and left thigh, is incredulous. Evidence to be believed must not only come from the mouth of a credible witness but 11 must also be credible in itself. We also reject the contention of the accused that she was forced to use the knife to resist the victim's assault. While the estranged couple had a heated argument before the stabbing incident, the evidence shows that it was the accused who provoked the victim. By her own admission, the victim initially dissuaded her from making a scene. Nonetheless, she could not control her emotion and she slapped the victim in front of his friends. Even assuming arguendo, that the victim harmed her prior to the stabbing, there was no reasonable necessity for her to use the knife as there were many people outside the house who could readily render assistance to her. We now come to the penalty imposed by the trial court in its amended 12 decision. In an on bane resolution, dated January 9, 1995, this Court 13 clarified its earlier held that "although ruling in People v. Lucas and section 17 of R.A. 7659 has fixed the duration of reclusion perpetua from twenty years (20) and one (1) day to forty (40) years, there was no clear legislative intent to alter its original classification as an indivisible penalty." In accord with this clarification, the proper penalty to be imposed on the appellant is reclusion perpetua without any divisible period. It is then needless to address appellant's plea that the mitigating circumstance of voluntary surrender be considered in her favor. appellant's voluntary surrender will not alter her penalty of reclusion perpetua, the same being a single and indivisible penalty. WHEREFORE, premises considered, the assailed amended decision is AFFIRMED, with modification that accused FE ARCILLA y CORNEJO is sentenced to suffer the penalty of reclusion perpetua. No costs. SO ORDERED. Regalado, Romero, Mendoza and Torres, Jr., JJ., concur. Footnotes 1 Original Records, p. 4. 2 Original Records, p. 45. 3 Exhibits "G" and "H", Original Records, pp. 124-125. 4 Penned by Judge Rafael T. Santelices; Rollo, pp. 36-37. 5 mended Decision, dated June 18, 1994; Ibid., at p. 39. 6 Section 2, Rule 110. 7 Section 5, Rule 110. 8 TSN, April 22, 1993, pp. 7-11. 9 TSN, April 22, 1993, pp. 30-33. 10 People vs. Vinas, Sr., G.R. Nos. 112070-71, June 29, 1995, 245 SCRA 448. 11 People vs. Quino, G.R. No. 105580, May 17, 1994. 12 240 SCRA 67.

13 G.R. Nos. 108172-173, promulgated on May 25, 1994. G.R. No. 177720 February 18, 2009 ELISEO R. FRANCISCO, JR., Petitioner, vs. PEOPLE OF THE PHILIPPINES, Respondent. DECISION CHICO-NAZARIO, J.: This is a Petition for Review on Certiorari under Rule 45 of the Rules of Court 1 praying that the Court of Appeals Decision dated 28 February 2007 and Resolution dated 4 May 2007 in CA-G.R. CR No. 29699 be set aside. The facts of the case are as follows: In an Amended Information dated 9 November 2000, which was filed on 13 November 2000 with the Regional Trial Court (RTC) of Pasig City, petitioner Eliseo Francisco, Jr. (Francisco) was charged with Estafa in an Amended 2 Information, as defined in Article 315, par. 2(a) of the Revised Penal Code. On arraignment, petitioner Francisco pleaded not guilty. Trial ensued. The prosecutions evidence tends to establish the following facts: Private complainant Bankard, Inc. is a credit card company engaged in issuing credit cards and in acquiring credit card receivables from commercial establishments arising from the purchase of goods and services by credit card holders using Mastercard or Visa credit cards issued by other banks and credit card companies. Mastercard or Visa pays Bankard for the amount Bankard has paid the commercial establishments for the invoices it acquires. On the other hand, Mastercard or Visa debits Bankard for the amount due to other credit card companies or banks which acquire the invoices where the credit card used for the purchase is issued by Bankard. Petitioner Francisco was an employee of Bankard at the time the alleged crime occurred. He was knowledgeable in computer programming, and held the position of Acquiring Chargeback Supervisor. Bankard engaged the services of Equitable Computer Services, Inc. (Equicom) to encode and post credit card transactions and submit reports on those services. Procedurally, Bankard transmits to Equicom the invoices, instructions for debiting, credit advances and other documents relevant to encoding and posting. Equicom then transmits through electronic mail the reports on the transactions to Bankard. Petitioner Francisco was tasked to convert the Equicom reports sent through electronic mail from its original ARJ Text Format to the Amipro Format used by Bankard. Petitioner Francisco was the only one assigned to perform this task. Sometime in August 1999, Solidbank, one of the companies which issues credit cards, relayed to Bankard that there were four questionable transactions reflected in Solidbank Mastercard Account No. 5464 9833 0005 1922 under the name of petitioner Francisco. An amount of P663,144.56 was allegedly credited to said account of petitioner Francisco, the credit apparently being a reversal of charges from four establishments. The amount of P18,430.21 was also credited to petitioner Franciscos AIG Visa Card based on another supposed credit advance.

Bankard conducted an investigation. Upon comparison of the original reports of Equicom with those converted by petitioner Francisco, it was found that based on Equicoms original Daily Transaction Prooflist, there was a reversal of charges from Bankard Travel Services in the amount of $5,989.60 which was credited to the credit card under the name of petitioner Francisco, with a conversion date of 10 August 1999. The Outgoing Interchange Transaction also reflected a reversal of a transaction with Bankard Travel and the credit of the amount of $5,989.60 to Cardholder No. 5464 9833 0005 1922 on 1 August 1999. The converted report no longer reflected the reversal of charges. The crediting of the amount of $5,989.60 as stated in the original reports coming from Equicom and Mastercard was deleted and replaced with the figure zero. There was also no record of the transactions or purchases from the four establishments charged against petitioner Franciscos Mastercard Account No. 5464 9833 0005 1922 and AIG Visa Account No. 4009 9218 0463 3006 that may be reversed. Only those availments which have been charged against the credit cards could be reversed, and the amount charged for such availments would then be returned and credited to the same credit card. Since there were no original purchase transactions charged against petitioner Franciscos credit cards, the reversal of charges and the crediting of sums of money to petitioner Franciscos credit cards appeared to be fictitious. Petitioner Francisco was the person who received the transmittals from Equicom of documents including any purported cash advice at the time the credit transactions were made in favor of his credit card accounts. lavvphi1 As a result of the fraudulent crediting of the amount of P663,144.56 to petitioner Franciscos Solidbank credit card account, Bankard was made to pay the same to Solidbank in the course of the settlement of transactions between the issuing banks from the time of the crediting of the amount to petitioner Franciscos credit card account until the fraudulent credits were charged back to Solidbank on 27 August 1999. Solidbank again charged back Bankard for the said amount, from 4 September 1999 to 3 October 1999. Thus, during the time the amount was charged against Bankard, the latter was unable to use such amount. Bankard was unable to recover the amount of P18,430.21 which petitioner Francisco fraudulently credited to his AIG Visa Card No. 4009 9218 0463 3006. The defense presented petitioner Francisco as its lone witness. Petitioner Francisco denied that he caused the crediting of said amounts to his credit cards. On 10 January 2005, the RTC rendered its Decision convicting petitioner Francisco as follows: WHEREFORE, IN VIEW OF THE FOREGOING CONSIDERATIONS, considering that the prosecution has proven beyond reasonable doubt that accused ELISEO FRANCISCO is GUILTY of the crime charged, the Court hereby sentences said accused of the crime of Estafa under Article 315, paragraph 2(a) of the Revised Penal Code, as amended.

Accordingly, accused is hereby sentenced to suffer an indeterminate penalty of imprisonment of 2 years 4 months of arresto mayor as minimum to 6 years 2 months and 11 days of prision mayor as maximum and ordered to reimburse private complainant Bankard, Inc., of the amount of 3 PhP18,430.21. Petitioner Francisco filed a Motion for Reconsideration/New Trial, praying for the re-opening of the case in order that he may present the credit card statements and demand letters. Petitioner Francisco contended that Bankards line of business affected by the instant case was that of acquiring credit card receivables. According to petitioner Francisco, this meant that he, like any other credit card holder, remained indebted to the issuers of the credit card, which were Solidbank Mastercard and AIG Visa. He should, therefore, be acquitted since private complainant Bankard was not the entity that incurred damage, but Solidbank Mastercard and AIG Visa. In an Order dated 12 July 2005, the RTC denied petitioner Franciscos Motion for Reconsideration/New Trial. Petitioner Francisco proceeded to the Court of Appeals. On 28 February 2007, the Court of Appeals rendered its Decision affirming the conviction of petitioner Francisco, but with modification of his prison sentence: WHEREFORE, the appealed Decision dated January 10, 2005 is affirmed, subject to the modification of the imprisonment sentence which should be an indeterminate penalty of four (4) years and two (2) months of prision correccional, as the minimum period, to twenty (20) years of reclusion 4 temporal, as the maximum period. According to the Court of Appeals, the total amount defrauded, P681,574.77, gave rise to a minimum penalty under prision correccional and a maximum penalty of twenty years, pursuant to Article 315 of the Revised Penal Code, which provides: 1avvphi1 Art. 315. Swindling (estafa). Any person who shall defraud another by any of the means mentioned hereinbelow shall be punished by: 1st. The penalty of prision correccional in its maximum period to prision mayor in its minimum period, if the amount of the fraud is over 12,000 pesos but does not exceed 22,000 pesos, and if such amount exceeds the latter sum, the penalty provided in this paragraph shall be imposed in its maximum period, adding one year for each additional 10,000 pesos; but the total penalty which may be imposed shall not exceed twenty years. In such case, and in connection with the accessory penalties which may be imposed under the provisions of this Code, the penalty shall be termed prision mayor or reclusion temporal, as the case may be. Petitioner Francisco now comes before this Court, bringing forth the issue for our consideration: WHETHER OR NOT THE HONORABLE COURT OF APPEALS COMMITTED REVERSIBLE ERROR IN AFFIRMING THE ASSAILED ORDER AND DECISION OF THE REGIONAL TRIAL COURT OF PASIG CITY, BRANCH 267, DESPITE THE ABSENCE OF AN ELEMENT IN THE 5 CRIME CHARGED FOR WHICH PETITIONER WAS INDICTED.

The element of estafa referred to by petitioner Francisco is the third one under Article 315(a) of the Revised Penal Code in the following list provided by this Court in several cases: (1) the accused uses a fictitious name, or falsely pretends to possess power, influence, qualifications, property, credit, agency, business or imaginary transactions, or employs other similar deceits; (2) such false pretense, fraudulent act or fraudulent means must be made or executed prior to or simultaneously with the commission of the fraud; (3) the offended party must have relied on the false pretense, fraudulent act or fraudulent means, that is, he was induced to part with his money or property because of the false pretense, fraudulent act or fraudulent means; and 6 (4) as a result thereof, the offended party suffered damage. (Emphasis supplied.) Petitioner Francisco argues that the prosecution failed to present evidence that he was privy to the business deal between Bankard and the credit card companies (Solidbank Mastercard and AIG Visa). Petitioner Francisco seems to be implying that since he was not privy to the business deal between Bankard and the credit card companies, he could not have induced Bankard to part with its money or property because of any false pretense, fraudulent act or fraudulent means committed by him, directed to the credit card companies. We disagree. The third element of estafa under Article 315(a) merely requires that the offended party must have relied on the false pretense, fraudulent act or fraudulent means. It does not require that the false pretense, fraudulent act or fraudulent means be intentionally directed to the offended party. Thus, in this case wherein a person pretended to possess credit in order to defraud third persons (Solidbank Mastercard and AIG Visa), but the offended party nevertheless relied on such fraudulent means and consequently suffered damage by virtue thereof, such person is liable for estafa under Article 315(a), even though the fraudulent means was not intentionally directed to the offended party. A person committing a felony is criminally liable although 7 the consequences of his felonious act are not intended by him. In any case, the prosecution has successfully proven damage on the part of private complainant Bankard. As held by the Court of Appeals: As a result of the fictitious credits which the accused caused to be posted in his credit cards, private complainant [Bankard] suffered damages when it was made to pay Solidbank the fictitious credit in the course of the settlement of transactions between the issuing banks from the time of the crediting of the said amount to the credit card of the accused until the fraudulent credits where charged back to Solidbank on 27 August 1999. Solidbank again charged back private complainant for the said amount from 4 September 1999 to 3 October 1999. Hence, during the time the amount was charged against private complainant, the latter was unable to use its fund in the

amount of PhP663,144.56 for a period of at least three (3) months. Likewise, private complainant was unable to recover the amount of PhP18,430.21 which the accused fraudulently credited to his AIG Visa Credit Card No. 4009 8 9218 0463 3006. Petitioner Francisco further argues that Bankard had no personality to file the complaint, since the credit card companies were the ones which really suffered damage in the case at bar. Thus, argued petitioner Francisco, the third element of estafa under Article 315(a) was lacking: Stated otherwise, this element speaks of an offended party which undoubtedly may only refer to Solidbank Mastercard and AIG Visa simply because it was these two credit card companies that extended credit facilities to herein petitioner when the latter used his credit cards. Despite this factual setup however, not even one of these credit card companies appeared as private complainant in the instant case. BANKARD Inc., the former employer of herein petitioner is the one who lodged the criminal complaint after the latter filed an illegal dismissal case against it before the National Labor Relations Commission. Worse, the assailed Decision of the Honorable Court of Appeals even awarded civil liabilities in favor of BANKARD Inc. corresponding to the accumulated credit balances of petitioner with Mastercard and Visa, when in truth and in fact, Mastercard and Visa continues even up to the present to exert collection effort against 9 petitioner by sending him corresponding demand letters. Firstly, as discussed above, it was duly proven that Bankard also suffered damages by reason of fraudulent acts committed by petitioner Francisco. Secondly, even assuming for the sake of argument that Solidbank Mastercard and AIG Visa were the proper offended parties in this case, petitioner Francisco is mistaken in his assertion that it was essential for either Solidbank Mastercard or AIG Visa to have filed the complaint for estafa. Except in cases that cannot be prosecuted de oficio, namely adultery, 10 concubinage, seduction, abduction and acts of lasciviousness, a complaint filed by the offended party is not necessary for the institution of a criminal action. The Information filed by the prosecutor with the proper court is sufficient. A crime is an offense against the State, and hence is prosecuted in the name of the People of the Philippines. The participation of the private offended party is not essential to the prosecution of crimes, except in the crimes stated above, or in the prosecution of the civil action deemed instituted with the 11 criminal action. A complaint for purposes of preliminary investigation by the prosecutor need not be filed by the "offended party" but may be filed by any competent person, unless the offense subject thereof cannot be prosecuted 12 de oficio. The Court of Appeals was correct in modifying the penalty to be imposed on petitioner Francisco. Article 315 of the Revised Penal Code provides that the penalty for estafa is "(t)he penalty of prision correccional in its maximum period to prision mayor in its minimum period, if the amount of the fraud is over 12,000 pesos but does not exceed 22,000 pesos, and if such amount

exceeds the latter sum, the penalty provided in this paragraph shall be imposed in its maximum period, adding one year for each additional 10,000 pesos; but the total penalty which may be imposed shall not exceed twenty years." Applying the Indeterminate Sentence Law, the minimum term of the indeterminate penalty should be one degree lower than prision correccional in its maximum period to prision mayor in its minimum period, the period prescribed in the Revised Penal Code. One degree lower than the above penalty would be prision correccional in its minimum period to prision correccional in its medium period, the inclusive imprisonment duration for which is 6 months and 1 day to 4 years and 2 months. The minimum term of the indeterminate sentence imposed by the Court of Appeals, which is 4 years and 2 months, is within the above-stated period. The maximum term of the indeterminate penalty, according to the Indeterminate Sentence Law, is "that which, in view of the attending circumstances, could be properly imposed under the Rules of the said Code." As held by the Court of Appeals, the total amount defrauded is P681,574.77. This exceeds the threshold amount of P22,000 by P659,547.77. There are, thus, 65 additional P10,000.00s. This would have resulted in an additional 65 years, if not for the maximum imposable penalty of twenty years. The Court of Appeals, therefore, properly pegged the maximum term of the indeterminate sentence at twenty years. WHEREFORE, the Decision of the Court of Appeals dated 28 February 2007 and Resolution dated 4 May 2007 in CA-G.R. CR No. 29699, are hereby AFFIRMED. Costs against petitioner Francisco. SO ORDERED. MINITA V. CHICO-NAZARIO Associate Justice WE CONCUR: LEONARDO A. QUISUMBING Associate Justice MA. ALICIA AUSTRIARENATO C. CORONA MARTINEZ Associate Justice Associate Justice Acting Chairperson CONCHITA CARPIO MORALES Associate Justice A TT E S TA T ION I attest that the conclusions in the above Decision were reached in consultation before the case was assigned to the writer of the opinion of the Courts Division. MA. ALICIA AUSTRIA-MARTINEZ Associate Justice Acting Chairperson, Third Division CERTIFICATION

Pursuant to Section 13, Article VIII of the Constitution, and the Division Acting Chairpersons Attestation, it is hereby certified that th e conclusions in the above Decision were reached in consultation before the case was assigned to the writer of the opinion of the Courts Division. REYNATO S. PUNO Chief Justice Footnotes * Per Special Order No. 564, dated 12 February 2009, signed by Chief Justice Reynato S. Puno designating Associate Justice Leonardo A. Quisumbing to replace Associate Justice Consuelo Ynares-Santiago, who is on official leave under the Courts Wellness Program. ** Associate Justices Renato C. Corona and Conchita Carpio Morales were designated to sit as additional members replacing Associate Justices Antonio Eduardo B. Nachura and Diosdado M. Peralta per Raffle dated 16 February 2009. 1 Penned by Associate Justice Fernanda Lampas Peralta with Associate Justices Edgardo P. Cruz and Normandie B. Pizzarro, concurring; rollo, pp. 35-52. 2 Article 315, par. 2(a) of the Revised Penal Code provides: 2. By means of any of the following false pretenses or fraudulent acts executed prior to or simultaneously with the commission of the fraud: (a) By using fictitious name, or falsely pretending to possess power, influence, qualifications, property, credit, agency, business or imaginary transactions, or by means of other similar deceits. 3 Rollo, p. 65. 4 Id. at 51. 5 Id. at 158. 6 Flores v. Layosa, G.R. No. 154714, 12 August 2004, 436 SCRA 337, 347. 7 Article 4 of the Revised Penal Code provides: Article 4. Criminal liability. - Criminal liability shall be incurred: 1. By any person committing a felony (delito) although the wrongful act done be different from that which he intended. 8 Rollo, pp. 47-48. 9 Rollo, pp. 162-163. 10 Section 4, Rule 10 of the Rules of Court. 11 Section 1, Rule 111 of the Rules of Court. 12 Regalado, Remedial Law Compendium (10th Ed., p. 274); Hernandez v. Albano, 112 Phil. 507, 509 (1961); Ebarle v. Sucaldito, G.R. No. L-33628, 29 December 1987, 156 SCRA 803, 819. G.R. No. 159450 March 30, 2011

PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee, vs. OLIVIA ALETH GARCIA CRISTOBAL, Accused-Appellant. DECISION BERSAMIN, J.: Although a waiver of the right to present evidence by the accused is not a trivial matter to be lightly regarded by the trial court, the filing of the demurrer to evidence without express leave of court operates as a waiver that binds the accused pursuant to the express provision of the Rules of Court. Under challenge in this appeal is the decision promulgated on July 31, 2003 in C.A.-G.R. CR No. 24556, whereby the Court of Appeals (CA) affirmed the conviction for qualified theft of the accused, a teller of complainant Prudential 1 Bank, and punished her with reclusion perpetua, thereby modifying the decision dated May 26, 2000 rendered by the Regional Trial Court, Branch 2 57, in Angeles City (RTC), imposing an indeterminate sentence from ten (10) years and one (1) day of prision mayor as minimum to twenty (20) years of reclusion temporal as maximum. Antecedents The information charged the accused with qualified theft, alleging: That on or about the 2nd of January, 1996, in the City of Angeles, Philippines, and within the jurisdiction of this Honorable Court, the abovenamed accused, OLIVIA ALETH GARCIA CRISTOBAL, being then the teller of Prudential Bank, Angeles Main Branch, Sto. Rosario Street, Angeles City, and as such is entrusted with cash and other accountabilities, with grave abuse of trust and confidence reposed upon her by her employer, with intent to gain and without the knowledge and consent of the owner thereof, did then and there willfully, unlawfully and feloniously take, steal and carry away cash money amounting to $10,000.00, belonging to the Prudential Bank, Angeles Main Branch, represented by its Branch Manager, EDGARDO PANLILIO, to the damage and prejudice of Prudential Bank, Angeles Main Branch, in the aforementioned amount of TEN THOUSAND DOLLARS ($10,000.00) or its equivalent of TWO HUNDRED SIXTY THOUSAND PESOS (P260,000.00), Philippine Currency and parity rate. 3 ALL CONTRARY TO LAW. After the accused pleaded not guilty at arraignment, the State presented four witnesses, namely: Prudential Bank Branch Manager Edgardo Panlilio, Sr., Bank Auditor Virgilio Frias, Bank Cashier Noel Cunanan, and account holder Apolinario Tayag. The summary of the evidence of the State rendered in the assailed decision 4 of the CA follows: xxx Among the six tellers in the Angeles City main branch of Prudential Bank, accused-appellant (hereafter "appellant") was the only teller assigned to handle dollar deposits and withdrawals. On January 2, 1996, an internal spot-audit team headed by Prudential Bank s senior audit examiner Virgilio Frias ("Frias"), inventoried the cash

accountabilities of the said branch by manually counting the money in each of the tellers cash boxes. While the books of the branch showed that appellant had a cash accountability of $15,040.52, the money in her cash box was only $5,040.52. Asked about the shortage of $10,000.00, appellant explained that there was a withdrawal of $10,000.00 on December 29, 1995 after the cut-off time which would be treated as a withdrawal on January 2, 1996. Appellant then presented to Frias a withdrawal memo dated January 2, 1996 showing a withdrawal of $10,000.00 from Dollar Savings Account No. FX-836 ("FX836") of Adoracion Tayag and her co-signatory, Apolinario Tayag. On January 3, 1996, appellant showed the aforesaid withdrawal memo to the branch cashier, Noel Cunanan ("Cunanan"). Noticing that the said withdrawal memo did not contain the required signatures of two bank officers, Cunanan asked appellant what the nature of the transaction was. Appellant replied that the depositor, Apolinario Tayag, had instructed her to withdraw $10,000.00 from his account on January 3, 1996, through his driver whom he had sent to the bank. Cunanan, however, did not notice that while the withdrawal was supposed to have been made on January 3, 1996, the withdrawal memo was dated January 2, 1996. Cunanan then instructed appellant to have the withdrawal posted in the corresponding ledger and to bring the withdrawal memo back to him so he and the branch manager, Edgardo Panlilio, could affix their signatures. Meanwhile, Frias checked the account ledger of FX-836, and found a "hold jacket" indicating that no withdrawal from the said account should be allowed to reduce its balance below $35,000.00. The supposed withdrawal of $10,000.00 had reduced the account balance of FX-836 to $26,077.51. From the account ledger, Frias also discovered that a deposit of $10,000.00 was made on January 2, 1996. He found the deposit memo on file. Thereafter, Frias compared the signature on the withdrawal memo with the specimen signatures of the depositors in their signature card. Finding a "big difference" in the signatures, he referred the matter to the branch manager, Edgardo Panlilio ("Panlilio"). Asked by Panlilio to explain, appellant reiterated that the withdrawal was made after the cut-off time on December 29, 1995. Doubting her explanation, Frias conducted another cash count. At that time, appellants accountability based on the books of the bank was $21,778.86, but the money in her cash box was only $11,778.86, thus, short of US$10,000.00. When Panlilio again asked appellant to explain, the latter started to cry and said she would explain to the bank president. The next day, January 4, 1996, appellant told Panlilio that she gave the $10,000.00 to a person on December 29, 1995 because her family was being threatened. In her letter to the bank president dated January 4, 1996, appellant apologized and explained her shortage of $10,000.00 and another shortage of P2.2 Million which the audit team had also discovered. She wrote:

Sometime in the month of September, a man approached me at my counter and handed me a note demanding me (sic) to give him a big amount of money of P600,000. I looked at him and told him I dont have any. He told me to get at my drawer and not to tell anybody because their companions are at the nearby of my house (sic) and threatened me that something will happened (sic) to my kids. That time he looked back and I also saw another man w/ radio at his waist, who stood up and went out. I nervously handed him the money. While doing this, I tried to pull the alarm at my counter but it was out of order. This alarm was out of order for quite sometime but I was still hoping it might work. Since that day, time and again, he kept on coming back and I couldnt do anything but to give in to his request. His second, he demanded for (sic) another P600,000 but I gave him only P530,000. The 3rd & 4th was P550,000 each. Last December 29, 1995 at around 3:00 pm, I was surprised to see him at my counter, again, he was asking for money. I was balancing my dollar transaction. But that time, I had delivered my peso cash box to our cashier. He saw the bundle of $10,000 which was on top of my desk because I was writing the breakdown on my cash count. He wanted me to give it to him & this time he pointed a gun at me and I got so nervous & gave him the dollars. During this time, in order for me to be balance with (sic) my transactions, I cash out checks (suppose to be for late deposit) & included them in todays clearing. The following day, I validated the deposit slips as cash deposit. . . Apolinario Tayag denied withdrawing $10,000.00 from FX-836 either on December 29, 1995 or on January 2, 1996 when he was in Baguio City. He said he was not familiar with the withdrawal and deposit memos showing the withdrawal of $10,000.00 from the said account and the subsequent deposit of the same amount therein. He also denied the signatures thereon as his or his mothers. xxx Upon the State resting its case against the accused, her counsel filed a 5 Demurrer to Evidence and Motion to Defer Defense Evidence, praying for the dismissal of the charge on the ground that the evidence of the State did not suffice to establish her guilt beyond reasonable doubt. However, the RTC denied the Demurrer to Evidence and Motion to Defer Defense Evidence and deemed the case submitted for decision on the basis that her filing her demurrer to evidence without express leave of court as required by Section 15, Rule 119, of the Rules of Court had waived her right 6 to present evidence, viz: WHEREFORE, the Demurer to Evidence filed by the accused is hereby denied for lack of merit. Reviewing further the records of this case, there is evidence and proof that the Demurrer to Evidence filed by the accused Cristobal is without express leave of court hence, under Section 15 par. 2 of Rule 119, accused Cristobal has waived her right to present evidence and submit the case for judgment on the basis of the evidence for the prosecution.

In view thereof, this case filed against accused Cristobal is hereby submitt ed for decision. SO ORDERED. On May 26, 2000, therefore, the RTC rendered its decision finding and 7 pronouncing the accused guilty of qualified theft, disposing: WHEREFORE, the Court finds Olivia Aleth Cristobal guilty beyond reasonable doubt of the crime of Qualified Theft and hereby sentences her to suffer the penalty of imprisonment of ten (10) years and one (1) day of prision mayor to twenty (20) years of reclusion temporal as maximum. Accused Cristobal is also ordered to pay Prudential Bank, the amount of US $10,000.00, representing the amount that was lost, plus interest. SO ORDERED. The accused appealed, but the CA affirmed her conviction on July 31, 2003, 8 albeit modifying the penalty, finding and ruling as follows: The following circumstances as established by the prosecutions evidence, show beyond reasonable doubt that appellant stole US$10,000.00 from Prudential Bank: 1. Appellant was the only teller in the Angeles City main branch of Prudential Bank assigned to handle dollar transactions. Thus, it was only she who had access to the subject account for purposes of dollar deposits and withdrawals; 2. She admitted having transacted or processed the supposed withdrawal of US$10,000.00 from dollar savings account no. FX-836; 3. It was she who presented to the head auditor, Rolando Frias, the withdrawal memo for US$10,000.00 supposedly withdrawn from dollar savings account no. FX-836, saying that it was withdrawn on December 29, 1995 after the cut-off time and would be considered a withdrawal on January 2, 1996; 4. The said withdrawal memo did not contain the required signatures of two bank officers; 5. The supposed withdrawal of $10,000.00 from dollar savings account no. FX-836 reduced the balance thereof to P26,077.51, violating the "hold jacket" or instruction in the account ledger which disallowed any withdrawal from the said account that would reduce the balance thereof below P35,000.00; 6. The discrepancy in the signature on the withdrawal memo and the specimen signatures in the depositors signature card; 7. Asked to explain the shortage of $10,000.00 revealed by the second cash count, following the discovery of the aforesaid "hold jacket" in the account ledger and discrepancy in the signatures, appellant began to cry, saying she would just explain to the bank president; 8. The depositor, Apolinario Tayag, denied withdrawing money from dollar savings account no. FX-836 either on December 29, 1995, when appellant claimed the withdrawal was made, or on January 2, 1996, the date of the withdrawal memo, at which time he was in

Baguio City. He was not familiar with the withdrawal and deposit memos showing the withdrawal of $10,000.00 from the said account and the subsequent deposit of the same amount therein. He also denied that the signatures thereon belong to him or his mother, Adoracion Tayag, with whom he shares the account as co-signatory; 9. In her letter to the bank president, she admitted appropriating US$10,000.00 and P2.2 Million, and explained how she covered it up; 10. Appellant gave different and inconsistent explanations for her shortage of US$10,000.00. She explained to the auditors that the said amount was withdrawn on December 29, 1995 after the cut-off time, hence, would be considered as a withdrawal on January 2, 1996. To the branch cashier, Noel Cunanan, she said that Apolinario Tayag had instructed her to withdraw $10,000.00 from his account on January 3, 1996, through his driver whom he had sent to the bank. Later, she told Panlilio and the bank president that she gave the $10,000.00 to a person on December 29, 1995 because he had threatened her family; and 11. In her letter to the bank president, she mentioned five instances when the unidentified man supposedly threatened her and demanded money from her. However, she never reported any of these incidents to any of the bank officers or the police authorities. Even without an eyewitness, the foregoing circumstances indicate that appellant committed the crime, to the exclusion of all others. In the absence of an eyewitness, reliance on circumstantial evidence becomes inevitable. Circumstantial evidence is defined as that which indirectly proves a fact in issue through an inference which the factfinder draws from the evidence established. Resort thereto is essential when the lack of direct testimony would, in many cases, result in setting a felon free and denying proper protection to the community. In order that circumstantial evidence may be sufficient to convict, the same must comply with these essential requisites, viz., (a) there is more than one circumstance; (b) the facts from which the inferences are derived are proven; and (c) the combination of all the circumstances is such as to produce a conviction beyond reasonable doubt. As hereinbefore shown, there is more than one circumstance or indication of appellants guilt. Moreover, the said circumstances, from which the act of taking could be inferred, had been established by the prosecutions evidence. And the combination of the said circumstances is clearly sufficient to convict the appellant of qualified theft beyond reasonable doubt. In conclusion, We hold that the totality of the evidence points to no other conclusion than that accused-appellant is guilty of the crime charged. Evidence is weighed not counted. When facts or circumstances which are proved are not only consistent with the guilt of the accused but also inconsistent with his innocence, such evidence, in its weight and probative

force, may surpass direct evidence in its effect upon the court. This is how it is in this case. xxx WHEREFORE, the assailed Decision convicting the accused-appellant of Qualified Theft is hereby AFFIRMED with MODIFICATION in that the penalty shall be reclusion perpetua and the accessory penalties of death under Article 40 of the Revised Penal Code, and accused-appellant shall pay Prudential Bank US$10,000.00, without interest. SO ORDERED. Issues In her appeal, the accused submits that the CA gravely erred: 1. xxx in affirming the conviction of the accused on the basis of an information for qualified theft that charges the accused to have taken $10,000.00 on January 2, 1996 when the evidence on record based on various admissions of the prosecution's witnesses reveal that the accused did not and cannot take away $10,000.00 on January 2, 1996. 2. xxx in affirming the conviction of the accused based on an extrajudicial admission that was made without assistance of counsel and hearsay evidence as testified by the next most possible suspects to the loss. 3. xxx in affirming the conviction of the accused when the facts and evidence on record do not satisfy the elements of the crime as charged. 4. xxx in affirming the conviction of the accused when the very procedure employed by the trial court in the case at bench showed leniency to the prosecution and strictness to the defense in violation of the constitutional and statutory rights of the accused. 5. xxx in affirming the ruling of the trial court that the accused had waived her right to present evidence-in-chief despite the expressed motion to defer its presentation when the demurrer to evidence was 9 filed. The assigned errors are restated thuswise: (a) Whether the information filed against the accused was fatally defective; (b) Whether the RTC correctly found that the accused had waived her right to present evidence in her defense; and (c) Whether the extrajudicial admission of taking the amount involved contained in the letter of the accused to the President of Prudential Bank was admissible under the rules and jurisprudence. Ruling We deny the petition for review and affirm the CAs decision. 1. Findings of CA and RTC are affirmed due to being based on the evidence

There is no question about the findings of fact being based on the evidence adduced by the Prosecution. The decisions of both lower courts are remarkable for their thoroughness and completeness. In fact, the accused did not impugn the findings of fact, and confined herself only to the validity of the information and the legality of her letter due to its being held admissible as evidence against her. Although she decried her failure to present her evidence on account of her having demurred without express leave of court, that, too, was not an obstacle to the correctness of the findings of fact against her. Thus, we sustain the findings of fact, for findings of the CA upon factual matters are conclusive and ought not to be disturbed unless they are 10 shown to be contrary to the evidence on record. 2. Information was sufficient and valid The petitioner submits that the information charged her with qualified theft that allegedly transpired on December 29, 1995, but the evidence at trial could not be the basis of her conviction because it actually proved that the taking had transpired on January 2, 1996; and that the discrepancy would unduly prejudice her rights as an accused to be informed of the charges as to enable her to prepare for her defense. To bolster her submission, she cites 11 the testimony of Virgilio Frias to the effect that she was cleared of her accountability upon her turning her cash box over to the bank cashier on December 29, 1995, thereby negating the accusation that she had taken the money on December 29, 1995. The petitioners submission is untenable. The main purpose of requiring the various elements of a crime to be set forth in the information is to enable the accused to adequately prepare her 12 defense. As to the sufficiency of the allegation of the time or date of the commission of the offense, Section 6 and Section 11, Rule 110 of the 13 Revised Rules of Court, the rules applicable, provide: Section 6. Sufficiency of complaint or information. A complaint or information is sufficient if it states the name of the accused; the designation of the offense by the statute; the acts or omissions complained of as constituting the offense; the name of the offended party; the approximate time of the commission of the offense; and the place wherein the offense was committed. When an offense is committed by more than one person, all of them shall be included in the complaint or information. (5a) Section 11. Time of the commission of the offense. It is not necessary to state in the complaint or information the precise time at which the offense was committed except when time is a material ingredient of the offense, but the act may be alleged to have been committed at any time as near to the actual date at which the offense was committed as the information or complaint will permit. (10) Conformably with these rules, the information was sufficient because it stated the approximate time of the commission of the offense through the words "on or about the 2nd of January, 1996," and the accused could reasonably

deduce the nature of the criminal act with which she was charged from a reading of its contents as well as gather by such reading whatever she needed to know about the charge to enable her to prepare her defense. The information herein did not have to state the precise date when the offense was committed, considering that the date was not a material ingredient of the offense. As such, the offense of qualified theft could be alleged to be committed on a date as near as possible to the actual date of 14 its commission. Verily, December 29, 1995 and January 2, 1996 were dates only four days apart. With the information herein conforming to the standard erected by the Revised Rules of Court and pertinent judicial pronouncements, the accused was fully apprised of the charge of qualified theft involving the US$10,000.00 belonging to her employer on or about January 2, 1996. 3. CA and RTC did not err in deeming petitioner to have waived her right to present evidence The accused contended that: xxx (2) The trial court denied accused (sic) Demurrer To Evidence and Motion To Defer Defense Evidence and ruled that the accused is considered to have waived her evidence (for alleged lack of leave of court). Although the accused is not principally relying on this error (because the prosecutions own evidence show that she is not guilty), still it was error for the trial court to deprive the accused of her day in court because the demurrer was at the same time, as stated in the title thereof, also a motion to defer defense 15 evidence. 16 The CA rejected her contention in the following manner: As to whether or not the Trial Court correctly ruled that appellant waived the presentation of her evidence when she filed her "Demurrer To Evidence and Motion to Defer Evidence" without prior leave of court, We rule in the affirmative. Appellants theory that prior leave of court had been requested because her demurrer was, at the same time, also a motion to defer defense evidence, cannot be sustained. A motion to defer evidence does not constitute a request for leave to file a demurrer to evidence. In fact, such motion indicates that appellant wanted the Trial Court to consider the demurrer before proceeding to hear her evidence. Furthermore, there is no thing in appellants Demurrer from which it can be inferred that appellant was asking the Trial Court permission to move for the dismissal of the case. Section 15, Rule 119 of the Rules of Criminal Procedure provides: Sec. 15. Demurrer to Evidence. After the prosecution has rested its case, the court may dismiss the case on the ground of insufficiency of evidence: (1) on its own initiative after giving the prosecution an opportunity to be heard; or (2) on motion of the accused filed with prior leave of court. If the court denies the motion for dismissal, the accused may adduce evidence in his defense. When the accused files such motion to dismiss

without express leave of court, he waives the right to present evidence and submits the case for judgment on the basis of the evidence for the prosecution. (Emphasis supplied.) Clearly, when the accused files such motion to dismiss without express leave of court, he waives the right to present evidence and submits the case for judgment on the basis of the evidence for the prosecution. In such a case, the waiver of the right to present defense evidence is unqualified. Unavoidably, Our attention is drawn to the apparent negligence of appellants counsel in failing to secure prior leave of court before filing her Demurrer to Evidence. However, We cannot lose sight of the fact that in law, the negligence of appellants counsel binds her. Indeed, jurisprudence teems with pronouncements that a client is bound by the conduct, negligence and mistakes of his counsel. The CA did not thereby err. The rule in point is Section 15, Rule 119, of the Revised Rules of Court, viz: Section 15. Demurrer to evidence. After the prosecution has rested its case, the court may dismiss the case on the ground of insufficiency of evidence: (1) on its own initiative after giving the prosecution an opportunity to be heard; or (2) on motion of the accused filed with prior leave of court. If the court denies the motion for dismissal, the accused may adduce evidence in his defense. When the accused files such motion to dismiss without express leave of court, he waives the right to present evidence and submits the case for judgment on the basis of the evidence for the prosecution. (n) Under the rule, the RTC properly declared the accused to have waived her right to present evidence because she did not obtain the express leave of court for her demurrer to evidence, thereby reflecting her voluntary and knowing waiver of her right to present evidence. The RTC did not need to inquire into the voluntariness and intelligence of the waiver, for her opting to file her demurrer to evidence without first obtaining express leave of court effectively waived her right to present her evidence. It is true that the Court has frequently deemed the failure of the trial c ourts to conduct an inquiry into the voluntariness and intelligence of the waiver to be a sufficient cause to remand cases to the trial courts for the purpose of ascertaining whether the accused truly intended to waive their constitutional right to be heard, and whether they understood the consequences of their 17 18 waivers. In People v. Bodoso, a prosecution for a capital offense, we leaned towards the protection of the accuseds constitutional right to due process by outlining the proper steps to be taken before deeming the right to present evidence as waived, thus: Henceforth, to protect the constitutional right to due process of every accused in a capital offense and to avoid any confusion about the proper steps to be taken when a trial court comes face to face with an accused or his counsel who wants to waive his cli ents right to present evidence and be heard, it shall be the unequivocal duty of the trial court to observe, as a prerequisite to the validity of such waiver, a procedure akin to a "searching

inquiry" as specified in People v. Aranzado when an accused pleads guilty, particularly 1. The trial court shall hear both the prosecution and the accused with their respective counsel on the desire or manifestation of the accused to waive the right to present evidence and be heard. 2. The trial court shall ensure the attendance of the prosecution and especially the accused with their respective counsel in the hearing which must be recorded. Their presence must be duly entered in the minutes of the proceedings. 3. During the hearing, it shall be the task of the trial court to a. ask the defense counsel a series of question to determine whether he had conferred with and completely explained to the accused that he had the right to present evidence and be heard as well as its meaning and consequences, together with the significance and outcome of the waiver of such right. If the lawyer for the accused has not done so, the trial court shall give the latter enough time to fulfill this professional obligation. b. inquire from the defense counsel with conformity of the accused whether he wants to present evidence or submit a memorandum elucidating on the contradictions and insufficiency of the prosecution evidence, if any, or in default theory, file a demurrer to evidence with prior leave of court, if he so believes that the prosecution evidence is so weak that it need not even be rebutted. If there is a desire to do so, the trial court shall give the defense enough time to this purpose. c. elicit information about the personality profile of the accused, such as his age, socio-economic status, and educational background, which may serve as a trustworthy index of his capacity to give a free and informed waiver. d. all questions posed to the accused should be in a language known and understood by the latter, hence, the record must state the language used for this purpose as well as reflect the corresponding translation thereof in English. In passing, trial courts may also abide by the foregoing criminal procedure when the waiver of the right to be present and be heard is made in criminal cases involving non-capital offenses. After all, in whatever action or forum the accused is situated, the waiver that he makes if it is to be binding and effective must still be exhibited in the case records to have been validly undertaken, that is, it was done voluntarily, knowingly and intelligently with sufficient awareness of the relevant circumstances and likely consequences. As a matter of good court practice, the trial court would have to rely upon the most convenient, if not primary, evidence of the validity of the waiver which would amount to the same thing as showing its adherence to the step-bystep process outlined above.

Also, in Rivera v. People, which involved an accused charged with a noncapital offense who filed a demurrer to evidence without leave of court, the Court, citing People v. Bodoso, supra, remanded the case to the Sandiganbayan for further proceedings upon finding that the accused had not been asked whether he had understood the consequences of filing the demurrer to evidence without leave of court. Yet, the accused cannot be extended the benefit of People v. Bodoso and Rivera v. People. The factual milieus that warranted the safeguards in said criminal cases had nothing in common with the factual milieu in which the RTC deemed the herein accused to have waived her right to present evidence. The accused in People v. Bodoso, without filing a demurrer to evidence, expressly waived the right to present evidence. The Court felt that the trial court ought to have followed the steps outlined therein. The accused in Rivera v. People filed a demurrer to evidence without having to obtain an express leave of court, considering that the Sandiganbayan itself had told him to file the demurrer to evidence. Thus, after the demurrer to evidence was denied, the accused was held to be still entitled to present his evidence. The accused and her counsel should not have ignored the potentially prejudicial consequence of the filing of a demurrer to evidence without the leave of court required in Section 15, Rule 119, of the Revised Rules of 20 Court. They were well aware of the risk of a denial of the demurrer being high, for by demurring the accused impliedly admitted the facts adduced by 21 the State and the proper inferences therefrom. We cannot step in now to alleviate her self-inflicted plight, for which she had no one to blame but herself; otherwise, we may unduly diminish the essence of the rule that gave her the alternative option to waive presenting her own evidence. 4. Petitioners handwritten letter is admissible in evidence The next issue concerns the admissibility of the accuseds letter dated January 4, 1996 to Prudential Banks President explaining the shortage of 22 her dollar collection as bank teller, the relevant portion of which follows: xxx Sometime in the month of September, a man approached me at my counter and handed me a note demanding me (sic) to give him a big amount of money of P600,000. I looked at him and told him I dont have any. He told me to get at my drawer and not to tell anybody because their companions are at the nearby of my house (sic) and threatened me that something will happened (sic) to my kids. That time he looked back and I also saw another man w/ radio at his waist, who stood up and went out. I nervously handed him the money. While doing this, I tried to pull the alarm at my counter but it was out of order. This alarm was out of order for quite sometime but I was still hoping it might work. Since that day, time and again, he kept on coming back and I couldnt do anything but to give in to his request. His second, he demanded for (sic) another P600,000 but I gave him only P530,000. The 3rd & 4th was P550,000 each. Last December 29, 1995 at around 3:00 pm, I was surprised to see him at my counter, again, he was asking for money. I was

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balancing my dollar transaction. But that time, I had delivered my peso cash box to our cashier. He saw the bundle of $10,000 which was on top of my desk because I was writing the breakdown on my cash count. He wanted me to give it to him & this time he pointed a gun at me and I got so nervous & gave him the dollars. During this time, in order for me to be balance with (sic) my transactions, I cash out checks (suppose to be for late deposit) & included them in todays clearing. The following day, I validated the deposit slips as cash deposit xxx. The accused submits that the letter was inadmissible for being in reality an uncounselled extrajudicial confession, and for not being executed under oath. The submission lacks persuasion. The letter was not an extrajudicial confession whose validity depended on its being executed with the assistance of counsel and its being under oath, but a 23 voluntary party admission under Section 26, Rule 130 of the Rules of Court that was admissible against her. An admission, if voluntary, is admissible against the admitter for the reason that it is fair to presume that the admission corresponds with the truth, and it is the admitters fault if the 24 admission does not. By virtue of its being made by the party himself, an 25 admission is competent primary evidence against the admitter. Worth pointing out is that the letter was not a confession due to its not expressly acknowledging the guilt of the accused for qualified theft. Under 26 Section 30, Rule 130 of the Rules of Court, a confession is a declaration of an accused acknowledging guilt for the offense charged, or for any offense necessarily included therein. Nonetheless, there was no need for a counsel to have assisted the accused when she wrote the letter because she spontaneously made it while not under custodial investigation. Her insistence on the assistance of a counsel might be valid and better appreciated had she made the letter while under arrest, or during custodial investigation, or under coercion by the investigating authorities of the Government. The distinction of her situation from that of a person arrested or detained and under custodial investigation for the commission of an offense derived from the clear intent of insulating the latter from police coercion or intimidation underlying Section 12 of Article III (Bill of Rights) of the 1987 Constitution, which provides: Section 12. (1) Any person under investigation for the commission of an offense shall have the right to be informed of his right to remain silent and to have competent and independent counsel preferably of his own choice. If the person cannot afford the services of counsel, he must be provided with one. These rights cannot be waived except in writing and in the presence of counsel. (2) No torture, force, violence, threat, intimidation, or any other means which vitiate the free will shall be used against him. Secret detention places, solitary, incommunicado, or other similar forms of detention are prohibited.

(3) Any confession or admission obtained in violation of this or Section 17 hereof shall be inadmissible in evidence against him. (4) The law shall provide for penal and civil sanctions for violations of this section as well as compensation to and rehabilitation of victims of torture or similar practices, and their families. To reiterate, the rights under Section 12, supra, are available to "any person under investigation for the commission of an offense." The phrase does not cover all kinds of investigations, but contemplates only a situation wherein "a person is already in custody as a suspect, or if the person is the suspect, 27 even if he is not yet deprived in any significant way of his liberty." The situation of the accused was not similar to that of a person already in custody as a suspect, or if the person is the suspect, even if she is not yet deprived in any significant way of his liberty. 5. Penalty was correctly determined We quote and adopt with approval the CAs discourse on why the penalty of reclusion perpetua was appropriate for the offense committed by the accused, to wit: The foregoing considered, appellants conviction must perforce be affirmed. The sentence imposed by the Trial Court should, however, be modified. The Trial Court sentenced the appellant to imprisonment of ten (10) years and one (1) day of prision mayor, as minimum, to twenty (20) years of reclusion temporal, as maximum. The correct penalty, however, should be reclusion perpetua with the accessory penalties of death under Article 40 of the Revised Penal Code. Article 310 of the Revised Penal Code provides that qualified theft shall be punished by the penalties next higher by two degrees than those specified in Article 309 of the Revised Penal Code. Paragraph (1) of Article 309 states that if the value of the thing stolen exceeds P22,000, the penalty shall be the maximum period of prision mayor in its minimum and medium periods, and one year for each P10,000.00 in excess of P22,000.00, but the total of the penalty which may be imposed shall not exceed twenty years (or reclusion temporal). Appellant stole US$10,000.00 or P262,140.00 computed based on the exchange rate on December 29, 1995 when the appropriation took place. Under Article 309, the basic penalty is prision mayor in its minimum and medium periods to be imposed in the maximum period since the amount stolen exceeded P22,000.00. To determine the additional years of imprisonment prescribed in Article 309 (1), the amount of P22,000.00 should be deducted from P262,140.00, thus, leaving the amount of P240,140.00. The net amount should then be divided by P10,000.00, disregarding any amount below P10,000.00. The result is the incremental penalty of twenty four (24) years which must then be added to the basic penalty of the maximum period of prision mayor minimum and medium periods. The penalty of prision mayor in its minimum and medium periods has a range of six years (6) and one (1) day to ten (10) years. Its maximum period is eight

(8) years, eight (8) months and one (1) day to ten (10) years, and the incremental penalty is twenty-four (24) years. Had appellant committed simple theft, the penalty should have been twenty years of reclusion temporal, the maximum penalty allowable under Article 309, subject to the Indeterminate Sentence Law. Considering that the theft is qualified by grave abuse of confidence, the penalty is two degrees higher than that specified under Article 309. Under Article 25 of the Revised Penal Code, two degrees higher than reclusion temporal is death. However, Article 74 of the same Code provides that in cases in which the law prescribes a penalty higher than another given penalty, without specifically designating the name of the former, and if such higher penalty should be that of death, the same penalty and the accessory penalties of Article 40, shall be considered as the next higher penalty. 1wphi1 The Supreme Court held that in such a case, the accused should be meted the penalty of reclusion perpetua for forty years with the accessory penalties of death under Article 40 of the Revised Penal Code. WHEREFORE, we deny the petition for review on certiorari, and affirm the decision promulgated on July 31, 2003 in CA-G.R. CR No. 24556. SO ORDERED. LUCAS P. BERSAMIN Associate Justice WE CONCUR: CONCHITA CARPIO MORALES Associate Justice Chairperson ARTURO D. BRION MARTIN S. VILLARAMA, JR. Associate Justice Associate Justice MARIA LOURDES P. A. SERENO Associate Justice A TT E S TA T ION I attest that the conclusions in the above Decision had been reached in consultation before the case was assigned to the writer of the opinion of the Courts Division. CONCHITA CARPIO MORALES Associate Justice Chairperson CERTIFICATION Pursuant to Section 13, Article VIII of the Constitution, and the Division Chairpersons Attestation, I certify that the conclusions in the above Decision had been reached in consultation before the case was assigned to the writer of the opinion of the Courts Divi sion. RENATO C. CORONA Chief Justice Footnotes

Rollo, pp. 54-73; penned by Associate Justice Noel G. Tijam, and concurred in by Associate Justice Portia Alio-Hormachuelos and Associate Justice Edgardo P. Cruz (retired). 2 Records, pp. 216-227; penned by Presiding Judge Omar T. Viola. 3 Id., p. 1. 4 Rollo, pp. 55-58. 5 Id., pp. 129-136. 6 Records, pp. 143-146. 7 Id., pp. 216-227. 8 Supra, note 1. 9 Rollo, pp. 35-36. 10 People v. Torrefiel, G.R. No. 115431, April 18, 1996, 256 SCRA 369, 379. 11 TSN, May 5, 1997, pp. 8-9; pp. 12-13. 12 People v. Batin, G.R. No.177223, November 28, 2007, 539 SCRA 272. 13 The information was filed on May 30, 1996, prior to the effectivity on December 1, 2000 of the 2000 Revised Rules of Criminal Procedure. 14 People v. Ching G.R. No. 177150, November 22, 2007, 538 SCRA 117; People v. Domingo, G.R. No. 177744, November 23, 2007, 538 SCRA 733; People v. Ibanez , G.R. No. 174656, May 11, 2007, 523 SCRA 136. 15 CA Rollo, p. 98. 16 Rollo, pp. 68-69. 17 People v. Flores , G.R. No. 106581, March 3, 1997, 269 SCRA 62; De Guzman v. Sandiganbayan, G.R. No. 103276, April 11, 1996, 256 SCRA 171; Rivera v. People, G.R. No. 163996, June 9, 2005, 460 SCRA 85. 18 G.R. No. 149382-149383, March 5, 2003, 398 SCRA 642, 653654. 19 Supra, note 17. 20 Section 15. Demurrer to evidence. After the prosecution has rested its case, the court may dismiss the case on the ground of insufficiency of evidence: (1) on its own initiative after giving the prosecution an opportunity to be heard; or (2) on motion of the accused filed with prior leave of court. If the court denies the motion for dismissal, the accused may adduce evidence in his defense. When the accused files such motion to dismiss without express leave of court, he waives the right to present evidence and submits the case for judgment on the basis of the evidence for the prosecution. (n) 21 See Mansfield v. Reserve Oil Co., 29 P.2d 491, 492, 38 NM 187. 22 Folder of Exhibits, pp. 41-42.

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Section 26. Admissions of a party. The act, declaration or omission of a party as to a relevant fact may be given in evidence against him. (22) 24 United States v. Ching Po, 23 Phil. 578. 25 Regalado, Remedial Law Compendium, 2001 Edition, p. 620. 26 Section 33. Confession. The declaration of an accused acknowledging his guilt of the offense charged, or of any offense necessarily included therein, may be given in evidence against him. (29a) 27 Bernas, The 1987 Constitution of the Republic of the Philippines: A Commentary, 1996 Ed., p. 413.

G.R. No. 172372 December 4, 2009 THE PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee, vs. ROMAR TEODORO y VALLEJO, Accused-Appellant. DECISION BRION, J.: We review in this appeal the January 19, 2006 decision of the Court of 1 Appeals (CA) in CA-G.R. CR-H.C. No. 00752, affirming in toto the February 19, 2001 decision of the Regional Trial Court (RTC), Branch 3, Batangas 2 City. The RTC decision found appellant Romar Teodoro (appellant) guilty beyond reasonable doubt of two (2) counts of statutory rape, and sentenced him to suffer the penalty of reclusion perpetua for each count. ANTECEDENT FACTS The prosecution charged the appellant before the RTC of the crime of rape under three separate Informations that read: Criminal Case No. 8538 That on or about the 18th day of June, 1995, in the morning thereof, at Barangay Pook ni Banal, Municipality of San Pascual, Province of Batangas, Philippines and within the jurisdiction of this Honorable Court, the abovenamed accused, by means of force and intimidation, did then and there willfully, unlawfully and feloniously lie with and have carnal knowledge with the said [AAA] who is below twelve (12) years old, against her will and consent. 3 Contrary to law. Criminal Case No. 8539 That sometime in the first week of July 1995, in the morning thereof, at Barangay Pook ni Banal, Municipality of San Pascual, Province of Batangas, Philippines and within the jurisdiction of this Honorable Court, the abovenamed accused, by means of force and intimidation, did then and there willfully, unlawfully and feloniously lie with and have carnal knowledge with the said [AAA], who is below twelve (12) years old, against her will and consent. 4 Contrary to law. Criminal Case No. 8540 That on or about the 30th day of March, 1996, at about 10:00 oclock in the evening, at Barangay Pook ni Banal, Municipality of San Pascual, Province of Batangas, Philippines and within the jurisdiction of this Honorable Court, the above-named accused, by means of force and intimidation, did then and there willfully, unlawfully and feloniously lie with and have carnal knowledge with the said [AAA], who is a twelve (12) year old minor, against her will and consent. 5 Contrary to law. 6 The appellant pleaded not guilty to the charges laid. The prosecution presented the following witnesses in the trial on the merits that followed: Dr. Rosalina Caraan-Mendoza (Dr. Mendoza); Donna Catapang (Donna); and AAA. The appellant took the witness stand for the defense.

Dr. Mendoza, the Municipal Health Officer of San Pascual, Batangas, testified that she conducted a medical examination of AAA on March 31, 7 1996, and made the following findings: MEDICO-LEGAL CERTIFICATE xxxx - External genitalia normal looking with 2 points of skin abrasions noted over the lower third of the (L) labia majora. - Labia majora gaping - (+) defloration of the hymen, with edges rounded noncoaptible hymenal border and edges retracted compatible with healed lacerations xxx 8 - Positive for presence of sperm cells Dr. Mendoza stated that she conducted a physical examination of AAA at the 9 request of the police, and that the healed laceration on AAAs private part 10 was the result of previous sexual intercourse. Donna, a medical technologist at the Bauan Pathology Center, testified that Dr. Mendoza requested her to conduct a laboratory examination on the 11 vaginal smear taken from AAA. She found the vaginal smear positive for 12 the presence of sperm cells. AAA declared on the witness stand that she was born on July 21, 1983. She knew the appellant since 1993 because the latter was an employee of her 13 parents. AAA recalled that on June 18, 1995, while her parents were at the sugarcane plantation, the appellant went to the bathroom and kissed her on the face and neck. The appellant then removed her clothes, pants and 14 panty. Thereafter, the appellant took off his pants and inserted his penis into her vagina. AAA struggled and pushed the appellant; the latter threatened to kill AAA if she told her parents about the incident. Afterwards, 15 the appellant left. AAA likewise recalled that during the first week of July 1995, the appellant again "raped" her in the bathroom. According to AAA, the appellant first removed her shirt and pants, but she cried and pushed him. The appellant 16 inserted his penis into her vagina after removing her panty. The appellant threatened to kill her if she reported the incident to her parents. Thereafter, 17 the appellant went to the field. AAA further testified that at around 10:00 p.m. of March 30, 1996, while her 18 parents were asleep, the appellant dragged her to the bathroom. She repeatedly struck the appellant with her hand, but the appellant succeeded in bringing her to the bathroom. The appellant removed AAAs shorts and panty, and, while they were in a standing position, inserted his penis into her 19 20 vagina. AAAs brother saw the incident and reported it to their mother. On cross examination, AAA stated that she knew the appellant prior to March 21 30, 1996 because the latter had been staying in their house for three years. AAA explained that their house had three bedrooms; and that the appellant 22 slept with her (AAAs) brothers. She maintained that one of her brothers

saw the March 30, 1996 rape and reported this incident to their mother. AAA 23 was confronted by her mother the next day. The appellant presented a different version of the events and claimed that 24 AAA had been his sweetheart since June 22, 1996. He denied using force on AAA and claimed that the sexual intercourse between them on March 30, 1996 was consensual. He recalled that on March 30, 1996, while he was lying beside AAAs brother at the sala, AAA gave him a signal to follow her to the bathroom. The appellant followed AAA to the bathroom, where they had 25 sex. After 20 minutes, he went out of the bathroom and went back to his 26 bed. He likewise denied having raped AAA on June 18, 1995 and on the 27 first week of July 1995. The RTC convicted the appellant of two (2) counts of statutory rape in its decision of February 19, 2001. The dispositive portion of this decision provides: WHEREFORE, in view of the foregoing, the court finds the accused Romar Teodoro y Vallejo in Criminal Case No. 8538 and Criminal Case No. 8539 guilty beyond reasonable doubt of the crime of rape and he is hereby sentenced to suffer the penalty, in each case, of reclusion perpetua, to indemnify the complainant [AAA] in the amount of P50,000.00 or a total of P100,000.00, and to pay the cost. The accused, however, is acquitted in Criminal Case No. 8540, as this Court finds him innocent of the crime charged. 28 SO ORDERED. The records of this case were originally transmitted to this Court on appeal. 29 Pursuant to our ruling in People v. Mateo, we endorsed the case and the records to the CA for appropriate action and disposition. The CA, in its decision dated January 19, 2006, affirmed the RTC decision in toto. The CA dismissed the appellants argument that the Information in Criminal Case No. 8539 was vague and insufficient because the exact date of the crime was not stated. The CA reasoned out that Section 6, Rule 110 of the Rules on Criminal Procedure merely requires that the Information contain the approximate time, and not the exact time, of the commission of the offense. The CA likewise believed AAAs testimony which it found credible . It held that the court may convict the accused based solely on the victims testimony provided it is credible, natural and convincing. 30 In his brief, the appellant argued that the lower courts erred in convicting him of two (2) counts of statutory rape despite the prosecutions failure to prove his guilt beyond reasonable doubt. He claimed that the victims testimony was full of inconsistencies. He likewise contended that the Information in Criminal Case No. 8539 was defective for failure to state the exact date of the commission of the crime. THE COURTS RULING We resolve to deny the appeal for lack of merit, but we modify the amount of the awarded indemnities. Sufficiency of Prosecution Evidence

Rape is defined and penalized under Article 335 of the Revised Penal 32 Code, as amended, which provides: ARTICLE 335. When and how rape is committed. Rape is committed by having carnal knowledge of a woman under any of the following circumstances: 1. By using force or intimidation; 2. When the woman is deprived of reason or otherwise unconscious; and 3. When the woman is under twelve years of age or is demented. xxxx Rape under paragraph 3 of this article is termed statutory rape as it departs from the usual modes of committing rape. What the law punishes in statutory rape is carnal knowledge of a woman below twelve (12) years old. Thus, force, intimidation and physical evidence of injury are not relevant considerations; the only subject of inquiry is the age of the woman and 33 whether carnal knowledge took place. The law presumes that the victim does not and cannot have a will of her own on account of her tender years; the childs consent is immaterial because of her presumed incapacity to 34 discern good from evil. AAA, while recounting her unfortunate ordeal, positively identified the appellant as the perpetrator of the June 18, 1995 rape; she never wavered in this identification. To directly quote from the records: ATTY. EUGENIO MENDOZA: Q: Do you know the accused in this case in the person of Romar Teodoro y Vallejo alias Boyet? [AAA]: A: Yes, sir. Q: If he is present in court, will you be able to point to him? A: Yes, sir. Q: Please do so. (Witness pointing to a man and when asked of his name identified himself as Romar Teodoro). xxx Q: On the 18th of June 1995 in the morning thereof, do you remember anything unusual? A: Yes, sir. Q: What was that? A: I was abused, sir. Q: By "pinagsamantalahan," what do you mean? A: I was raped, sir, by him. Q: When you refer to the pronoun him, to whom are you referring? A: Romar Teodoro, sir. Q: Where in particular were you raped and/or abused by Romar Teodoro on the 18th day of June 1995 in the morning thereof? A: In our bathroom, sir. xxxx

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Q: According to you, you were abused and/or raped in your bathroom by Romar Teodoro, tell us how were you raped by Romar Teodoro? A: He kissed me and took off my clothes. xxx Q: Where did he kiss you? A: On my face, sir. Q: Where else? A: On my neck, sir. xxx Q: According to you he removed your dress, was he able to remove your T-shirt? A: No, sir. Q: How about your pants? A: Yes, sir. Q: After the pants you were wearing then was removed, were you still wearing anything? A: Yes, sir. Q: What is it? A: My panty, sir. Q: How about that panty, was that likewise removed? A: Yes, sir. Q: After the pants and the panty were removed by Romar Teodoro, what did he do to you, if any? A: He also took off his pants, sir. Q: And after he took off his pants, what did he do, if any? A: He inserted his penis in my vagina, sir. Q: What were you doing when he was then to insert his penis into your vagina? A: I was pushing him, sir. Q: Did you tell him anything at that time? A: None, sir. Q: How about Romar Teodoro, did he tell you anything at that time? A: Yes, sir. Q: What did he tell you? A: He told me not to tell it to my parents because he will kill me sir. Q: Other than pushing him away, what else did you do, if you did any? A: I was struggling, sir. xxx Q: By the way, according to you he was able to insert his penis [in] your vagina, will you please tell us what did you feel, if any, at that time? A: "Masakit po." It was painful, sir. 35 x x x [Emphasis supplied]

AAA likewise positively identified the appellant as the one who raped her during the first week of July 1995. Her testimony dated November 6, 1997 was clear and straightforward; she was consistent in her recollection of her defloration. To directly quote from the records: ATTY. EUGENIO MENDOZA: Q: x x x My question to you is, if as testified to by you, you were raped on June 18, 1995, will you please tell us again as to when was the second time that you were raped by herein accused Romar Teodoro? [AAA]: A: First week of July, sir. Q: What year? A: 1995, sir. Q: Whereat? A: Inside our house, sir. Q: Which particular portion of your house? A: Inside the bathroom, sir. Q: What time was it on the first week of July, 1995 when you were raped by Romar Teodoro? A: Ten oclock in the morning, sir. Q: And what was done to you by Romar Teodoro on that date and time? A: He raped me, sir. Q: Will you please narrate before the Honorable Court how you were raped by Romar Teodoro on the first week of July, 1995 at around 10:00 oclock in the morning in your bathroom? A: He removed my clothes, sir. Q: What clothes were you then wearing at that time? A: T-shirt, sir. Q: What else? A: Short pants, sir. xxx Q: While Romar Teodoro was then in the act of removing your short pants, what were you doing then? A: I was pushing him, sir. Q: Will you please tell us if other than pushing you did anything else? A: I was crying, sir. Q: Why were you crying at the time? A: Because he was raping me, sir. Q: Was he able to remove your short pants? A: Yes, sir. Q: After the short pants, was there anything else that you were wearing then at the time? A: Yes, sir, my panties, sir. Q: How about the panties, what happened to the same? A: He also removed my panties, sir.

xxx Q: After the removal of the same wearing apparel, what happened next? A: His penis was inserted to [sic] my vagina, sir. 36 x x x [Emphasis ours] We view this testimony to be clear, convincing and credible considering especially the corroboration it received from the medico-legal report and testimony of Dr. Mendoza. We additionally do not see from the records any indication that AAAs testimony should be seen in a suspicious light. We emphasize that the appellant had been staying in the victims h ouse for more or less 3 years; he dined with AAAs family and slept with her brothers. There is no plausible reason why AAA would falsely testify against the appellant, imputing on him a crime as grave as rape if the sexual incident did not happen. We have held time and again that the testimonies of rape victims who are young and immature, as in this case, deserve full credence considering that no woman, especially one of tender age, would concoct a story of defloration, allow the examination of her private parts, and subject herself to a public trial if she had not been motivated by the desire to obtain 37 justice for the wrong committed against her. The prosecution positively established the elements of rape required under Article 335. First, the appellant succeeded in having carnal knowledge with the victim on June 18, 1995 and during the first week of July 1995. AAA was steadfast in her assertion that the appellant raped her on both occasions; and that the appellant succeeded in inserting his penis into her private part, as a result of which she felt pain. As earlier stated, AAAs testimony was corroborated by the medical findings of Dr. Mendoza. Second, the prosecution established AAAs minority during the trial through the presentation of her birth certificate showing that she was born on July 21, 1983. AAA herself, in fact, testified regarding her age. Hence, when the appellant raped AAA on June 18, 1995 and on the first week of July 1995, she was not yet 12 years old. As we stated above, when the victim is below 12 years of age, violence or intimidation is not an element to be considered; the only subject of inquiry is whether carnal knowledge took place. The law conclusively presumes the absence of consent when the victim is below the 38 age of 12. Thus, we held in People v. Valenzuela: What the law punishes in statutory rape is carnal knowledge of a woman below twelve (12) years old. Thus, force, intimidation, and physical evidence of injury are immaterial; the only subject of inquiry is the age of the woman and whether carnal knowledge took place. The law presumes that the victim does not and cannot have a will of her own on account of her tender years; the childs consent is immaterial because of her presumed incapacity to discern evil from good. The Appellants Defenses In his defense, the appellant invoked denial. He denied raping the victim on June 18, 1995 and on the first week of July 1995, but admitted having a consensual sexual intercourse with AAA on March 30, 1996. We shall only

discuss the incidents of June 18, 1995 and of the first week of July 1995 (subject of Criminal Case Nos. 8538 and 8539), as the appellant had already been acquitted in Criminal Case No. 8540. It is settled that denial is an inherently weak defense. It cannot prevail over positive identification, unless supported by strong evidence of lack of guilt. In the context of this case, the appellants mere denial, unsupported by any other evidence, cannot overcome the child-victims positive declaration on 39 the identity and involvement of the appellant in the crime attributed to him. The appellant further argues that the Information in Criminal Case No. 8539 is defective because it failed to state the exact date of the commission of the crime. The contention lacks merit. An information, under Section 6, Rule 110 of the 2000 Revised Rules on Criminal Procedure, is deemed sufficient if it states the name of the accused; the designation of the offense given by the statute; the acts or omissions complained of as constituting the offense; the name of the offended party; the approximate date of the commission of the offense; and the place where the offense was committed. Section 11 of the same Rule also provides that it is not necessary to state in the complaint or information the precise date the offense was committed, except when the date of commission is a material element of the offense. The offense may thus be alleged to have been committed on a date as near as possible to the actual date of its commis sion. At the minimum, an indictment must contain all the essential elements of the offense charged to enable the accused to properly meet the charge and duly 40 prepare for his defense. In the present case, the Information in Criminal Case No. 8539 states that the offense was committed "in the first week of July 1995"; it likewise alleged that the victim was "below 12 years old" at the time of the incident. These allegations sufficiently informed the appellant that he was being charged of rape of a child who was below 12 years of age. Afforded adequate opportunity to prepare his defense, he cannot now complain that he was deprived of his right to be informed of the nature of the accusation against him. 1avvphi1 We have repeatedly held that the date of the commission of rape is not an 41 essential element of the crime. It is not necessary to state the precise time when the offense was committed except when time is a material ingredient of the offense. In statutory rape, time is not an essential element except to prove that the victim was a minor below twelve years of age at the time of the commission of the offense. Given the victims established date of birth, she was definitely short of 12 years under the allegations of the Information and on the basis of the evidence adduced. Moreover, objections relating to the form of the complaint or information cannot be made for the first time on appeal. If the appellant had found the Information insufficient, he should have moved before arraignment either for a bill of particulars, for him to be properly informed of the exact date of the alleged rape, or for the quashal of the Information, on the ground that it did

not conform with the prescribed form. Failing to pursue either remedy, he is 42 deemed to have waived objection to any formal defect in the Information. The Proper Penalty The applicable provisions of the Revised Penal Code, as amended, covering the crime of rape is Article 335 which provides: ARTICLE 335. When and how rape is committed. Rape is committed by having carnal knowledge of a woman under any of the following circumstances: xxxx 3. When the woman is under twelve years of age or is demented. The crime of rape shall be punished by reclusion perpetua. xxxx The lower courts, therefore, are correct in imposing the penalty of reclusion perpetua on the appellant. Proper Indemnity The award of civil indemnity to the rape victim is mandatory when rape is found to have been committed. Thus, this Court affirms the award of 43 P50,000.00 as civil indemnity based on prevailing jurisprudence. The award of moral damages also finds full justification in this case. Moral damages are awarded to rape victims without need of proof other than the fact of rape on the assumption that the victim suffered moral injuries from the 44 experience she underwent. Pursuant to current rules, we award P50,000.00 45 as moral damages to AAA. 46 In addition, we award exemplary damages in the amount of P30,000.00. The award of exemplary damages is justified under Article 2229 of the Civil Code to set a public example and serve as deterrent against elders who 47 abuse and corrupt the youth. WHEREFORE, premises considered, we AFFIRM the January 19, 2006 decision of the Court of Appeals in CA-G.R. CR-H.C. No. 00752 with the modification that the appellant is further ORDERED to PAY the victim the amounts of P50,000.00 and P30,000.00 as moral damages and exemplary damages, respectively, for each count of statutory rape. SO ORDERED. ARTURO D. BRION Associate Justice WE CONCUR: ANTONIO T. CARPIO Associate Justice Chairperson TERESITA J. LEONARDO-DE MARIANO C. DEL CASTILLO CASTRO Associate Justice Associate Justice ROBERTO A. ABAD Associate Justice ATTESTATION

I attest that the conclusions in the above Decision had been reached in consultation before the case was assigned to the writer of the opinion of the Courts Division. ANTONIO T. CARPIO Associate Justice Chairperson CERTIFICATION Pursuant to Section 13, Article VIII of the Constitution, and the Division Chairpersons Attestation, it is hereby certified that the conclusions in the above Decision were reached in consultation before the case was assigned to the writer of the opinion of the Courts Division. REYNATO S. PUNO Chief Justice Footnotes 1 Penned by Associate Justice Vicente Q. Roxas (separated from the service), and concurred in by Associate Justice Godardo A. Jacinto (retired) and Associate Justice Juan Q. Enriquez, Jr.; rollo, pp. 3-12. 2 Penned by Judge Romeo F. Barza; CA rollo, pp. 24-30. 3 Id. at 7. 4 Id. at 11. 5 Id. at 13. 6 Records, pp. 38-39. 7 TSN, December 12, 1996, p. 9. 8 Records, p. 3. 9 TSN, December 12, 1996, p. 11. 10 Id. at 12-13. 11 TSN, May 27, 1997, p. 7. 12 Id. at 9, 15-16. 13 TSN, September 23, 1997, p. 4. 14 Id. at 7-8. 15 Id. at 8-11. 16 TSN, November 6, 1997, pp. 2-5. 17 Id. at 6-8. 18 Id. at 9-10. 19 Id. at 11-12. 20 Id. at 13. 21 TSN, July 30, 1998, pp. 5-6. 22 Id. at 9-11. 23 Id. at 13-14. 24 TSN, December 6, 1999, p. 4. 25 Id. at 4-7. 26 Id. at 9 27 Id. at 10. 28 CA rollo, p. 71. 29 G.R. Nos. 147678-87, July 7, 2004, 433 SCRA 640.

30 31

CA rollo, pp. 44-64. The crimes subject of Criminal Case No. 8538 and Criminal Case No. 8539 were committed in 1995, or before Article 335 of the Revised Penal Code, as amended, was repealed by Republic Act No. 835 (the Anti-Rape Law of 1997). 32 Amended by Republic Act No. 7659, entitled An Act to Impose the Death Penalty on Heinous Crimes Amending for that Purpose the Revised Penal Code, as Amended, Other Special Laws, and for Other Purposes, which took effect on December 31, 1993. 33 People v. Pancho, 462 Phil. 193 (2003). 34 People v. Natan, G.R. No. 181086, July 23, 2008, 559 SCRA 686. 35 TSN, September 23, 1997, pp. 6-10. 36 TSN, November 6, 1997, pp. 2-5. 37 People v. Malones, 469 Phil. 301 (2004). 38 G.R. No. 182057, February 6, 2009, 578 SCRA 157. 39 Supra note 38. 40 People v. Canares, G.R. No. 174065, February 18, 2009, 579 SCRA 588. 41 People v. Ching, G.R. No. 177150, November 22, 2007, 538 SCRA 117; People v. Jalbuena, G.R. No. 171163, July 4, 2007, 526 SCRA 500; People v. Invencion, 446 Phil. 775 (2003). 42 See People v. Cachapero, G.R. No. 153008, May 20, 2004, 428 SCRA 744. 43 See People v. Begino, G.R. No. 181246, March 20, 2009, 582 SCRA 189. 44 People v. Nieto, G.R. No. 177756, March 3, 2008, 547 SCRA 511. 45 Supra note 38. 46 See People v. Sia, G.R. No. 174059, February 27, 2009, 580 SCRA 364; People v. Layco, Sr., G.R. No. 182191, May 8, 2009. 47 See People v. Tormis, G.R. No. 183456, December 18, 2008, 574 SCRA 903.

G.R. No. 174065 February 18, 2009 PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee, vs. ROLLY CANARES Y ALMANARES, Accused-Appellant. DECISION BRION, J.: 1 We review in this petition for review on certiorari the decision (dated May 31, 2 2006) of the Court of Appeals (CA) in CA-G.R. CR-H.C. No. 01263 that 3 affirmed with modification the decision (dated March 17, 2003) of the Regional Trial Court (RTC), Branch 18, Tagaytay City in Criminal Case No. TG-3255-99. The RTC found the accused-appellant, Rolly Canares y Almanares (Canares), guilty beyond reasonable doubt of statutory rape. Canares was charged in two separate Informations for rape and attempted rape in relation with Republic Act No. 7610 (the Child Abuse Law). These Informations respectively state: Criminal Case No. TG-3255-99 That sometimes (sic) between the year 1992 to 1995 at Barangay Sabutan, Municipality of Silang, Province of Cavite, and within the jurisdiction of this Honorable Court, the above-named accused, with lewd designs, by means of force, violence and intimidation and taking advantage of his superior strength over the person of the victim who was then nine (9) years old, did, then and there, willfully (sic), unlawfully and feloniously, have carnal knowledge of one 4 AAA , against her will and consent, to her damage and prejudice. 5 CONTRARY TO LAW. Criminal Case No. SC-3261-00 That on or about the 25th day of March, 1999, at Brgy. Sabutan, Municipality of Silang, Province of Cavite, and within the jurisdiction of this Honorable Court, the above-named accused, with lewd designs by means of force, violence and intimidation and taking advantage of his superior strength over the person of the victim who was sixteen (16) years old, did, then and there, willfully, unlawfully and feloniously attempt to have carnal knowledge of one AAA, against her will and consent, the above-named accused, having thus commenced the commission of the crime of Rape directly by overt acts but which nevertheless did not produce it by reason of causes other than accused own spontaneous desistance, that is, by reason of the timely arrival of BBB who hit the head of herein accused with a base (sic) thereby preventing him from further consummating the crime, to the damage and prejudice of said AAA. 6 CONTRARY TO LAW. Canares, with the assistance of counsel de oficio, pleaded not guilty to both 7 charges. The trial court ordered a joint trial since the same parties and similar subject matters and antecedent events were involved. At pre-trial, the 8 parties made no admission or stipulation of facts. The prosecution marked its documentary evidence with the reservation to present additional evidence 9 in the course of the trial. The defense did not mark any documentary evidence.

At the trial proper, the prosecution presented the following as witnesses: AAA (the alleged victim), BBB (the victims aunt), and Dr. Bernadette Madrid (the Director of the Philippine General Hospital [ PGH] Child Protection Unit). The defense relied on the sole testimony of Canares who simply denied any sexual intercourse with AAA. The Background Facts & Developments AAA was born on September 8, 1982 and was only about 9 or 10 years old when Canares, a helper in AAAs grandmothers house at Barangay Sabutan, Silang, Cavite, allegedly first sexually abused her. Living with AAA and her grandmother in the house were her uncle and 7 younger cousins. The sexual intercourse took place at around midnight sometime in 1992; AAA could no longer recall the exact date. AAA and her cousins were then the only occupants in their grandmothers house and were in bed sleeping. AAA awoke and found Canares lying beside them. Canares undressed her, removed her shorts and panty, and then had sexual intercourse with her by inserting his penis into her genital organ. AAA felt pain and bled but kept the 10 incident to herself because Canares threatened to kill her. Canares allegedly repeated the sexual abuse more than ten times between 11 the first incident in 1992 and 1995. He stopped from 1996-1999. AAA attributed the gap to the lack of opportunity on Canares part; her uncle was 12 then always at home. Canares also began working as a tricycle driver and 13 subsequently went to the province where he temporarily stayed. Except for the sexual abuse in 1992, AAA could no longer remember the details of the other incidents. She was certain, however, that there was penile penetration 14 in every incident. The last incident that immediately gave rise to the present charges occurred on March 25, 1999. AAA met Canares at the stairs of her grandmothers house as Canares was on his way to the bodega of the house which he used as his sleeping quarters. He told AAA that he had something to tell her and pulled her towards the bodega. Inside, Canares embraced her and pulled down her shorts. AAA resisted and pushed against Canares as she also shouted for help. BBB AAAs aunt came to her rescue and hit Canares on 15 the head with a flower vase. Triggered by this incident, AAA disclosed to her mother and relatives the sexual abuse she had long suffered in the 16 hands of Canares. On March 26, 2000, AAA went to the PGH Child Protection Unit for medical examination. The findings showed that she had a healed laceration at the 17 6:00 position of her hymen indicating previous penetration. On March 27, 2000, AAA and BBB executed their respective Sinumpaang Salaysay about Canares sexual abuses before the police authorities. After the Joint Preliminary Examination conducted before the Municipal Circuit Trial Court of Silang-Amadeo, Cavite on April 26, 1999, AAA lodged a formal complaint for 18 rape and attempted rape against Canares. 19 Canares denied the accusations against him. He claimed that the charges were filed against him at the instance of AAAs grandmother and uncle because of the nonpayment of his salary as a farm hand and as a tricycle

driver. AAAs uncle also allegedly failed to pay him a p revious loan of 20 P10,000. He also claimed that it was impossible for him to rape AAA 21 because she came to live at her grandmothers house only in 1997. He argued that the rape could not have possibly occurred considering the number of people staying in the house; a shout from someone being 22 assaulted could easily be heard in the house. The RTC gave greater credence to the prosecutions evidence, particularly, the testimony of AAA which it found to be straightforward, truthful, and 23 convincing. The trial court observed that AAAs young age and gender rendered it unlikely that she would concoct a story of defloration that would 24 subject her to public trial and ridicule. At the same time, the RTC rejected Canares unsubstantiated denial and held that it cannot prevail over credible 25 positive testimony. The dispositive portion of the RTC decision reads: WHEREFORE, finding the guilt of the accused ROLLY CANARES Y ALMARANES to be beyond reasonable doubt, the Court hereby sentences him to suffer imprisonment of RECLUSION PERPETUA. Accused is also ordered to indemnify the victim Catherine Amodente the sum of Php100,000.00 as moral damages. Costs against the accused. 26 SO ORDERED. The RTC acquitted Canares of the crime of attempted rape for the prosecutions failure to establish his guilt beyond reasonable doubt: From the preponderance of evidence presented, the prosecution failed to prove the guilt of the accused in this case beyond reasonable doubt. The court therefore ACQUITS the accused Rolly Canares of the crime of 27 "Attempted Rape" and the case against him is DISMISSED. The CA affirmed with modification Canares rape conviction, ruling as 28 follows: WHEREFORE, the assailed Decision dated March 17, 2003 of the RTC, Branch 18, Tagaytay City, in Criminal Case No. TG-3255-99, is AFFIRMED with MODIFICATION, by reducing the award of moral damages from Php 100,000.00 to Php 50,000.00, and ordering the accused-appellant to pay AAA the amount of Php 50,000.00 as civil indemnity, in addition to moral damages. 29 SO ORDERED. 30 In his Appeal Brief, Canares raises the lone issue: THE TRIAL COURT GRAVELY ERRED IN FINDING THE ACCUSEDAPPELLANT GUILTY OF THE CRIME OF RAPE DESPITE THE INSUFFICIENCY OF EVIDENCE FOR THE PROSECUTION. Canares contends that he should not have been convicted of rape because the Information was defective: it failed to specify with certainty when the alleged rape was committed. He argues that the allegation that the rape was committed "sometime between the year 1992 to 1995" is very broad, considering particularly AAAs testimony that she was raped more than 10 times. He posits that since the specific incident of rape for which he was convicted is uncertain, the doubt should be resolved in favor of his acquittal.

In their Brief, the People maintain that Canares rape conviction is backed by the evidence on record. The argument that the Information was defective should also fail because the allegation of the exact date and time of the rape is not a material point in charging the accused of rape. In any case, this alleged defect was cured when AAA testified that Canares raped her "in one 32 evening of 1992." The Courts Ruling We find no reason to overturn the conviction of Canares and hereby confirm his guilt for the crime of statutory rape committed against AAA sometime in 1992. The Procedural Issue The argument that the Information in Criminal Case No. TG-3255-99 is defective for the prosecutions failure to allege the date and time of the rape is far from novel. We have repeatedly met and debunked this line of argument in rape cases. An information, under Section 6, Rule 110 of the 2000 Revised Rules on Criminal Procedure, is deemed sufficient if it states the name of the accused; the designation of the offense given by the statute; the acts or omissions complained of as constituting the offense; the name of the offended party; the approximate date of the commission of the offense; and the place where the offense was committed. Section 11 of the same Rule also provides that it is not necessary to state in the complaint or information the precise date the offense was committed except when the date of commission is a material element of the offense. The offense may thus be alleged to have been committed on a date as near as possible to the actual date of its commission. At the minimum, an indictment must contain all the essential elements of the offense charged to enable the accused to properly meet the charge and duly 33 prepare for his defense. 34 Following these principles, we held in People v. Bugayong that when the time given in the information is not the essence of the offense, such time does not need to be proven as alleged; the complaint will be sustained if the proof shows that the offense was committed at any time within the period of the statute of limitations and before the commencement of the action. We 35 again emphasized this doctrine in the case of People v. Rafon, when we held it unnecessary to state in the information the precise date when the offense was committed, except when it is an essential element of the offense. 36 People v. Lizada, specifically involving the charge of rape, followed the above general principle; we stated that an information for rape is not rendered defective for failure to specify the exact date when the rape was committed. The reason for this is plain: the precise date of the commission of 37 the rape is not an essential element of the crime. The gravamen of the crime of rape is carnal knowledge of the woman under any of the 38 circumstances provided by law . Thus, we have ruled that allegations of rape in the information committed, 39 "sometime in the year 1991 and the days thereafter," "on or about and

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sometime in the year 1988," or "from November 1990 up to July 21, 41 1994," "sometime in the year 1982 and dates subsequent thereto," and 42 "sometime in the year 1995 and subsequent thereto," all constitute sufficient compliance with Section 11 of Rule 110. In People v. Salalima, we also ruled that the allegation that the sexual assaults were committed, "sometime during the month of March 1996 or thereabout," or "sometime during the month of April 1996 or thereabout," and also, "sometime during the month of May 1996 or thereabout" substantially informed the accused of the crimes charged since all the elements of rape were stated in the 43 informations. The situation in the present case can be directly compared with People v. 44 Bugayong where the information charged that the accused committed multiple rapes "before and until October 15, 1994." We found this allegation sufficient to convict the accused of rape committed in 1993 on account of the categorical statement in the private complainants sworn affidavit of the year when the rape was committed. The Court found that this allegation substantially cured the perceived vagueness in the criminal charge and ruled 45 that the accused has been sufficiently informed under the circumstances. In this regard, AAA unequivocally and repeatedly stated that the first sexual 46 intercourse Canares had with her occurred sometime in 1992. Following Bugayong, this statement removes from Canares any reason to complain that he was not adequately informed of the charge against him before he was arraigned. The Information referred to a rape that started in 1992 and this first incident was sufficiently narrated in AAAs statements before and after arraignment. Canares never raised this argument in any motion filed with the trial court before his arraignment. He likewise fully participated in the trial on the merits without raising this argument; he cross-examined the prosecution witnesses and formally objected to the prosecutions offer of evidence. Raised for the first time in this appeal, we can only label the argument as a 47 desperation move that is too late in the day for the defense to make. We add that while AAA testified that Canares had raped her more than 10 times, Canares was not charged for all ten rapes. The Information only sought to hold him liable for a single count of rape committed "sometime between 1992 to 1995." The Information is very specific, too, that the victim was then nine (9) years old so that the rape referred to was the incident on or about 1992, given that AAA was born in September 1982. In her 48 Sinumpaang Salaysay that became the basis for the Information, AAA clearly stated that Canares raped her when she was 9 years old, but did not 49 report it to her parents because she was scared. (AAA would have been 9 years old if the rape occurred before September 8, 1992.) At the trial, on the other hand, AAA was firm and categorical about the fact of rape and of 50 Canares identity as the perpetrator. Thus, AAA clearly referred to the first 51 incident of rape that happened around midnight in 1992. Following People 52 v. Gianan that the Office of the Solicitor General cited, her testimony 53 substantially cured any defect posed by the date stated in the Information. In Gianan, we held:

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In any event, even if the information failed to allege with certainty the time of the commission of the rapes, the defect, if any, was cured by the evidence presented during the trial and any objection based on this ground must be deemed waived as a result of accused-appellants failure to object before 54 arraignment. Substantive Issue Statutory rape is committed by sexual intercourse with a woman below 12 55 years of age regardless of her consent to the act or lack of it. Proof of force, intimidation or consent is unnecessary; force is not an element of statutory rape and the absence of free consent is conclusively presumed when the 56 complainant is below the age of twelve. The law presumes that a woman below this age does not possess discernment and is incapable of giving 57 intelligent consent to the sexual act. To convict an accused of the crime of statutory rape, the prosecution must prove: first, the age of the complainant; second, the identity of the accused; and last but not the least, the carnal knowledge between the accused and 58 the complainant. The first and second elements have been established by the presentation of a Certification from the Office of the Municipal Civil Registrar of Silang, Cavite dated April 21, 1999 stating that AAA was born on September 8, 59 1982. Hence, she was only 9, or at most 10, years old when the rape was committed in 1992. In and out of court, she consistently identified Canares as 60 her rapist. Carnal knowledge is proven by proof of the entry or introduction of the male organ into the female organ; the "touching" or "entry" of the penis into the labia majora or the labia minora of the pudendum of the victims genitalia 61 constitutes consummated rape. The prosecution proved this element when AAA narrated during the trial the details of her rape, committed sometime in 1992, as follows: Q: What did he do exactly to you? A: He touched my breasts and he inserted his private organ into mine, sir. Q: Was he able to insert his organ into yours? A: Yes, sir. FISCAL VELASCO, JR.: Q: Considering, as you said, that (sic) was the first time, how did you feel? WITNESS: 62 A: It was painful, sir. xx x xxx COURT: Q: How many times were you abused on that evening? WITNESS: A: Once, your Honor.

Q: Was he able to penetrate your private organ on that first night? A: Yes, sir. Q: You mean he was able to insert his penis into your vagina? 63 A: Yes, sir. Parenthetically, the pain that AAA said she suffered is, in itself, an indicator 64 of the commission of rape. We so held in People v. Tampos and People v. 65 Borromeo. There is the added element, too, that AAAs testimony is supported by physical and supporting testimonial evidence. There was the healed laceration found in her hymen which is remarkably compatible with her claim of sexual molestation. Dr. Madrid, in testifying on the healed 66 laceration, stated that it could have been caused by a penis. Both the RTC and CA found the above testimony straightforward, truthful and 67 convincing. AAAs identification of Canares as the culprit was positive, categorical and consistent and devoid of any showing of ill-motive on her 68 part. We find no reason to disturb these findings. Courts usually give greater weight to the testimony of a female victim of sexual assault, especially a minor, because no woman would willingly undergo a public trial and put up with the shame, humiliation and dishonor of exposing her own degradation except to condemn the injustice done and to secure the 69 offenders apprehension and punishment. Testimonies of youthful rape victims are, as a general rule, given full faith and credit, considering that when a girl says she has been raped, she says in effect all that is necessary 70 to show that rape was indeed committed. In this case, she could not have come up with a detailed narration of what she suffered if the rape, in fact, did not really happen. Canares mainly interposed the defense of denial, an inherently weak defense that must be buttressed by strong evidence of non-culpability to merit 71 credibility. As negative evidence, it pales in comparison with a positive testimony that asserts the commission of a crime and the identification of the accused as its culprit. We find that the facts in this case do not present any exceptional circumstance warranting a deviation from these established rules. Canares likewise claimed before the RTC that the rape as alleged did not take place since AAA was not living at her grandmothers house from 1992 up to 1995. We find this argument untenable. AAA refuted this claim during her direct examination when she stated that she was already living at her 72 grandmothers house as early as 1991. The defense utterly failed to disprove this testimony when AAA was cross-examined. Canares, for his part, made inconsistent statements about this claim during his own cross examination. Under this evidentiary situation, we give weight to what AAA had declared. A last defense was the imputation of ill motives on AAA by making it appear that the criminal cases were filed for monetary reasons. We find this argument contrary to human experience. We find it inconceivable that a childs future and a familys reput ation would be placed at risk and exposed to possible humiliation and dishonor for the trifling reasons Canares gave. If

Canares had not really been paid his salaries, then he, not AAA and her family, would have the motivation to carry a grudge. Furthermore, the imputation lacks corroboration as it is supported only by Canares selfserving testimony. For these reasons, it does not merit any evidentiary value. The Penalty The Information for statutory rape immediately tells us that the crime charged was committed prior to the passage of the law imposing death for rape 73 74 cases and the new rape law. Article 335 of the Revised Penal Code, the law then in place, provided: Article 335. When and how rape is committed. Rape is committed by having carnal knowledge of a woman under any of the following circumstances: 1. By using force or intimidation; 2. When the woman is deprived of reason or otherwise unconscious; and 3. When the woman is under twelve years of age The crime of rape shall be punished by reclusion perpetua. xxx Considering that AAAs minority was sufficiently alleged and proven during trial without objection on the part of the defense, both the RTC and CA correctly imposed the proper penalty of reclusion perpetua. We affirm the awards of civil indemnity and moral damages the lower courts 75 imposed. These awards are consistent with prevailing jurisprudence. 76 Civil indemnity is awarded on the finding that rape was committed. Similarly, moral damages are awarded to rape complainants without need of pleading or proof of their basis; it is assumed that a rape complainant 77 actually suffered moral injuries entitling her to this award. In addition, we also award exemplary damages in the amount of P25,000. The award of exemplary damages is justified under Article 2229 of the Civil Code to set a public example and serve as deterrent against elders who 78 abuse and corrupt the youth. The commission of the crime in AAAs grandmothers dwelling, although not alleged in the Information (as now required by Sections 8 and 9, Rule 110 of the 2000 Revised Rules of 79 Criminal Procedure ), was duly proven and can also serve as basis for the award of exemplary damages under Article 2230 of the Civil Code as we 80 81 ruled in People v. Blancaflor and People v. Catubig. We held in Catubig that the retroactive application of procedural rules cannot adversely affect the rights of the private offended party that have become vested prior to its 82 83 effectivity. We reiterated this doctrine in People v. Victor and People v. 84 Legaspi. lawphi1 WHEREFORE, premises considered, we hereby AFFIRM with MODIFICATION the decision dated May 31, 2006 of the Court of Appeals in CA-G.R. CR-H.C. No. 01263 finding Rolly Canares y Almanares GUILTY beyond reasonable doubt of the crime of statutory rape. In addition to the awards of civil indemnity and moral damages, he is further ordered to pay P25,000 as exemplary damages to AAA.

SO ORDERED. ARTURO D. BRION Associate Justice WE CONCUR: LEONARDO A. QUISUMBING Associate Justice Chairperson CONCHITA CARPIO MORALES DANTE O. TINGA Associate Justice Associate Justice PRESBITERO J. VELASCO, JR. Associate Justice ATTESTATION I attest that the conclusions in the above Decision had been reached in consultation before the case was assigned to the writer of the opinion of the Courts Division. LEONARDO A. QUISUMBING Associate Justice Chairperson CERTIFICATION Pursuant to Section 13, Article VIII of the Constitution, and the Division Chairpersons Attestation, i t is hereby certified that the conclusions in the above Decision were reached in consultation before the case was assigned to the writer of the opinion of the Courts Division. REYNATO S. PUNO Chief Justice Footnotes 1 Under Rule 45 of the Rules of Court. 2 Rollo, pp. 3-11; penned by Associate Justice Hakim S. Abdulwahid, with Associate Justice Remedios A. Salazar-Fernando and Associate Justice Vicente Q. Roxas, concurring. 3 CA Rollo, pp. 17-27; penned by Hon. Alfonso S. Garcia. 4 The real name of the victim as well as those of her immediate family members is withheld per Republic Act (R.A.) No. 7610 (An Act Providing for Stronger Deterrence and Special Protection Against Child Abuse, Exploitation and Discrimination, and for Other Purposes) and R.A. No. 9262 (An Act Defining Violence Against Women and Their Children, Providing for Protective Measures for Victims, Prescribing Penalties Therefore, and for Other Purposes). 5 I Records, p. 1. 6 II Records, p. 1. 7 I Records, p. 30. 8 I Records, pp. 33-34. 9 Order dated May 15, 2000; Insofar as Criminal Case No. TG-325599: (1) Personal complaint filed by AAA (Exhibit "A"); (2) Provisional Medical Certificate (Exhibit "B"); (3) Birth Certificate (Exhibit "C"); (4)

Sworn statement of BBB (Exhibit "D"); (5) Sworn statement of AAA (Exhibit "E"); (6) TSN on preliminary examination of AAA (Exhibit "F"); and (7) TSN on preliminary examination of AAA (Exhibit "G"). Meanwhile, in the trial proper, the prosecution marked the following exhibits for Criminal Case No. TG-3261-00, to wit: (1) Personal complaint of AAA (Exhibit "A"); (2) Sworn statement of AAA (Exhibit "B"); and (3) Sworn Statement of BBB (Exhibit "C"). It also manifested that it is adopting the other exhibits in Criminal Case No. TG-3255-99; II Records, pp. 22-23. 10 I Records, pp. 7-8; TSN, July 3, 2002, pp. 5, 7, 9, 11-13 and 15. 11 TSN, July 3, 2000, pp. 21-22. 12 Sinumpaang Salaysay dated April 26, 1999 of AAA, p. 4; I Records, p. 18. 13 Ibid. 14 TSN, July 3, 2000, p. 26. 15 TSN, July 3, 2000, pp. 23-26; and TSN, August 28, 2001, pp. 8-9. 16 TSN, July 3, 2000, p. 19. 17 Provisional Medical Certificate; I Records, pp. 7-8. 18 Conducted by Hon. Ma. Victoria N. Cupin-Tesorero, the presiding judge of the Second Municipal Circuit Trial Court of Silang-Amadeo, Cavite. 19 TSN, January 22, 2002, pp. 11 and 19. 20 Id., p. 20. 21 Id., pp. 16-17. 22 Id., pp. 17-19. 23 CA Rollo, p. 25. 24 Id., p. 26. 25 Id., pp. 26-27. 26 Id., p. 27. 27 Id. , p. 24. 28 Previously, we transferred the initial review of the case to the CA via Resolution dated June 22, 2005, in view of the ruling in People v. Mateo, G.R. Nos. 147678-87, July 7, 2004, 433 SCRA 640. 29 Rollo, p. 11. 30 CA Rollo, pp. 54-65. 31 Id., pp. 83-91. 32 Id., p. 92. 33 Pamaran, The 1985 Rules of Criminal Procedure Annotated, 67 [2001 ed.]. 34 G.R. No. 126518, December 2, 1998, 299 SCRA 528, 537 citing U.S. v. Smith, 3 Phil 20 (1903). 35 G.R. No. 169059, September 5, 2007, 532 SCRA 370, 379. 36 G.R. Nos. 143468-71, January 24, 2003, 396 SCRA 62, 83. 37 Ibid. See People v. Gianan, G.R. Nos. 135288-93, September 15, 2000, 340 SCRA 481, 486; People v. Salalima, G.R. Nos. 13796971, August 15, 2001, 363 SCRA 192, 201; People v. Escao, G.R.

Nos. 140218-23, February 13, 2002, 376 SCRA 670, 686; People v. Rafon, supra note 35, pp. 380-381; and People v. Nazareno, G.R. No. 167756, April 9, 2008, 551 SCRA 16, 28. 38 Article 335 of the Revised Penal Code before its amendment. 39 People v. Magbanua, G.R. No. 128888, December 3, 1999, 319 SCRA 719, 730. 40 People v. Santos , G.R. Nos. 131103 & 143472, June 29, 2000, 334 SCRA 655, 657-658. 41 People v. Garcia, G.R. No. 120093, November 6, 1997, 281 SCRA 463, 467. 42 People v. Espejon, G.R. No. 134767, February 20, 2002, 377 SCRA 412, 415. 43 Supra note 37, p. 202. 44 Supra note 34, p. 541. 45 Ibid. 46 Sinumpaang Salaysay, Preliminary Examination dated April 26, 1999 and TSN, July 3, 2000, p. 8. 47 People v. Nazareno, supra note 37, p. 30. 48 Dated March 27, 1999 49 Records, p. 6. 50 TSN, July 3, 2000, pp. 8, 14-15. 51 Id. , p. 9. 52 Supra note 37. 53 CA Rollo, p. 92. 54 Supra note 52, p. 487. 55 People v. Jalosjos , G.R. Nos. 132875-76, November 16, 2001, 369 SCRA 179, 219. 56 People v. Escultor, G.R. Nos. 149366-67, May 27, 2004, 429 SCRA 651, 667. 57 People v. Jalosjos , supra note 55, p. 219. 58 People v. Mingming, G.R. No. 174195, December 10, 2008. 59 I Records, p. 10. 60 Sinumpaang Salaysay dated March 27, 1999; Joint Preliminary Examination dated April 26, 1999 and TSN, July 3, 2000, p. 8. 61 People v. Aguiluz , G.R. No. 133480, March 15, 2001, 354 SCRA 465, 472. 62 TSN, July 3, 2000, pp. 9 and 14-15. 63 Id., p. 17 TSN, July 3, 2000. 64 G.R. No. 142740, August 6, 2003, 408 SCRA 403, 415. 65 G.R. No. 150501 June 3, 2004, 430 SCRA 533, 542. 66 TSN, February 27, 2001, p. 9. 67 CA Rollo, pp. 25-26; and rollo, pp. 7-8. 68 Id. p.10. 69 People v. De Guzman, G.R. Nos. 140333-34, December 11, 2001, 372 SCRA 95, 109-110.

70

People v. Pacheco, G.R. No. 142887, March 2, 2004, 424 SCRA 164, 175. 71 People v. Soriano, G.R. No. 135027, July 3, 2002, 383 SCRA 676. 72 TSN, July 3, 2000, p. 6. 73 Republic Act No. 7659 took effect on December 31, 1993. 74 Republic Act No. 8353 or the Anti-Rape Law of 1997 took effect on October 22, 1997. 75 People v. Codilan. G.R. No. 177144, July 23, 2008; People v. Custodio, G.R. No. 176062, July 4, 2008, People v. Morio, G.R. No. 176265, April 30, 2008; People v. Suarez, G.R. Nos. 153573-76, April 15, 2005, 456 SCRA 333, 352; People v. Limos, G.R. Nos. 122114-17, January 20, 2004, 420 SCRA 183, 205. 76 People v. Jalosjos, supra note 55, p. 220. 77 People v. Dimaano, G.R. No. 168168, September 14, 2005, 469 SCRA 647, 670. 78 People v. Pacheco, supra. note 70, p. 178. 79 Sec. 8. Designation of the offense. - The complaint or information shall state the designation of the offense given by the statute, aver the acts or omissions constituting the offense, and specify its qualifying and aggravating circumstances. If there is no designation of the offense, reference shall be made to the section or subsection of the statute punishing it. Sec. 9. Cause of the accusations. - The acts or omissions complained of as constituting the offense and the qualifying and aggravating circumstances must be stated in ordinary and concise language and not necessarily in the language used in the statute but in terms sufficient to enable a person of common understanding to know what offense is being charged as well as its qualifying and aggravating circumstances and for the court to pronounce judgment. 80 G.R. No. 130586, January 29, 2004, 421 SCRA 354, 366. 81 G.R. No. 137842, August 23, 2001, 363 SCRA 621. 82 Id., p. 636. 83 G.R. No. 127904, December 5, 2002, 393 SCRA 472, 483-484. 84 G.R. No. 137283, February 17, 2003, 397 SCRA 531, 548. itted into the Philippines to fund such accounts or that the establishment of such accounts had reduced the indebtedness of residents (individuals or corporations or government agencies) of the Philippines to non-residents. At the end of the second year, the above ratio shall be 50%, which ratio must be observed continuously thereafter; 2. The trust operations of SCB shall be subject to all existing laws, rules and regulations applicable to trust services, particularly the creation of a Trust Committee; and 3. The bank shall inform the appropriate supervising and examining department of the BSP at the start of its operations.

Apparently, SCB did not comply with the above conditions. Instead, as early as 1996, it acted as a stock broker, soliciting from local residents foreign securities called "GLOBAL THIRD PARTY MUTUAL FUNDS" (GTPMF), denominated in US dollars. These securities were not registered with the Securities and Exchange Commission (SEC). These were then remitted outwardly to SCB-Hong Kong and SCB-Singapore. SCBs counsel, Romulo Mabanta Buenaventura Sayoc and Delos Angeles Law Office, advised the bank to proceed with the selling of the foreign securities although unregistered with the SEC, under the guise of a "custodianship agreement;" and should it be questioned, it shall invoke 3 4 Section 72 of the General Banking Act (Republic Act No.337). In sum, SCB was able to sell GTPMF securities worth around P6 billion to some 645 investors. However, SCBs operations did not remain unchallenged. On July 18, 1997, the Investment Capital Association of the Philippines (ICAP) filed with the 5 SEC a complaint alleging that SCB violated the Revised Securities Act, particularly the provision prohibiting the selling of securities without prior registration with the SEC; and that its actions are potentially damaging to the local mutual fund industry. In its answer, SCB denied offering and selling securities, contending that it has been performing a "purely informational function" without solicitations for any of its investment outlets abroad; that it has a trust license and the services it renders under the "Custodianship Agreement" for offshore 6 investments are authorized by Section 72 of the General Banking Act; that its clients were the ones who took the initiative to invest in securities; and it has been acting merely as an agent or "passive order taker" for them. On September 2, 1997, the SEC issued a Cease and Desist Order against 7 8 SCB, holding that its services violated Sections 4(a) and 19 of the Revised Securities Act. Meantime, the SEC indorsed ICAPs complaint and its supporting documents to the BSP. On October 31, 1997, the SEC informed the Secretary of Finance that it withdrew GTPMF securities from the market and that it will not sell the same without the necessary clearances from the regulatory authorities. Meanwhile, on August 17, 1998, the BSP directed SCB not to include investments in global mutual funds issued abroad in its trust investments portfolio without prior registration with the SEC. On August 31, 1998, SCB sent a letter to the BSP confirming that it will withdraw third-party fund products which could be directly purchased by investors. However, notwithstanding its commitment and the BSP directive, SCB continued to offer and sell GTPMF securities in this country. This prompted petitioner to enter into an Investment Trust Agreement with SCB wherein he purchased US$8,000.00 worth of securities upon the banks promise of 40% return on his investment and a guarantee that his money is safe. After six (6) months, however, petitioner learned that the value of his investment went

down to US$7,000.00. He tried to withdraw his investment but was persuaded by Antonette de los Reyes of SCB to hold on to it for another six (6) months in view of the possibility that the market would pick up. Meanwhile, on November 27, 2000, the BSP found that SCB failed to comply with its directive of August 17, 1998. Consequently, it was fined in the amount of P30,000.00. The trend in the securities market, however, was bearish and the worth of petitioners investment went down further to only US$3,000.00. On October 26, 2001, petitioner learned from Marivel Gonzales, head of the SCB Legal and Compliance Department, that the latter had been prohibited by the BSP to sell GPTMF securities. Petitioner then filed with the BSP a letter-complaint demanding compensation for his lost investment. But SCB denied his demand on the ground that his investment is "regular." On July 15, 2003, petitioner filed with the Department of Justice (DOJ), represented herein by its prosecutors, public respondents, a complaint charging the above-named officers and members of the SCB Board of Directors and other SCB officials, private respondents, with syndicated estafa, docketed as I.S. No. 2003-1059. For their part, private respondents filed the following as counter-charges against petitioner: (1) blackmail and extortion, docketed as I.S. No. 20031059-A; and blackmail and perjury, docketed as I.S. No. 2003-1278. On September 29, 2003, petitioner also filed a complaint for perjury against private respondents Paul Simon Morris and Marivel Gonzales, docketed as I.S. No. 2003-1278-A. On December 4, 2003, the SEC issued a Cease and Desist Order against SCB restraining it from further offering, soliciting, or otherwise selling its securities to the public until these have been registered with the SEC. Subsequently, the SEC and SCB reached an amicable settlement. 1awphi1.net On January 20, 2004, the SEC lifted its Cease and Desist Order and approved the P7 million settlement offered by SCB. Thereupon, SCB made a commitment not to offer or sell securities without prior compliance with the requirements of the SEC. On February 7, 2004, petitioner filed with the DOJ a complaint for violation of 9 Section 8.1 of the Securities Regulation Code against private respondents, docketed as I.S. No. 2004-229. 10 On February 23, 2004, the DOJ rendered its Joint Resolution dismissing petitioners complaint for syndicated estafa in I.S. No. 2003-1059; private respondents complaint for blackmail and extortion in I.S. No. 2003 -1059-A; private respondents complaint for blackmail and perjury in I.S. No. 2003 1278; and petitioners complaint for perjury against pri vate respondents Morris and Gonzales in I.S. No. 2003-1278-A. 11 Meanwhile, in a Resolution dated April 4, 2004, the DOJ dismissed petitioners complaint in I.S . No. 2004-229 (violation of Securities Regulation Code), holding that it should have been filed with the SEC.

Petitioners motions to dismiss his complaints were denied by the DOJ. Thus, he filed with the Court of Appeals a petition for certiorari, docketed as CAG.R. SP No. 85078. He alleged that the DOJ acted with grave abuse of discretion amounting to lack or excess of jurisdiction in dismissing his complaint for syndicated estafa. He also filed with the Court of Appeals a separate petition for certiorari assailing the DOJ Resolution dismissing I.S. No. 2004-229 for violation of the Securities Regulation Code. This petition was docketed as CA-G.R. SP No. 87328. Petitioner claimed that the DOJ acted with grave abuse of discretion tantamount to lack or excess of jurisdiction in holding that the complaint should have been filed with the SEC. On January 7, 2005, the Court of Appeals promulgated its Decision dismissing the petition. 1avvphi1.net It sustained the ruling of the DOJ that the case should have been filed initially with the SEC. Petitioner filed a motion for reconsideration but it was denied in a Resolution dated May 27, 2005. Meanwhile, on February 21, 2005, the Court of Appeals rendered its Decision in CA-G.R. SP No. 85078 (involving petitioners charges and respondents counter charges) dismissing the petition on the ground that the purpose of a petition for certiorari is not to evaluate and weigh the parties evidence but to determine whether the assailed Resolution of the DOJ was issued with grave abuse of discretion tantamount to lack of jurisdiction. Again, petitioner moved for a reconsideration but it was denied in a Resolution of November 22, 2005. Hence, the instant petitions for review on certiorari. For our resolution is the fundamental issue of whether the Court of Appeals erred in concluding that the DOJ did not commit grave abuse of discretion in dismissing petitioners complaint in I.S. 2004 -229 for violation of Securities Regulation Code and his complaint in I.S. No. 2003-1059 for syndicated estafa. G.R. No 168380 Re: I.S. No. 2004-229 For violation of the Securities Regulation Code Section 53.1 of the Securities Regulation Code provides: SEC. 53. Investigations, Injunctions and Prosecution of Offenses . 53. 1. The Commission may, in its discretion, make such investigation as it deems necessary to determine whether any person has violated or is about to violate any provision of this Code, any rule, regulation or order thereunder, or any rule of an Exchange, registered securities association, clearing agency, other self-regulatory organization, and may require or permit any person to file with it a statement in writing, under oath or otherwise, as the Commission shall determine, as to all facts and circumstances concerning the matter to be investigated. The Commission may publish information concerning any such violations and to investigate any fact, condition, practice or matter which it may deem necessary or proper to aid in the enforcement of the provisions of this Code, in the prescribing of rules and regulations

thereunder, or in securing information to serve as a basis for recommending further legislation concerning the matters to which this Code relates: Provided, however, That any person requested or subpoenaed to produce documents or testify in any investigation shall simultaneously be notified in writing of the purpose of such investigation: Provided, further, That all criminal complaints for violations of this Code and the implementing rules and regulations enforced or administe red by the Commission shall be referred to the Department of Justice for preliminary investigation and prosecution before the proper court: Provided, furthermore, That in instances where the law allows independent civil or criminal proceedings of violations arising from the act, the Commission shall take appropriate action to implement the same: Provided, finally; That the investigation, prosecution, and trial of such cases shall be given priority. The Court of Appeals held that under the above provision, a criminal complaint for violation of any law or rule administered by the SEC must first be filed with the latter. If the Commission finds that there is probable cause, then it should refer the case to the DOJ. Since petitioner failed to comply with the foregoing procedural requirement, the DOJ did not gravely abuse its discretion in dismissing his complaint in I.S. No. 2004-229. A criminal charge for violation of the Securities Regulation Code is a specialized dispute. Hence, it must first be referred to an administrative agency of special competence, i.e., the SEC. Under the doctrine of primary jurisdiction, courts will not determine a controversy involving a question within the jurisdiction of the administrative tribunal, where the question demands the exercise of sound administrative discretion requiring the specialized knowledge and expertise of said administrative tribunal to 12 determine technical and intricate matters of fact. The Securities Regulation Code is a special law. Its enforcement is particularly vested in the SEC. Hence, all complaints for any violation of the Code and its implementing rules and regulations should be filed with the SEC. Where the complaint is criminal in nature, the SEC shall indorse the complaint to the DOJ for preliminary investigation and prosecution as provided in Section 53.1 earlier quoted. We thus agree with the Court of Appeals that petitioner committed a fatal procedural lapse when he filed his criminal complaint directly with the DOJ. Verily, no grave abuse of discretion can be ascribed to the DOJ in dismissing petitioners complaint. G.R. No. 170602 Re: I.S. No. 2003-1059 for Syndicated Estafa Section 5, Rule 110 of the 2000 Rules of Criminal Procedure, as amended, provides that all criminal actions, commenced by either a complaint or an information, shall be prosecuted under the direction and control of a public prosecutor. This mandate is founded on the theory that a crime is a breach of the security and peace of the people at large, an outrage against the very sovereignty of the State. It follows that a representative of the State shall 13 direct and control the prosecution of the offense. This representative of the

State is the public prosecutor, whom this Court described in the old case of 14 Suarez v. Platon, as: [T]he representative not of an ordinary party to a controversy, but of a sovereignty whose obligation to govern impartially is as compelling as its obligation to govern at all; and whose interest, therefore, in a criminal prosecution is not that it shall win a case, but that justice shall be done. As such, he is in a peculiar and very definite sense a servant of the law, the twofold aim of which is that guilt shall not escape or innocence suffers. Concomitant with his authority and power to control the prosecution of criminal offenses, the public prosecutor is vested with the discretionary 15 power to determine whether a prima facie case exists or not. This is done through a preliminary investigation designed to secure the respondent from hasty, malicious and oppressive prosecution. A preliminary investigation is essentially an inquiry to determine whether (a) a crime has been commit ted; 16 and (b) whether there is probable cause that the accused is guilty thereof. 17 In Pontejos v. Office of the Ombudsman, probable cause is defined as such facts and circumstances that would engender a well-founded belief that a crime has been committed and that the respondent is probably guilty thereof and should be held for trial. It is the public prosecutor who determines during the preliminary investigation whether probable cause exists. Thus, the decision whether or not to dismiss the criminal complaint against the accused depends on the sound discretion of the prosecutor. Given this latitude and authority granted by law to the investigating prosecutor, the rule in this jurisdiction is that courts will not interfere with the conduct of preliminary investigations or reinvestigations or in the determination of what constitutes sufficient probable cause for the 18 filing of the corresponding information against an offender. Courts are not empowered to substitute their own judgment for that of the executive 19 branch. Differently stated, as the matter of whether to prosecute or not is purely discretionary on his part, courts cannot compel a public prosecutor to file the corresponding information, upon a complaint, where he finds the evidence before him insufficient to warrant the filing of an action in court. In sum, the prosecutors findings on the existence of probable cause are not subject to review by the courts, unless these are patently shown to 20 have been made with grave abuse of discretion. Grave abuse of discretion is such capricious and whimsical exercise of judgment on the part of the public officer concerned which is equivalent to an excess or lack of jurisdiction. The abuse of discretion must be as patent and gross as to amount to an evasion of a positive duty or a virtual refusal to perform a duty enjoined by law, or to act at all in contemplation of law, as where the power is exercised in an arbitrary and despotic manner by reason 21 of passion or hostility. In determining whether the DOJ committed grave abuse of discretion, it is expedient to know if the findings of fact of herein public prosecutors were reached in an arbitrary or despotic manner.

The Court of Appeals held that petitioners evidence is insufficient to establish probable cause for syndicated estafa. There is no showing from the record that private respondents herein did induce petitioner by false representations to invest in the GTPMF securities. Nor did they act as a syndicate to misappropriate his money for their own benefit. Rather, they invested it in accordance with his written instructions. That he lost his investment is not their fault since it was highly speculative. Records show that public respondents exam ined petitioners evidence with care, well aware of their duty to prevent material damage to his constitutional right to liberty and fair play. In Suarez previously cited, this Court made it clear that a public prosecutors duty is two-fold. On one hand, he is bound by his oath of office to prosecute persons where the complainants evidence is ample and sufficient to show prima facie guilt of a crime. Yet, on the other hand, he is likewise duty-bound to protect innocent persons from groundless, 22 false, or malicious prosecution. Hence, we hold that the Court of Appeals was correct in dismissing the petition for review against private respondents and in concluding that the DOJ did not act with grave abuse of discretion tantamount to lack or excess of jurisdiction. On petitioners complaint for violation of the Securities Regulation Code, suffice it to state that, as aptly declared by the Court of Appeals, he should have filed it with the SEC, not the DOJ. Again, there is no indication here that in dismissing petitioners complaint, the DOJ acted capriciously or arbitrarily. WHEREFORE, we DENY the petitions and AFFIRM the assailed Decisions of the Court of Appeals in CA-G.R. SP No. 87328 and in CA-G.R. SP No. 85078. Costs against petitioner. SO ORDERED. ANGELINA SANDOVAL-GUTIERREZ Associate Justice WE CONCUR: REYNATO S. PUNO Chief Justice Chairperson (On leave) RENATO C. CORONA ADOLFO S. AZCUNA Associate Justice Asscociate Justice CANCIO C. GARCIA Associate Justice CERTIFICATION Pursuant to Article VIII, Section 13 of the Constitution, it is hereby certified that the conclusions in the above Decision were reached in consultation before the case was ass igned to the writer of the opinion of the Courts Division. REYNATO S. PUNO Chief Justice

Footnotes 1 Rollo, G.R. No. 168380, Vol. I, pp. 48-62. Penned by Associate Justice Remedios A. Salazar-Fernando and concurred in by Associate Justice Rosemarie D. Carandang and Associate Justice Monina Arevalo-Zenarosa. 2 Id., G.R. No. 170602, Vol. I, pp. 63-73. Written by Associate Justice Juan Q. Enriquez, Jr., with Associate Justice Portia AlioHormachuelos and Associate Justice Vicente Q. Roxas, concurring. 3 SEC.72. In addition to the operations specifically authorized elsewhere in this Act, banking institutions other than building and loan associations may perform the following services: a) Receive in custody funds, documents and valuable objects, and rent safety deposit boxes for the safeguarding of such effects; b) Act as financial agent and buy and sell, by order of and for the account of their customers, shares, evidences of indebtedness and all other types of securities; c) Make collections and payments for the account of others and perform such other services for their customers as are not incompatible with banking business; d) Upon prior approval of the Monetary Board, act as managing agent, adviser, consultant or administrator of investment management advisory/consultancy accounts. The banks shall perform the services permitted under subsections (a), (b), and (c) of this section as depositaries or as agents. Accordingly they shall keep the funds, securities and other effects which they thus receive duly separated and apart from the banks own assets and liabilities. The Monetary Board may regulate the operations authorized by this section in order to insure that said operations do not endanger the interest of the depositors and other creditors of the banks. 4 Now repealed by The General Banking Law of 2000 (Republic Act No. 8791). 5 Batas Pambansa Blg. 178. Now repealed by Republic Act No. 8799 (The Securities Regulation Code), which took effect on July 19. 2000. 6 Supra at footnote 3. 7 SEC. 4. Requirement of registration of securities. (a) No securities, except of a class exempt under any of the provisions of Section five hereof or unless sold in any transaction exempt under any of the provisions of Section six hereof shall be sold or offered for sale or distribution to the public within the Philippines unless such securities shall have been registered and permitted to be sold as hereinafter provided.

SEC. 19. Registration of brok ers, dealers and salesmen.- No broker, dealer or salesman shall engage in business in the Philippines as such broker, dealer or salesman or sell any securities, including securities exempted under this Act, except in exempt transactions, unless he has been registered as a broker, dealer, or salesman pursuant to the provisions of this Section. 9 Sec. 8. Requirement of Registration of Securities : 8.1. Securities shall not be sold or offered for sale or distribution within the Philippines, without a registration statement duly filed with and approved by the Commission. Prior to such sale, information on the securities, in such form and with such substance as the Commission may prescribe, shall be made available to each prospective purchaser. 10 Vol. I, Rollo, G.R. No. 170602, pp. 451-473. 11 Vol. I, Rollo, G.R. No. 168380, pp. 241-43. 12 Saavedra, Jr. v. Securities and Exchange Commission , G.R. No. 80879, March 21, 1988, 159 SCRA 57, 62, citing Pambujan Sur United Mine Work ers v. Samar Mining Co. Inc., 94 Phil. 932 (1954). 13 Tan, Jr. v. Gallardo, G.R. Nos. 41213-14, October 5, 1976, 73 SCRA 306, 310. 14 80 Phil. 556 (1940). 15 Zulueta v. Nicolas , 102 Phil. 944 (1958). 16 Ching v. Secretary of Justice, G.R. No. 164317, February 6, 2006, 481 SCRA 609. 17 G.R. Nos. 158613-14, February 22, 2006, p. 11. 18 Glaxosmithk line Philippines, Inc. v. Malik and Ateeque , G.R. No. 166824, August 17, 2006, p. 5, citing Punzalan v. Dela Pea and Cagara. 434 SCRA 601 (2004). 19 Alcaraz v. Gonzales, G.R. No. 164715, September 20, 2006, 10, citing Metropolitan Bank and Trust Company v. Tonda, 392 Phil. 797 (2000). 20 Glaxosmithk line Philippines, Inc. v. Malik and Ateeque , supra, p. 5, citing Cabaling v. People, 376 SCRA 113 (2002). 21 Soria v. Desierto, G.R. Nos. 153524-25, January 31, 2005, 450 SCRA 339. 345, citing Duero v. Court of Appeals, 373 SCRA 11 (2002), Perez v. Office of the Ombudsman, 429 SCRA 357 (2004). 22 Vda. de Bagatua v. Revilla and Lombos , 104 Phil. 392 (1958).

G.R. No. 168617 February 19, 2007 BERNADETTE L. ADASA, petitioner, vs. CECILLE S. ABALOS, Respondent. DECISION CHICO-NAZARIO, J.: This Petition for Review under Rule 45 of the Rules of Court, filed by petitioner Bernadette L. Adasa, seeks to nullify and set aside the 21 July 1 2 2004 Decision and 10 June 2005 Resolution of the Court of Appeals in CAG.R. SP No. 76396 which nullified the Resolutions of the Department of Justice (DOJ). The Resolutions of the DOJ reversed and set aside the Resolution of the Office of the City Prosecutor of Iligan City, which found on reinvestigation probable cause against petitioner, and directed the Office of the City Prosecutor of Iligan City to withdraw the information for Estafa against petitioner. The instant case emanated from the two complaints-affidavits filed by respondent Cecille S. Abalos on 18 January 2001 before the Office of the City Prosecutor of Iligan City, against petitioner for Estafa. Respondent alleged in the complaints-affidavits that petitioner, through deceit, received and encashed two checks issued in the name of respondent without respondents knowledge and consent and that despite repeated demands by the latter, petitioner failed and refused to pay the proceeds of the checks. On 23 March 2001, petitioner filed a counter-affidavit admitting that she received and encashed the two checks issued in favor of respondent. In her Supplemental Affidavit filed on 29 March 2001, petitioner, however, recanted and alleged instead that it was a certain Bebie Correa who received the two checks which are the subject matter of the complaints and encashed the same; and that said Bebie Correa left the country after misappropriating the proceeds of the checks. On 25 April 2001, a resolution was issued by the Office of the City Prosecutor of Iligan City finding probable cause against petitioner and ordering the filing of two separate Informations for Estafa Thru Falsification of Commercial Document by a Private Individual, under Article 315 in relation to Articles 171 and 172 of the Revised Penal Code, as amended. Consequently, two separate criminal cases were filed against petitioner docketed as Criminal Cases No. 8781 and No. 8782, raffled to Branches 4 and 5, Regional Trial Court of Iligan City, respectively. This instant petition pertains only to Criminal Case No. 8782. On 8 June 2001, upon motion of the petitioner, the trial court in Criminal Case No. 8782 issued an order directing the Office of the City Prosecutor of Iligan City to conduct a reinvestigation. After conducting the reinvestigation, the Office of the City Prosecutor of Iligan City issued a resolution dated 30 August 2001, affirming the finding of probable cause against petitioner.

Meanwhile, during her arraignment on 1 October 2001 in Criminal Case No. 3 8782, petitioner entered an unconditional plea of not guilty. Dissatisfied with the finding of the Office of the City Prosecutor of Iligan City, petitioner filed a Petition for Review before the DOJ on 15 October 2001. In a Resolution dated 11 July 2002, the DOJ reversed and set aside the 30 August 2001 resolution of the Office of the City Prosecutor of Iligan City and directed the said office to withdraw the Information for Estafa against petitioner. The said DOJ resolution prompted the Office of the City Prosecutor of Iligan City to file a "Motion to Withdraw Information" on 25 July 2002. On 26 July 2002, respondent filed a motion for reconsideration of said resolution of the DOJ arguing that the DOJ should have dismissed outright the petition for review since Section 7 of DOJ Circular No. 70 mandates that when an accused has already been arraigned and the aggrieved party files a petition for review before the DOJ, the Secretary of Justice cannot, and should not take cognizance of the petition, or even give due course theret o, but instead deny it outright. Respondent claimed Section 12 thereof mentions arraignment as one of the grounds for the dismissal of the petition for review before the DOJ. In a resolution dated 30 January 2003, the DOJ denied the Motion for Reconsideration opining that under Section 12, in relation to Section 7, of DOJ Circular No. 70, the Secretary of Justice is not precluded from entertaining any appeal taken to him even where the accused has already been arraigned in court. This is due to the permissive language "may" utilized in Section 12 whereby the Secretary has the discretion to entertain an appealed resolution notwithstanding the fact that the accused has been arraigned. Meanwhile, on 27 February 2003, the trial court issued an order granting petitioners "Motion to Withdraw Information" and dismissing Criminal Case No. 8782. No action was taken by respondent or any party of the case from the said order of dismissal. Aggrieved by the resolution of the DOJ, respondent filed a Petition for Certiorari before the Court of Appeals. Respondent raised the following issues before the appellate court: 1. Whether or not the Department of Justice gravely abused its discretion in giving due course to petitioners petition for review despite its having been filed after the latter had already been arraigned; 2. Whether or not there is probable cause that the crime of estafa has been committed and that petitioner is probably guilty thereof; 3. Whether or not the petition before the Court of Appeals has been rendered moot and academic by the order of the Regional Trial Court dismissing Criminal Case No. 8782. The Court of Appeals in a Decision dated 21 July 2004 granted respondents petition and reversed the Resolutions of the DOJ dated 11 July 2002 and 30 January 2003.

In resolving the first issue, the Court of Appeals, relying heavily on Section 7 of DOJ Circular No. 70 which states "[i]f an information has been filed in court pursuant to the appealed resolution, the petition shall not be given due course if the accused had already been arraigned," ruled that since petitioner was arraigned before she filed the petition for review with the DOJ, it was imperative for the DOJ to dismiss such petition. It added that when petitioner pleaded to the charge, she was deemed to have waived her right to reinvestigation and right to question any irregularity that surrounds it. Anent the second issue, the Court of Appeals declared that the existence of probable cause or the lack of it, cannot be dealt with by it since factual issues are not proper subjects of a Petition for Certiorari. In disposing of the last issue, the Court of Appeals held that the order of the trial court dismissing the subject criminal case pursuant to the assailed resolutions of the DOJ did not render the petition moot and academic. It said that since the trial courts order relied solely on the resolutions of the DOJ, said order is void as it violated the rule which enjoins the trial court to assess the evidence presented before it in a motion to dismiss and not to rely solely on the prosecutors averment that the Secretary of Justice had recommended the dismissal of the case. Dissatisfied by the Court of Appeals ruling, petitioner filed a Motion for Reconsideration setting forth the following grounds: 1. that the over-all language of Sections 7 and 12 of Department Circular No. 70 is permissive and directory such that the Secretary of Justice may entertain an appeal despite the fact that the accused had been arraigned; 2. that the contemporaneous construction by the Secretary of Justice should be given great weight and respect; 3. that Section 7 of the Circular applies only to resolutions rendered pursuant to a preliminary investigation, not on a reinvestigation; 4. that the trial courts order of dismiss al of the criminal case has rendered the instant petition moot and academic; 5. that her arraignment was null and void it being conducted despite her protestations; and 6. that despite her being arraigned, the supposed waiver of her right to preliminary investigation has been nullified or recalled by virtue of 4 the trial courts order of reinvestigation. The Court of Appeals stood firm by its decision. This time, however, it tried to construe Section 7 side by side with Section 12 of DOJ Circular No. 70 and attempted to reconcile these two provisions. According to the appellate court, the phrase "shall not" in paragraph two, first sentence of Section 7 of subject circular, to wit: If an information has been filed in court pursuant to the appealed resolution, the petition shall not be given due course if the accused had already been arraigned. x x x. (Emphasis supplied.) employed in the circular denotes a positive prohibition. Applying the principle in statutory construction - that when a statute or provision contains words of

positive prohibition, such as "shall not," "cannot," or "ought not" or which is couched in negative terms importing that the act shall not be done otherwise than designated, that statute or provision is mandatory, thus rendering the provision mandatory it opined that the subject provision simply means that the Secretary of Justice has no other course of action but to deny or dismiss a petition before him when arraignment of an accused had already taken place prior to the filing of the petition for review. On the other hand, reading Section 12 of the same circular which reads: The Secretary may reverse, affirm or modify the appealed resolution. He may, motu proprio or upon motion, dismiss the petition for review on any of the following grounds: xxxx (e) That the accused had already been arraigned when the appeal was taken; x x x. the Court of Appeals opined that the permissive word "may" in Section 12 would seem to imply that the Secretary of Justice has discretion to entertain an appeal notwithstanding the fact that the accused has been arraigned. This provision should not be treated separately, but should be read in relation to Section 7. The two provisions, taken together, simply meant that when an accused was already arraigned when the aggrieved party files a petition for review, the Secretary of Justice cannot, and should not take cognizance of the petition, or even give due course thereto, but instead dismiss or deny it outright. The appellate court added that the word "may" in Section 12 should be read as "shall" or "must" since such construction is absolutely necessary to give effect to the apparent intention of the rule as gathered from the context. As to the contemporaneous construction of the Secretary of Justice, the Court of Appeals stated that the same should not be given weight since it was erroneous. Anent petitioners argument that Section 7 of the questioned circular applies only to original resolutions that brought about the filing of the corresponding informations in court, but not to resolutions rendered pursuant to a motion for reinvestigation, the appellate court simply brushed aside such contention as having no basis in the circular questioned. It also rejected petitioners protestation that her arraignment was forced upon her since she failed to present any evidence to substantiate the same. It is petitioners contention that despite her being arraigned, the supposed waiver of her right to preliminary investigation has been nullified by virtue of the trial courts order or reinvestigation. On this score, the Court of Appeals rebuffed such argument stating that there was no "supposed waiver of preliminary investigation" to speak of for the reason that petitioner had actually undergone preliminary investigation. Petitioner remained unconvinced with the explanations of the Court of Appeals. Hence, the instant petition.

Again, petitioner contends that the DOJ can give due course to an appeal or petition for review despite its having been filed after the accused had already been arraigned. It asserts that the fact of arraignment of an accused before the filing of an appeal or petition for review before the DOJ "is not at all relevant" as the DOJ can still take cognizance of the appeal or Petition for Review before it. In support of this contention, petitioner set her sights on the 5 ruling of this Court in Crespo v. Mogul, to wit: The rule therefore in this jurisdiction is that once a complaint or information is filed in Court any disposition of the case as to its dismissal or the conviction or acquittal of the accused rests in the sound discretion of the Court. Although the fiscal retains the direction and control of the prosecution of criminal cases even while the case is already in Court he cannot impose his opinion on the trial court. The Court is the best and sole judge on what to do with the case before it. The determination of the case is within its exclusive jurisdiction and competence. A motion to dismiss the case filed by the fiscal should be addressed to the Court who has the option to grant or deny the same. It does not matter if this is done before or after the arraignment of the accused or that the motion was filed after a reinvestigation or upon instructions of the Secretary of Justice who reviewed the records of the investigation. (Emphasis supplied.) 6 To bolster her position, petitioner cites Roberts v. Court of Appeals, which stated: There is nothing in Crespo vs. Mogul which bars the DOJ from taking cognizance of an appeal, by way of a petition for review, by an accused in a criminal case from an unfavorable ruling of the investigating prosecutor. It merely advised the DOJ to, "as far as practicable, refrain from entertaining a petition for review or appeal from the action of the fiscal, when the complaint or information has already been filed in Court. x x x. (Emphasis supplied.) 7 Petitioner likewise invokes Marcelo v. Court of Appeals where this Court declared: Nothing in the said ruling forecloses the power or authority of the Secretary of Justice to review resolutions of his subordinates in criminal cases. The Secretary of Justice is only enjoined to refrain as far as practicable from entertaining a petition for review or appeal from the action of the prosecutor once a complaint or information is filed in court. In any case, the grant of a motion to dismiss, which the prosecution may file after the Secretary of Justice reverses an appealed resolution, is subject to the discretion of the court. The Court is unconvinced. A cursory reading of Crespo v. Mogul reveals that the ruling therein does not concern the issue of an appeal or petition for review before the DOJ after arraignment. Verily, the pronouncement therein has to do with the filing of a motion to dismiss and the courts discretion to deny or grant the same. As correctly pointed out by respondent, the emphasized portion in the Crespo ruling is a parcel of the entire paragraph which relates to the duty and jurisdiction of the trial court to determine for itself whether or not to dismiss a

case before it, and which states that such duty comes into play regardless of whether such motion is filed before or after arraignment and upon whose instructions. The allusion to the Secretary of Justice as reviewing the records of investigation and giving instructions for the filing of a motion to dismiss in the cited ruling does not take into consideration of whether the appeal or petition before the Secretary of Justice was filed after arraignment. Significantly, in the Crespo case, the accused had not yet been arraigned when the appeal or petition for review was filed before the DOJ. Undoubtedly, petitioners reliance on the said case is misplaced. Also unavailing is petitioners invocation of the cases of Roberts v. Court of Appeals and Marcelo v. Court of Appeals. As in Crespo v. Mogul, neither Roberts v. Court of Appeals nor Marcelo v. Court of Appeals took into account of whether the appeal or petition before the Secretary of Justice was filed after arraignment. Just like in the Crespo case, the accused in both Roberts v. Court of Appeals and Marcelo v. Court of Appeals had not yet been arraigned when the appeal or petition for review was filed before the DOJ. Moreover, petitioner asserts that the Court of Appeals interpretation of the provisions of DOJ Circular No. 70 violated three basic rules in statutory construction. First, the rule that the provision that appears last in the order of position in the rule or regulation must prevail. Second, the rule that the contemporaneous construction of a statute or regulation by the officers who enforce it should be given weight. Third, petitioner lifted a portion from 8 Agpalos Statutory Construction where the word "shall" had been construed as a permissive, and not a mandatory language. The all too-familiar rule in statutory construction, in this case, an 9 administrative rule of procedure, is that when a statute or rule is clear and 10 unambiguous, interpretation need not be resorted to. Since Section 7 of the subject circular clearly and categorically directs the DOJ to dismiss outright an appeal or a petition for review filed after arraignment, no resort to interpretation is necessary. Petitioners reliance to the statutory principle that "the last in order of position in the rule or regulation must prevail" is not applicable. In addition to the fact that Section 7 of DOJ Circular No. 70 needs no construction, the cited principle cannot apply because, as correctly observed by the Court of Appeals, there is no irreconcilable conflict between Section 7 and Section 12 of DOJ Circular No. 70. Section 7 of the circular provides: SECTION 7. Action on the petition. The Secretary of Justice may dismiss the petition outright if he finds the same to be patently without merit or manifestly intended for delay, or when the issues raised therein are too unsubstantial to require consideration. If an information has been filed in court pursuant to the appealed resolution, the petition shall not be given due course if the accused had already been arraigned. Any arraignment made after the filing of the petition shall not bar the Secretary of Justice from exercising his power of review. (Italics supplied.) On the other hand, Section 12 of the same circular states:

SECTION 12. Disposition of the Appeal. The Secretary may reverse, affirm or modify the appealed resolution. He may, motu proprio or upon motion, dismiss the petition for review on any of the following grounds: (a) That the petition was filed beyond the period prescribed in Section 3 hereof; (b) That the procedure or any of the requirements herein provided has not been complied with; (c) That there is no showing of any reversible error; (d) That the appealed resolution is interlocutory in nature, except when it suspends the proceedings based on the alleged existence of a prejudicial question; (e) That the accused had already been arraigned when the appeal was taken; (f) That the offense has already prescribed; and (g) That other legal or factual grounds exist to warrant a dismissal. (Emphases supplied.) It is noteworthy that the principle cited by petitioner reveals that, to find application, the same presupposes that "one part of the statute cannot be reconciled or harmonized with another part without nullifying one in favor of the other." In the instant case, however, Section 7 is neither contradictory nor irreconcilable with Section 12. As can be seen above, Section 7 pertains to the action on the petition that the DOJ must take, while Section 12 enumerates the options the DOJ has with regard to the disposition of a petition for review or of an appeal. As aptly observed by respondent, Section 7 specifically applies to a situation on what the DOJ must do when confronted with an appeal or a petition for review that is either clearly without merit, manifestly intended to delay, or filed after an accused has already been arraigned, i.e., he may dismiss it outright if it is patently without merit or manifestly intended to delay, or, if it was filed after the acccused has already been arraigned, the Secretary shall not give it due course. Section 12 applies generally to the disposition of an appeal. Under said section, the DOJ may take any of four actions when disposing an appeal, namely: 1. reverse the appealed resolution; 2. modify the appealed resolution; 3. affirm the appealed resolution; 4. dismiss the appeal altogether, depending on the circumstances and incidents attendant thereto. As to the dismissal of a petition for review or an appeal, the grounds are provided for in Section 12 and, consequently, the DOJ must evaluate the pertinent circumstances and the facts of the case in order to determine which ground or grounds shall apply. Thus, when an accused has already been arraigned, the DOJ must not give the appeal or petition for review due course and must dismiss the same. This is bolstered by the fact that arraignment of the accused prior to the filing of

the appeal or petition for review is set forth as one of the grounds for its dismissal. Therefore, in such instance, the DOJ, noting that the arraignment of an accused prior to the filing of an appeal or petition for review is a ground for dismissal under Section 12, must go back to Section 7 and act upon as mandated therein. In other words, the DOJ must not give due course to, and must necessarily dismiss, the appeal. Likewise, petitioners reliance on the principle of contemporary construction, i.e., the DOJ is not precluded from entertaining appeals where the accused had already been arraigned, because it exercises discretionary power, and because it promulgated itself the circular in question, is unpersuasive. As aptly ratiocinated by the Court of Appeals: True indeed is the principle that a contemporaneous interpretation or construction by the officers charged with the enforcement of the rules and regulations it promulgated is entitled to great weight by the court in the latters construction of such rules and regulations. That does not , however, make such a construction necessarily controlling or binding. For equally settled is the rule that courts may disregard contemporaneous construction in instances where the law or rule construed possesses no ambiguity, where the construction is clearly erroneous, where strong reason to the contrary exists, and where the court has previously given the statute a different interpretation. If through misapprehension of law or a rule an executive or administrative officer called upon to implement it has erroneously applied or executed it, the error may be corrected when the true construction is ascertained. If a contemporaneous construction is found to be erroneous, the same must be declared null and void. Such principle should be as it is applied in the case at 11 bar. Petitioners posture on a supposed exception to the mandatory import of the word "shall" is misplaced. It is petitioners view that the languag e of Section 12 is permissive and therefore the mandate in Section 7 has been transformed into a matter within the discretion of the DOJ. To support this stance, petitioner cites a portion of Agpalos Statutory Construction which reads: For instance, the word "shall" in Section 2 of Republic Act 304 which states that "banks or other financial institutions owned or controlled by the Government shall, subject to availability of funds xxx, accept at a discount at not more than two per centum for ten years such (backpay) certificate" implies not a mandatory, but a discretionary, meaning because of the phrase "subject to availability of funds." Similarly, the word "shall" in the provision to the effect that a corporation violating the corporation law "shall, upon such violation being proved, be dissolved by quo warranto proceedings" has been 12 construed as "may." After a judicious scrutiny of the cited passage, it becomes apparent that the same is not applicable to the provision in question. In the cited passage, the word "shall" departed from its mandatory import connotation because it was connected to certain provisos/conditions: "subject to the availability of funds"

and "upon such violation being proved." No such proviso/condition, however, can be found in Section 7 of the subject circular. Hence, the word "shall" retains its mandatory import. At this juncture, the Court of Appeals disquisition in this matter is enlightening: Indeed, if the intent of Department Circular No. 70 were to give the Secretary of Justice a discretionary power to dismiss or to entertain a petition for review despite its being outrightly dismissible, such as when the accused has already been arraigned, or where the crime the accused is being charged with has already prescribed, or there is no reversible error that has been committed, or that there are legal or factual grounds warranting dismissal, the result would not only be incongruous but also irrational and even unjust. For then, the action of the Secretary of Justice of giving due course to the petition would serve no purpose and would only allow a great waste of time. Moreover, to give the second sentence of Section 12 in relation to its paragraph (e) a directory application would not only subvert the avowed objectives of the Circular, that is, for the expeditious and efficient administration of justice, but would also render its other mandatory provisions 13 - Sections 3, 5, 6 and 7, nugatory. In her steadfast effort to champion her case, petitioner contends that the issue as to whether the DOJ rightfully entertained the instant case, despite the arraignment of the accused prior to its filing, has been rendered moot and academic with the order of dismissal by the trial court dated 27 February 2003. Such contention deserves scant consideration. It must be stressed that the trial court dismissed the case precisely because of the Resolutions of the DOJ after it had, in grave abuse of its discretion, took cognizance of the petition for review filed by petitioner. Having been rendered in grave abuse of its discretion, the Resolutions of the DOJ are void. As the order of dismissal of the trial court was made pursuant to the void Resolutions of the DOJ, said order was likewise void. The rule in this jurisdiction is that a void judgment is a complete nullity and without legal effect, and that all proceedings or actions founded thereon are themselves 14 regarded as invalid and ineffective for any purpose. That respondent did not file a motion for reconsideration or appeal from the dismissal order of the trial court is of no moment. Since the dismissal was void, there was nothing for respondent to oppose. Petitioner further asserts that Section 7 of DOJ Circular No. 70 applies only to appeals from original resolution of the City Prosecutor and does not apply in the instant case where an appeal is interposed by petitioner from the Resolution of the City Prosecutor denying her motion for reinvestigation. This claim is baseless. 1avvphi1.net A reading of Section 7 discloses that there is no qualification given by the same provision to limit its application to appeals from original resolutions and not to resolutions on reinvestigation. Hence, the rule stating that "when the 15 law does not distinguish, we must not distinguish" finds application in this regard.

Petitioner asserts that her arraignment was null and void as the same was improvidently conducted. Again, this contention is without merit. Records reveal that petitioners arraignment was without any restriction, condition or 16 reservation. In fact she was assisted by her counsels Atty. Arthur Abudiente 17 and Atty. Maglinao when she pleaded to the charge. Moreover, the settled rule is that when an accused pleads to the charge, he is deemed to have waived the right to preliminary investigation and the right 18 to question any irregularity that surrounds it. This precept is also applicable in cases of reinvestigation as well as in cases of review of such reinvestigation. In this case, when petitioner unconditionally pleaded to the charge, she effectively waived the reinvestigation of the case by the prosecutor as well as the right to appeal the result thereof to the DOJ Secretary. Thus, with the arraignment of the petitioner, the DOJ Secretary can no longer entertain the appeal or petition for review because petitioner had already waived or abandoned the same. 19 Lastly, while there is authority permitting the Court to make its own determination of probable cause, such, however, cannot be made applicable in the instant case. As earlier stated, the arraignment of petitioner constitutes a waiver of her right to preliminary investigation or reinvestigation. Such waiver is tantamount to a finding of probable cause. For this reason, there is no need for the Court to determine the existence or non-existence of probable cause. Besides, under Rule 45 of the Rules of Court, only questions of law may be raised in, and be subject of, a petition for review on certiorari since this Court is not a trier of facts. This being the case, this Court cannot review the evidence adduced by the parties before the prosecutor on the issue of the 20 absence or presence of probable cause. WHEREFORE, the petition is DENIED. The Decision of the Court of Appeals dated 21 July 2004 and its Resolution dated 10 June 2005 in CA-G.R. SP No. 76396 are AFFIRMED. Costs against petitioner. SO ORDERED. MINITA V. CHICO-NAZARIO Associate Justice WE CONCUR: CONSUELO YNARES-SANTIAGO Associate Justice Chairperson MA. ALICIA AUSTRIA-MARTINEZ ROMEO J. CALLEJO, SR. Associate Justice Asscociate Justice On Leave ANTONIO EDUARDO B. NACHURA Associate Justice A TT E S TA T ION I attest that the conclusions in the above Decision were reached in consultation before the case was assigned to the writer of the opinion of the Courts Division.

CONSUELO YNARES-SANTIAGO Associate Justice Chairperson, Third Division CERTIFICATION Pursuant to Section 13, Article VIII of the Constitution, and the Division Chairpersons Attestation, it is hereby certified that the conclusions in the above Decision were reached in consultation before the case was assigned to the writer of the opinion of the Courts Division. REYNATO S. PUNO Chief Justice Footnotes 1 Penned by Associate Justice Edgardo A. Camello with Associate Justices Estela Perlas M. Bernabe and Arturo G. Tayag, concurring. Rollo, pp. 40-48. 2 Id. at 49-67. 3 Records, pp. 64-65. 4 Id. at 50. 5 G.R. No. L-53373, 30 June 1987, 151 SCRA 462, 471. 6 G.R. No. 113930, 5 March 1996, 254 SCRA 307, 330-332. 7 G.R. No. 106695, 4 August 1994, 235 SCRA 39, 48-49. 8 Agpalo, Statutory Construction (1990), pp. 240-241, citing Diokno v. Rehabilitation Finance Corporation, 91 Phil. 608, 611 (1952) and Government v. El Hogar Filipino, 50 Phil. 399 (1927). 9 When an administrative agency promulgates rules and regulations, it "makes" a new law with the force and effect of a valid law. (Victorias Milling Co., Inc. v. Social Security Commission, 114 Phil. 555, 558 [1962].) 10 Rizal Commercial Banking Corporation v. Intermediate Appellate Court, G.R. No. 74851, 9 December 1999, 320 SCRA 279, 289. 11 Rollo, p. 58. 12 Supra note 5. 13 Rollo, p. 57. 14 Gorion v. Regional Trial Court of Cebu, Branch 17, G.R. No. 102131, 31 August 1992, 213 SCRA 138, 147. 15 Philippine Free Press, Inc. v. Court of Appeals, G.R. No. 132864, 24 October 2005, 473 SCRA 639, 662. 16 Records, pp. 64-65. 17 Id. 18 Kuizon v. Desierto, G.R. Nos. 140619-24, 9 March 2000, 354 SCRA 158, 176-177; Gonzales v. Court of Appeals, 343 Phil. 297, 304-305 (1997); People v. Baluran, 143 Phil. 36, 44 (1981). 19 Ark Travel Express, Inc. v. Abrogar, G.R. No. 137010, 29 August 2003, 410 SCRA 148, 159. 20 Chan v. Court of Appeals, G.R. No. 159922, 28 April 2005, 457 SCRA 502, 512.

G.R. No. L-53373 June 30, 1987 MARIO FL. CRESPO, petitioner, vs. HON. LEODEGARIO L. MOGUL, Presiding Judge, CIRCUIT CRIMINAL COURT OF LUCENA CITY, 9th Judicial Dist., THE PEOPLE OF THE PHILIPPINES, represented by the SOLICITOR GENERAL, RICARDO BAUTISTA, ET AL., respondents. GANCAYCO, J.: The issue raised in this ease is whether the trial court acting on a motion to dismiss a criminal case filed by the Provincial Fiscal upon instructions of the Secretary of Justice to whom the case was elevated for review, may refuse to grant the motion and insist on the arraignment and trial on the merits. On April 18, 1977 Assistant Fiscal Proceso K. de Gala with the approval of the Provincial Fiscal filed an information for estafa against Mario Fl. Crespo in the Circuit Criminal Court of Lucena City which was docketed as Criminal Case No. CCCIX-52 (Quezon) '77. 1 When the case was set for arraigment the accused filed a motion to defer arraignment on the ground that there was a pending petition for review filed with the Secretary of Justice of the resolution of the Office of the Provincial Fiscal for the filing of the information. In an order of August 1, 1977, the presiding judge, His Honor, Leodegario L. 2 Mogul, denied the motion. A motion for reconsideration of the order was denied in the order of August 5, 1977 but the arraignment was deferred to August 18, 1977 to afford nine for petitioner to elevate the matter to the 3 appellate court. A petition for certiorari and prohibition with prayer for a preliminary writ of injunction was filed by the accused in the Court of Appeals that was docketed 4 as CA-G.R. SP No. 06978. In an order of August 17, 1977 the Court of Appeals restrained Judge Mogul from proceeding with the arraignment of the 5 accused until further orders of the Court. In a comment that was filed by the 6 Solicitor General he recommended that the petition be given due course. On May 15, 1978 a decision was rendered by the Court of Appeals granting the writ and perpetually restraining the judge from enforcing his threat to compel the arraignment of the accused in the case until the Department of 7 Justice shall have finally resolved the petition for review. On March 22, 1978 then Undersecretary of Justice, Hon.Catalino Macaraig, Jr., resolving the petition for review reversed the resolution of the Office of the Provincial Fiscal and directed the fiscal to move for immediate dismissal 8 of the information filed against the accused. A motion to dismiss for insufficiency of evidence was filed by the Provincial Fiscal dated April 10, 9 1978 with the trial court, attaching thereto a copy of the letter of Undersecretary Macaraig, Jr. In an order of August 2, 1978 the private prosecutor was given time to file an opposition thereto. 10 On November 24, 1978 the Judge denied the motion and set the arraigniment stating: ORDER

For resolution is a motion to dismiss this rase filed by the procuting fiscal premised on insufficiency of evidence, as suggested by the Undersecretary of Justice, evident from Annex "A" of the motion wherein, among other things, the Fiscal is urged to move for dismissal for the reason that the check involved having been issued for the payment of a preexisting obligation the Hability of the drawer can only be civil and not criminal. The motion's thrust being to induce this Court to resolve the innocence of the accused on evidence not before it but on that adduced before the Undersecretary of Justice, a matter that not only disregards the requirements of due process but also erodes the Court's independence and integrity, the motion is considered as without merit and therefore hereby DENIED. WHEREFORE, let the arraignment be, as it is hereby set for December 18, 1978 at 9:00 o'clock in the moming. SO ORDERED. 11 The accused then filed a petition for certiorari, prohibition and mandamus with petition for the issuance of preliminary writ of prohibition and/or temporary restraining order in the Court of Appeals that was docketed as CAG.R. No. SP-08777. 12 On January 23, 1979 a restraining order was issued by the Court of Appeals against the threatened act of arraignment of the accused until further orders from the Court. 13 In a decision of October 25, 1979 the Court of Appeals dismissed the petition and lifted the restraining order of January 23, 1979. 14 A motion for reconsideration of said decision filed by the accused was denied in a resolution of February 19, 1980. 15 Hence this petition for review of said decision was filed by accused whereby petitioner prays that said decision be reversed and set aside, respondent judge be perpetually enjoined from enforcing his threat to proceed with the arraignment and trial of petitioner in said criminal case, declaring the information filed not valid and of no legal force and effect, ordering respondent Judge to dismiss the said case, and declaring the obligation of petitioner as purely civil. 16 In a resolution of May 19, 1980, the Second Division of this Court without giving due course to the petition required the respondents to comment to the petition, not to file a motiod to dismiss, within ten (10) days from notice. In the comment filed by the Solicitor General he recommends that the petition be given due course, it being meritorious. Private respondent through counsel filed his reply to the comment and a separate conunent to the petition asking that the petition be dismissed. In the resolution of February 5, 1981, the Second Division of this Court resolved to transfer this case to the Court En Banc . In the resolution of February 26, 1981, the Court En Banc resolved to give due course to the petition. Petitioner and private respondent filed their respective briefs while the Solicitor General filed a Manifestation in lieu of brief reiterating that the

decision of the respondent Court of Appeals be reversed and that respondent Judge be ordered to dismiss the information. It is a cardinal principle that an criminal actions either commenced by complaint or by information shall be prosecuted under the direction and control of the fiscal. 17 The institution of a criminal action depends upon the sound discretion of the fiscal. He may or may not file the complaint or information, follow or not fonow that presented by the offended party, according to whether the evidence in his opinion, is sufficient or not to establish the guilt of the accused beyond reasonable doubt. 18 The reason for placing the criminal prosecution under the direction and control of the fiscal is to prevent malicious or unfounded prosecution by private persons. 19 20 It cannot be controlled by the complainant. Prosecuting officers under the power vested in them by law, not only have the authority but also the duty of prosecuting persons who, according to the evidence received from the complainant, are shown to be guilty of a crime committed within the 21 jurisdiction of their office. They have equally the legal duty not to prosecute when after an investigation they become convinced that the evidence 22 adduced is not sufficient to establish a prima facie case. 23 It is through the conduct of a preliminary investigation that the fiscal determines the existence of a puma facie case that would warrant the prosecution of a case. The Courts cannot interfere with the fiscal's discretion and control of the criminal prosecution. It is not prudent or even permissible for a Court to compel the fiscal to prosecute a proceeding originally initiated by him on an information, if he finds that the evidence relied upon by him is 24 insufficient for conviction. Neither has the Court any power to order the fiscal to prosecute or file an information within a certain period of time, since this would interfere with the fiscal's discretion and control of criminal 25 prosecutions. Thus, a fiscal who asks for the dismissal of the case for insufficiency of evidence has authority to do so, and Courts that grant the 26 same commit no error. The fiscal may re-investigate a case and subsequently move for the dismissal should the re-investigation show either that the defendant is innocent or that his guilt may not be established beyond 27 reasonable doubt. In a clash of views between the judge who did not investigate and the fiscal who did, or between the fiscal and the offended 28 party or the defendant, those of the Fiscal's should normally prevail. On the other hand, neither an injunction, preliminary or final nor a writ of 29 prohibition may be issued by the courts to restrain a criminal prosecution except in the extreme case where it is necessary for the Courts to do so for the orderly administration of justice or to prevent the use of the strong arm of 30 the law in an op pressive and vindictive manner. However, the action of the fiscal or prosecutor is not without any limitation or control. The same is subject to the approval of the provincial or city fiscal or the chief state prosecutor as the case maybe and it maybe elevated for review to the Secretary of Justice who has the power to affirm, modify or reverse the action or opinion of the fiscal. Consequently the Secretary of

Justice may direct that a motion to dismiss the rase be filed in Court or 31 otherwise, that an information be filed in Court. The filing of a complaint or information in Court initiates a criminal action. The Court thereby acquires jurisdiction over the case, which is the authority to 32 hear and determine the case. When after the filing of the complaint or information a warrant for the arrest of the accused is issued by the trial court and the accused either voluntarily submited himself to the Court or was duly arrested, the Court thereby acquired jurisdiction over the person of the 33 accused. The preliminary investigation conducted by the fiscal for the purpose of determining whether a prima facie case exists warranting the prosecution of the accused is terminated upon the filing of the information in the proper court. In turn, as above stated, the filing of said information sets in motion the criminal action against the accused in Court. Should the fiscal find it proper to conduct a reinvestigation of the case, at such stage, the permission of the Court must be secured. After such reinvestigation the finding and recommendations of the fiscal should be submitted to the Court for 34 appropriate action. While it is true that the fiscal has the quasi judicial discretion to determine whether or not a criminal case should be filed in court or not, once the case had already been brought to Court whatever disposition the fiscal may feel should be proper in the rase thereafter should be 35 addressed for the consideration of the Court, The only qualification is that the action of the Court must not impair the substantial rights of the accused. 36 36 or the right of the People to due process of law. a Whether the accused had been arraigned or not and whether it was due to a reinvestigation by the fiscal or a review by the Secretary of Justice whereby a motion to dismiss was submitted to the Court, the Court in the exercise of its discretion may grant the motion or deny it and require that the trial on the merits proceed for the proper determination of the case. However, one may ask, if the trial court refuses to grant the motion to dismiss filed by the fiscal upon the directive of the Secretary of Justice will there not be a vacuum in the prosecution? A state prosecutor to handle the case cannot possibly be designated by the Secretary of Justice who does not believe that there is a basis for prosecution nor can the fiscal be expected to handle the prosecution of the case thereby defying the superior order of the Secretary of Justice. The answer is simple. The role of the fiscal or prosecutor as We all know is to see that justice is done and not necessarily to secure the conviction of the person accused before the Courts. Thus, in spite of his opinion to the contrary, it is the duty of the fiscal to proceed with the presentation of evidence of the prosecution to the Court to enable the Court to arrive at its own independent judgment as to whether the accused should be convicted or acquitted. The fiscal should not shirk from the responsibility of appearing for the People of the Philippines even under such circumstances much less should he abandon the prosecution of the case leaving it to the hands of a 37 private prosecutor for then the entire proceedings will be null and void. The

least that the fiscal should do is to continue to appear for the prosecution although he may turn over the presentation of the evidence to the private 38 prosecutor but still under his direction and control. The rule therefore in this jurisdiction is that once a complaint or information is filed in Court any disposition of the case as its dismissal or the conviction or acquittal of the accused rests in the sound discretion of the Court. Although the fiscal retains the direction and control of the prosecution of criminal cases even while the case is already in Court he cannot impose his opinion on the trial court. The Court is the best and sole judge on what to do with the case before it. The determination of the case is within its exclusive jurisdiction and competence. A motion to dismiss the case filed by the fiscal should be addressed to the Court who has the option to grant or deny the same. It does not matter if this is done before or after the arraignment of the accused or that the motion was filed after a reinvestigation or upon instructions of the Secretary of Justice who reviewed the records of the investigation. In order therefor to avoid such a situation whereby the opinion of the Secretary of Justice who reviewed the action of the fiscal may be disregarded by the trial court, the Secretary of Justice should, as far as practicable, refrain from entertaining a petition for review or appeal from the action of the fiscal, when the complaint or information has already been filed in Court. The matter should be left entirely for the determination of the Court. WHEREFORE, the petition is DISMISSED for lack of merit without pronouncement as to costs. SO ORDERED. Yap, Fernan, Narvasa, Melencio-Herrera, Gutierrez, Jr., Cruz, Paras, Feliciano, Padilla, Bidin, Sarmiento and Cortes, JJ., concur. Teehank ee, C.J., took no part. Footnotes 1 Copy of information, Annex A to Annex E; pp. 54-55, Rollo 2 Annex C to Annex E; pp. 70-71, Rollo. 3 Annex D to Annex E; p. 72, supra. 4 Annex E to Annex E; pp. 73-108, supra. 5 Annex F to Annex C; p. 109, supra. 6 Annex G to Annex E; pp. 110-118, Rollo. 7 Annex H to Annex E; pp. 119-129, supra. 8 Annex I to Annex E; pp. 130-132, supra. 9 Annex J to Annex E; pp. 133-139, supra. 10 Annex K to Annex E; p. 140, supra. 11 Annex L to Annex E; pp. 141-142, supra. 12 Annex E; pp. 42-53, supra. 13 P. 145, supra. 14 Annex A to petition; pp. 23-26, supra. 15 Annex D, pp. 40-41, supra. 16 Pp. 5-21, supra

17 Section 4, Rule 110 of the Rules of Court, now Section 5, Rule 110 of 1985 Rules on Criminal Procedure, People v. Valdemoro, 102 SCRA 170. 18 Gonzales vs. Court of First Instance, 63 Phil. 846, 19 U.S. vs. Narvas, 14 Phil. 410. 20 People vs. Sope, 75 Phil. 810; People vs. Liggayu, 97; PhiL 865; Zulueta vs. Nicolas, 102 Phil. 944; People vs. Natoza, G.R. L-8917, Dec. 14, 1956. 21 Bagatua vs. Revilla, G.R. L-12247, August 26, 1958. 22 Zulueta vs. Nicolas, supra. 23 Sections 1 and 2 of Rule 112 of the Rules of Court; Presidential Decree 911; Sections 1-4, Rule 112 of the 1985 Rules on Criminal Procedure. 24 People vs. De Moll, 68 Phil. 626. 25 Asst. Provincial Fiscal of Bataan vs. Dollete, 103 Phil. 914; People vs. Pineda, G.R. No. L-26222, July 21, 1967, 20 SCRA 748. 26 People vs. Natoza, supra; Pangan vs. Pasicolan, G.R. L12517, May 19, 1958. 27 People vs. Jamisola, No. L-27332, Nov. 28, 1969; People vs. Agasang, 66 Phil.182. 28 People vs. Pineda, supra. 29 Kwong Sing vs.City of Manila, 41 Phil. 103,112. 30 Dimayuga vs. Fernandez, 43 Phil. 384, 307; University of the Philippines vs. City Fiscal of Quezon City, G.R. No. L18562, July 31, 1961. 31 PD 911, now Section 4, Rule 112 of the 1985 Rules on Criminal Procedure; Estrella vs. Orendain, Jr., 37 SCRA 650-652, 654-655; Gonzales vs. Serrano, L-25791. Sept. 23, 1968, 25 SCRA 64; Caeg vs. Abad Santos, N-40044, March 10, 1975, 63 SCRA 96; Oliveros vs. Villaluz, L-33362, July 30, 1971, 40 SCRA 327; Noblejas vs. Salas, L-31788 and 31792, Sept. 15, 1975, 67 SCRA 47; Vda. de Jacob vs. Puno, 131 SCRA 144; Circular No. 13, April 19, 1976 of the Secretary of Justice. 32 Herrera vs. Barreto, 25 Phils. 245; U.S. vs. Limsiongco, 41 Phils. 94; De la Cruz vs. Mujer, 36 Phis. 213; Section 1 Rule 110, Rules of Court, now Section 1 also Rule 110, 1985 Rules on Criminal Procedure. 33 21 C.J.S. 123; Carrington. 34 U.S. vs. Barreto, 32 Phils. 444. 35 Asst. Provincial Fiscal of Bataan vs. Dollete, Supra. 36 People vs. Zabala, 58 O. G. 5028. 36a Galman vs. Sandiganbayan, 144 SCRA 43, 101. 37 People vs. Beriales, 70 SCRA 361 (1976).

38 U.S. vs. Despabiladeras, 32 Phils. 442; U.S. vs. Gallego, 37 Phils. 289; People vs. Hernandez, 69 Phils. 672; U.S. vs. Labil 27 Phils. 82; U.S. vs. Fernandez, Phils. 539; People vs. Velez, 77, Phils. 1026.

RAMON L. UY, etitioner, versus EOPLE OF THE PHILIPPINES, Respondent.

G.R. No. 174899 Present: CARPIO MORALES,* J., TINGA,** CHICO-NAZA RIO, Acting Chairperson, ** VELASCO, and REYES, JJ. Promulgated: September 11, 2008 x- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -x DECISION CHICO-NAZA RIO, J .: Before Us is a Petition for Review on Certiorari which seeks to set aside the 1 Decision of the Court of Appeals in CA-G.R. CR No. 28581 dated 2 March 2 2006 which affirmed with modification the Decision of the Regional Trial Court (RTC) of Makati City, Branch 64, in Criminal Case No. 98-1065, finding petitioner Ramon L. Uy guilty of Estafa as defined and penalized under 3 Article 315, paragraph 2 of the Revised Penal Code, and its Resolution dated 9 October 2006 denying petitioners Motion for Reconsideration. On 19 May 1998, petitioner was charged before the RTC of Makati City with Estafa under Article 315, par. 2 of the Revised Penal Code, allegedly committed as follows: That sometime in November 1995, in the City of Makati, Metro Manila, Philippines, a place within the jurisdiction of this Honorable Court, the abovenamed accused, did then and there willfully, unlawfully and feloniously defraud Mr. Eugene Yu, as follows, to wit: The said accused under false and fraudulent representations which he made to said Eugene Yu convinced said Eugene Yu to invest in the said low cost housing project in the amount of P3,500,000.00 and by means of other similar deceit, which representations he well knew were false and fraudulent and were only made to induce the aforementioned Eugene Yu to give and deliver as in fact the said Eugene Yu gave and delivered the said amount of P3,500,000.00 to the accused, to the damage and prejudice of said Mr. Eugene Yu in the said amount of 4 P3,500,000.00, Philippine Currency. On the same date, the case was docketed as Criminal Case No. 98-1065 and raffled to Branch 64. Finding reasonable ground to believe that a criminal act had been committed and that petitioner was probably guilty thereof, the 5 trial court issued a warrant for his arrest. On 31 August 1998, considering that the warrant of arrest had been returned unserved, the case was archived 6 and an alias warrant of arrest was issued. On 27 June 2000, petitioner submitted himself to the jurisdiction of the trial 7 court and filed a bailbond for his provisional liberty. When arraigned on 4 June 2000, appellant, with the assistance of counsel de 8 parte, pleaded "not guilty" to the crime charged.

For failure of petitioner to appear in the scheduled pre-trial on 7 September 2000 despite notice, his bailbond was cancelled and an order of arrest was 9 issued against him. On 28 September 2000, the trial court, upon motion of private complainant 10 Eugene Yu, issued a Hold Departure Order against accused-appellant. On 16 November 2000, the pre-trial conference of the case proceeded without the presence of the petitioner or his counsel de parte. A counsel de 11 oficio was appointed only for the purpose of pre-trial. On 12 December 2000, the trial court, upon motion of petitioner, lifted the 12 order of arrest and confiscation of bailbond. The prosecution presented the following witnesses, namely: (1) private 13 14 complainant Eugene Yu; (2) Patricia L. Yu, spouse of private complainant; and (3) Atty. Wilfredo I. Imperial, Director, Executive Services Group, 15 Housing and Land Use Regulatory Board (HLURB). The version of the prosecution is as follows: Private complainant Eugene Yu first met petitioner Ramon L. Uy in Bacolod City in 1993 during a convention of the Chamber of Real Estate and Builders Association, Inc. (CREBA, INC.), of which they were both members. Petitioner represented himself as a businessman and developer of low-cost housing and President of Trans-Builders Resources and Development Corporation. Becoming friends, petitioner and private complainant entered into a business venture in 1995 involving a project in Paraaque City, with the former as developer and the latter as exclusive marketer. Thereafter, petitioner proposed to private complainant a plan to develop lowcost housing in Cagayan de Oro. Initially, petitioner attempted to convince private complainant to agree to jointly develop the project, but the proposed scheme did not materialize. Eventually, however, petitioner was able to get private complainant to agree to an investment portfolio, whereby private complainant was to give the amount of P3,500,000.00 to petitioner who, in turn, would pay private complainant the amount of P4,500,000.00 by the end of May 1996. The additional P1,000,000.00 was the interest on his investment. Petitioner proposed to come up with an investment agreement. Private complainant requested his lawyer, Atty. Dennis Perez, to prepare an 16 investment agreement containing the suggestions of petitioner. On 28 October 1995, in the office of Atty. Perez, private complainant and petitioner 17 signed an undated Investment Agreement. Before signing the document, petitioner went over the same thoroughly. The agreement contained, among other provisions, the following: WHEREAS, FIRST PARTY is the registered owner and developer of parcel of land located at Agusan, Cagayan de Oro City covered by Transfer Certificate of Title No. 61746 issued by the Register of Deeds of Cagayan de Oro and which is more particularly described as follows: xxxx WHEREAS, the FIRST PARTY wishes to develop the above parcel [of] land into a low-cost housing subdivision;

WHEREAS, the SECOND PARTY is willing to invest in the development of the above parcel of land; WHEREAS, the parties desire to execute this Investment Agreement for the purpose of investing in the development of the above parcel of land; NOW, THEREFORE, for and in consideration of the foregoing premises and the mutual covenants and stipulations hereinafter set forth, the parties hereto have agreed, and as they hereby agree, as follows: Section 1. The FIRST PARTY shall develop the above parcel of land in a low-cost housing subdivision; Section 2. The SECOND PARTY agrees to invest the amount of Three Million Five Hundred Thousand Pesos (P3,500,000.00), Philippine Currency, in the construction and development costs of the FIRST PARTY, which amount shall be remitted to it immediately upon the signing of this Investment Agreement; Section 3. For and in consideration of the investment referred to in Section 2, the FIRST PARTY shall pay the amount of Four Million Five Hundred Thousand Pesos (P4,500,000.00), Philippine Currency to the SECOND PARTY payable after six (6) months from the execution of this Investment Agreement. For this purpose, the FIRST PARTY shall issue post -dated check no. CD00371579951 drawn on Metrobank, Cagayan de Oro Branch in favor of the SECOND PARTY; In the event that the amount due the SECOND PARTY or any part thereof is unpaid, the FIRST PARTY shall pay compounded interest at the rate of six percent (6%) on such amount or balance. The SECOND PARTY shall also have the option to acquire a portion(s) of the low-cost housing subdivision in lieu of payment of any unpaid amount or balance. Should the SECOND PARTY choose this option, the FIRST PARTY shall convey to the SECOND PARTY that portion which he chooses. Section 4. It is hereby understood by the parties that Transfer Certificate of Title No. 61746, the Site Development Plan, House Plans and the Special Power of Attorney executed by Patricio Quisumbing, copies of which are hereto attached as Annexes "A", "B", "C" and "D", shall form integral parts of this Investment Agreement. The signing was witnessed, among others, by Patricia Yu, wife of private complainant, and Atty. Perez. Simultaneous with the signing of the agreement, private complainant issued Asiatrust Bank Check No. 087918 dated 30 October 1995 payable to Trans-Builders Resources and 18 Development Corporation in the amount of P3,500,000.00. Petitioner, in turn, issued in favor of private complainant Metrobank Check No. 19 0371579951 dated "30 May 1995" in the amount of P4,500,000.00. The amount of P3,500,000.00 covered by Asiatrust Bank Check No. 087918 was debited against the account of private complainant and credited to the account of Trans-Builders Resources and Development Corporation. When private complainant deposited petitioners Metrobank check to his savings account with Asiatrust Bank, the check was dishonored because it was 20 "Drawn Against Insufficient Funds (DAIF)." It was at this time that private

complainant noticed that the check issued to him was dated 30 May 1995 instead of 30 May 1996. From that time on, petitioner could no longer be located, and he ignored private complainants efforts to collect on his investment. On 16 October 1996, private complainant, through his lawyer, sent a demand letter to 21 petitioner to make good on his bounced check. Upon inquiry from the HLURB, private complainant learned that Trans Builders Resources and Development Corporation had no ongoing low-cost housing project in Agusan, Cagayan de Oro City, as represented by petitioner and contained in the Investment Agreement. Atty. Wilfredo I. Imperial, Director, Executive Services Group of the HLURB, said that TransBuilders Resources and Development Corporation had only three projects in Region 10, namely: (1) Transville Oroquieta 1- Oroquieta City, Misamis Occidental; (2) Transville Oroquieta 2 - Oroquieta City, Misamis Occidental; 22 and (3) Transville Homes Quezon, Bukidnon. Patricia Yu testified on the circumstances regarding the execution of the Investment Agreement and the issuance of the checks by private complainant and petitioner. She corroborated the statements of private complainant on these matters. Atty. Wilfredo I. Imperial testified that Trans Builders Resources and Development Corporation did not have any ongoing low-cost housing project in Agusan, Cagayan de Oro City. On 30 April 2002, the prosecution made its Formal Offer of Exhibits (with Motion for Additional Time to File HLURB Certification) consisting of Exhibits 23 "A" to "G," inclusive, with sub-markings. The trial court noted the offer and 24 granted the motion. On 24 May 2002, the prosecution made a Supplemental Offer of Evidence consisting of the HLURB certification which 25 was marked Exhibit "H." The trial court admitted the exhibits offered on 5 26 July 2002. 27 For the defense, petitioner took the stand. Petitioner testified that his first business transaction with private complainant involved real property development in Paraaque in the middle of 1995, he being the developer and private complainant the exclusive marketer. In the middle of the planning of the Paraaque project, he, being in need of funds, offered private complainant a joint-venture agreement for his project in Cagayan de Oro. Nothing came out of this proposal. Petitioner likewise sought rediscounting of his check by private complainant, but the same did not materialize. Instead, private complainant made a counter-proposal wherein he would finance the P3,500,000.00 petitioner needed, payable within six to seven months with P1,000,000.00 interest. Private complainant instructed his Makati-based lawyer to draft an agreement whereby he was to give petitioner the amount of P3,500,000.00 in exchange for the check he had earlier received from petitioner in the amount of P4,500,000.00, to be deposited at least six (6) months after petitioner had already encashed the P3,500,000.00 check given to him by private complainant on 28 October 2005.

Petitioner went to the law office of private complainants lawyer in Makati and 28 signed the Investment Agreement. Before signing said document, petitioner told private complainant: "Pare utang lang ito, I issued a check, bakit 29 kailangan pa natin itong investment agreement." Private complainant replied that the document was just a formality. Six months after the delivery of private complainants Asiatrust check for P3,500,000.00 to petitioner, private complainant deposited the latter s Metrobank check for P4,500,000.00, which he had received in exchange for private complainants Asiatrust check. The P4,500,000.00 Metrobank check deposited in private complainants account was dishonored. Petitioner denied 30 having received a demand letter from private complainants lawyer. Petitioner declared that the contract between him and private complainant 31 was a simple loan to finance his project in Mindanao. 32 On 23 September 2003, the defense formally offered its evidence consisting of Exhibits "1" to "5." On 9 October 2003, the prosecution formally offered petitioners counter-affidavit as Exhibit I, with sub-markings. On 29 October 2003, the trial court admitted all the exhibits of the defense as well 33 as the additional exhibit of the prosecution. On 17 June 2004, the trial court promulgated its decision convicting petitioner of the crime charged. The decretal portion of the decision reads: WHEREFORE, judgment is rendered finding accused RAMON UY GUILTY beyond reasonable doubt of the crime of Estafa and sentencing him to suffer the indeterminate imprisonment of TEN (10) YEARS prision mayor medium, as minimum, to TWENTY (20) YEARS of prision temporal, as maximum. The accused is ordered to pay complainant Eugene Yu the sum of P4,500,000 and plus twelve percent (12%) interest per annum from May 30, 34 1996 until payment is made, and to pay the cost of suit. In convicting petitioner, the trial court explained: The fact remains that the complainant and the accused signed an agreement which they denominated as "Investment Agreement." The Agreement, having been signed by complainant and the accused is evidence of what is contained therein (Exh. A). The document speaks for itself. x x x. xxxx Complainant Eugene Yu would not have agreed to part with his money or investment were it not for the representation of accused that Trans-Builders Resources and Development Corporation of which the accused is the President, has a low-cost housing project at Barrio Agusan, Cagayan de Oro City. The complainants investment is therefore for a specific purpose which is "to develop a low cost housing project in Barrio Agusan, Cagayan de Oro City over a property owned and registered in the name of Trans -Builders under Transfer Certificate of Title no. 61746 issued by the Register of Deeds of Cagayan de Oro City." The complainant gave to accused his investment thru ASIATRUST Check no. 087918 P3,500,000. He received from the accused the latters check, Metrobank check no. CDO0371579951 in the amount of P4,500,000.

Simultaneously with the exchange of the checks, the accused and complainant signed the Investment Agreement. In sum, complainant Eugene Yu would not have agreed to part with his money or investment were it not for the following false pretenses and misrepresentations: a) He represented that the 3.5 Million pesos will be invested in a low-cost housing project in Barrio Agusan, Cagayan de Oro. b) He promised to pay the private complainant 4.5 Million pesos after six months from the execution of the investment agreement. c) He promised that in the event that the 4.5. Million pesos is not paid, he shall pay the private complainant compounded interest at the rate of six percent (6%) on such amount. He also gave the private complainant the option to acquire a portion(s) of the low-cost housing in lieu of payment of any unpaid amount or balance. d) He issued in favor of the private complainant Metrobank check no. CDO0371579951 worth 4.5 million pesos. As the events would later on disclose, the accused or his company Trans Builders had no low cost housing project in Barrio Agusan Cagayan de Oro (Exhs. "G" and "H"). Likewise, at the appointed time, the accused failed to return the investment of complainant. Neither was the accused able to pay complainant the "compounded interest at the rate of six percent (6%) on such amount or balance," nor did he allow complainant "to acquire a portion(s) of the low cost housing subdivision in lieu of payment of any unpaid amount or balance" . . . . (Sec. 3 Investment Agreement, Exhibit A). The check which the accused issued to complainant turned out to be a bum check because it was dishonored when presented for payment for the reason drawn against insufficient fund (DAIF). xxxx From the foregoing, this court finds that the accused employed deceit upon complainant who relied upon said deceitful representations, and which deceitful acts occurred prior and/or simultaneous to the damage. Thus, the accused Ramon Uy is GUILTY of ESTAFA as defined under Article 35 315 par. 2(a). 36 On 21 June 2004, petitioner filed a Motion to Admit Bail and a Notice of 37 Appeal. The trial court approved the surety bond posted by petitioner and directed the latters release from custody unless further detention was warranted in any 38 other case. On 23 June 2004, the trial court ordered the transmittal of the records of the 39 case to the Court of Appeals. On 2 March 2006, the Court of Appeals rendered its decision upholding petitioners conviction, but reduced the minimum of the indeterminate sentence imposed on him. The dispositive portion of the decision reads: WHEREFORE, the appeal is DENIED and the appealed Decision is AFFIRMED but with MODIFICATION on the minimum of the indeterminate

sentence imposed which is hereby reduced to two (2) years and four (4) 40 months of prision correccional. Petitioner filed a Motion for Reconsideration of the decision, but the appellate court denied it in its resolution dated 9 October 2006. Hence, this Petition for Review on Certiorari. As required by the Court, respondent, through the Office of the Solicitor General, and private complainant filed their comments on 19 March 2007 41 and 12 March 2007, respectively. As directed, petitioner filed his 42 consolidated reply to the comments. On 23 July 2007, the Court gave due course to the petition and required the 43 parties to submit their respective memoranda. All the parties filed their 44 respective memoranda. Petitioner raises the following issues: I. Whether or not (the) Court of Appeals erred in finding the petitionerappellant guilty of the crime of estafa punishable under Art. 315, Par 2(a) of the Revised Penal Code instead of violation of B.P. Blg. 22; II. Whether or not the Court of Appeals (erred) in not finding that the true nature of the Agreement between petitioner-appellant and the private complainant was that of a simple loan; III. Whether or not the Court of Appeals erred in giving credence to the private complainants version of why the check issued by the petitioner appellant was dated May 1995 instead of May 1996. We first rule on the issue of whether or not the contract between petitioner and private complainant was one of loan. Private complainant maintains that what they entered into was an Investment Agreement, while petitioner claims that the contract between them was a contract of loan. After going over the records and testimonies of the witnesses, we are convinced that the transaction that was entered into was an Investment Agreement and not a simple loan. 45 It is very clear from the document signed by both petitioner and private complainant that private complainant shall invest P3,500,000.00 in the development of parcel of land (owned by petitioner and located at Agusan, Cagayan de Oro City covered by Transfer Certificate of Title No. 61746) into a low-cost housing subdivision to be undertaken by petitioner. It is apparent from the face of the document that the land to be developed is located in Agusan, Cagayan de Oro. Petitioner tries to alter or contradict their agreement by claiming that their true intention was to have a simple loan agreement. He alleged that before signing the document, he even told private complainant: " Pare utang lang ito, 46 I issued a check , bak it k ailangan pa natin itong investment agreement ." Private complainant then replied that the document was just a formality. We do not give credence to petitioners allegations. He is thus denying entering into an investment agreement. His denial will not prevail over the clear and unequivocal provisions of the investment contract. As testified to by private complainant, it was petitioner who had proposed the investment agreement and the document contained the latters suggestions. Because

they have reduced their agreement into writing, whatever previous or contemporaneous agreements they had, whether verbal or in writing, are merged in said written agreement. Petitioner argues that the appellate court erred in convicting him of estafa, punishable under Article 315, par. 2(a), instead of violation of Batas 47 Pambansa Blg. 22. He claims that only the fourth element of the crime charged damage may have been established. Estafa, under Article 315, par. 2, of the Revised Penal Code, is committed by any person who defrauds another by using a fictitious name; or falsely pretends to possess power, influence, qualifications, property, credit, agency, business or imaginary transactions; or by means of similar deceits executed 48 prior to or simultaneously with the commission of fraud. Under this class of 49 estafa, the element of deceit is indispensable. The elements of Estafa by means of deceit as defined under Article 315(2)(a) of the Revised Penal Code are as follows: (1) there must be false pretense, fraudulent act or fraudulent means; (2) such false pretense, fraudulent act or fraudulent means must be made or executed prior to or simultaneously with the commission of the fraud; (3) the offended party must have relied on the false pretense, fraudulent act or fraudulent means, that is, he must have been induced to part with his money or property because of the false pretense, fraudulent act or fraudulent means; and (4) as a result thereof, the 50 offended party suffered damage. Fraud, in its general sense, is deemed to comprise anything calculated to deceive, including all acts, omissions and concealment involving a breach of legal or equitable duty, trust or confidence justly reposed, resulting in damage to another; or by which another is unduly and unconscientiously taken advantage of another. It is a generic term embracing all multifarious means which human ingenuity can device, and which are resorted to by one individual to secure an advantage over another by false suggestions or by suppression of truth; and includes all forms of surprise, trick, cunning, dissembling and any other unfair way by which another is cheated. Deceit is 51 a species of fraud. And deceit is the false representation of a matter of fact, whether by words or conduct, by false or misleading allegations; or by concealment of that which should have been disclosed, which deceives or is intended to deceive another so that he shall act upon it, to his legal injury. The false pretense or fraudulent act must be committed prior to or simultaneously with the commission of the fraud, it being essential that such false statement or representation constitutes the very cause or the only 52 motive which induces the offended party to part with his money. In the absence of such requisite, any subsequent act of the accused, however fraudulent and suspicious it might appear, cannot serve as basis for 53 prosecution for estafa under the said provision. The prosecution has established the presence of all the elements of the offense. Petitioner falsely represented to private complainant that he had an on going low-cost housing project in Agusan, Cagayan de Oro. Relying on petitioners fraudulent misrepresentations, private complainant invested

P3,500,000.00 in said project. Said amount was given by means of a check and handed over to petitioner simultaneously with the signing of the Investment Agreement. As it turned out, per certification from the HLURB, petitioner did not have any low-cost housing project in Agusan, Cagayan de Oro. Private complainant indeed suffered damage. He did not get his return of investment because the check he received from petitioner in the amount of P4,500,000.00 was dishonored. Moreover, petitioner neither paid private complainant the 6% compounded interest on said amount or balance thereon, nor did he allow private complainant to acquire a portion or portions of the low-cost housing subdivision in lieu of the payment of any unpaid amount or balance. To date, the amount private complainant invested in said low-cost housing has not been returned. Without a doubt, petitioner is guilty of estafa. Petitioner contends he was denied due process of law when he was convicted of estafa instead of violation of Batas Pambansa Blg. 22. An examination of the private complainants demand letter, he said, indicates that the demand was for alleged violation of Batas Pambansa Blg. 22. We find his contention untenable. Under Section 5, Rule 110 of the Revised Rules of Criminal Procedure, criminal actions shall be prosecuted under the direction and control of the prosecutor. In the case before us, the prosecutor, after going over the complaint found probable cause to charge him with estafa. This was the prosecutors prerogative, considering that he was the one who would prosecute the case. The prosecuting attorney cannot be compelled to file a 54 particular criminal information. The fact that the demand letter may suggest a violation of Batas Pambansa Blg. 22 cannot control his action as to what charge he will file, if he sees evidence showing probable cause to charge an accused for another crime. It is the prosecutors assessment of the evidence before him which will prevail, and not what is contained in a demand letter. Moreover, there can be no denial of due process because petitioner was informed of the nature and cause of the accusation against him when he was arraigned. He was charged with estafa, and he pleaded not guilty thereto. He was given the opportunity to disprove the evidence against him. The fact that he was arraigned and was tried according to the rules of court undeniably shows he was accorded due process. Petitioner asserts that the Investment Agreement upon which his conviction seemed to have been anchored should not have been considered because said document is a contract of adhesion. Such assertion will not exonerate him. A contract of adhesion is so-called because its terms are prepared by only one party, while the other party merely affixes his signature signifying his 55 adhesion thereto. A contract of adhesion is just as binding as ordinary contracts. It is true that we have, on occasion, struck down such contracts as void when the weaker party is imposed upon in dealing with the dominant bargaining party and is reduced to the alternative of taking it or leaving it, completely deprived of the opportunity to bargain on equal footing.

Nevertheless, contracts of adhesion are not invalid per se; they are not entirely prohibited. The one who adheres to the contract is in reality free to 56 reject it entirely; if he adheres, he gives his consent. In the case at bar, we find the Investment Agreement entered int o by petitioner and private complainant valid. Although the Investment Agreement was prepared by private complainants lawyer, this circumstance will not invalidate it. The document was prepared with the suggestions of petitioner being considered. We find it far-fetched to presume that petitioner did not know anything about the preparation of said document considering that the details contained therein are informations known only to the owner of the property to be developed. Furthermore, as a businessman who is engaged in real estate development, we have no doubt that he knew what he was doing when he signed the Investment Agreement. Petitioner argues that his Metrobank check was dated May 1995 instead of 1996, because the same was not issued in relation to the Investment Agreement. His argument does not persuade. It is clear from the document itself that the check was issued in consideration of the investment made by private complainant. Section 3 of said document provides: Section 3. For and in consideration of the investment referred to in Section 2, the FIRST PARTY shall pay the amount of Four Million Five Hundred Thousand Pesos (P4,500,000.00), Philippine Currency to the SECOND PARTY payable after six (6) months from the execution of this Investment Agreement. For this purpose, the FIRST PARTY shall issue post -dated check no. CD00371579951 drawn on Metrobank, Cagayan de Oro Branch in 57 favor of the SECOND PARTY. Moreover, we agree with the trial courts reasoning why petitioners check was dated 30 May 1995, to wit: It could not have been the intention of the parties in the Investment Agreement (Exh. "A") that the repayment of the investment, which was made on October 30, 1995 and payable with interest after six (6) months from date of execution of the Agreement as stipulated in the agreement be done by way of a check drawn five (5) months earlier. Obviously, the intention is to postdate the check. This circumstance should not adversely affect the cause of action of complainant because as regard the complainant, the check he received from the accused in exchange [for] the check he gave the latter, is 58 due six months from the signing of the Investment Agreement. Finally, petitioner claims private complainant committed a violation of the provisions of the Anti-Usury Law. We do not agree. First, petitioner failed to specify which provision of said law was violated by private complainant. Second, the effectivity of the Usury Law has been suspended by Central Bank Circular No. 905, s. 1982 effective 1 59 January 1983. We now go to the penalty. The trial court sentenced petitioner to suffer the indeterminate penalty "of ten (10) years of prision mayor, as minimum, to twenty (20) years as prision (sic)

temporal, as maximum." It also ordered petitioner to pay the private complainant the amount of P4,500,000.00 plus twelve percent (12%) interest per annum from 30 May 1996 until fully paid, and to pay the costs of suit. The Court of Appeals affirmed the conviction but modified the penalty imposed, more particularly the minimum of the indeterminate sentence, which was reduced to two (2) years and four (4) months of prision correccional. The penalty for estafa by means of deceit is provided in Article 315 of the Revised Penal Code: 1st. The penalty of prision correccional in its maximum period to prision mayor in its minimum period, if the amount of the fraud is over 12,000 pesos but does not exceed 22,000 pesos, and if such amount exceeds the latter sum, the penalty provided in this paragraph shall be imposed in its maximum period, adding one year for each additional 10,000 pesos; but the total penalty which may be imposed shall not exceed twenty years. In such case, and in connection with the accessory penalties which may be imposed and for the purpose of the other provisions of this Code, the penalty shall be termed prision mayor or reclusion temporal, as the case may be. Under this paragraph, the penalty of prision correccional in its maximum period to prision mayor in its minimum period is the imposable penalty if the amount defrauded is over P12,000.00 but not over P22,000.00. If the amount defrauded exceeds P22,000.00, the penalty provided shall be imposed in its maximum period, with one year added for each additional P10,000.00. The total penalty, however, shall not exceed twenty years. Under the Indeterminate Sentence Law, the maximum term of the penalty shall be "that which in view of the attending circumstances, could be properly imposed" under the Revised Penal Code and the minimum shall be "within the range of the penalty next lower to that prescribed" for the offense. The range of the penalty provided for in Article 315 is composed of only two periods, thus, to get the maximum period of the indeterminate sentence, the total number of years included in the two periods should be divided into three. Article 65 of the same code requires the division of the time included in the prescribed penalty into three equal periods of time, forming one period for each of the three portions. The maximum, medium and minimum periods of the prescribed penalty are therefore: Minimum period - 4 years, 2 months and 1 day to 5 years, 5 months and 10 days Medium period - 5 years, 5 months and 11 days to 6 years, 8 months and 20 days Maximum period - 6 years, 8 months and 21 days to 8 years The amount defrauded being in excess of P22,000.00, the penalty imposable should be the maximum period of six years, eight months, and twenty-one days to eight years of prision mayor. However, Art. 315 also provides that an additional one year shall be imposed for each additional P10,000.00. The penalty should be termed as prision mayor or reclusion temporal, as the case may be. Here, considering that the total amount of the fraud is P3,500,000.00, the corresponding penalty obviously reaches the twenty -year

60

limit. Thus, the correct imposable maximum penalty is twenty years of reclusion temporal. The minimum period of the indeterminate sentence, on the other hand, should be within the range of the penalty next lower than that prescribed by Article 315(2)(a), Revised Penal Code, for the crime committed. The penalty next lower than prision correccional maximum to prision mayor minimum is prision correccional minimum (six months and one day to two years and four months) to prision correccional medium (two years, four months and one day to four years and two months). The Court of Appeals thus correctly reduced the minimum of the indeterminate penalty imposed on petitioner. We agree with both lower courts that petitioner should be ordered to pay private complainant the amount of P4,500,000.00 as actual damages representing private complainants investment and unrealized profit pursuant to the Investment Agreement. The 12 % interest per annum on said amount as imposed by the lower courts from 30 May 1996 should be reduced to 6% per annum in accordance with the Investment Agreement. After this decision has become final, the interest thereon shall be 12% per annum. WHEREFORE, premises considered, the decision of the Court of Appeals in CA-G.R. CR No. 28581 dated 2 March 2006 is AFFIRMED with the MODIFICATION that the interest on the amount of P4,500,000.00 shall be 6% per annum computed from 30 May 1996. Upon the finality of this decision, the interest on said amount shall be 12% per annum. SO ORDERED. MINITA V. CHICO-NAZAR Associate Justice Acting Chairperson WE CONCUR: CONCHITA CARPIO MORALES Associate Justice DANTE O. TINGA PRESBITERO J. VELASCO, JR. Associate Justice Associate Justice RUBEN T. REYES Associate Justice A TT E S TA T ION I attest that the conclusions in the above Decision were reached in consultation before the case was assigned to the writer of the opinion of the Courts Division. MINITA V. CHICO-NAZARIO Associate Justice Acting Chairperson, Third Division CERTIFICATION Pursuant to Section 13, Article VIII of the Constitution, and the Division Chairpersons Attestation, it is hereby certified that th e conclusions in the above Decision were reached in consultation before the case was assigned to the writer of the opinion of the Courts Division.

REYNATO Chief Justice

S.

PUNO

34 35

* Justice Conchita Carpio Morales was designated to sit as additional member replacing Justice Antonio Eduardo B. Nachura per Raffle dated 3 September 2008. ** Per Special Order No. 517, dated 27 August 2008, signed by Chief Justice Reynato S. Puno, designating Associate Justices Dante O. Tinga and Presbitero J. Velasco, Jr. to replace Associate Justices Consuelo Ynares Santiago and Ma. Alicia Austria-Martinez, who are on official leave. 1 Penned by Associate Justice Roberto A. Barrios with Associate Justices Mario L. Guaria III and Santiago Javier Ranada, concurring. CA rollo, pp. 119-127. 2 Records, pp. 350-358. 3 CA rollo, pp. 197-199. 4 Records, p. 1. 5 Id. at 34. 6 Id. at 39. 7 Id. at 58. 8 Id. at 62. 9 Id. at 75. 10 Id. at 95. 11 Id. at 109. 12 Id. at 123. 13 TSN, 28 September 2000 (Motion for Issuance of Hold Departure Order); 9 January 2001; 13 February 2001; 13 March 2001). 14 TSN, 24 May 2001. 15 TSN, 11 April 2002. 16 TSN, 29 March 2001, pp. 68-70. 17 Exh. "A"; records, pp. 217-220. 18 Exh. "B"; id. at 221. 19 Exh. "C"; id. at 222. 20 Exhs. "D" and "E"; id. at 223-224. 21 Exh. "F"; id. at 225. 22 Exhs. "G" and "H"; id. at 226 and 233. 23 Records, pp. 210-216. 24 Id. at 227. 25 Id. at 229-232. 26 Id. at 244. 27 TSN, 27 March 2003 and 19 June 2003. 28 Exh. "A"; Records, pp. 217-220. 29 TSN, 27 March 2003, p. 16. 30 TSN, 19 June 2003, p. 10. 31 TSN, 27 March 2003, p. 11. 32 Records, pp. 281-282. 33 Id. at 294.

Id. at 358. Id. at 355-357. 36 Id. at 362-382. 37 Id. at 383-384. 38 Id. at 385. 39 Id. at 386. 40 CA rollo, p. 127. 41 Rollo, pp. 152-169, 170-191. 42 Id. at 198-208. 43 Id. at 210. 44 Id. at 215-232, 239-260, 330-353. 45 Exh. "A." 46 TSN, 27 March 2003, p. 16. 47 Bouncing Checks Law. 48 R.R. Paredes v. Calilung, G.R. No. 156055, 5 March 2007, 517 SCRA 369, 393. 49 People v. Billaber, 465 Phil. 726, 744 (2004). 50 Cosme, Jr. v. People, G.R. No. 149753, 27 November 2006, 508 SCRA 190, 203-204. 51 Sim, Jr. v. Court of Appeals, G.R. No. 159280, 18 May 2004, 428 SCRA 459, 468. 52 Alcantara v. Court of Appeals, 462 Phil. 72, 89 (2003). 53 Preferred Home Specialties, Inc. v. Court of Appeals, G.R. No. 163593, 16 December 2005, 478 SCRA 387, 411-412. 54 People v. Pineda, 127 Phil. 150, 156-157 (1967). 55 Ermitao v. Court of Appeals, 365 Phil. 671, 678-679 (1999). 56 Rizal Commercial Bank ing Corporation v. Court of Appeals, 364 Phil. 947, 953-954 (1999). 57 Records, p. 218. 58 Id. at 357. 59 Ruiz v. Court of Appeals, 449 Phil. 419, 434 (2003). 60 CA rollo, p. 75.

G.R. No. 163797 April 24, 2007 WILSON CHUA, RENITA CHUA, THE SECRETARY OF JUSTICE and THE CITY PROSECUTOR OF LUCENA CITY, Petitioners, vs. RODRIGO PADILLO and MARIETTA PADILLO, Respondents. DECISION SANDOVAL-GUTIERREZ, J.: For our resolution is the instant Petition for Review on Certiorari assailing the 1 Amended Decision of the Court of Appeals dated May 15, 2003 reversing its 2 Decision dated January 24, 2001 in CA-G.R. SP No. 62401, entitled "Rodrigo Padillo and Marietta Padillo, Complainants-Petitioners, versus The Secretary of Justice, et al., Respondents. " The facts as found by the Court of Appeals are: Rodrigo Padillo and Marietta Padillo, respondents, are the owners of Padillo Lending Investor engaged in the money lending business in Lucena City. Their niece, Marissa Padillo-Chua, served as the firms manager. Marissa is married to Wilson Chua, brother of Renita Chua, herein petitioners. One of Marissas functions was to evaluate and recommend loan applications for approval by respondents. Once a loan application had been approved, respondents would authorize the release of a check signed by them or their authorized signatory, a certain Mila Manalo. Sometime in September 1999, a post-audit was conducted. It was found that Marissa was engaged in illegal activities. Some of the borrowers whose loan applications she recommended for approval were fictitious and their signatures on the checks were spurious. Marissas modus operandi was to alter the name of the payee appearing on the check by adding another name as an alternative payee. This alternative payee would then personally encash the check with the drawee bank. The cash amounts received were turned over to Marissa or her husband Wilson for deposit in their personal accounts. To facilitate encashment, Marissa would sign the check to signify to the bank that she personally knew the alternative payee. The alternative payees included employees of Wilson or his friends. The total amount embezzled reached P7 million. Respondents filed complaints against petitioners and several others with the National Bureau of Investigation (NBI) in Lucena City. In turn, the NBI forwarded their complaints to the Office of the City Prosecutor, same city, for preliminary investigation, docketed as I.S. Nos. 98-1487, 98-1621, 98-1629, and 98-1605. In a Resolution dated March 18, 1999, Lucena City Prosecutor Romeo A. Datu (now retired), disposed of the complaints as follows: WHEREFORE, after preliminary investigation, finding sufficient evidence to warrant a finding of a prima facie case of Estafa Thru Falsification of Commercial Documents, let an Information be filed against Marissa PadilloChua, Wilson Chua, Renita Chua, and several John Does, the same to be filed with the Regional Trial Court.

The case against the other respondents, namely, Perla Correa, Giovani Guia, Emmanuel Garcia, Zenaida Nantes, Cherrylyn Mendoza, Rosalie Mazo, Fernando Loreto, Cesar Salamat, Antonio Bana, Isidro Manalo, Jr., Ramon Villanueva, Alexander Asiado, Peter Tan, Jun Tan, Flaviano Evaso, Edgar Sebastian, Crisencio Asi, Roberto Ong and Gregorio Flancia is provisionally dismissed. Forthwith, the City Prosecutor filed an Information for estafa against Marissa, Wilson, and Renita with the Regional Trial Court of Lucena City, docketed therein as Criminal Cse No. 99-182. It was raffled of to Branch 59. Believing that a more serious offense should have been charged against petitioners, respondents interposed an appeal to the Secretary of Justice who issued a Resolution dated January 3, 2000, the dispositive portion of which reads: WHEREFORE, the appealed resolution is modified. The City Prosecution Office of Lucena City is hereby directed to file the Information of the complex crime of estafa through falsification of commercial documents defined and penalized under Article 315 par. 1(b) in relation to Articles 171 and 172 (58 counts) against respondent Marissa Padillo-Chua and to cause the withdrawal of the Information of estafa through falsification of commercial documents against respondents Wilson Chua and Renita Chua. Report to us the action taken within ten (10) days from receipt hereof. The Secretary of Justice found that the participation of Wilson Chua in the commission of the crime was not clearly established by the evidence. There was no showing that he abused the trust and confidence of respondents when two (2) of the questioned checks were deposited in his bank account. As to Renita Chua, the Secretary of Justice found no proof of conspiracy between her and Marissa. Respondents filed a motion for reconsideration, but it was denied with finality by the Secretary of Justice on November 6, 2000. Respondents then filed a Petition for Certiorari with the Court of Appeals, docketed as CA-G.R. SP No. 62401. They alleged that in issuing the Resolution dated January 3, 2000 directing the Prosecutors Office of Lucena City to file the corresponding Information only against Marissa, the Secretary of Justice committed grave abuse of discretion. They prayed that the Court of Appeals order the Lucena City Prosecutor to withdraw the Information in Criminal Case No. 99-182 and instead, file several Informations against petitioners. On January 24, 2001, the Court of Appeals rendered its Decision dismissing the petition, holding that there was no conspiracy among the petitioners. Respondents seasonably filed a motion for reconsideration. Revisiting its Decision, the Court of Appeals, on May 15, 2003, promulgated its Amended Decision granting respondents motion, thus: WHEREFORE, the Motion for Reconsideration is hereby GRANTED. ACCORDINGLY, the Court orders the DOJ, City Prosecutor, Lucena City to include Wilson Chua and Renita Chua as accused in the said case. SO ORDERED.

In reversing itself, the Court of Appeals found that it overlooked certain fact s and circumstances which, if considered, would establish probable cause against Wilson and Renita. The Court of Appeals identified these facts to be: (1) Marissas consistent practice of depositing checks with altered names of payees to the respective accounts of Wilson Chua and Renita Chua; (2) considering that Wilson and Marissa are husband and wife, it can be inferred that one knows the transactions of the other; and (3) Wilson had full knowledge of the unlawful activities of Marissa. This is supported by the affidavit of Ernesto Alcantara dated November 26, 1998. Wilson Chua and Renita Chua filed their motion for reconsideration of the Amended Decision, but the Court of Appeals denied the same on May 28, 2004. Hence, the instant petition. Petitioners contend that the Court of Appeals erred in compelling the Secretary of Justice to include in the Information Wilson and Renita. Section 5, Rule 110 of the 200 Rules of Criminal Procedure, as amended, partly provides that "All criminal actions either commenced by a complaint or information shall be prosecuted under the direction and control of a public prosecutor." The rationale for this rule is that since a criminal offense is an outrage to the sovereignty of the State, it necessarily follows that a 3 representative of the State shall direct and control the prosecution thereof. 4 In Suarez v. Platon, this Court described the prosecuting officer as: [T]he representative not of an ordinary party to a controversy, but of a sovereignty whose obligation to govern impartially is as compelling as its obligation to govern at all; and whose interest, therefore, in a criminal prosecution is not that it shall win a case, but that justice shall be done. As such, he is in a peculiar and very definite sense a servant of the law, the twofold aim of which is that guilt shall not escape or innocence suffer. Having been vested by law with the control of the prosecution of criminal cases, the public prosecutor, in the exercise of his functions, has the power 5 and discretion to: (a) determine whether a prima facie case exists; (b) decide which of the conflicting testimonies should be believed free from the 6 interference or control of the offended party; and (c) subject only to the right 7 against self-incrimination, determine which witnesses to present in court. Given his discretionary powers, a public prosecutor cannot be compelled to file an Information where he is not convinced that the evidence before him would warrant the filing of an action in court. For while he is bound by his oath of office to prosecute persons who, according to complainants evidence, are shown to be guilty of a crime, he is likewise duty -bound to 8 protect innocent persons from groundless, false, or malicious prosecution. We must stress, however, that the public prosecutors exercise of his discretionary powers is not absolute. First , the resolution of the investigating prosecutor is subject to appeal to the Secretary of Justice who, under the Administrative Code of 1987, as amended, exercises control and supervision over the investigating prosecutor. Thus, the Secretary of Justice may affirm, nullify, reverse, or

modify the ruling of said prosecutor." In special cases, the public prosecutors 9 decision may even be reversed or modified by the Office of the President. Second, the Court of Appeals may review the resolution of the Secretary of Justice on a petition for certiorari under Rule 65 of the 1997 Rules of Civil Procedure, as amended, on the ground that he committed grave abuse of 10 discretion amounting to excess or lack of jurisdiction. Here, we note that the Court of Appeals, on motion for reconsideration by respondents, ruled that the Secretary of Justice committed grave abuse of discretion in resolving that only Marissa should be charged. We agree. Grave abuse of discretion implies a capricious and whimsical exercise of 11 judgment that is equivalent to lack of jurisdiction. We have carefully examined the Resolution of the Secretary of Justice dated January 3, 2000 wherein he ruled that there was no probable cause to hold Wilson Chua and Renita Chua for estafa through falsification of commercial documents. As found by the Court of Appeals, the Secretary of Justice either overlooked or patently ignored the following circumstances: (1) Marissas practice of depositing checks, with altered names of payees, in the respective accounts of Wilson and Renita Chua; (2) the fact that Wilson and Marissa are husband and wife makes it difficult to believe that one has no idea of the transactions entered into by the other; and (3) the affidavit of Ernesto Alcantara dated November 26, 1998 confirming that Wilson had knowledge of Marissas illegal activities. 12 Indeed, as we ruled in Sanchez v. Demetriou, not even the Supreme Court can order the prosecution of a person against whom the prosecutor does not find sufficient evidence to support at least a prima facie case. The only possible exception to this rule is where there is an unmistakable showing of grave abuse of discretion on the part of the prosecutor, as in this case. Verily, the Court of Appeals did not err in directing the City Prosecutor of Lucena City to include Wilson and Renita Chua in the Information for the complex crime of estafa through falsification of commercial documents. WHEREFORE, we DENY the petition and AFFIRM the Amended Decision of the Court of Appeals in CA-G.R. SP No. 62401. Costs against petitioner. SO ORDERED. ANGELINA SANDOVAL-GUTIERREZ Associate Justice WE CONCUR: REYNATO S. PUNO Chief Justice Chairperson RENATO C. CORONA ADOLFO S. AZCUNA Associate Justice Asscociate Justice CANCIO C. GARCIA Associate Justice CERTIFICATION

Pursuant to Article VIII, Section 13 of the Constitution, it is hereby certified that the conclusions in the above Decision were reached in consultation before the case was assigned to the writer of the opinion of the Courts Division. REYNATO S. PUNO Chief Justice Footnotes 1 Penned by Associate Justice Eloy R. Bello, Jr., and concurred in by Associate Justice Eugenio S. Labitoria and Associate Justice Perlita J. Tria-Tirona (all retired). 2 Rollo, pp. 58-64. 3 Tan, Jr. v. Gallardo, G.R. Nos. 41213-14, October 5, 1976, 73 SCRA 306, 310. 4 80 Phil. 556 (1940). 5 Zulueta v. Nicolas , 102 Phil. 944 (1958). 6 People v. Liggayu, 97 Phil. 865 (1955); Talunan v. Ofiana, G.R. No. 31028, June 29, 1972, 45 SCRA 467. 7 People v. Sariol, G.R. No. 83809, June 22, 1989, 174 SCRA 237; People v. Nabunat , G.R. No. 84392, February 7, 1990, 182 SCRA 52; People v. Cario, G.R. Nos. 92144-49, December 18, 1992, 216 SCRA 702. 8 Vda. de Bagatua v. Revilla and Lombos , 104 Phil. 392 (1958). 9 Public Utilities Department of Olongapo City v. Guigona, Jr. , 417 Phil. 798 (2001). 10 Sec. 4, Rule 112, 2000 Rules of Criminal Procedure; Vda. de Jacob v. Puno, G.R. Nos. 61554-55, July 31, 1984, 131 SCRA 144; Crespo v. Mogul, G.R. No. 53373, June 30, 1987, 151 SCRA 462. 11 Samson v. Office of the Ombudsman, G.R. No. 117741, September 29, 2004, 49 SCRA 315. 12 G.R. Nos. 11171-77, November 9, 1983, 227 SCRA 627.

G.R. Nos. 140576-99 December 13, 2004 JOSE S. RAMISCAL, JR., petitioner, vs. HONORABLE SANDIGANBAYAN (Fourth Division), ALBANO & ASSOCIATES and the ASSOCIATION OF GENERALS & FLAG OFFICERS, INC., respondents. DECISION CALLEJO, SR., J.: This is a petition for review on certiorari under Rule 45 of the Revised Rules of Court, of the Resolution of the Sandiganbayan, dated June 9, 1999 in Criminal Cases Nos. 25122 to 25145, and its Resolution dated October 22, 1999, denying the motion for reconsideration thereof. The Antecedents The Armed Forces of the Philippines Retirement and Separation Benefits System (AFP-RSBS) was established in December 1973 and started its actual operations in 1976. Created under Presidential Decree (P.D.) No. 361, as amended, the AFP-RSBS was designed to establish a separate fund to guarantee continuous financial support to the AFP military retirement system 1 as provided for in Republic Act No. 340. Under the decree, the AFP-RSBS was to be funded from three principal sources: (a) congressional appropriations and compulsory contributions from members of the AFP; (2) donations, gifts, legacies, bequests and others to the system; and (3) all 2 earnings of the system which shall not be subject to any tax whatsoever. AFP-RSBS is a government-owned or controlled corporation (GOCC) under Rep. Act No. 9182, otherwise known as "The Special Purpose Vehicle Act of 2002." It is administered by the Chief of Staff of the AFP through a Board of 3 Trustees and Management Group. Its funds are in the nature of public 4 funds. On December 18, 1997, Luwalhati R. Antonino, then a member of the House of Representatives representing the First District of the Province of South 5 Cotabato, filed a "Complaint-Affidavit" with the Office of the Ombudsman for Mindanao. She alleged that anomalous real estate transactions involving the Magsaysay Park at General Santos City and questionable payments of transfer taxes prejudicial to the government had been entertained into between certain parties. She then requested the Ombudsman to investigate the petitioner, Retired Brig. Gen. Jose S. Ramiscal, Jr., then President of the 6 7 AFP-RSBS, together with twenty-seven (27) other persons for conspiracy in misappropriating AFP-RSBS funds and in defrauding the government 8 millions of pesos in capital gains and documentary stamp taxes. On January 28, 1999, after the requisite preliminary investigation, Special Prosecutor Joy C. Rubillar-Arao filed twenty-four (24) separate Informations with the Sandiganbayan against the petitioner and several other accused. The filing of the Informations was duly approved by then Ombudsman Aniano A. Desierto. The first twelve (12) Informations were for violation of Section

3(e) of Rep. Act No. 3019, otherwise known as the Anti-Graft and Corrupt 9 Practices Act, docketed as Criminal Cases Nos. 25122 to 25133. All were similarly worded, except for the names of the other accused, the dates of the commission of the offense, and the property involved. Representative of the said Informations is that filed in Criminal Case No. 25122, the inculpatory portion of which reads: That sometime on September 24, 1997, and prior, or subsequent thereto, in General Santos City, Philippines, and within the jurisdiction of this Honorable Court, accused JOSE RAMISCAL, JR., a high ranking public official being then the President, and WILFREDO PABALAN, a low ranking public officer being the Project Director, both of the AFP-RSBS, while in the performance of their official duties, taking advantage of their official positions and committing the offense in relation to their offices, conspiring together and confederating with NILO FLAVIANO and ALEX GUAYBAR, both private individuals, did, there and then, willfully, unlawfully and criminally execute and/or cause the execution of a falsified Deed of Sale covering Lot-X-4, a real property located at General Santos City, by making it appear therein that the purchase price of the said lot is only TWO MILLION NINE HUNDRED NINETY-SEVEN THOUSAND (P2,997,000.00) PESOS at P3,000.00 per square meter, when in truth and in fact, as all the accused very well knew and, in fact, agreed, that the same was sold for P10,500.00 per square meter or a total of TEN MILLION FOUR HUNDRED EIGHTYNINE THOUSAND FIVE HUNDRED (P10,489,500.00) PESOS, and use the said falsified Deed of Sale as basis for payment of capital gains and documentary stamp taxes relative to the sale of the subject lot in the amount of only P299,700.00 and P89,910.00, respectively, when the capital gains, and documentary stamp and other taxes should have been P524,475.00 and P157,342.50, respectively, thereby short-changing and causing undue injury to the government through evident bad faith and manifest partiality in the total amount of TWO HUNDRED NINETY-TWO THOUSAND TWO HUNDRED SEVEN and 50/100 PESOS (P292,207.50), more or less. 10 CONTRARY TO LAW. On the other hand, twelve (12) other separate Informations indicted the accused for Falsification of Public Documents, defined and penalized under paragraph 4, Article 171 of the Revised Penal Code, docketed therein as 11 Criminal Cases Nos. 25134 to 25145. Save with respect to the names of the other accused, the dates of the commission of the felonies, and the property involved in each case, the Informations were, likewise, similarly worded, representative of which is that in Criminal Case No. 25134. The accusatory portion reads: That on or about September 24, 1997, and sometime prior, or subsequent thereto, in General Santos City, Philippines, and within

the jurisdiction of this Honorable Court, accused JOSE RAMISCAL, JR., a high-ranking public official being then the President, and WILFREDO PABALAN, a low-ranking public officer being the Project Director, both of the AFP-RSBS, while in the performance of their duties, taking advantage of their official positions and committing the offense in relation to their offices, conspiring and confederating with each other and with accused NILO FLAVIANO and JACK GUIWAN, both private individuals, acting with unfaithfulness and with malicious intent, did, there and then, willfully, unlawfully and criminally falsify a public document by executing and/or causing to be executed a Deed of Sale for a 999-sq. m. property particularly identified as Lot-X-5 located at General Santos City and stating therein a purchase price of only P3,000.00 per square meter or a total of TWO MILLION NINE HUNDRED NINETY-SEVEN THOUSAND (P2,997,000.00) PESOS when in truth and in fact, as all the accused very well knew and, in fact, agreed, the purchase price of said lot is P10,500.00 per square meter or a total of TEN MILLION FOUR HUNDRED EIGHTY-NINE THOUSAND FIVE HUNDRED (P10,489,500.00) PESOS, thereby perverting the truth. 12 CONTRARY TO LAW. On February 2, 1999, the petitioner filed an Urgent Motion to Dismiss the Informations and to Defer the Issuance of Warrant of Arrest, alleging want of 13 jurisdiction. He, likewise, filed an Urgent Manifestation and Motion to 14 Suspend Proceedings on February 16, 1999, because of the pendency of his motion for reinvestigation with the Office of the Ombudsman. The Office 15 of the Special Prosecutor opposed the said motions. Meanwhile, pending resolution of the aforementioned motions, the law firm of 16 Albano & Associates filed a "Notice of Appearance" as private prosecutors in all the aforementioned cases for the Association of Generals and Flag 17 Officers, Inc. (AGFOI) on March 9, 1999. The notice of appearance was apparently made conformably to the letter-request of Retired Commodore Ismael Aparri and Retired Brig. Gen. Pedro Navarro, who are members thereof. 18 In a Resolution dated April 5, 1999, the Sandiganbayan denied the earlier motions filed by the petitioner for lack of merit. Consequently, a warrant of 19 arrest against him was issued. He posted a cash bail bond for his 20 provisional liberty. On April 6, 1999, the petitioner opposed the appearance of the law firm of Albano & Associates as private prosecutors, contending that the charges brought against him were purely public crimes which did not involve damage 21 or injury to any private party; thus, no civil liability had arisen. He argued that under Section 16 of the Rules of Criminal Procedure, "an offended party may be allowed to intervene through a special prosecutor only in those cases 22 where there is civil liability arising from the criminal offense charged." He maintained that if the prosecution were to be allowed to prove damages, the

prosecution would thereby be proving another crime, in violation of his constitutional right to be informed of the nature of the charge against him. In its comment, the law firm contended that its clients, Commodore Aparri and Brig. Gen. Navarro, were members of the AGFOI and contributors of AFP-RSBS. It alleged that as such members-contributors, they "have been disadvantaged or deprived of their lawful investments and residual interest at the AFP-RSBS" through the criminal acts of the petitioner and his cohorts. It posited that its clients, not having waived the civil aspect of the cases involved, have all the right to intervene pursuant to Section 16, Rule 110 of the Rules of Court. Moreover, the law firm averred that its appearance was in collaboration with the Office of the Ombudsman, and that their intervention in any event, was subject to the direction and control of the Office of the Special 23 Prosecutor. Replying to the comment, the petitioner refuted the allegation of AGFOI that he had civil interest in the criminal cases involved. He posited that AGFOI was neither a member nor a beneficiary of the AFP-RSBS. Moreover, considering that it was funded partly by the national government and individual soldiers by way of salary deductions, the AGFOI never contributed a single centavo to the funds of the AFP-RSBS. He further averred that AGFOI, as an organization, has a distinct personality of its own, apart from 24 the individual members who compose it. Hence, it is of no moment if some members of AGFOI are or have been members and beneficiaries of the AFPRSBS. Meanwhile, on June 6, 1999, the petitioner filed a "Motion for 25 Reinvestigation" with the Sandiganbayan, mentioning therein his unresolved motion for reconsideration with the Office of the Ombudsman. He prayed that the proceeding be suspended and his arraignment deferred pending the resolution of the reinvestigation. The Sandiganbayan granted the motion in its Order dated June 11, 1999. The fallo of the said resolution reads: WHEREFORE, the prosecution is given 60 days from today within which to elevate its evidence and to do whatever is appropriate on the Motion for Reconsideration dated February 12, 1999 and supplemental motion thereof dated May 28, 1999 of accused Jose Ramiscal, Jr. and to inform this Court within the said period as to its findings and recommendations together with the action thereon of the Ombudsman. As prayed for in open court by Pros. Monteroso, this authority from the Court for the prosecution to evaluate its evidence and take such appropriate action as regards accused Ramiscals subject motion shall also include the case regarding all the accused. 26 SO ORDERED. 27 In the meantime, in a Resolution dated June 9, 1999, the Sandiganbayan made short shrift of the petitioners opposition and denied his plea for the 28 denial of the appearance of the law firm. In justifying its resolution, the Sandiganbayan declared as follows:

Considering that the offended parties are members of the AFP-RSBS, as represented by the two (2) flag officers, and their right may be affected by the action of the Court resolving the criminal and civil aspects of the cases, there appears a strong legal presumption that their appearance should not be disturbed. After all, their appearance is subject to the direct supervision and 29 control of the public prosecutor. 30 The petitioner moved for a reconsideration of the Sandiganbayans 31 Resolution of June 9, 1999, which was opposed by the prosecution. The 32 Sandiganbayan issued a Resolution denying the same on October 22, 1999. The petitioner filed the instant petition under Rule 45 of the Rules of Civil Procedure, for the nullification of the June 9, 1999 and October 22, 1999 Resolutions of the graft court, and raised the following issues: I WHETHER OR NOT, BY NATURE, THE SUBJECT CRIMINAL INDICTMENTS FOR VIOLATIONS OF SECTION 3(E), REPUBLIC ACT NO. 3019 AND ARTICLE 172, IN RELATION TO ARTICLE 171, OF THE REVISED PENAL CODE GIVE RISE TO CIVIL LIABILITY IN FAVOR OF ANY PRIVATE PARTY. II WHETHER OR NOT AGFOI AS REPRESENTED BY ALBANO & ASSOCIATES ARE PRIVATE INJURED PARTIES ENTITLED TO INTERVENE AS THE PRIVATE PROSECUTOR IN THE SUBJECT 33 CASES. In support of his petition, the petitioner reiterated the same arguments he put forth before the Sandiganbayan. The Special Prosecutor, for his part, avers that the remedy resorted to by the petitioner under Rule 45 of the Rules of Civil Procedure was improper since the assailed Resolutions of the Sandiganbayan are interlocutory in nature and not final; hence, the remedy of the petitioner was to file a petition for certiorari and prohibition under Rule 65 of the Rules of Court. He also argues that the petition is premature because the reinvestigation of the cases had not yet been completed. On the merits of the petition, he posits that the AGFOI is a member of the AFP-RSBS, and that its rights may be affected by the outcome of the cases. He further alleged that the appearance of the private prosecutor was subject to the direct supervision and control of the public prosecutor. The petitioner, however, asserts, by way of reply, that the assailed orders of the Sandiganbayan are final orders; hence, his recourse under Rule 45 of the Rules of Civil Procedure was proper. The Ruling of the Court The Assailed Resolutions of the Sandiganbayan are Interlocutory in Nature The word interlocutory refers to something intervening between the commencement and the end of a suit which decides some point or matter but is not a final decision of the whole controversy. The Court distinguished a

final order or resolution from an interlocutory one in Investments, Inc. v. 34 Court of Appeals as follows: A "final" judgment or order is one that finally disposes of a case, leaving nothing more to be done by the Court in respect thereto, e.g., an adjudication on the merits which, on the basis of the evidence presented at the trial, declares categorically what the rights and obligations of the parties are and which party is in the right; or a judgment or order that dismisses an action on the ground, for instance, of res adjudicata or prescription. Once rendered, the task of the Court is ended, as far as deciding the controversy or determining the rights and liabilities of the litigants is concerned. Nothing more remains to be done by the Court except to await the parties next move (which, among others, may consist of the filing of a motion for new trial or reconsideration, or the taking of an appeal) and ultimately, of course, to cause the execution of the judgment once it becomes "final" or, to use the established and more 35 distinctive term, "final and executory." Conversely, an order that does not finally disposes of the case, and does not end the Courts task of adjudicating the parties contentions and determining their rights and liabilities as regards each other, but obviously indicates that other things remain to be done by the Court, is "interlocutory," e.g., an order denying a motion to dismiss under Rule 16 of the Rules, or granting a motion for extension of time to file a pleading, or authorizing amendment thereof, or granting or denying applications for postponement, or production or inspection of documents or things, etc. Unlike a "final" judgment or order, which is appealable, as above pointed out, an "interlocutory" order may not be questioned on appeal except only as part of an appeal that may 36 eventually be taken from the final judgment rendered in this case. The rule is founded on considerations of orderly procedure, to forestall useless appeals and avoid undue inconvenience to the appealing party by having to assail orders as they are promulgated by the court, when all such 37 orders may be contested in a single appeal. Under Section 1, Rule 45 of the Rules of Court, only final judgments, orders or resolutions of the Court of Appeals or Sandiganbayan may be assailed 38 therein. The remedy is a mode of appeal on questions of law only. In the present case, the Sandiganbayan merely resolved to allow the appearance of the law firm of Albano & Associates as private prosecutors, on its finding that the AGFOI, represented by Commodore Aparri and Brig. Gen. Navarro who were, likewise, investors/members of the AFP-RSBS, is the offended party whose rights may be affected by the prosecution of the criminal and civil aspects of the cases and the outcome thereof. Furthermore, the private prosecutor is subject to the direct supervision and control of the public prosecutor. The Sandiganbayan did not dispose of the cases on their merits, more specifically, the guilt or innocence of the petitioner or the civil

liabilities attendant to the commission of the crimes charged. Assuming that the Ombudsman would maintain the finding of probable cause against the petitioner after the reinvestigation of the cases, and, thereafter, the Sandiganbayan would sustain the finding of probable cause against the petitioner and issue warrants for his arrest, the graft court would then have to proceed to trial, receive the evidence of the parties and render judgment on the basis thereof. The petitioner would then have the following options: (a) to proceed to trial, and, if convicted, file a petition for review under Rule 45 of the Rules of Court to this Court; or (b) to file a petition for certiorari, under Rule 65 of the Rules of Court, to nullify the resolutions of the Sandiganbayan on the ground of grave abuse of discretion amounting to excess or lack of jurisdiction in issuing the said resolutions and decision. Nevertheless, in the interest of substantial justice, we shall treat the petition as one filed under Rule 65 of the Rules of Court. Dismissal of appeal purely on technical grounds is frowned upon where the policy of the courts is to encourage hearings of appeal on their merits. The rules of procedure ought not to be applied in a very rigid technical sense, as they are used only to help secure, not override substantial justice. If a technical and rigid enforcement of the rules is made, their aim would be defeated. Consequently, in the interest of justice, the instant petition for review may be treated as a special 39 40 civil action on certiorari. As we held in Salinas v. NLRC, a petition which should have been brought under Rule 65 and not under Rule 45 of the Rules of Court, is not an inflexible rule. The strict application of procedural technicalities should not hinder the speedy disposition of the case on the 41 merits. Although there is no allegation in the petition at bar that the Sandiganbayan committed grave abuse of its discretion amounting to excess or lack of jurisdiction, nonetheless, the petitioner made the following averments: that the graft court arbitrarily declared the AGFOI to be the offended party despite the plain language of the Informations and the nature of the crimes charged; and that the graft court blatantly violated basic procedural rules, thereby eschewing the speedy and orderly trial in the above cases. He, likewise, averred that the Sandiganbayan had no authority to allow the entry of a party, through a private prosecutor, which has no right to the civil liabilities of the accused arising from the crimes charged, or where the accused has no civil liabilities at all based on the nature of said crimes. The petitioner also faulted the Sandiganbayan for rejecting his opposition thereto, in gross violation of the Revised Rules of Criminal Procedure and the Revised Penal Code. Indeed, such allegations are sufficient to qualify the petition as one under Rule 65 of the Rules of Court. As we held in People v. Court of 42 Appeals : The public respondent acts without jurisdiction if it does not have the legal power to determine the case; there is excess of jurisdiction where the respondent, being clothed with the power to determine the case, oversteps its authority as determined by law. There is grave abuse of discretion where the public respondent acts in a capricious,

whimsical, arbitrary or despotic manner in the exercise of its 43 judgment as to be said to be equivalent to lack of jurisdiction. Besides, unless we resolve the present petition on its merits, other parties, like the private respondents herein, may, likewise, enter their appearance as offended parties and participate in criminal proceedings before the Sandiganbayan. The Appearance of the Law Firm Albano & Associates The respondent law firm entered its appearance as private prosecutor for AGFOI, purportedly upon the request of Commodore Aparri and Brig. Gen. Navarro, quoted infra: Atty. Antonio Albano Practicing Lawyer Albano-Irao Law Offices Dear Atty. Albano: We represent a number of Retired Generals and other Star Rank Officers who rightfully claim to have been disadvantaged or deprived of our lawful investments and residual interest at the Retirement Separation Benefit System, AFP because of alleged plunder of the Systems Funds, Large Scale Estafa and Falsification of Public Documents. We are requesting that you appear in our behalf as private prosecutor of our case. Thank you very much. (Sgd.) COMMO. ISMAEL D. APARRI (RET) 44 (Sgd.) BGEN. PEDRO I. NAVARRO (RET) As gleaned from the letter-request, the legal services of the respondent law firm were not engaged by the AGFOI itself; it was Commodore Aparri and Brig. Gen. Navarro who did so, for and in behalf of the other retired generals and star rank officers claiming to have residual interests in or to be investors of the AFP-RSBS, the vendee of the lots subject of the Informations against the petitioner. Moreover, there is no showing in the records that the Board of Directors of the AGFOI, authorized them to engage the services of the respondent law firm to represent it as private prosecutor in the above cases. Neither is there any resolution on record issued by the Board of Directors of the AGFOI authorizing Commodore Aparri and Brig. Gen. Navarro to secure the services of the respondent law firm to represent it as the private prosecutor in said cases. If at all, the respondent law firm is the counsel of Aparri and Navarro only. The AGFOI and/or Commodore Aparri and/or Brig. Gen. Navarro Are Not the Offended Parties in the Informations filed Before the Sandiganbayan The petitioner avers that the crimes charged are public offenses and, by their very nature, do not give rise to criminal liabilities in favor of any private party. He asserts that, as gleaned from the Informations in Criminal Cases Nos.

25122 to 25133 for violation of Section 3(e) of Rep. Act No. 3019, the offended party is the government because based on the deeds of sale executed in favor of the AFP-RSBS, as vendee, it was deprived of capital gains and the documentary stamp taxes. He contends that the Informations in Criminal Cases Nos. 25134 to 25145, for falsification of public document under paragraph 4, Article 171 of the Revised Penal Code, do not contain any allegation that the AGFOI or any private party sustained any damage caused by the said falsifications. The petitioner further argues that absent any civil liability arising from the crimes charged in favor of AGFOI, the latter cannot be considered the offended party entitled to participate in the proceedings before the Sandiganbayan. According to the petitioner, this view conforms to Section 16, Rule 110 of the Revised Rules of Criminal Procedure, which reads: SEC. 16. Intervention of the offended party in criminal action. Where the civil action for recovery of civil liability is instituted in the criminal action pursuant to Rule 111, the offended party may intervene by counsel in the prosecution of the offense. The petitioner posits that the AGFOI is not a member, beneficiary or contributor of the AFP-RSBS, and that even if it were so, it would not sustain a direct and material damage by an adverse outcome of the cases. Allowing the AGFOI to intervene would open the floodgates to any person similarly situated to intervene in the proceedings and, thus, frustrate the speedy, efficient and inexpensive disposition of the cases. In his Comment, the Special Prosecutor avers that the AGFOI is entitled to intervene in the proceedings in the Sandiganbayan because it is a member of the AFP-RSBS, whose rights may be affected by the outcome of the cases. The AGFOI and the respondent law firm contend that the latter has a right to intervene, considering that such intervention would enable the members of AGFOI to assert their rights to information and access to the official records, documents, and papers, a right granted by no less than paragraph 7, Article IV of the 1987 Constitution. Furthermore, the funds of the AFP-RSBS are impressed with public character because the government provided for its initial funds, augmented from time to time by the salary contributions of the incumbent AFP soldiers and officers. We agree with the contention of the petitioner that the AGFOI, and even Commodore Aparri and Brig. Gen. Navarro, are not the offended parties envisaged in Section 16, Rule 110, in relation to Section 1, Rule 111 of the Revised Rules of Criminal Procedure. 45 Under Section 5, Rule 110 of the Rules, all criminal actions covered by a complaint or information shall be prosecuted under the direct supervision and control of the public prosecutor. Thus, even if the felonies or delictual acts of the accused result in damage or injury to another, the civil action for the recovery of civil liability based on the said criminal acts is impliedly 46 instituted and the offended party has not waived the civil action, reserved the right to institute it separately or instituted the civil action prior to the

criminal action, the prosecution of the action inclusive of the civil action 47 remains under the control and supervision of the public prosecutor. The 48 prosecution of offenses is a public function. Under Section 16, Rule 110 of the Rules of Criminal Procedure, the offended party may intervene in the criminal action personally or by counsel, who will act as private prosecutor for the protection of his interests and in the interest of the speedy and inexpensive administration of justice. A separate action for the purpose would only prove to be costly, burdensome and time-consuming for both parties and further delay the final disposition of the case. The multiplicity of 49 suits must be avoided. With the implied institution of the civil action in the criminal action, the two actions are merged into one composite proceeding, with the criminal action predominating the civil. The prime purpose of the criminal action is to punish the offender in order to deter him and others from committing the same or similar offense, to isolate him from society, reform and rehabilitate him or, in general, to maintain social order. On the other hand, the sole purpose of the civil action is for the resolution, reparation or indemnification of the private offended party for the damage or injury he sustained by reason of the delictual or felonious act of the 50 accused. Under Article 104 of the Revised Penal Code, the following are the civil liabilities of the accused: ART. 104. What is included in civil liability. The civil liability established in Articles 100, 101, 102 and 103 of this Code includes: 1. Restitution; 2. Reparation of the damage caused; 3. Indemnification for consequential damages. Thus, when the offended party, through counsel, has asserted his right to intervene in the proceedings, it is error to consider his appearance merely as 51 a matter of tolerance. The offended party may be the State or any of its instrumentalities, including local governments or government-owned or controlled corporations, such as the AFP-RSBS, which, under substantive laws, are entitled to restitution of their properties or funds, reparation, or indemnification. For instance, in 52 malversation of public funds or property under Article 217 of the Revised 53 Penal Code, frauds under Article 213 of the Revised Penal Code, and violations of the Forestry Code of the Philippines, P.D. No. 705, as amended, to mention a few, the government is the offended party entitled to the civil liabilities of the accused. For violations of Section 3(e) of Rep. Act No. 54 3019, any party, including the government, may be the offended party if such party sustains undue injury caused by the delictual acts of the accused. In such cases, the government is to be represented by the public prosecutor for the recovery of the civil liability of the accused. Under Section 16, Rule 110 of the Revised Rules of Criminal Procedure, the offended party may also be a private individual whose person, right, house, liberty or property was actually or directly injured by the same punishable act 55 or omission of the accused, or that corporate entity which is damaged or injured by the delictual acts complained of. Such party must be one who has

a legal right; a substantial interest in the subject matter of the action as will entitle him to recourse under the substantive law, to recourse if the evidence is sufficient or that he has the legal right to the demand and the accused will be protected by the satisfaction of his civil liabilities. Such interest must not be a mere expectancy, subordinate or inconsequential. The interes t of the party must be personal; and not one based on a desire to vindicate the 56 constitutional right of some third and unrelated party. Hence, even if the members of AGFOI may also be members or beneficiaries of the AFP-RSBS, the respondent AGFOI does not have a legal right to intervene in the criminal cases merely and solely to enforce and/or protect the constitutional right of such members to have access to the records of AFP-RSBS. Neither are such members entitled to intervene therein simply because the funds of the AFP-RSBS are public or government funds. It must be stressed that any interest of the members of the AFP-RSBS over its funds or property is merely inchoate and incidental. Such funds belong to the AFPRSBS which has a juridical personality separate and independent of its members/beneficiaries. As gleaned from the Informations in Criminal Cases Nos. 25122 to 25133 for violation of Section 3(e) of Rep. Act No. 3019, the offended party is the government, which was allegedly deprived by the petitioner and the other accused of the capital gains and documentary stamp taxes, based on the actual and correct purchase price of the property stated therein in favor of the AFP-RSBS. The AGFOI was not involved whatsoever in the sales subject of the crimes charged; neither was it prejudiced by the said transactions, nor is it entitled to the civil liability of the petitioner for said cases. Thus, it is not the offended party in the said cases. We agree with the petitioner that the AGFOI is not even the offended party in Criminal Cases Nos. 25134 to 25145 for falsification of public documents under paragraph 4, Sec. 1, Article 171, of the Revised Penal Code. It bears stressing that in the felony of falsification of public document, the existence of any prejudice caused to third person or the intent to cause damage, at the very least, becomes immaterial. The controlling consideration is the public character of a document and the violation of the public faith and the destruction of truth therein solemnly proclaimed. The offender does not, in 57 any way, have civil liability to a third person. However, if, in a deed of sale, the real property covered thereby is underpriced by a public officer and his co-conspirators to conceal the correct amount of capital gains and documentary stamp taxes due on the sale causing undue injury to the government, the offenders thereby commit two crimes (a) falsification of public document defined in paragraph 4, Article 171 of the Revised Penal Code; and (b) violation of Section 3(e) of Rep. Act No. 3019, a special penal law. The offender incurs civil liability to the government as the offended party for violation of Section 3(e) of Rep. Act No. 3019, but not for falsification of public document under paragraph 4, Article 171 of the Revised Penal Code.

On the other hand, if, under the deed of sale, the AFP-RSBS was made liable for the payment of the capital gains and documentary stamp taxes and, thereafter, gave the correct amount thereof to the petitioner to be paid to the government, and the petitioner and his co-accused pocketed the difference between the correct amount of taxes and the amount entrusted for payment, then the AFP-RSBS may be considered the offended party entitled to intervene in the above criminal cases, through the Government Corporate 58 Counsel. In fine, the AGFOI is not the offended party entitled to intervene in said cases. IN LIGHT OF ALL THE FOREGOING, the petition is GRANTED. The assailed Resolutions of the Sandiganbayan are REVERSED and SET ASIDE. No costs. SO ORDERED. Puno, (Chairman), Austria-Martinez, Tinga, and Chico-Nazario, JJ., concur. Footnotes 1 Otherwise known as the Uniform System for the AFP. 2 Section 2, P.D. No. 361. 3 Circular No. 6 dated March 10, 1976 issued by the Department of National Defense. 4 People v. Sandiganbayan, 408 SCRA 672 (2003). 5 Records, p. 1. (Vol. I) 6 Presidential Decree No. 361, Section 1. An Armed Forces Retirement and Separation Benefits System, referred to in this Act as "System," for payment of retirement and separation benefits provided and existing law to military members of the Armed Forces of the Philippines and such similar laws as may in the future be enacted applicable to commissioned officers and enlisted personnel of the Armed Forces of the Philippines is hereby established. 7 Rosalita T. Nuez, City Mayor of General Santos City; Pedro G. Nalangan III, City Legal Officer of General Santos City; Renato L. Rivera, CENR Officer, DENR, Region XI-5B, General Santos City; Cesar A. Jonillo, Dept. Land Inspector, CENRO, DENR Region XI5B, General Santos City; Julio C. Diaz, Land Management Officer III, PENRO, R XI-5; Agapito Borinaga, Regional Technical Director, Land Management, Region XI, DENR; Augustus L. Momongan, Regional Executive Director, DENR, Region XI; Judge Abednego O. Adre, Presiding Judge, Branch 22, Regional Trial Court, General Santos City; Wilfredo G. Pabalan, Project Director, AFP-RSBS; Atty. Asteria E. Cruzabra, Register of Deeds for General Santos City; Atty. Nilo J. Flaviano; Mad, Oliver, Jonathan, Alex, all surnamed Guaybar; Jack Guiwan; Carlito Flaviano III; Nicolas Ynot; Jolito Poralan; Miguela Cabi-ao; Jose Rommel Saludar; Joel Teves; Rico Altizo; Johnny Medello; Martin Saycon; Arsenio De Los Reyes; and, Jose Bomez.

8 9

Records, p. 16. (Vol. I) Rollo, pp. 28-63. 10 Id. at 28-29. 11 Id. at 64-87. 12 Id. at 64-65. 13 Records, p. 36. (Vol. II) 14 Id. at 71-106. 15 Id. at 300 and 313. 16 Id. at 310. 17 Rollo, p. 96. 18 Records, p. 338. (Vol. II) 19 Id. at 345. 20 Id. at 360. 21 Id. at 352. 22 Id. 23 Id. at 367-368. 24 Id. at 26-27. 25 Id. at 46. 26 Id. at 247. 27 Records, p. 238. (Vol. III) 28 Id. at 240. 29 Id. at 239. 30 Id. at 259. 31 Id. at 297. 32 Id. at 325. 33 Rollo, p. 11. 34 147 SCRA 334 (1987). 35 Id. at 339-340. 36 Id. at 340-341. 37 Id. at 341. 38 SECTION 1. Filing of petition with Supreme Court . A party desiring to appeal by certiorari from a judgment or final order or resolution of the Court of Appeals, the Sandiganbayan, the Regional Trial Court or other courts, whenever authorized by law, may file with the Supreme Court a verified petition for review on certiorari. The petition shall raise only questions of law which must be distinctly set forth. 39 See Salazar v. NLRC, 256 SCRA 273 (1996). 40 319 SCRA 54 (1999). 41 Caraan v. Court of Appeals , 289 SCRA 579 (1998). 42 G.R. No. 144332, June 10, 2004. 43 Id. at 7, citing Condo Suite Club Travel, Inc. v. NLRC, 323 SCRA 679 (2000). 44 Records, p. 372. (Vol. II) 45 SECTION 1. Institution of criminal and civil actions. (a) When a criminal action is instituted, the civil action for the recovery of civil

liability arising from the offense charged shall be deemed instituted with the criminal action unless the offended party waives the civil action, reserves the right to institute it separately or institute the civil action prior to the criminal action. The reservation of the right to institute separately the civil action shall be made before the prosecution starts presenting its evidence and under circumstances affording the offended party a reasonable opportunity to make such reservation. 46 Banal v. Tadeo, Jr., 156 SCRA 325 (1998). 47 Section 1, Rule 111, Revised Rules of Criminal Procedure. 48 Diel v. Martinez , 76 Phil. 273 (1946). 49 Banal v. Tadeo, Jr., supra. 50 Sangco, Torts and Damages, Vol. I, 1993 ed., p. 43. 51 Lim Tek Goan v. Yatco, 94 Phil. 197 (1953). 52 ART. 217. Malversation of public funds or property-presumption of malversation. - Any public officer who, by reason of the duties of his office, is accountable for public funds or property, shall appropriate the same, or shall take or misappropriate or shall consent, or through abandonment or negligence, shall permit any other person to take such public funds or property, wholly or partially, or shall otherwise be guilty of the misappropriation of malversation of such funds or property, shall suffer: 1. The penalty of prision correccional in its medium and maximum periods, if the amount involved in the misappropriation or malversation does not exceed two hundred pesos. 2. The penalty of prision mayor in its minimum and medium periods, if the amount involved is more than 200 pesos but does not exceed 6,000 pesos. 3. The penalty of prision mayor in its maximum period to reclusion temporal in its minimum period, if the amount involved is more than 6,000 pesos but is less than 12,000 pesos. 4. The penalty of reclusion temporal in its medium and maximum periods, if the amount involved is more than 12,000 pesos but is less than 22,000 pesos. If the amount exceeds the latter, the penalty shall be reclusion temporal in its maximum period to reclusion perpetua. In all cases, persons guilty of malversation shall also suffer the penalty of perpetual special disqualification and a fine equal to the amount of the funds malversed or equal to the total value of the property embezzled. The failure of a public officer to have duly forthcoming any public funds or property with which he is chargeable, upon demand by any duly-authorized officer, shall be prima facie evidence that he has put such missing funds or property to

personal uses. (As amended by Rep. Act No. 1060, approved June 12, 1954.) 53 ART. 213. Frauds against the public treasury and similar offenses.-The penalty of prision correccional in its medium period to prision mayor in its minimum period, or a fine ranging from 200 to 10,000 pesos, or both, shall be imposed upon any public officer who: 1. In his official capacity, in dealing with any person with regard to furnishing supplies, the making of contracts, or the adjustment or settlement of accounts relating to public property or funds, shall enter into an agreement with any interested party or speculator or make use of any other scheme, to defraud the Government; 2. Being entrusted with the collection of taxes, licenses, fees and other imposts, shall be guilty of any of the following acts or omissions: (a) Demanding, directly or indirectly, the payment of sums different from or larger than those authorized by law. (b) Failing voluntarily to issue a receipt, as provided by law, for any sum of money collected by him officially. (c) Collecting or receiving, directly or indirectly, by way of payment or otherwise, things or objects of a nature different from that provided by law. When the culprit is an officer or employee of the Bureau of Internal Revenue or the Bureau of Customs, the provisions of the Administrative Code shall be applied. 54 (e) Causing any undue injury to any party, including the Government, or giving any private party any unwarranted benefits, advantage or preference in the discharge of his official, administrative or judicial functions through manifest partiality, evident bad faith or gross inexcusable negligence. This provision shall apply to officers and employees of offices or government corporation charged with the grant of licenses or permits or other concessions. 55 Banal v. Tadeo, supra. 56 Tank ik o v. Cezar, 302 SCRA 559 (1999). 57 Siquian v. People, 171 SCRA 223 (1989). 58 In its Report to the President of the Philippines, the Feliciano Commission cited the Initial Report of the Senate Blue Ribbon Committee on the possible offended parties in connection with the real estate transactions of the AFP-RSBS: In 1998, the Senate Committees on Accountability of Public Officers and Investigation (Blue Ribbon) and on National Defense and Security (collectively, Senate Blue Ribbon Committee) carried out an extensive joint inquiry into the "coup rumors and alleged anomalies in the AFP-RSBS." The

major finding of the Senate Blue Ribbon Committee was alarming; the very extensive real estate acquisitions made by RSBS had been attended by massive overpricing of such acquisitions. Essentially, the Blue Ribbon Committee found that the real estate purchases by RSBS were uniformly documented, by two (2) sets of instruments: firstly, a unilateral covering the same piece of land, executed both by the seller and by RSBS as buyer. The price stated in the second bilateral instrument was invariably much higher than the price reflected in the unilateral deed of sale. The discrepancies between the purchase price booked by RSBS and the purchase price reflected in the unilateral deed of sale actually registered in the relevant Registry of Deeds, totalled about seven hundred three million pesos (P703 Million). The two (2) sets of purchase price figures obviously could not both be correct at the same time. Either the purchase price booked and paid out by RSBS was the true purchase price of the land involved, in which case RSBS had obviously assisted or abetted the seller in grossly understating the capital gains realized by him and in defrauding the National Treasury; or the purchase price in the unilateral deed of sale was the consideration actually received by the seller from RSBS, in which case, the buyer-RSBS had grossly overpaid, with the differential, in the belief of the Senate Blue Ribbon Committee, going into the pockets of RSBS officials. A third possibility was that the differential between the purchase price booked and paid by the buyer-RSBS and the selling price admitted by the seller of the land, had been shared by the buyer and seller in some undisclosed ratio. After a prolonged investigation (20 hearing days), the Senate Blue Ribbon Committee rendered a set of detailed recommendations in its Committee Initial Report No. 16 dated 21 December 1998 and a second additional set of recommendations in its Committee Final Report No. 51 dated 20 May 1999. In its Initial Committee Report, the Blue Ribbon Committee made the following recommendations notable for their specificity: "1. For the Office of the Ombudsman, to prosecute and/or cause the prosecution of Gen. Jose Ramiscal, Jr. (Ret.), past RSBS president, who had signed the unregistered deeds of sale covering the acquisition of the lands in General Santos, in the towns of Tanauan and Calamba, and in Iloilo City, hereinafter mentioned: Mr. Wilfredo Pabalan, RSBS

project manager in General Santos City; the lawyers in the RSBS legal office, namely, Meinardo Enrique Bello and Manuel Satuito; and the lawyers who notarized the deeds thereof, namely, Ernesto P. Layusa, Alfredo Nasser and Cecilio Casalla, for (1) falsification of public documents, or violation of Art. 172, par. 1, in relation to Art. 171, pars. 4 and/or 6, of the Revised Penal Code, and (2) violation of R.A. 3019, or the anti-graft law, particularly Section 3(e) and (g) thereof. 2. For the Department of Justice, to prosecute and/or cause the prosecution of Atty. Nilo Flaviano and his partner, Atty. Antonio Geoffrey Canja, for falsification of public documents by submitting to and registering with the Registry of Deeds in General Santos City deeds of sale of the lands purchased by RSBS from their principals not bearing the true consideration paid for by RSBS. 3. For the Department of Justice, to prosecute and/or to cause the prosecution of Attys. Alfredo Nasser and Ernesto P. Layusa and Mr. Jesus Garcia and Mrs. Elizabeth Liang, Concord Resources, Inc., treasurer and president, for falsification of public documents by submitting to and registering with the Registry of Deeds of Calamba the deed of sale with Concord Resources, Inc. not bearing the true consideration paid for by RSBS. 4. For the Bureau of Internal Revenue, to collect the deficiency in the payment of capital gains tax, documentary stamp tax and income tax from the vendors of the parcels of land in General Santos City, Iloilo City, and the Municipalities of Tanauan and Calamba sold to RSBS, and to cause their prosecution for tax evasion, or more specifically for violation of Sections 21, 24 and 173 of the National Internal Revenue Code. 5. For the City Treasurers of General Santos City and Iloilo City, and the Provincial Treasurers of Batangas and Laguna, to collect the deficiency transfer tax due on the lands sold by their owners to RSBS; and 6. For the Integrated Bar of the Philippines, to investigate and recommend to the Supreme Court the disbarment of, or imposition of appropriate disciplinary sanctions on, lawyers Nilo J. Flaviano, Antonio Geoffrey H. Canja, Alfredo Nasser, Ernesto

P. Layusa, Cecilio Casalla, Meinardo Enrique Bello, Manuel Satuito and other lawyers for their involvement as lawyers in the presentation to and registration with the Registry of Deeds of General Santos City, Iloilo City, Batangas and Laguna, of falsified deeds of sale covering various real estate acquisitions by RSBS."

G.R. No. 129904 March 16, 2000 DIRECTOR GUILLERMO T. DOMONDON, petitioner, vs. THE HONORABLE SANDIGANBAYAN, Second Division; HONORABLE ANIANO A. DESIERTO, in his official capacity as Ombudsman; HONORABLE FRANCISCO A. VILLA, in his capacity as Overall Deputy Ombudsman; and LEONARDO P. TAMAYO, in his official capacity as Deputy Special Prosecutor & concurrent Officer-in-Charge, Office of the Special Prosecutor; respondents. BUENA, J.: Before this Court is a petition for certiorari and prohibition with prayer for the issuance of a writ of the preliminary injunction seeking to nullify and set aside 1 the Order of the Office of the Special Prosecutor/Ombudsman, dated November 29, 1995, in Criminal Case No. 20574 (OMB-AFP-CRIM-930047), as having been rendered with grave abuse of discretion amounting to lack excess of jurisdiction. The factual and procedural antecedents are as follows: 2 On February and May 1994, four (4) separate informations were filed against petitioner and several others before the Third Division of the Sandiganbayan, docketed as Crim. Case No. 20185 (OMB Case No. AFPCRIM-93-0026), Crim. Case No. 20191 (OMB Case No. AFP-CRIM-93-0049, OMB-4-93-1476), Crim. Case No. 20192 (OMB Case No. 93-1476) and Crim. 3 Case No. 20576 (OMB-CRIM-AFP-93-0048). In May 1994, an additional information was filed against petitioner and several others before the First Division of the Sandiganbayan, docketed as 4 Crim. Case No. 20574 (OMB-AFP-CRIM-93-0047). The said case allegedly arose from a complaint filed on May 11, 1993 against certain officials of the Philippine National Police (PNP), including petitioner, ". . . due to the discovery of chain of irregularities within the PNP Commands in CY 1992, ranging from the irregular issuance of Advices of Sub-Allotments, ghost purchases/deliveries, forged payrolls up to false issuances of the combat, clothing and individual equipment (CCIE) to the uniformed personnel of the 5 PNP valued at P83,600,000.00. . . " Petitioner was included as an accused in Crim. Case No. 20574 on account of his approval for the Chief, PNP, as then Director of the Office of Directorate for Controllership (ODC), of the release of Advice of Allotment (ASAs) Nos. 4363 and 4400 in the amount of P5 million and P15 million, respectively. The said ASAs were actually signed 6 by his co-accused Superintendent Van Luspo, with authority from petitioner. On May 12, 1994, petitioner filed a motion for consolidation before the First Division of the Sandiganbayan seeking the consolidation of Crim. Case No. 20574 (OMB-AFP-CRIM-93-0047) with Crim. Case Nos. 20185, 20191, 20192 and 20576, all pending before the Third Division of the 7 Sandiganbayan. On May 17, 1994, the First Division of the Sandiganbayan issued two (2) Orders, the first, ordering the prosecution, through prosecutor Erdulfo Q. Querubin, ". . . to demonstrate the probable complicity of the three (3)

accused herein [referring to General Cesar Nazareno, General Joven Domondon and Senior Superintendent Van Luspo] in the transaction described in the Information resulting in a violation of [the] Anti-graft Law 8 under Sec. 3(e) of R.A. 3019;" considering its uncertainty as to the probable 9 cause against the aforementioned accused, and the second Order, deferring action on the motion for consolidation "[c]onsidering the uncertainty of this Court to even proceeding (sic ) with this case at this time and considering further that the motion for consolidation is (sic ) filed by only one of the fifteen (15) accused, and considering finally the statement of Prosecutor Erdulfo Q. Querubin that this case can stand independently of the proceeding in the other cases . . . until at least two (2) of the observations of 10 this Court above on this matter shall have been responded to." On June 8, 1994, the First Division of the Sandiganbayan cancelled the scheduled arraignment in Crim. Case No. 20574 until further advice from the 11 prosecution. On November 8, 1994, Erdulfo Q. Querubin, Special Prosecution Officer III of the Office of the Special Prosecutor/Ombudsman, issued an Order, approved 12 by [then] Ombudsman Conrado M. Vasquez, recommending that the information in Crim. Case No. 20574 be amended to exclude six (6) accused (not including the petitioner), and that the prosecution against the other 13 remaining accused (including the petitioner) be continued. On May 17, 1995, petitioner filed a motion for reconsideration of the foregoing Order with prayer for the consolidation of Crim. Case No. 20574 14 with Crim. Case Nos. 20185, 20191, 20192, 20576 and 22098, which are 15 allegedly pending reinvestigation by the Office of the Ombudsman. On November 29, 1995, Joselito R. Ferrer, Special Prosecutor I of the Office of the Special Prosecutor/Ombudsman, issued an Order recommending that the Order of Special Prosecution Officer Erdulfo Q. Querubin, dated November 8, 1994, be modified to exclude petitioner from the information in 16 Crim. Case No. 20574; and denying the prayer for consolidation. However, the foregoing Order was disapproved by Ombudsman Aniano A. Desierto on February 19, 1997, on the basis of the recommendation of Overall Deputy 17 Ombudsman Francisco A. Villa. In his memorandum dated September 2, 1996 and addressed to the Ombudsman, Overall Deputy Ombudsman Francisco A. Villa proposed the setting of the arraignment and pre-trial 18 conference in Crim. Case No. 20574. Accordingly, a Motion to Admit Amended Information was filed with the Sandiganbayan on August 26, 1997. 19 The amended information excluded some of the accused but included petitioner among others as they were recommended for further prosecution 20 by the Ombudsman. Hence, this petition. The following issues are raised: A. WHETHER THERE WAS GRAVE ABUSE OF DISCRETION AMOUNTING TO LACK OR EXCESS OF JURISDICTION WHEN THE RESPONDENTS VILLA AND DESIERTO DENIED THE PETITIONER'S MOTION FOR RECONSIDERATION;

B. WHETHER THERE WAS GRAVE ABUSE OF DISCRETION AMOUNTING TO LACK OR EXCESS OF JURISDICTION WHEN THE RESPONDENTS VILLA, DESIERTO, AND TAMAYO DENIED THE PETITIONER'S MOTION FOR CONSOLIDATION; C. WHETHER THE RESPONDENT FIRST DIVISION, SANDIGANBAYAN SHOULD BE ENJOINED FROM PROCEEDING WITH THE HEARING AND OTHER INCIDENTS OF CRIMINAL CASE NO. 20574 AGAINST THE PETITIONER DURING THE PENDENCY OF THE PETITION. Petitioner contends that respondents Villa and Desierto acted with grave abuse of discretion in denying his motion for reconsideration, arguing that there is no probable cause against him and that the said respondents disregarded the evidence he adduced. Petitioner also alleges that respondents Desierto, Villa and Tamayo acted with grave abuse of discretion in denying his motion for consolidation, claiming that since all of the pertinent cases have been remanded by the Sandiganbayan to the Office of the Special Prosecutor under the Office of the Ombudsman for reinvestigation, "jurisdiction has revested" in the latter and ''. . . it is grave abuse of discretion to refuse to perform the duty of 21 consolidating these cases." The contentions are untenable. 22 As this Court stated in Ocampo, IV vs . Ombudsman: Well settled is the rule that criminal prosecutions may not be restrained, either through a preliminary or final injunction or a writ of prohibition, except in the following instances: (1) To afford adequate protection to the constitutional rights of the accused; (2) When necessary for the orderly administration of justice or to avoid oppression or multiplicity of actions; (3) When there is a prejudicial question which is sub-judice; (4) When the acts of the officer are without or in excess of authority; (5) Where the prosecution is under an invalid law, ordinance or regulation; (6) When double jeopardy is clearly apparent; (7) Where the Court has no jurisdiction over the offense; (8) Where it is a case of persecution rather than prosecution; (9) Where the charges are manifestly false and motivated by lust for vengeance; (10) When there is clearly no prima facie case against the accused and a motion to quash on that ground has been denied; (11) Preliminary injunction has been issued by the Supreme Court to prevent the threatened unlawful arrest of petitioners. Corollary to the foregoing rule, the courts cannot interfere with the discretion of the fiscal or Ombudsman to determine the specificity and adequacy of the averments of the offense charged. He may dismiss the complaint forthwith if he finds it to be insufficient in form or substance or if he otherwise finds no

ground to continue with the inquiry; or he may proceed with the investigation 23 if the complaint is, in his view, in due and proper form. However, while the Ombudsman has the full discretion to determination whether or not a criminal case should be filed, this Court is not precluded from reviewing the Ombudsman's action when there is an abuse of discretion, by way of Rule 65 24 of the Rules of Court. Thus, we proceed to determine whether the respondents Ombudsman Desierto and Overall Deputy Ombudsman Villa acted with grave of discretion. Grave abuse of discretion implies such capricious and whimsical exercise of judgment as is equivalent to lack of jurisdiction, or, in other words where the power is exercised in an arbitrary or despotic manner by reason of passion or personal hostility, and it must be so patent and gross as to amount to an evasion of positive duty or to a virtual refusal to perform the 25 duty enjoined or to act at all in contemplation of law. Such arbitrariness or despotism does not obtain here. Petitioner has not shown that respondents Desierto and Villa committed grave abuse of discretion in their determination to proceed with petitioner's prosecution in Crim. Case No. 20574. On the basis of their reinvestigation, respondents found sufficient probable cause to include petitioner in the indictment. As thoroughly discussed by respondents in the Comment and Rejoinder filed before this Court, petitioner's "complicity in the commission of the crime is clearly revealed by the facts and 26 circumstances surrounding the case. " At this point we reiterate that ". . . [t]his is an exercise of the Ombudsman's powers based upon constitutional mandate and the courts should not interfere in such exercise. The rule is based not only upon respect for the investigatory and prosecutory powers granted by the Constitution to the Office of the Ombudsman but upon practicality as well. Otherwise, the functions of the courts will be grievously hampered by innumerable petitions assailing the dismissal of investigatory proceedings conducted by the Office of the Ombudsman with regard to complaints filed before it, in much the same way that the courts will be extremely swamped if they could be compelled to review the exercise of discretion on the part of the fiscals or prosecuting attorneys each time they decide to file an information in court or dismiss a complaint by a private 27 complainant." With regard to respondents' denial of petitioner's motion for consolidation of Crim. Case No. 20574 with Crim. Case Nos. 20185, 20191, 20192, 20576 and 22098, we find the same to be well-founded. While the Ombudsman has full discretion to determine whether or not a criminal case should be filed in the Sandiganbayan, once the case has been filed with said court, it is the Sandiganbayan, and no longer the Ombudsman, which has full control of the case so much so that the informations may not be dismissed, or in the instant case, may not be consolidated with other pending cases, without the 28 approval of the said court. 29 Incidentally, petitioner filed a Manifestation dated June 30, 1999 before this Court, stating that on June 11, 1999, the Office of the Ombudsman issued an 30 Order excluding petitioner from the information in Crim. Case No. 20185.

In the said Manifestation, petitioner claims that ". . . the subject of the aboveentitled petition includes Criminal Case No. 20185 as well as Criminal Cases 31 Nos. 20574, 20191, 20192, 20576 and 22098." Petitioner further claims that ". . . a perusal of the records of Criminal Cases Nos. 20574, 20191, 20192, 20576 and 22098 would show that the alleged complicity and participation of the petitioner is (sic ) the same as in Criminal Case No. 20185; and concludes that ". . . with respect to petitioner, Criminal Cases Nos. 20574, 20191, 20192, 20576 and 22098 should be treated in the same 32 manner as Criminal Case No. 20185." The exclusion of petitioner from the information as one of the accused in Crim. Case No. 20185 would not affect the outcome of this petition for the reason that we cannot, at this time, determine with certainty whether indeed the alleged complicity and participation of petitioner in Crim. Case No. 20185 are the same as in Crim Case Nos. 20574, 20191, 20192, 20576 and 22098. Contrary to the assertion of petitioner, this petition concerns only Crim. Case No. 20574 insofar as it involves the propriety of the Ombudsman's action in proceeding with the said case. And as we have stated at the outset, this Court will not interfere with the Ombudsman's exercise of his investigatory and prosecutory powers in the absence of grave abuse of discretion on his part. Criminal Case Nos. 20185, 20191, 20192, 20576 and 22098 have come to the attention of this Court merely because petitioner has sought a review of the Ombudsman's denial of his motion for consolidation. If indeed the said cases have "common factual antecedents" and petitioner's "complicity and participation" in all of these cases are the same to warrant his exclusion from the other pertinent cases, petitioner's recourse is with the Sandiganbayan where the said cases are already pending. In view of the foregoing, we do not find it necessary to address the other 33 matters originally raised by petitioner in a motion dated January 6, 2000, in which he informed this Court that the Fifth Division of the Sandiganbayan has issued Order dated November 25, 1999, setting the arraignment of petitioner in Criminal Case No. 20191. WHEREFORE, premises considered, the instant petition is hereby DISMISSED. 1wphi1.nt SO ORDERED. Bellosillo, Mendoza, Quisumbing and De Leon, Jr., JJ., concur. Footnotes 1 Rollo, pp. 21-26. 2 Criminal Case Nos. 20191, 20192 and 20576 were violation of section 3(e) of Republic Act No. 3019, otherwise known as the "AntiGraft and Corrupt Practices Act," as amended. 3 Rollo, pp. 32-49. 4 Ibid., at pp. 50-53. 5 Ibid., at pp. 104-105. 6 Ibid. at p. 105. 7 Ibid. at pp. 58-60.

8 9

Ibid. at p. 61 Ibid. 10 Ibid., at p. 62. 11 Ibid., at p. 64. 12 The said Order was approved by Ombudsman Conrado M. Vasquez on April 27, 1995 and received by petitioner on May 12, 1995. 13 Rollo, pp. 66-73. 14 The Court notes that petitioner has added Crim. Case No. 22098 to the four (4) original cases pending before the Third Division of the Sandiganbayan. 15 Rollo, pp. 74-83. 16 Ibid. at pp. 21-26. 17 Ibid. at pp. 26-31. 18 Ibid. at p. 27. 19 Ibid. at p. 108. 20 Ibid. 21 Ibid. at pp. 16-17. 22 225 SCRA 725, 729 (1993). 23 Ocampo, IV. vs. Ombudsman, 225 SCRA 725, 729-730 (1993). 24 Garcia-Rueda vs. Pascasio, 278 SCRA 769, 776 (1997). 25 Cuison vs. Court of Appeals, 289 SCRA 159, 171 (1998). 26 Rollo, p. 110. 27 Ocampo, IV. vs. Ombudsman, 225 SCRA 725, 730 (1993). 28 Ocampo, IV. vs. Ombudsman, 225 SCRA 725, 730 (1993). 29 Rollo, pp. 195-196. 30 Ibid. at pp. 198-200. 31 Ibid. at p. 195. 32 Ibid. at p. 196 33 Ibid. at pp. 216-219.

G.R. No. 115239-40 March 2, 2000 MARIO C.V. JALANDONI, petitioner, vs. HON. SECRETARY OF JUSTICE FRANKLIN M. DRILON, HONORABLE PROVINCIAL PROSECUTOR OF RIZAL, ROBERT COYIUTO, JR., JAIME LEDESMA, RAMON GARCIA, ANTONIO OZAETA, AMPARO BARCELON and CARLOS DYHONGPO, respondents. BUENA, J.: This is a petition for certiorari seeking to nullify and set aside the orders of the Honorable Secretary of Justice Franklin M. Drilon, to wit: DOJ Resolution No. 211 Series of 1994 dated March 15, 1994 and the letter-order dated April 20, 1994. DOJ Resolution No. 211 Series of 1994 instructed the Provincial Prosecutor of Rizal to withdraw the informations in I.S. Nos. 93-6228 and 936422 while the letter-order denied the motion for reconsideration filed by herein petitioner Mario C.V. Jalandoni. The antecedent facts of the case are as follows: (a) In I.S. No. 93-6228 On July 15, 1992, Jaime Ledesma, private respondent herein, filed an administrative complaint for violation of the Revised Penal Code and the Anti-Graft and Corrupt Practices Act against the petitioner with the Presidential Commission on Good Government (PCGG). On the two succeeding days, July 16 and July 17, 1992, news articles 1 thereon appeared in various daily newspapers. A full-page paid advertisement was caused to be published on July 16, 1992 by private respondents Robert Coyiuto, Jr., Jaime Ledesma, Ramon Garcia, Amparo Barcelon, Antonio Ozaeta, and Carlos Dyhongpo. The advertisements were published in five (5) major daily newspapers, to wit: 1. The Manila Chronicle 2. Business World 3. Malaya 4. Philippine Daily Globe, and 5. The Manila Times Exactly a year thereafter or on July 16, 1993, petitioner Jalandoni filed a complaint for the crime of libel before the Provincial Prosecutor of Rizal designated as I.S. No. 93-6228 against officials/directors of Oriental Petroleum & Minerals Corporation (OPMC, for brevity), namely, Coyiuto, Jr., Ledesma, Garcia, Barcelon, Ozaeta, and Dyhongpo. The publication in question was the July 16, 1992 full-page advertisements simultaneously published in five major dailies. These advertisements contained allegations naming herein petitioner who was then a PCGG Commissioner of having committed illegal and unauthorized acts, and other wrongdoings constituting graft and corruption, relative to the dacion en pago financing arrangement entered into by Piedras Petroleum Co., Inc. with Rizal Commercial Banking Corporation. Quoted in full below is the said advertisement:

My administration will prove that government is not avoidly corrupt and that bureaucracy is not necessarily corrupt. Graft and corruption, we will confront more with action than with words. PRESIDENT FIDEL V. RAMOS, Inaugural Address, June 30, 1992 AN URGENT APPEAL TO JUSTICE SECRETARY FRANKLIN DRILON (and) PCGG CHAIRMAN MAGTANGGOL GUNIGUNDO Please stop the unauthorized and illegal acts of PCGG officials led by former Chairman DAVID CASTRO and Commissioner MARIO JALANDONI which will allow the attempt of hostile vested interest groups to gain entry into the board of Oriental Petroleum & Minerals Corporation. 1. The PCGG openly defied Malacaang orders issued by former Executive Secretary Franklin Drilon on the sale of Oriental Petroleum shares. In spite of its claims that the disposal of OPMC shares held by Piedras Petroleum was approved by the Office of the President, documented proofs belie the PCGG's statements. No less than Justice Secretary Franklin Drilon, who was Executive Secretary at the time PCGG Chairman David Castro sought approval for the OPMC-Piedras Petroleum deal, thumbed down Castro's request. Clearly, the sale of OPMC shares held by Piedras Petroleum to the RCBC-Yuchengco Group for P101 million was unauthorized and illegal. 2. The PCGG officials involved in the unauthorized and illegal sale of Oriental Petroleum shares committed grave abuse of authority. Their acts defrauded government of better prices for Oriental Petroleum shares which they undervalued and sold to favored buyers Pacific Basin and RCBC, both identified with the Yuchengco group. At the time the Piedras deal was closed the PCGG as evidenced by the minutes of the Board Meeting of Piedras Petroleum on October 31, 1991, with PCGG Commissioner Mario Jalandoni as acting Chairman, the sale of 2.054 billion OPMC Class A shares and 789.45 million B shares, OPMC shares were sold for the give-away price of P0.035/share. This compares with prevailing market price of P0.042 for A shares and P0.049 for the B shares. This means that the RCBC-Yuchengco Group already earned P25 million at the time of the transaction. 3. The PCGG proceeded without any legal authority to sell Oriental Petroleum shares in total violation of the Public Bidding Law and other government rules and regulations pertaining to the disposal of government assets. The PCGG, particularly Commissioner Mario Jalandoni, should be made to account for the PCGG-Piedras-RCBC transaction as it was consummated without transparency, in violation of the Public Bidding Law and without approval from the government.

4. The PCGG last year illegally used Philcomsat cash dividends to avail itself of an OPMC stock subscription to pay for the subscription rights of JY Campos and Piedras Petroleum. Even before the PCGG transacted the questionable Piedras-RCBC deal, it was sued by a Philcomsat stockholder before the Sandiganbayan for diverting P76 million in cash dividends. The antigraft court ordered the cash dividends deposited in an escrow account in 1989. However, the funds were used by the PCGG to pay for subscription rights for OPMC shares. This case is related to the Piedras deal because the additional OPMC shares were part of those sold to the RCBC-Yuchengco Group. 5. The PCGG diverted the proceeds on the authorized sale of Oriental Petroleum shares in violation of the law requiring proceeds of the sale of assets by the PCGG going to the Comprehensive Agrarian Reform Program (CARP). In addition to the litany of illegal transactions entered into by the PCGG, the officials of the anti-graft body also violated provisions of the Comprehensive Agrarian Reform Law of 1988, specifically Section 63, which states that "the following shall serve as source of funding or appropriations for the implementation of the said law; b) All receipts from assets recovered and sales of ill-gotten wealth recovered through the Presidential Commission on Good Government. The Management & Board of Directors of Oriental Petroleum and Minerals Corporation believe that the fruits of oil exploration and development in the country must be shared by the largest possible number of Filipinos. It urgently seeks the intervention of the National Leadership to immediately step in and prevent a large-scale take-over attempt on the Company by selfish and hostile vested interest groups under highly-questionable, 2 unauthorized and illegal circumstances. (b) In I.S. No. 93-6422. On July 22, 1993, petitioner filed a complaint for libel before the Provincial Prosecutor of Rizal designated as I.S. No. 93-6422 against then OPMC Chairman and President, private respondent Robert Coyiuto, Jr. An open letter dated August 14, 1992 addressed to the stockholders of OPMC is the subject of this case. Coyiuto, Jr., wrote it in his capacity as Chairman of the Board and President of OPMC. The paragraph objected to is quoted hereunder: Conclusion It has been suggested that this barrage of charges and press releases against the Corporation, and myself, were really intended to create a smokescreen to cover up the sweetheart deal between Commissioner Mario Jalandoni of the Presidential Commission on Good Government (PCGG) and Rizal Commercial Banking Corp. (RCBC) to the prejudice of the Government and/or that it is a part of

a dubious proxy solicitation strategy by these persons. It seems to 3 me that there is more to that transaction than meets the eye. After the affidavits and counter-affidavits were filed, 3rd Assistant Prosecutor Edgardo C. Bautista issued a Memorandum dated November 26, 1993 in I.S. No. 93-6228, approved by Rizal Provincial Prosecutor Mauro M. Castro on December 13, 1993, recommending the indictment of private respondents Coyiuto, Jr., Ledesma, Garcia, Ozaeta, Barcelon and Dyhongpo in complicity 4 in the crime of libel. An information for the crime of libel docketed as Criminal Case No. 93-10987 was filed with the Regional Trial Court of Makati, Branch 138. A Memorandum in I.S. No. 93-6422 dated November 8, 1993 was issued by 3rd Assistant Prosecutor Bautista, approved by Rizal Provincial Prosecutor Mauro M. Castro on December 13, 1993, recommending the indictment of 5 private respondent Coyiuto, Jr. An Information for libel docketed as Criminal Case No. 93-10986 was filed thereafter with the Regional Trial Court of Makati, Branch 137. All of the respondents in the two aforementioned cases appealed to then 6 Secretary of Justice, Franklin M. Drilon. On March 15, 1994, Secretary Drilon issued the questioned DOJ Resolution 7 No. 211, Series of 1994. The dispositive portion thereof reads as follows: WHEREFORE, premises considered, the questioned resolutions are hereby SET ASIDE and the complaints DISMISSED. You are hereby directed to immediately withdraw the informations filed in court against respondents Robert Coyiuto, Jr., Jaime L. Ledesma, Ramon Garcia, Amparo Barcelon, Antonio Ozaeta and Carlos Dyhongpo. Report of action taken within ten (10) days from receipt hereof is 8 desired. 9 A motion for reconsideration was filed but the same was denied in a letter10 order dated April 20, 1994. Hence this petition. The petition is without merit. Sec. 4, Rule 112 of the New Rules on Criminal Procedure ruled that: Sec. 4. Duty of investigating fiscal . If the investigating fiscal finds cause to hold the respondent for trial, he shall prepare the resolution and corresponding information. He shall certify under oath that he, or as shown by the record, an authorized officer, has personally examined the complainant and his witnesses, that there is reasonable ground to believe that a crime has been committed and that the accused is probably guilty thereof, that the accused was informed of the complaint and of the evidence submitted against him and that he was given an opportunity to submit controverting evidence. Otherwise, he shall recommend dismissal of the case. In either case, he shall forward the records of the case to the provincial or city fiscal or chief state prosecutor within five (5) days from his resolution. The latter shall take appropriate action thereon

within ten (10) days from receipt thereof, immediately informing the parties of said action. No complaint or information may be filed or dismissed by an investigating fiscal without the prior written authority or approval of the provincial or city fiscal or chief state prosecutor. Where the investigating assistant fiscal recommends the dismissal of the case but his findings are reversed by the provincial or city fiscal or chief state prosecutor on the ground that a probable cause exists, the latter may, by himself, file the corresponding information against the respondent or direct any other assistant fiscal or state prosecutor to do so, without conducting another preliminary investigation. If upon petition by a proper party, the Secretary of Justice reverses the resolution of the provincial or city fiscal or chief state prosecutor, he shall direct the fiscal concerned to file the corresponding information without conducting another preliminary investigation or to dismiss or move for dismissal of the complaint or information. Sec. 1 (d) of P.D. No. 911 likewise empowers the Secretary of Justice, where he finds that no prima facie case exists, to authorize and direct the investigating fiscal concerned or any other fiscal or state prosecutor to cause or move for the dismissal of the case, or, where he finds a prima facie case, to cause the filing of an information in court against the respondent, based on the same sworn statements of evidence submitted, without the necessity of conducting another preliminary investigation. The power of supervision and control by the Minister of Justice over the fiscals cannot be denied. As stated in Noblejas vs. Salas , 67 SCRA 47, Section 79 (c) of the Revised Administrative Code defines the extent of a department secretary's power. The power of control therein contemplated "means the power (of the department head) to alter, modify or nullify or set aside what a subordinate officer had done in the performance of his duties and to substitute the judgment of the former for that of the latter." "The power of control . . . implies the right of the President (and, naturally, of his alter ego) to interfere in the exercise of such discretion as may be vested by law in the officers of the national government, as well as to act in lieu of such officers." For, while it is the duty of the fiscal to prosecute persons who, according to evidence received from the complainant, are shown to be guilty of a crime, the Minister of Justice is likewise bound by his oath of office to protect innocent persons from groundless, false or serious prosecution. He would be committing a serious dereliction of duty if he orders or sanctions the filing of an information based upon a complaint where he is not convinced that the evidence would warrant the filing of the action in court. As he has the power of supervision and control over prosecuting officers, the Minister of Justice has the ultimate power to decide which as between conflicting 11 theories of the complainant and the respondents should be believed. It is a well-settled rule that the Secretary of Justice has the power to review resolutions or decisions of provincial or city prosecutors or the Chief State Prosecutor upon petition by a proper party. Under the Revised Administrative

Code, the secretary of justice exercises the power of direct control and supervision over said prosecutors. He may thus affirm, nullify, reverse or modify their rulings as he may deem fit. Sec. 39, Chapter 8, Book IV in relation to Sections 5, 8, and 9, Chapter 2, Title III of the Code gives the secretary of justice supervision and control over the Office of the Chief State Prosecutor and the Provincial and City Prosecution Offices. The scope of his power of supervision and control is delineated in Section 38, paragraph 1, Chapter 7, Book IV of the Code: (1) Supervision and Control . Supervision and control shall include authority to act directly whenever a specific function is entrusted by law or regulation to a subordinate; direct the performance of duty; restrain the commission of acts; review, approve, reverse or modify acts and decisions of subordinate officials or units; determine priorities in the execution of plans and programs; and prescribe standards, guidelines, plans and programs. Unless a different meaning is explicitly provided in the specific law governing the relationship of particular agencies, the word "control" shall encompass supervision and control as defined in this paragraph. 12 In the case of Ledesma vs . Court of Appeals , it was held that: Supervision and "control" of a department head over his subordinates have been defined in administrative law as follows: In administrative law, supervision means overseeing or the power or authority of an officer to see that subordinate officers perform their duties. If the latter fail or neglect to fulfill them, the former may take such action or step as prescribed by law to make them perform such duties. Control, on the other hand, means the power of an officer to alter or modify or nullify or set aside what a subordinate officer had done in the performance of his duties and to substitute the judgment of the former for that of the latter. (Mondano vs. Silvosa, 97 Phil. 143, 148 (1955). Review as an act of supervision and control by the justice secretary over the fiscals and prosecutors finds basis in the doctrine of exhaustion of administrative remedies which holds that mistakes, abuses or negligence committed in the initial steps of an administrative activity or by an administrative agency should be corrected by higher administrative authorities, and not directly by courts. As a rule, only after administrative remedies are exhausted may judicial recourse be allowed. We have taken the liberty to review the "libelous" articles complained of. We however do not find them to be such. The questioned "conclusion" in the open letter addressed to the stockholders 13 of the OPMC merely stated the insinuations going on about the deal between petitioner Jalandoni, in his capacity as PCGG Commissioner and RCBC and the explanation for the press releases concerning the writer, respondent Coyiuto, Jr. and the OPMC. 14 In the recent case of Vasquez vs. Court of Appeals , et. al., we ruled that:

The question is whether from the fact that the statements were defamatory, malice can be presumed so that it was incumbent upon petitioner to overcome such presumption. Under Art. 361 of the Revised Penal Code, if the defamatory statement is made against a public official with respect to the discharge of his official duties and functions and the truth of the allegation is shown, the accused will be entitled to an acquittal even though he does not prove that the imputation was published with good motives and for justifiable ends. Moreover, this Court has ruled in a plethora of cases 15 that in libel cases against public officials, for liability to arise, the alleged defamatory statement must relate to official conduct, even if the defamatory statement is false, unless the public official concerned proves that the statement was made with actual malice, that is, with knowledge that it was false or not. Here petitioner failed to prove actual malice on the part of the private respondents. Nor are we of the opinion that the same was written to cast aspersion on the 16 good name of the petitioner. In our view, the paid advertisement merely served as a vehicle to inform the stockholders of the going-ons in the business world and only exposed the irregularities surrounding the PCGG and RCBC deal and the parties involved. The statements embodied in the advertisement and the open letter are 17 protected by the constitutional guarantee of freedom of speech. This carries the right to criticize the action and conduct of a public official. The extent of the exercise of this right has been interpreted and defined in U.S. 18 vs. Bustos which held: The interest of society and the maintenance of good government demand a full discussion of public affairs. Complete liberty to comment on the conduct of public men is a scalpel in the case of free speech. The sharp incision of its probe relieves the abscesses of officialdom. Men in public life may suffer under a hostile and an unjust accusation; the wound can be assuaged with the balm of a clear conscience. A public officer must not be too thin-skinned with reference to comment upon his official acts. Only thus can the intelligence and dignity of the individual be exalted. Of course, criticism does not authorize defamation. Nevertheless, as the individual is less than the State, so must expected criticism be born for the common good. Rising superior to any official or set of officials, to the Chief Executive, to the Legislature, to the Judiciary to any or all the agencies of Government public opinion should be the constant source of liberty and democracy. The extraordinary writ of certiorari is issued only when it sufficiently shown that "any tribunal, board, or officer exercising judicial functions, has acted without or in excess of its or his jurisdiction, or with grave abuse of discretion.
19

In the case of Building Care Corporation vs . National Labor Relations 20 Commission, it was held:

The sole office of the writ of certiorari is the correction of errors of jurisdiction including the commission of grave abuse of discretion amounting to lack of jurisdiction, and does not include correction of public respondent's evaluation of the evidence and factual findings based thereon. Petitioner herein desires that we make a correction of the findings of the Secretary of Justice. This we cannot do for we do not find it needing of any correction. A special civil action for certiorari will prosper only if a grave abuse of discretion is manifested. And this is defined in the case of Republic vs. 21 Villarama, Jr. which held that for an abuse to be grave the power is exercised in an arbitrary or despotic manner by reason of passion or personal hostility. This petitioner failed to prove. Moreover a petition for certiorari, in order to prosper, must be based on jurisdictional grounds because, as long as the respondent acted with jurisdiction, any error committed by him or it in the exercise thereof will amount to nothing more than an error of judgment which may be reviewed or corrected only by appeal. Even an abuse of discretion is not sufficient by 22 itself to justify the issuance of a writ of certiorari. The petitioner failed to point out the specific instances where public respondent had committed a grave abuse of discretion when the latter issued the questioned orders. Failing this the petition for certiorari must fall. Assuming arguendo that the extraordinary writ of certiorari must prosper, we must point out to the petitioner the oft-cited ruling in the case of Crespo vs. 23 Mogul, Once a complaint or information is filed in court, any disposition of the case such as its dismissal or its continuation rests on the sound discretion of the court. Trial judges are thus required to make their own assessment of whether the secretary of justice committed grave abuse of discretion in granting or denying the appeal, separately and independently of the prosecution's or the secretary's evaluation that such evidence is insufficient or that no probable cause to hold the accused for trial exists. It is therefore imperative upon the trial judge to make an assessment of the motion to withdraw before granting or denying the same for he is in the best position to rule on the same. Finally, we have to make the pronouncement that public respondent was not remiss in his sworn duty to prosecute violators of the law and to keep the innocent from behind bars. 1wphi1.nt WHEREFORE, IN VIEW OF THE FOREGOING, the petition is hereby DISMISSED. SO ORDERED. Bellosillo, Mendoza, Quisumbing and De Leon, Jr., JJ., concur. Footnotes

1 2

Annexes "C", "C-1" to "C-4"; Rollo pp. 39-43. Annex "A"; Ibid., p. 37. 3 Annex "K"; Ibid., p. 163. 4 Annex "F"; Ibid., p. 56. 5 Annex "L"; Ibid., 165. 6 Annexes "G" and "M"; Ibid., pp. 64 and 169. 7 Annex "H"; Ibid., p. 113. 8 Ibid., p. 128. 9 Annex "I"; Ibid., p. 129. 10 Annex "J"; Ibid., p. 159. 11 Vda. de Jacob vs. Puno, 131 SCRA 144. 12 278 SCRA 656. 13 Annex "K"; Rollo, p. 163. 14 G.R. No. 118971, promulgated on September 15, 1999. 15 Lopez vs. Court of Appeals, 145 Phil. 219; Mercado vs. CFI of Rizal, Branch V, 201 Phil 565; Babst vs. National Intelligence Board, 132 SCRA 316. 16 Annex "A"; Rollo, p. 37. 17 Art. III, Section 4, 1987 Constitution. 18 37 Phil. 731, 740-741. 19 Rule 65, Section 1, Rules of Court. 20 268 SCRA 666. 21 278 SCRA 736. 22 Comendador vs. de Villa, 200 SCRA 80, 98 citing Arula vs. Espino, 28 SCRA 540. 23 151 SCRA 462, 467 as cited in the case of Ledesma vs. Court of Appeals, 278 SCRA 656, 682-683.

G.R. No. L-44723 August 31, 1987 STA. ROSA MINING COMPANY, petitioner vs. ASSISTANT PROVINCIAL FISCAL AUGUSTO ZABALA, in his capacity as OFFICER-IN-CHARGE of the Provincial Fiscal's OFFICE of Camarines Norte, and GIL ALAPAN et. al., respondents. BIDIN, J.: Mandamus to compel respondent Fiscal to prosecute Criminal Case No. 821 of the then Court of First Instance of Camarines Norte until the same is terminated. The facts of the case are not disputed. On March 21, 1974, petitioner filed a complaint for attempted theft of materials (scrap iron) forming part of the installations on its mining property at Jose Panganiban, Camarines Norte against private respondents Romeo Garrido and Gil Alapan with the Office of the Provincial Fiscal of Camarines Norte, then headed by Provincial Fiscal Joaquin Ilustre. The case was assigned to third Assistant Fiscal Esteban P. Panotes for preliminary investigation who, after conducting said investigation, issued a resolution dated August 26, 1974 recommending that an information for Attempted Theft be filed against private respondents on a finding of prima facie case which resolution was approved by Provincial Fiscal Joaquin Ilustre. Private respondents sought reconsideration of the resolution but the same was denied by Fiscal Ilustre in a resolution dated October 14, 1974. On October 29, 1974, Fiscal Ilustre filed with the Court of First Instance of Camarines Norte an Information dated October 17, 1987 docketed as Criminal Case No. 821, charging private respondents with the crime of Attempted Theft. In a letter dated October 22, 1974, the private respondents requested the Secretary of Justice for a review of the Resolutions of the Office of the Provincial Fiscal dated August 26, 1974 and October 14, 1974. On November 6, 1974, the Chief State Prosecutor ordered the Provincial Fiscal by telegram to "Please elevate entire records PFO Case 577 against Garrido et al., review in five days and defer all proceedings pending review." The letter-request for review was opposed by petitioner in a letter to the Secretary of Justice dated November 23, 1974 alleging, among other things, that an information for Attempted Theft had already been filed against private respondents for which reason the request for review has become a moot question as the Provincial Fiscal has lost jurisdiction to dismiss the charge for attempted theft. On March 6, 1975, the Secretary of Justice, after reviewing the records, reversed the findings of prima facie case of the Provincial Fiscal and directed said prosecuting officer to immediately move for the dismissal of the criminal case. Petitioner sought reconsideration of the directive of the Secretary of Justice but the latter denied the same in a letter dated June 11, 1975.

A motion to dismiss dated September 16, 1975 was then filed by the Provincial Fiscal but the court denied the motion on the ground that there was a prima facie evidence against private respondents and set the case for trial on February 25, 1976. Private respondents sought reconsideration of the court's ruling but in an Order dated February 13, 1976, the motion filed for said purpose was likewise denied. Trial of the case was reset to April 23, 1976. Thereafter, Fiscal Ilustre was appointed a judge in the Court of First Instance of Albay and respondent Fiscal Zabala became officer-in-charge of the Provincial Fiscal's Office of Camarines Norte. On April 19, 1976, respondent Fiscal filed a Second Motion to Dismiss the case. This second motion to dismiss was denied by the trial court in an order dated April 23, 1976. Whereupon, respondent fiscal manifested that he would not prosecute the case and disauthorized any private prosecutor to appear therein. Hence, this petition for mandamus. In this action, petitioner prays for the issuance of the writ of mandamus "commanding respondent fiscal or any other person who may be assigned or appointed to act in his place or stead to prosecute Criminal Case No. 821 of the Court of First instance of Camarines Norte" (Petition, Rollo, p. 27). There is no question that the institution of a criminal action is addresses to the sound discretion of the investigating fiscal. He may or he may not file the information according to whether the evidence is in his opinion sufficient to establish the guilt of the accused beyond reasonable doubt. (Gonzales vs. Court of First Instance, 63 Phil. 846) and when he decides not to file the information, in the exercise of his discretion, he may not be compelled to do so (People vs. Pineda, 20 SCRA 748). However, after the case had already been filed in court, "fiscals are not clothed with power, without the consent of the court, to dismiss or nolle prosequi criminal actions actually instituted and pending further proceedings. The power to dismiss criminal actions is vested solely in the court" (U.S. vs. Barredo, 32 Phil. 444, 450; Gonzales vs. Court of First Instance, supra). However, the matter of instituting an information should be distinguished from a motion by the fiscal for the dismissal of a case already filed in court. The judge may properly deny the motion where, judging from the record of the preliminary investigation, there appears to be sufficient evidence to sustain the prosecution. This is, as it should be, because the case is already in court and, therefore, within its discretion and control (Abela vs. Golez, 131 SCRA 12). This ruling is just being consistent with the principle first laid down in U.S. vs. Valencia (1 Phil. 642) where it was held that "after the complaint has been presented, and certainly after the trial has been commenced, the court and not the fiscal has full control of it. The complaint cannot be withdrawn by the fiscal without the consent of the court." It is discretionary on the court where the case is pending to grant the motion to dismiss or deny the same (Asst. Provincial Fiscal of Bataan vs. Dollete, 103 Phil. 914).

In the case at bar, the court below denied the fiscal's motion to dismiss on the ground that there was a prima facie case against private respondents. The question presented for determination now is-after a case has been filed in court, can a fiscal be compelled to prosecute the same, after his motion to dismiss it has been denied? This court is of the view that the writ prayed for should issue. Notwithstanding his personal convictions or opinions, the fiscal must proceed with his duty of presenting evidence to the court to enable the court to arrive at its own independent judgment as to the culpability of the accused. The fiscal should not shirk from his responsibility much less leave the prosecution of t he case at the hands of a private prosecutor. At all times, the criminal action shall be prosecuted under his direction and control (Sec. 4, Rule 110, Rules of Court). Otherwise, the entire proceedings wig be null and void (People vs. Beriales, 70 SCRA 361). In the trial of criminal cases, it is the duty of the public prosecutor to appear for the government since an offense is an outrage to the sovereignty of the State." (Moran, Comments on the Rules of Court, Vol. IV, 1980 Ed., p. 10). This is so because "the prosecuting officer is the representative not of an ordinary party to a controversy but of a sovereignty where obligation to govern impartially is as compelling as its obligation to govern at all; and whose interest, therefore, in criminal prosecution is not that it shall win a case, but that justice shall be done. As such, he is in a peculiar and very definite sense the servant of the law, the two-fold aim of which is that guilt shall not escape or innocence suffer (Suarez vs. Platon, 69 Phil. 556). Accordingly, if the fiscal is not at all convinced that a prima facie case exists, he simply cannot move for the dismissal of the case and, when denied, refuse to prosecute the same. He is obliged by law to proceed and prosecute the criminal action. He cannot impose his opinion on the trial court. At least what he can do is to continue appearing for the prosecution and then turn over the presentation of evidence to another fiscal or a private prosecutor subject to his direction and control (U.S. vs. Despabiladeras, 32 Phil. 442; U.S. vs. Gallegos, 37 Phil. 289). Where there is no other prosecutor available, he should proceed to discharge his duty and present the evidence to the best of his ability and let the court decide the merits of the case on the basis of the evidence adduced by both parties. The mere fact that the Secretary of Justice had, after reviewing the records of the case, directed the prosecuting fiscal to move for the dismissal of the case and the motion to dismiss filed pursuant to said directive is denied by the trial court, is no justification for the refusal of the fiscal to prosecute the case. It is the court where the case is filed and not the fiscal that has full control of it. Very recently, this Court in Mario Fl. Crespo vs. Hon. Leodegario L. Mogul (G.R. No. 53373, promulgated June 30, 1987) ruled: The rule therefore in this jurisdiction is that once a complaint or information is filed in Court any disposition of the case as its dismissal or the conviction or acquittal of the accused rests in the sound discretion of the Court. Although the fiscal

retains the direction and control of the prosecution of criminal cases even while the case is already in Court, he cannot impose his opinion on the trial court. The Court is the best and sole judge on what to do with the case before it. The determination of the case is within its exclusive jurisdiction and competence. A motion to dismiss the case filed by the fiscal should be addressed to the Court who has the option to grant or deny the same. It does not matter if this is done before or after the arraignment of the accused or that the motion was filed after a reinvestigation or upon instructions of the Secretary of Justice who reviewed the records of the investigation. In order therefore to avoid such a situation whereby the opinion of the Secretary of Justice who reviewed the action of the fiscal may be disregarded by the trial court, the Secretary of Justice should, as far as practicable, refrain from entertaining a petition for review or appeal from the action of the fiscal, when the complaint or information has already been filed in Court. The matter should be left entirely for the determination of the Court. WHEREFORE, petition is hereby Granted. Public respondent or any other person who may be assigned or appointed to act in his place or stead, is hereby ordered to continue prosecuting Criminal Case No. 821 until the same is terminated. SO ORDERED. Teehank ee, C.J., Yap, Fernan, Narvasa, Melencio-Herrera, Gutierrez, Jr., Cruz, Paras, Feliciano, Gancayco, Padilla and Cortes, JJ., concur. Sarmiento, J., took no part.

THIRD DIVISION ELVIRA O. ONG, Petitioner, Present: CORONA, J., Chairperson, VELASCO, JR., NACHURA, PERALTA, and DEL CASTILLO,* JJ. Promulgated: JOSE CASIM GENIO, Respondent. December 23, 2009 G.R. No. 182336

- versus -

x------------------------------------------------------------------------------------x RESOLUTION NACHURA, J.: Before this Court is a Petition for Review on Certiorari1[1] under Rule 45 of the Rules of Civil Procedure, seeking the reversal of the Court of Appeals (CA) Resolution2[2] dated January 7, 2008. Petitioner Elvira O. Ong (petitioner) filed a criminal complaint against respondent Jose Casim Genio (respondent) for Robbery which was dismissed by the City Prosecutor of Makati City. However, pursuant to the Resolutions dated September 15, 20063[3] and October 30, 20064[4] of the Department of Justice, respondent was charged with the crime of Robbery in an Information5[5] which reads: That in or about and sometime the month of January, 2003, in the City of Makati, Philippines and within the jurisdiction of this Honorable Court, the above-named accused, did then and there willfully, unlawfully and feloniously take, divest and carry away kitchen and canteen equipment as well as her personal things valued at Php 700,000.00, belonging to complainant, ELVIRA O. ONG, to the damage and prejudice of the said owner in the aforementioned amount of Php 700,000.00. CONTRARY TO LAW.

On November 21, 2006, respondent filed a Motion to Dismiss the Case for Lack of Probable Cause Pursuant to Sec. 6(a),6[6] Rule 112 of the Rules of Court and, in View of Compelling Grounds for the Dismissal of the Case to Hold in Abeyance the Issuance of the Warrant of Arrest7[7] (Motion to Dismiss). Petitioner filed an Opposition8[8] dated December 11, 2006 to respondent's Motion to Dismiss. In its Order9[9] of December 15, 2006, the Regional Trial Court (RTC) of Makati City, Branch 56, dismissed the case because the other elements of the crime of Robbery, specifically the elements of intent to gain, and either violence against or intimidation of any person or force upon things, were not specifically alleged in the Information filed against respondent. Despite the dismissal of the case, respondent filed a Partial Motion for Reconsideration10[10] dated January 2, 2007, reiterating that the Information should be dismissed in its entirety for lack of probable cause. Petitioner filed her Opposition11[11] to this motion on February 15, 2007. In its Order12[12] dated February 12, 2007, the RTC granted respondents Partial Motion for Reconsideration and dismissed the case for lack of probable cause pursuant to Section 6(a), Rule 112 of the Revised Rules on Criminal Procedure. The RTC held that the evidence on record failed to establish probable cause to charge respondent with the crime of Robbery. On March 6, 2007, petitioner filed her Motion for Reconsideration,13[13] claiming that the RTC erred in relying on Section 6(a), Rule 112 of the Revised Rules on Criminal Procedure, since the said provision relates to the issuance of a warrant of arrest, and it does not cover the determination of probable cause for the filing of the Information against respondent, which is executive in nature, a power primarily vested in the Public Prosecutor. In its Order14[14] dated June 1, 2007, the RTC denied petitioners Motion for Reconsideration, holding that the aforementioned provision authorizes the RTC to evaluate not only the resolution of the prosecutor who conducted the preliminary investigation and eventually filed the Information in court, but also the evidence upon which the resolution was based. In the event that the evidence on record clearly fails to establish probable cause, the RTC may dismiss the case. Aggrieved, petitioner filed a Petition for Certiorari and Mandamus15[15] before the CA on August 28, 2007. Respondent filed a

* Additional member per Special Order No. 805 dated December 4, 2009.
1[1] Rollo, pp. 3-20. 2[2] Particularly docketed as CA-G.R. SP No. 100311, penned by Associate Justice Aurora Santiago-Lagman, with Associate Justices Bienvenido L. Rey es and Apolinario D. Bruselas, Jr., concurring; id. at 23-24. 3[3] CA rollo, pp. 18-20. 4[4] Id. at 21-22. 5[5] Id. at 23.

6[6] Rules. 7[7] 8[8] 9[9] 10[10] 11[11] 12[12] 13[13] 14[14] 15[15]

The parties and the RTC cited this section as Section 5, when in fact all of them were referring to Section 6 of Rule 112 of the Id. at 24-36. CA rollo, pp. 37-41. Issued by Judge Rey naldo M. Laigo; id. at 43-44. CA rollo, pp. 45-63. Id. at 64-66. Id. at 14-15. Id. at 67-72. Id. at 16-17. Id. at 2-13.

Motion to Dismiss16[16] the petition, raising the issue of lack of personality of petitioner to appeal the dismissal of the criminal case, because the authority to do so lies exclusively with the State as represented by the Office of the Solicitor General (OSG). In its Resolution17[17] dated September 10, 2007, the CA observed that the People of the Philippines was impleaded as petitioner without showing, however, the OSG's participation. Thus, the CA ordered petitioner to furnish the OSG with a copy of the Petition, and the latter to comment thereon. On October 22, 2007, the OSG filed its Comment,18[18] taking the stand of respondent that only the Solicitor General can bring or defend actions on behalf of the People of the Philippines filed before the CA or the Supreme Court. The OSG submitted that, for being fatally defective, the said Petition should be dismissed insofar as the criminal aspect was concerned, without prejudice to the right of petitioner to pursue the civil aspect of the case. On January 7, 2008, the CA rendered its Resolution,19[19] dismissing the case without prejudice to the filing of a petition on the civil aspect thereof on the basis of the arguments raised by both respondent and the OSG. Undaunted, petitioner filed a Motion for Reconsideration20[20] which the CA denied in its Resolution21[21] dated March 27, 2008. Hence this Petition raising the following issues: A. WHETHER THE PETITIONER AS THE PRIVATE OFFENDED PARTY IN A CRIMINAL CASE HAS NO PERSONALITY TO ELEVATE THE CASE TO THE COURT OF APPEALS WITHOUT THE COMFORMITY OF THE OFFICE OF THE SOLICITOR GENERAL EVEN BEFORE THE ACCUSED IS ARRAIGNED B. WHETHER THE REGIONAL TRIAL COURT HAS AUTHORITY TO DISMISS THE INFORMATION ON THE GROUND OF LACK OF PROBABLE CAUSE CONTRARY TO THE FINDINGS OF THE SECRETARY OF THE DEPARTMENT OF JUSTICE C. WHETHER THE REGIONAL TRIAL COURT HAS THE AUTHORITY TO DISMISS THE INFORMATION ON THE GROUND OF LACK OF PROBABLE CAUSE WHEN IT HAS PREVIOUSLY CONCLUDED THAT THE SAME INFORMATION IS DEFECTIVE[.]22[22] The instant Petition is bereft of merit.
16[16] 17[17] 18[18] 19[19] 20[20] 21[21] 22[22] Id. at 81-89. Id. at 75-76. Id. at 116-120. Id. at 122-123. Id. at 124-127. Id. at 138-139. Supra note 1, at 6.

Section 35(1), Chapter 12, Title III, Book IV of the Administrative Code of 1987 states that the OSG shall represent the Government of the Philippines, its agencies and instrumentalities and its officials and agents in any litigation, proceeding, investigation, or matter requiring the services of lawyers. Likewise, the Solicitor General shall represent the Government in this Court and the CA in all criminal proceedings, thus: SEC. 35. Powers and Functions. The Office of the Solicitor General shall represent the Government of the Philippines, its agencies and instrumentalities and its officials and agents in any litigation, proceeding, investigation or matter requiring the services of lawyers. When authorized by the President or head of the office concerned, it shall also represent government owned or controlled corporations. The Office of the Solicitor General shall constitute the law office of the Government and, as such, shall discharge duties requiring the services of lawyers. It shall have the following specific powers and functions: (1) Represent the Government in the Supreme Court and the Court of Appeals in all criminal proceedings; represent the Government and its officers in the Supreme Court, the Court of Appeals, and all other courts or tribunals in all civil actions and special proceedings in which the Government or any officer thereof in his official capacity is a party. This doctrine is laid down in our ruling in Heirs of Federico C. Delgado and Annalisa Pesico v. Luisito Q. Gonzalez and Antonio T. Buenaflor,23[23] Cario v. de Castro,24[24] Mobilia Products, Inc. v. Umezawa,25[25] Narciso v. Sta. Romana-Cruz ,26[26] Perez v. Hagonoy Rural Bank , Inc. ,27[27] and People v. Santiago,28[28] where we held that only the OSG can bring or defend actions on behalf of the Republic or represent the People or the State in criminal proceedings pending in this Court and the CA. While there may be rare occasions when the offended party may be allowed to pursue the criminal action on his own behalf,29[29] as when there is a denial of due process, this exceptional circumstance does not obtain in the instant case. Before the CA, the OSG itself opined that the petition therein was fatally defective for having been filed without the OSG's participation. Before
23[23] 24[24] 25[25] 26[26] 27[27] 28[28] 29[29] G.R. No. 184337, August 7, 2009. G.R. No. 176084, April 30, 2008, 553 SCRA 688. G.R. Nos. 149357 and 149403, March 4, 2005, 452 SCRA 736. G.R. No. 134504, March 17, 2000, 328 SCRA 505. G.R. No. 126210, March 9, 2000, 327 SCRA 588. G.R. No. 80778, June 20, 1989, 174 SCRA 143. Merciales v. Court of Appeals, 429 Phil. 70 (2002).

this Court, petitioner failed to advance any justification or excuse why she failed to seek the assistance of the OSG when she sought relief from the CA, other than the personal belief that the OSG was burdened with so many cases. Thus, we find no reversible error to disturb the CA's ruling. Petitioner, however, is not without any recourse. In Rodriguez v. Gadiane,30[30] we held: It is well-settled that in criminal cases where the offended party is the State, the interest of the private complainant or the private offended party is limited to the civil liability. Thus, in the prosecution of the offense, the complainant's role is limited to that of a witness for the prosecution. If a criminal case is dismissed by the trial court or if there is an acquittal, an appeal therefrom on the criminal aspect may be undertaken only by the State through the Solicitor General. Only the Solicitor General may represent the People of the Philippines on appeal. The private offended party or complainant may not take such appeal. However, the said offended party or complainant may appeal the civil aspect despite the acquittal of the accused. In a special civil action for certiorari filed under Section 1, Rule 65 of the Rules of Court wherein it is alleged that the trial court committed a grave abuse of discretion amounting to lack of jurisdiction or on other jurisdictional grounds, the rules state that the petition may be filed by the person aggrieved. In such case, the aggrieved parties are the State and the private offended party or complainant. The complainant has an interest in the civil aspect of the case so he may file such special civil action questioning the decision or action of the respondent court on jurisdictional grounds. In so doing, complainant should not bring the action in the name of the People of the Philippines. The action may be prosecuted in name of said complainant. 31[31] On this ground alone, the instant Petition fails. Even on the issue of the RTC's dismissal of the case, the Petition ought to be denied. Section 6(a), Rule 112 of the Revised Rules on Criminal Procedure clearly provides: SEC. 6. When warrant of arrest may issue. (a) By the Regional Trial Court. Within ten (10) days from the filing of the complaint or information, the judge shall personally evaluate the resolution of the prosecutor and its supporting evidence. He may immediately dismiss the case if the
30[30] 31[31] G.R. No. 152903, July 17, 2006, 495 SCRA 368, 374, citing People v. Santiago, id. Emphasis supplied.

evidence on record clearly fails to establish probable cause. If he finds probable cause, he shall issue a warrant of arrest, or a commitment order if the accused has already been arrested pursuant to a warrant issued by the judge who conducted the preliminary investigation or when the complaint or information was filed pursuant to section 7 of this Rule. In case of doubt on the existence of probable cause, the judge may order the prosecutor to present additional evidence within five (5) days from notice and the issue must be resolved by the court within thirty (30) days from the filing of the complaint or information.32[32] Pursuant to the aforementioned provision, the RTC judge, upon the filing of an Information, has the following options: (1) dismiss the case if the evidence on record clearly failed to establish probable cause; (2) if he or she finds probable cause, issue a warrant of arrest; and (3) in case of doubt as to the existence of probable cause, order the prosecutor to present additional evidence within five days from notice, the issue to be resolved by the court within thirty days from the filing of the information.33[33] It bears stressing that the judge is required to personally evaluate the resolution of the prosecutor and its supporting evidence. He may immediately dismiss the case if the evidence on record clearly fails to establish probable cause.34[34] This, the RTC judge clearly complied with in this case. WHEREFORE, the Petition is DENIED. The Resolution of the Court of Appeals dated January 7, 2008 is AFFIRMED. Costs against petitioner. SO ORDERED. ANTONIO EDUARDO B. NACHURA Associate Justice WE CONCUR: RENATO C. CORONA Associate Justice Chairperson PRESBITERO J. VELASCO, JR. DIOSDADO M. PERALTA Associate Justice Associate Justice

MARIANO C. DEL CASTILLO Associate Justice ATTESTATION

32[32] 33[33] 34[34]

Emphasis supplied. In Re: Mino v. Navarro, A.M. No. MTJ-06-1645, August 28, 2007, 531 SCRA 271, 279. Concerned Citizen of Maddela v. Dela Torre-Yadao, A.M. No. RTJ-01-1639, November 29, 2002, 393 SCRA 217, 223.

I attest that the conclusions in the above Resolution were reached in consultation before the case was assigned to the writer of the opinion of the Courts Division. RENATO C. CORONA Associate Justice Chairperson, Third Division

CERTIFICATION Pursuant to Section 13, Article VIII of the Constitution and the Division Chairperson's Attestation, I certify that the conclusions in the above Resolution had been reached in consultation before the case was assigned to the writer of the opinion of the Courts Division. REYNATO S. PUNO Chief Justice

G.R. No. 126210 March 9, 2000 CRISTINA PEREZ, petitioner, vs. HAGONOY RURAL BANK, INC., and HON. COURT OF APPEALS, respondents. DE LEON, JR., J.: 1 Before us is a petition for review on certiorari of the Decision of the Court of 2 Appeals which annulled and set aside an Order issued by the Regional Trial Court (RTC) of Malolos Bulacan. The assailed Order denied the motion for reconsideration filed by private respondent Hagonoy Rural Bank, Inc. of an order allowing the amendment of the information in Criminal Case No. 3 1604-M-94 to exclude petitioner Cristina Perez as one of the accused therein. The following facts are undisputed: Private respondent Hagonoy Rural Bank, Inc. owns the Hagonoy Money Shop which employed petitioner Cristina O. Perez as Officer-in-Charge, Cashier and Teller, Alberto S. Fabian as Bookkeeper, and Cristina Medina and Milagros Martin as Solicitors/Field Managers. For the period starting August 3, 1992 up to December 5, 1993, the Laya, Manabat, Salgado and Company, an independent management, consultancy and accounting firm, conducted an audit of the financial affairs of the Hagonoy Money Shop. The auditing firm found anomalies in more or less twenty-eight (28) savings accounts consisting of withdrawals which were recorded in the subsidiary ledgers of the money shop but not in the passbooks which were in the possession of the depositors. Although these

withdrawals were supported by withdrawal slips, the signatures appearing thereon were noticeably different from the sample signatures written by the bona fide depositors in their specimen signature cards and/or in the subsidiary ledgers. The audit also revealed that to cover-up the anomalous withdrawals, fake deposits were recorded in the money shop's subsidiary ledgers whenever the remaining balance in a particular saving account was depleted below the amount of legitimate withdrawals made by a depositor. All 4 in all, the anomalous withdrawals amounted to P879,727.08. The anomalies unearthed by the auditing firm prompted the private respondent to file an affidavit-complaint for estafa against the aforementioned employees of the money shop and two outsiders, Susan 5 Jordan and Brigida Mangahas. On February 18, 1994, Acting Provincial Prosecutor, Jesus Y. Manarang (hereinafter "prosecutor"), issued a resolution finding prima facie evidence that the petitioner and her coemployees, Alberto Fabian, Cristina Medina and Milagros Martin had committed the crime of estafa thru falsification of commercial documents, and recommending the filing of the corresponding information against them with the Regional Trial Court (RTC) of Malolos, Bulacan. The charges 6 against Susan Jordan and Brigida Mangahas were, however, dismissed. Aggrieved by the said resolution, petitioner filed a petition for review with the Secretary of Justice praying for the dismissal of the charges against her. On the other hand, private respondent moved for a reconsideration of the portion 7 of the same resolution dismissing the complaint against Susan Jordan. In a resolution dated April 19, 1994, the prosecutor granted private 8 respondent's motion for reconsideration. Hence, on April 27, 1994, an information for estafa thru falsification of commercial documents was filed against herein petitioner, Alberto Fabian, Milagros Martin, Cristina Medina and Susan Jordan, and docketed as Criminal Case No. 1604-M-94 in Branch 9 9 of the RTC of Malolos, Bulacan. On September 23, 1994, then Secretary of Justice, Franklin M. Drilon, issued Resolution No. 696, series of 1994 ordering the prosecutor to cause the dismissal of the information against herein petitioner on the ground of 10 insufficient evidence. The private respondent filed a motion for reconsideration of the order of the Secretary of Justice, which motion, 11 however, was denied with finality by the latter. Meanwhile, pursuant to the said directive of the Secretary of Justice, the prosecutor filed a motion in the RTC praying for the dismissal of the case against herein petitioner and the admission of an amended information excluding petitioner as one of the accused in Criminal Case No. 1604-M-94. 12 On January 13, 1995, presiding Judge O. Roy A. Masadao of the said court granted the said motion. Private respondent assailed the dismissal of the case against the petitioner in a motion for reconsideration filed in the RTC. However, the trial court denied the said motion in an Order dated February 21, 1995 after finding that the private respondent, as private complainant, had no legal personality to question the dismissal of the 13 criminal charges against the petitioner.

Alleging that Judge Masadao had issued the said order with grave abuse of discretion amounting to lack of jurisdiction, private respondent filed a petition for certiorari and mandamus with a prayer for the issuance of a temporary restraining order and a writ of preliminary injunction with the Court of Appeals. On February 23, 1996, the Court of Appeals rendered a decision annulling and setting aside the assailed Order of February 21, 1995 and directing Judge Masadao to resolve with dispatch the private respondent's 14 motion for reconsideration on the basis of its merit or lack thereof. Hence, this petition assigning the following errors to the Court of Appeals: 1. THE RESPONDENT COURT OF APPEALS COMMITTED A SERIOUS REVERSIBLE ERROR IN HOLDING THAT THE FAILURE OF THE TRIAL JUDGE TO SQUARELY RULE UPON THE MERITS OF PRIVATE RESPONDENT BANK'S MOTION FOR RECONSIDERATION OF THE FEBRUARY 21, 1995 ORDER OF THE TRIAL JUDGE ALLOWING THE AMENDMENT OF THE INFORMATION WHICH EXCLUDED THE HEREIN PETITIONER FROM THE SAID INFORMATION [WAS WITH GRAVE ABUSE OF DISCRETION AMOUNTING TO LACK OR EXCESS OF JURISDICTION], THUS OVERLOOKING AMPLE JURISPRUDENCE IN SUPPORT OF THE TRIAL JUDGE ORDER. 2. THE RESPONDENT COURT OF APPEALS SERIOUSLY ERRED IN NOT FINDING THAT THE TRIAL JUDGE CANNOT BE COMPELLED TO RULE ON THE MERITS OF A MOTION FOR RECONSIDERATION OF AN OFFENDED PARTY OF THE TRIAL JUDGE'S ORDER ALLOWING THE AMENDMENT OF THE INFORMATION AFTER FINDING THAT THE SAID OFFENDED PARTY HAS NO LEGAL PERSONALITY TO FILE SUCH MOTION FOR RECONSIDERATION. 3. THE RESPONDENT COURT OF APPEALS GRAVELY ERRED IN NOT FINDING THAT THERE WAS JUSTIFICA TION FOR THE SECRETARY OF JUSTICE ON PETITION FOR REVIEW TO ORDER THE PROSECUTOR TO CAUSE THE DISMISSAL OF THE INFORMATION IN COURT AGAINST THE ACCUSED-PETITIONE R WHICH IN EFFECT ALLOWED THE AMENDMENT OF THE INFORMATION EXCLUDING THE ACCUSED FROM THE INFORMATION. 4. THE RESPONDENT COURT OF APPEALS COMMITTED A GRAVE REVERSIBLE ERROR IN HOLDING THAT THE TRIAL JUDGE DISPOSED OF PRIVATE RESPONDENT BANKS' MOTION FOR RECONSIDERATION IN A CAVALIER FASHION. 5. THERE WAS SUFFICIENT AND COMPETENT EVIDENCE TO WARRANT THE EXCLUSION OF THE PETITIONER-A CCUSE D 15 FROM THE CRIMINAL INFORMATION. Succinctly put, the issues in the instant case are: first, whether or not Judge Masadao, presiding judge of RTC Branch 9, Malolos, Bulacan, committed grave abuse of discretion in granting the prosecutor's motion to dismiss the

criminal case against petitioner without an independent assessment of the sufficiency or insufficiency of the evidence against the latter; second, whether or not the private respondent, as private complainant, in a criminal case has the legal personality to question the dismissal by the trial judge of the criminal charges against herein petitioner upon the motion filed by the prosecutor; and third, whether or not the dismissal of the charges against the petitioner is warranted by the evidence at hand. First . Judge Masadao acted with grave abuse of discretion in granting the prosecutor's motion to dismiss the criminal charges against the petitioner on the basis solely of the recommendation of the Secretary of Justice. In moving for the dismissal of the case against the petitioner, the prosecutor averred: 1. That on October 18, 1994 (sic ) he was in receipt of a resolution dated September 23, 1994 from the Secretary of Justice, the dispositive portion of which reads as follows: xxx xxx xxx WHEREFORE. Your resolution is partly reversed. You are directed to cause the dismissal of the information if any, filed against respondent Cristina Perez in the above-entitled case and report on the action taken therein within ten (10) days from receipt hereof. 2. That pursuant to the said resolution, an amended information is (sic ) hereto attached excluding Cristina Perez is well in order and copy of said amended information is hereto attached. WHEREFORE, it is respectfully prayed that the case insofar as respondent Cristina Perez be dismissed and the amended 16 information be admitted. The Order granting the above quoted motion states in its entirety that: ORDER Finding no legal impediment to the same, the motion filed by Public Prosecutor Jesus Y Manarang seeking the amendment of the Information is hereby GRANTED, and the Amended Information attached thereto is hereby ADMITTED to form part of the record of the above-entitled case. By the foregoing token, the warrant of arrest already issued is hereby recalled and rendered ineffective with respect only to accused CRISTINA PEREZ. 17 SO ORDERED. The above quoted Order allowing the amendment of the information to exclude petitioner therefrom effectively dismissed the criminal case against the latter. That the trial judge did not make an independent evaluation or assessment of the merits of the case is apparent from the foregoing order. Judge Masadao's reliance on the prosecutor's averment that the Secretary of Justice had recommended the dismissal of the case against the petitioner was, to say the least, an abdication of the trial court's duty and jurisdiction to determine a prima facie case, in blatant violation of this Court's

pronouncement in Crespo v. Mogul as reiterated in the later case of 19 Martinez v. Court of Appeals , to wit: In other words, the grant of the motion to dismiss was based upon considerations other than the judge's own personal individual conviction that there was no case against the accused. Whether to approve or disapprove the stand taken by the prosecution is not the exercise of discretion required in cases like this. The trial judge must himself be convinced that there was indeed no sufficient evidence against the accused, and this conclusion can be arrived at only after an assessment of the evidence in the possession of the prosecution. What was imperatively required was the trial judge's own assessment of such evidence, it not being sufficient for the valid and proper exercise of judicial discretion merely to accept the prosecution's word for its supposed insufficiency. As aptly observed by the Office of the Solicitor General, in failing to make an independent finding of the merits of the case and merely anchoring the dismissal on the revised position of the prosecution, the trial judge relinquished the discretion he was duty bound to exercise. In effect, it was the prosecution, through the Department of Justice which decided what to do and not the court which was reduced to a mere rubber stamp in violation of the ruling in Crespo v. 20 Mogul. Petitioner contends that the doctrine laid down by this Court in Martinez v. 21 Court of Appeals is not applicable to the instant case for several reasons. First, in the Martinez case, the private offended party was deprived of due process as he was not furnished with a copy of the prosecution's motion to dismiss, whereas in this case, not only was the private respondent furnished a copy of the motion to dismiss, it was also given an opportunity to file its comment thereon. Second, in the case at bar, the Solicitor General adopts the view that the trial judge acted correctly in granting the motion to dismiss 22 while in Martinez v. Court of Appeals , the Solicitor General recommended the setting aside of the order granting the motion to dismiss. Finally, the dismissal of the criminal case against the accused in Martinez v. Court of 23 Appeals was based solely on the findings of the Acting Secretary of Justice. On the other hand, at the time Judge Masadao granted the motion to dismiss the criminal case against the petitioner, he already had before him the affidavit-complaint of private respondent, the resolution of the prosecutor finding probable cause against the employees of the money shop, the prosecutor's motion to dismiss the case against the petitioner, the private respondent's comment and supplemental comment to the latter, and the 24 position papers of the petitioner and the private respondent. Petitioner's arguments are not convincing. A perusal of the Martinez case reveals that the opinion of this Court finding the dismissal of the case against the accused erroneous was not predicated on the violation of the private offended party's right to due process nor on the recommendation of the Solicitor General. In fact, we categorically stated

18

therein that the "fault or error tainting the order of dismissal of the lower court consists in its failure to observe procedural due process and to exercise its 25 discretion properly and judiciously." The first part refers to the fact that the private offended party was not afforded his day in court while the latter pertains to the failure of the judge to make an independent assessment of the evidence or lack thereof against the accused. Otherwise stated, the first is not the rationale behind the latter declaration. Furthermore, petitioner's asseveration that as the records of the case were already before Judge Masadao, it can be safely assumed that he had studied them and thereafter agreed with the prosecution that he evidence did not support the earlier finding of probable cause against the petitioner. This is non sequitur and is simply belied by the order that nonchalantly granted the motion to dismiss. Moreover, Judge Masadao categorically declined to pass upon the merits of the private respondent's motion for reconsideration of the dismissal of the criminal case against the petitioner, and chose to summarily deny the same on the ground of the private respondent's lack of personality 26 to revive the criminal charges against the petitioner. Second. The private respondent, as private complainant, had legal personality to assail the dismissal of the criminal case against the petitioner on the ground that the order of dismissal was issued with grave abuse of discretion amounting to lack or excess of jurisdiction. 27 In the case of Dela Rosa v. Court of Appeals , we held that: In a special civil action for certiorari filed under Section 1, Rule 65 of the Rules of Court wherein it is alleged that the trial court committed grave abuse of discretion amounting to lack of jurisdiction or on other jurisdictional grounds, the rules state that the petition may be filed by the person aggrieved. In such case, the aggrieved parties are the State and the private offended party or complainant. The complainant has an interest in the civil aspect of the case so he may file such special civil action questioning the decision or action of the respondent court on jurisdictional grounds. In so doing, the complainant should not bring the action in the name of the People of the Philippines. The action may be prosecuted in (the) name of the 28 said complainant. Thus, while it is only the Solicitor General that may bring or defend actions on behalf of the Republic of the Philippines, or represent the People or State in criminal proceedings pending in the Supreme Court and the Court of 29 Appeals, the private offended party retains the right to bring a special civil action for certiorari in his own name in criminal proceedings before the courts of law. 30 Furthermore, our ruling in the case of Dee v. Court of Appeals allowing the private offended party to file a special civil action for certiorari to assail the order of the trial judge granting the motion to dismiss upon the directive of the Secretary of Justice is apropos . We held therein that although the correct procedure would have been to appeal the recommendation of the Secretary of Justice to the Office of the President, the said remedy was unavailable to

the private offended party as the penalty involved was neither reclusion 31 perpetua nor death. Hence, as no appeal, nor any plain, speedy, and adequate remedy in the ordinary course of law was available to the private offended party, filing of the petition for certiorari under Rule 65 of the Rules of 32 Court was proper. It follows, therefore, that if the private respondent in this case may file a special civil action for certiorari, then with more reason does it have legal personality to move for a reconsideration of the order of the trial court dismissing the criminal charges against the petitioner. In fact, as a general rule, a special civil action will not lie unless a motion for reconsideration is first filed before the respondent tribunal, to allow it an opportunity to correct 33 its assigned errors. In support of her position, petitioner invokes our ruling in Caes v. 34 Intermediate Appellate Court which, as correctly pointed out by the Court of Appeals, is not applicable to the case at bar. We quote with approval the Court of Appeals' incisive opinion on this matter: For one, Caes is a prosecution for illegal possession of firearms and marijuana, conviction for which would not entail any civil liability on the part of the accused. Here, the very nature of the offense charged, to wit: estafa thru falsification of commercial documents, immediately connotes damages for which the accused may be held civilly liable in case of conviction. . . . . For another there is no immediate and direct offended party in Caes. It was a simple case of violation of special laws where no particular person or individual stands as a victim of the offense charged. Such is not the situation in the case at bench. For here, the anomalous abstraction of funds in the petitioner's money shop directly and immediately inflicts financial damage to the petitioner. Then, too, in Caes, at stake is the constitutional right of the accused to a speedy trial. There, accused Joel B. Caes was a detention prisoner but the trial could not proceed because the prosecution witnesses repeatedly failed to appear, resulting in numerous postponements and resettings which lasted for more than one year. After the case was provisionally dismissed on motion of the prosecution, a prosecution witness whose non-appearance in court was the very cause for the dismissal, filed a motion to revive, which was granted by the trial judge. In vitiating the order of the revival, the Supreme Court did rule, among other things, that said witness has no personality to file the motion as only the prosecuting fiscal could. At the same time, however, the High Court stressed the right of the accused to a speedy trial and ruled as permanent the prior dismissal of the case even as the lower court termed is as merely "provisional" .... xxx xxx xxx Finally, it must be emphasized herein that unlike in Caes where the prosecution witness who filed the motion to revive could have easily

asked the public prosecutor himself to file said motion, here, such an alternative is simply unthinkable for the simple reason that the public prosecutor, albeit originally for the inclusion of the herein private respondent in the information, was the very one who filed the amended information upon the direction of his superior, the Secretary of Justice. In short, while there does not exist a conflict of position between the prosecution witness and the public prosecutor in Caes, the present case presents the sad spectacle of an offended party very much anxious to prosecute an accused but the public prosecutor who must have shared the same interest, had to move for the exclusion of said accused because he was ordered by his boss.
35

Third, This Court cannot pass upon the sufficiency or insufficiency of the evidence against the petitioner. As a general rule, the determination of probable cause is not lodged with this Court. 1wphi1 Our duty in an appropriate case is confined to the issue of whether the executive or judicial determination, as the case may be, of probable cause was done without or in excess of jurisdiction or with grave abuse of discretion amounting to want of jurisdiction. This is consistent with the general rule that criminal prosecutions may not be restrained or stayed 36 37 by injunction, preliminary or final. There are, however, exceptions to this rule, none of which are obtaining in the case now before us. WHEREFORE, the petition is DENIED and the decision of the Court of Appeals dated February 23, 1996 in CA-G.R. SP No. 36742 is hereby AFFIRMED. 1wphi1.nt SO ORDERED. Bellosillo, Mendoza, Quisumbing and Buena, JJ., concur. Footnotes 1 Decision of the Court of Appeals dated February 26, 1996 in CAG.R. SP No. 36742 entitled "HAGONOY RURAL BANK, INC. versus HON. D. ROY A. MASADAO, JR., Judge, RTC, Malolos, Bulacan, Branch 9; HON. SECRETARY OF JUSTICE, PROSECUTOR JESUS Y. MANARANG, PEOPLE OF THE PHILIPPINES and CRISTINA PEREZ." 2 Issued by Judge D. Roy A. Masadao of Branch 9 of the Regional Trial Court (RTC) of Malolos Bulacan. 3 THE PEOPLE OF THE PHILIPPINES versus CRISTINA PEREZ, CRISTINA MEDINA, ALBERTO FABIAN, MILAGROS MARTIN and SUSAN JORDAN. 4 ANNEX "A" of the Petition, pp. 1-2, Rollo, pp. 42-43. 5 Id., p. 3, Rollo, p. 44. 6 ANNEX "D" of the Petition, p. 17, Rollo, p. 95. 7 Supra, see note 4, p. 10, Rollo, p. 50.

8 9

ANNEX "E" of the Petition, p. 3, Rollo, p. 98. Supra, see note 7. 10 ANNEX "G" of the Petition, Rollo, p. 99. 11 ANNEX "I" of the Petition, Rollo, p. 108. 12 ANNEX "H" of the Petition, p. 1, Rollo, p. 104. 13 ANNEX "K" of the Petition, pp. 1-2, Rollo, pp. 110-111. 14 Supra, see note 4, p. 23, Rollo, p. 63. 15 Petition, pp. 11-12, Rollo, pp. 19-20. 16 ANNEX "H" of the Petition, Rollo, p 104. 17 ANNEX "J" of the Petition, Rollo, p. 109. 18 151 SCRA 462 (1987). 19 237 SCRA 575 (1994). 20 Id., pp. 585-586. See also Dee vs. Court of Appeals, 238 SCRA 254, 265 (1994); Roberts vs. Court of Appeals, 254 SCRA 307, 333334 (1996). 22 Ibid. 23 Ibid. 24 Petitioner's Memorandum, pp. 11-12, Rollo, pp. 174-175. 25 See note 19, supra at p. 584. 26 ORDER xxx xxx xxx The Court declines to pass upon the merits, or lack of it, of the aforementioned motion for reconsideration. Suffice it to be said that the Court holds the view that the private prosecutor has no legal personality to file such motion for reconsideration in the light of the ruling in Caes vs. Intermediate Appellate Court, 179 SCRA 54, 58-59: "It is axiomatic that the prosecution of a criminal case is the responsibility of the government prosecutor and must always be under his control. This is true even if a private prosecutor is allowed to assist him and actually handles the examination of the witnesses and the introduction of other evidence. The witnesses, even if they are the complaining witnesses cannot act for the prosecutor in the handling of the case. . . . they have no personality to move for its dismissal or revival as they are not even parties thereto nor do they represent the parties to the action. Their only function is to testify. In a criminal prosecution, the plaintiff is represented by the government prosecutor, or one acting under his authority, and by no one else." xxx xxx xxx WHEREFORE, premises considered, the Motion for Reconsideration and Immediate Suspension of the Implementation of the Assailed Order filed by offended party Hagonoy Rural Bank, Inc. thru a private prosecutor is hereby DENIED due course.

xxx xxx xxx SO ORDERED. 27 253 SCRA 499 (1996). 28 Id., p. 507; People vs. Santiago, 174 SCRA 143, 153 (1989). 29 Memorandum of the Office of the Solicitor General, p. 16, Rollo. p. 211. 30 238 SCRA 254 (1994). 31 Memorandum Circular No. 1266, in relation to Memorandum Circular No. 1294 dated Nov. 4, 1993: In the interest of the speedy administration of justice and in order to avoid undue and unnecessary involvement of the Presidency in adversary suits before the courts, the following guidelines are hereby prescribed in appeals/reviews of resolutions in preliminary investigations of criminal cases. When complainants and/or respondents petition for an appeal/review by the President of investigations conducted by Provincial/City Fiscals and resolved on appeal by the Ministry of Justice, the petition shall not be given due course and shall be forthwith denied, except that in offenses punishable by reclusion perpetua to death wherein new and material issues are raised which were not previously presented before the Ministry of Justice and were nor ruled upon in the subject resolution by the Ministry of Justice, the President may order the Ministry of Justice to reopen/review the case provided that the prescription of the offense is not due to lapse within six (6) months from notice of the questioned resolution, and provided further that the petitioner for appeal/review is filed within thirty (30) days from such notice. Cited in Dee vs. Court of Appeals, see note 30, supra at p. 262. 32 See note 30, supra at pp. 261-262. 33 Macawiwili Gold Mining and Development Co., Inc. vs. Court of Appeals, 297 SCRA 602, 611 (1998) citing Lasco vs. United Nations Revolving Fund for Natural Resources, 241 SCRA 681, 684 (1995). 34 179 SCRA 54 (1989). 35 See note 4, s upra at pp. 15-16, Rollo, pp. 55-56. 36 Roberts, Jr. v. Court of Appeals, see note 20, supra at p. 345 a. To afford adequate protection to the constitutional right of the accused (Hernandez vs. Albano, et al., L-19272, January 25, 1967, 19 SCRA 95); b. When necessary for the orderly administration of justice or to avoid oppression or multiplicity of actions (Dimayuga, et al. vs. Fernandez. 43 Phil. 304; Hernandez vs. Albano supra; Fortun vs. Labang,. et al., L-38383, May 27, 1981; 104 SCRA 607);

c. When there is a pre-judicial question which is sub-judice (De Leon vs. Mabanag, 70 Phil. 202); d. When the act of the officer are without or in excess of authority (Planas vs. Gil, 67 Phil. 62); e. Where the prosecution is under an invalid law, ordinance regulation (Young vs. Rafferty, 33 Phil. 556; Yu Cong Eng vs. Trinidad, 47 Phil. 385, 389); f. When double jeopardy is clearly apparent (Sangalang vs. People and Alvendia 109 Phil. 1140); g. Where the court has no jurisdiction over the offense (Lopez vs. City Judge L-25795, October 29, 1966, 18 SCRA 616); h. Where it is a case of persecution rather than prosecution (Rustia vs. Ocampo CA-G R No. 4760, March 25, 1960); i. Where the charges are manifestly false and motivated by the lust for vengeance (Recto vs. Castelo, 18 L. J. [1953], cited in Raoa vs. Alvendia, CA-G.R. No. 30720-R. October 8, 1962. Cf. Guingona, et al., vs. City Fiscal, L-60033: April 4, 1984 128 SCRA 577), and j. Where there is clearly no prima facie case against the accused and a motion to quash on that ground has been denied (Salonga vs. Pao, et al., L-59524, February 18, 1985 134 SCRA 438) Cited in Roberts vs. Dee, supra at p. 345.

G.R. No. 129417 February 10, 1998 COMMISSION ON ELECTIONS, petitioner, vs. HON. LORENZO R. SILVA, JR., as Presiding Judge, RTC, Branches 2 and 3, Balanga, Bataan, HON. BENJAMIN T. VIANZON, as Presiding Judge, Branch 1, of the same Court, ERASTO TANCIONGCO, and NORMA CASTILLO, respondents. MENDOZA, J.: This case presents for determination the extent of control which those designated by the Commission on Elections have in the prosecution of election offenses. The facts are not in dispute. Pursuant to its power under Art. IX-C, 2(6) of the Constitution, the COMELEC charged private respondents Erasto Tanciongco and Norma Castillo with violations of 27 of R.A. No. 6646, together with Zenon Uy, in twelve separate informations filed with the Regional Trial Court of Bataan. Tanciongco, who is provincial prosecutor of Bataan, was vice chairman, while Castillo, who is division superintendent of schools, was secretary of the Provincial Board of Canvassers of Bataan. Uy, who is assistant regional director of elections, was chairman of the board. In each information, the three were accused of having tampered, in conspiracy with one another, with the certificates of canvass by increasing the votes received by then senatorial candidate Juan Ponce Enrile in certain municipalities of Bataan in the May 8, 1995 elections. The twelve cases were raffled to three branches of the court presided over the respondent judges, Honorable Lorenzo R. Silva Jr. (Branches 2 and 3) and Honorable Benjamin T. Vianzon (Branch 1). On October 30, 1996, Tanciongco and Castillo filed a joint "Omnibus Motion for Examination of Evidence to Determine the Existence of Probable Caus e; Suspension of Issuance of Warrant of Arrest; and Dismissal of the Cases." Chief State Prosecutor Jovencito Zuo, who had been designated by the Commission on Elections to prosecute the cases, filed a comment joining in private respondents' request. On the other hand, the complainant, Aquilino Q. Pimentel, Jr. expressed no objection to the dismissal of the cases against the 1 two. In orders dated March 31, and April 7, 1997, respectively, Judges Silva and 2 Vianzon summarily dismissed the cases against private respondents. The COMELEC sought to appeal the dismissal of the cases to the Court of 3 Appeals by filing notices on April 18, 1997, but the judges denied due course to its appeal. The sole basis for the denials was the fact that the prosecutor, whom the COMELEC had deputized to prosecute the cases, had earlier taken a contrary stand against the COMELEC.

Thus, in his order, dated May 16, 1997, denying due course to the Notice of Appeal of the COMELEC in Criminal Case Nos. 6439, 6441, 6443, 6445, 6646, 6647, and 6470, Judge Silva, Jr. stated: A Notice of Appeal dated April 18, 1997, in the above-entitled cases was filed on April 23, 1997 by Jose P. Balbuena, Director IV, Law Department, Commission on Elections, from the Order of the Court dated March 31, 1997, insofar as it dismissed the above-entitled cases as regards the accused Erasto Tanciongco and Norma P. Castillo. Chief State Prosecutor Jovencito Zuo who has been authorized by the Commission on Elections to prosecute the cases, was required to comment on the Notice of Appeal which does not bear his signature. In his comment dated May 9, 1997, the Chief State Prosecutor states that he cannot give his conformity to the Notice of Appeal filed by Jose P. Balbuena of the Comelec as it would not be consistent with his position that he would abide by whatever finding the court may come up with on the existence of probable cause as against the accused Erasto Tanciongco and Norma Castillo. Consequently, the notice of appeal filed by Jose P. Balbuena is unauthorized and without legal effect. WHEREFORE, the Notice of Appeal dated April 13, 1997, filed by 4 Jose P. Balbuena is denied due course. SO ORDERED. Judge Vianzon took a similar course in Criminal Case Nos. 6438, 6440, 6442, 6444 and 6471. In his ordedr of May 23, 1997, he stated: Considering that Chief State Prosecutor Jovencito R. Zuo has filed his comment to the Notice of Appeal filed by Director Jose P. Balbuena of the COMELEC, manifesting his non-conformity with the same because of his previous commitment to abide by the ruling of this court on the Omnibus Motion filed by accused Tanciongco and Castillo and the Motion to Quash filed by accused Uy, and considering further that Chief State Prosecutor has been duly deputized by the COMELEC en banc to handle the prosecution of this case, the said Notice of Appeal is hereby DENIED. 5 SO ORDERED. Hence this petition for certiorari and mandamus seeking the nullification of the orders of the two judges, denying due course to the Notices of Appeal of 6 the COMELEC. The issue is not just the right of the prosecution to appeal from the previous orders of dismissal. It is settled that the approval of a notice of appeal, in cases where no record on appeal is required by law, is a ministerial duty of the court to which the notice of appeal is addressed, provided that such 7 appeal is timely filed. Of course in criminal cases the prosecution cannot appeal if the accused would thereby be placed in double jeopardy, but here the cases were dismissed by the judges before the accused were arraigned and, therefore, jeopardy has not attached.

For while the right to appeal is statutory and is not constitutional, once it is granted by statute, its denial would be a violation of the due 8 process clause of the Constitution. The ultimate question concerns the authority of the COMELEC prosecutor. More precisely, the question is, who has authority to decide whether or not to appeal from the orders of dismissal the COMELEC or its designated prosecutor? The trial courts held the view that the Chief State Prosecutor's decision not to appeal the dismissal of the cases, consistent with his earlier decision to leave the determination of the existence of probable cause to the trial courts, was binding on them. We think this view to be mistaken. The authority to decide whether or not to appeal the dismissal belongs to the COMELEC. Art. IX-C, 2(6) of the Constitution expressly vests in it the power and function to "investigate and, where appropriate, prosecute cases of violations of election laws, including acts or omissions constituting election frauds, offenses, and malpractices." As this Court has held: In effect the 1987 Constitution mandates the COMELEC not only to investigate but also to prosecute cases of violation of election laws. This means that the COMELEC is empowered to conduct preliminary investigations in cases involving election offenses for the purpose of helping the Judge determine probable cause and for filing an 9 information in court. This power is exclusive with COMELEC. Indeed, even before the present Constitution, the Omnibus Election Code (B.P. Blg. 881) and, before it, the 1971 Election Code (R.A. No. 6388) and the 1978 Election Code (P.D. No. 1296) already gave the COMELEC the exclusive power to conduct preliminary investigation of all election offenses 10 and to prosecute them in court. The purpose is to place in the hands of an independent prosecutor the investigation and prosecution of election 11 offenses. Prosecutors designated by the COMELEC to prosecute the cases act as its 12 deputies. They derive their authority from it and not from their offices. Consequently, it was beyond the power of Chief State Prosecutor Zuo to oppose the appeal of the COMELEC. For that matter, it was beyond his power, as COMELEC-designated prosecutor, to leave to the trial courts the determination of whether there was probable cause for the filing of the cases and, if it found none, whether the cases should be dismissed. Those cases were filed by the COMELEC after appropriate preliminary investigation. If the Chief State Prosecutor thought there was no probable cause for proceeding against private respondents, he should have discussed the matter with the COMELEC and awaited its instruction. If he disagreed with the COMELEC's findings, he should have sought permission to withdraw from the cases. But he could not leave the determination of probable cause to the courts and agree in advance to the dismissal of the cases should the courts find no probable cause for proceeding with the trial of the accused. It was, therefore, grave abuse of discretion on the part of the respondent judges to rely on the

manifestation of Chief State Prosecutor Zuo as basis for denying due course to the notices of appeal filed by the COMELEC. Whether respondent judges also erred in dismissing the cases filed by the COMELEC indeed, whether the trial courts at that stage were justified in inquiring into the existence of probable cause because of exceptional 13 reasons must be determined in the appeal after it is allowed. Here we only hold that whether the orders of dismissal should be appealed is for the COMELEC to decide, not for Chief State Prosecutor Zuo whom it has merely deputized to represent in it court. Private respondents have nothing to say on this question. Their sole contention is that the petition should be dismissed because, so it is argued, it should have been brought in the name of the People of the Philippines and have been filed by the Solicitor General. This contention is without merit. This is not the first time the COMELEC has come to this Court in its own name in regard to an action taken against it in cases filed by it in the lower courts. In Commission on Elections v. Court of 14 Appeals the COMELEC's right to appeal from the decision of the Court of Appeals dismissing a criminal case filed by it was sustained. This Court said: The COMELEC has sufficient interest in filing the petition [for certiorari] to set aside the decision of the Court of Appeals having sustained the demurrer to evidence in the criminal vase against private respondent for violation of the Election Laws. This is so, for it is not only entrusted with the duty to enforce the said law but also to prosecute all election offenses. Under the Constitution, the COMELEC has the power to "prosecute cases of violations of election laws, including acts or omissions constituting election frauds, offenses, and malpractices" (Art. IX [C], Sec. 2[6]), and under the Omnibus Election Code, (BP Blg. 881), it may avail of the assistance of other prosecution arms of the government (Sec. 265). Thus, the COMELEC Rules of Procedure gave the Chief State, Provincial and City Prosecutors a continuing authority "as disputes" to prosecute offenses punishable under the Election laws (COMELEC Rules of Procedure, Part 12, Rule 34, Sec. 2). We have allowed government agencies to handle their cases before 15 appellate courts, to the exclusion of the Solicitor General. 16 In Commission on Elections v. Romillo the right of the COMELEC to file a petition for certiorari and mandamus to question the dismissal of criminal cases which it had filed for violation of the Election Code was assumed. Although the petition was eventually dismissed, the ruling was based not on the lack of authority of the COMELEC to file the petition but on this Court's determination that the dismissal of the criminal cases by the trial court was correct, considering that the evidence was insufficient. Indeed, under the Rules of Court, the proper party who can file a petition for certiorari, prohibition or mandamus is the person "aggrieved" by the action of a tribunal, board or official because such action was taken without or in

excess of jurisdiction or with grave abuse of discretion or in willful neglect of 17 duty. In contrast to an appealed case which is brought in the name of the parties in the court of origin and for this reason retains its title below, the 18 case, which is an original action, is brought by him. In this case, denied by the courts below the authority to prosecute the criminal actions because they recognized instead the Chief State Prosecutor as the representative of the People, the COMELEC had to bring this suit to seek vindication of its authority. Naturally, the petition has to be brought in its name as the "aggrieved" party. In Assistant Provincial Fiscal of Bataan v. 19 Dollete, this Court granted a petition for certiorari, which the fiscal had filed in his name, to annul an order of the trial court denying his right to make an independent examination of the witnesses for the prosecution for the purpose of satisfying himself of the sufficiency of the evidence. Considering the authority of the COMELEC over the prosecution of election offenses, its decision to bring this instant petition for certiorari and mandamus is conclusive on the Solicitor General. It would simply be a matter of referring this case to the Solicitor General so that, if he agrees, he may take over the conduct of this case. Otherwise, the COMELEC could just continue handling this case as it has actually done. Hence, the omission of the COMELEC to refer this petition to the Office of the Solicitor General for representation should be disregarded. To make the filing of this case depend on his decision would be to place him in the same position in which respondent judges placed Chief State Prosecutor Zuo. That would further negate the constitutional function of the COMELEC. WHEREFORE, the petition if GRANTED. The orders dated May 16, 1997 and May 23, 1997 of respondent judges are hereby SET ASIDE as null and void and respondent judges are ORDERED to give due course to the appeals of petitioner from their respective orders in Criminal Case Nos. 6438, 6440, 6442, 6444 and 6471 (filed in Branch 1); Criminal Case Nos. 6439, 6441, 6443, 6445, 6446 and 6470 (filed in Branch 2); and Criminal Case No. 6447 (filed in Branch 3). SO ORDERED. Narvasa, C.J., Regalado, Davide, Jr., Romero, Puno, Vitug, Kapunan, Francisco, Panganiban, Martinez, Quisumbing and Purisima, JJ., concur. Bellosillo and Melo, JJ., concur in the result. Footnotes 1 Rollo, pp. 79 and 81. 2 Id., pp. 80 and 85. 3 Id., pp. 86 and 88. 4 Id., p. 91 5 Rollo, p. 92. 6 The COMELEC alleges in its petition: 1. This is a petition for certiorari and mandamus under Rule 65 of the Revised Penal Code of Court, to declare as null and void the Orders issued by respondents Judge Lorenzo R. Silva, Jr., and Judge Benjamin T. Vianzon, of the

Regional Trial Court, Branches 1, 2 and 3, Balanga, Bataan, namely: (a) Order dated May 16, 1997, denying due course to the Notice of Appeal dated April 18, 1997, filed by petitioner from the Order dated March 31, 1997, in Crim. Cases Nos. 6439, 6441, 6446, 6443, 6445, 6470, and 6447, and (b) Order dated My 23, 1997, denying due course to the Notice of Appeal dated April 18, 1997, filed by petitioner from the Order dated March 31, 1997, in Crim. Cases Nos. 6438, 6440, 6442, 6444 and 6471, and to compel said respondent Judges to approve the notice of appeal filed by petitioner in the aforesaid cases. 7 See 1997 Rules of Civil Procedure, Rule 41; Santos v. Court of Appeals, 253 SCRA 632 (1996). 8 Estoya v. Abraham-Singson, 237 SCRA 1, 19 (1994.) 9 People v. Inting, 187 SCRA 788, 799 (1990). 10 The OMNIBUS ELECTION CODE provides: "Sec. 265. Prosecution The Commission shall, through its duly authorized legal officers, have the exclusive power to conduct preliminary investigation of all election offenses punishable under this Code, and to prosecute the same. The Commission may avail of the assistance of other prosecuting arms of the government: Provided, however, That in the event that the Commission fails to act on any complaint within four months from his filing, the complainant may file the complaint with the office of the fiscal or with the Ministry of Justice for proper investigation and prosecution, if warranted." 11 Compare De Jesus v. People, 120 SCRA 760, 765-766 (1983): "The grant to the COMELEC of the power, among others, to enforce and administer all laws relative to the conduct of election and the concomitant authority to investigate and prosecute election offenses is not without compelling reason. The evident constitutional intendment in bestowing this power to the COMELEC is to insure the free, orderly and honest conduct of elections, failure of which would result in the frustration of the true will of the people and make a mere idle ceremony of the sacred right and duty of every qualified citizen to vote. To divest the COMELEC of the authority to investigate and prosecute offenses committed by public officials in relation to their office would thus seriously impair its effectiveness in achieving this clear

constitutional mandate." Reiterated in Corpus v. Tanodbayan, 149 SCRA 281, 283 (1987). 12 People v. Basilla, 179 SCRA 87 (1989); People v. Inting, 187 SCRA 788 (1990). 13 Unless there are exceptional circumstances justifying inquiry, such as those enumerated by this Court in Broka v. Enrile, 192 SCRA 183, 188-189 (1990), it is to be presumed that in filing cases in court, the prosecutor found probable cause. If a court inquires at all into the existence of probable cause, it is only for the purpose of determining whether a warrant of arrest should issue, but not whether the cases should be dismissed (See Roberts, Jr. v. Court of Appeals, 254 SCRA 307, 349 (1996) (Narvasa, C.J., concurring); Webb v. De Leon, 247 SCRA 652 (1995). 14 229 SCRA 501 (1994). 15 Id., at 505. 16 158 SCRA 716 (1988). 17 Rule 65, 1-3. 18 Rule 44, 1. 19 103 Phil. 914 (1958).

G.R. No. L-8558 September 28, 1955 LEODEGARIO BENGA-ORAS, petitioner, vs. JOSE EVANGELISTA, Judge of the Court of First Instance, First Branch, Capiz and THE PEOPLE OF THE PHILIPPINES, respondents. Roman Ibaez and Pedro M. Bermejo for petitioner. Office of the Solicitor General Ambrosio Padilla and Solicitor Troadio T. Quiazon, Jr., for respondent. BAUTISTA ANGELO, J.: This is a petition for certiorari seeking to set aside the order of respondent judge entered on September 14, 1954 which denies the motion to dismiss filed by petitioner on the ground of lack of jurisdiction. Norma Ballos, a girl fourteen years old, was allegedly abducted against her will by petitioner in the night of February 27, 1954 and so her father Silvestre filed a complaint for abduction against him before the Justice of the Peace Court of Pontevedra, Capiz. When the case was elevated to the court of first instance, the fiscal on May 18, 1954, filed an information for the same crime in accordance with law. On August 6, 1954, petitioner filed a motion to dismiss challenging the jurisdiction of the court on the ground that the complaint which served as basis of the information was not signed by the offended party, who was already of the age of discernment, but merely by her father, and as such it did not confer jurisdiction upon the court. The fiscal objected to the motion in a well-written opposition, and on September 14, 1954, the court denied the motion. Hence this petition for certiorari. The complaint which gave rise to the present case is predicated on Article 344 of the Revised Penal Code the pertinent portion of which reads: The offenses of seduction, abduction, rape or acts of lasciviousness, shall not be prosecuted except upon a complaint filed by the offended party or her parents, grandparents, or guardian, nor, in any case, if the offender has been expressly pardoned by the above named persons, as the case may be. It is the contention of petitioner that under the above legal provision the offended party has the preferential right to file the complaint even if she is a minor as long as she has the age of discernment and if she fails to do so, unless she is otherwise disqualified, the complaint does not confer jurisdiction upon the court. In support of his contention, he cites a decision of the Court of Appeals wherein this view was expressed: "The right to file is exclusively and successively reposed in the persons mentioned in the said provision in the order in which they are named. The law gives the offended person a preferential right, placing him or her in the first rank for the filing of

the complaint although he or she is not of age." (People vs. Mapotol, CA 35 Off. Gaz. No. 60 p. 1153) It appears however that the view above expressed has already been abandoned, the correct ruling being the one expressed by this Court in 1 Tolentino vs. De la Costa, 66 Phil., 100, to the effect that the law (Article 344 of the Revised Penal Code) "does not state or does not intend to state that the right of the offended party to file the complaint against the offender, in the cases mentioned, is hers exclusively in the sense that when she does not file the same, her parents, grandparents, or guardian cannot file it. What it means to say that it in fact says it, that when the offended party is a minor and she does not file a complaint, this may be done by her parents, grandparents or guardian, in the order named." (Emphasis supplied) Elaborating on this point, the Court said: Article 344 of the Revised Penal Code which contains the provisions that: "The offenses of seduction, abduction, rape or acts of lasciviousness, shall not be prosecuted except upon a complaint filed by the offended party or her parents, grandparents, or guardian, nor in any case, if the offender has been expressly pardoned by the above named persons, as the case may be", does not state or does not intend to state that the right of the offended party to file the complaint against the offender, in the cases mentioned, is hers exclusively in the sense that when she does not file the same, her parents, grandparents or guardian cannot file it. What it means to say and what it in fact says is, that when the offended party is a minor and she does not file the complaint, this may be done by her parents, grandparents or guardian, in the order named. It has thus been interpreted by this court in the case of Unites States vs. Bautista and in that of People vs. Roa, already cited, it having been held in the first of said cases that the preferred right of the offended party to take action against the offender, by filing the necessary complaint, is not exclusive of that of her parents, grandparents, or guardian, if she does not exercise it before reaching the age of majority. . . . We see no reason for altering this ruling, all the more so when it is considered that the offended party in the case under discussion is still a minor. She has not yet reached her 21 years at which majority begins, inasmuch as she was only 19 years on October 8, 1936 and, therefore, will not complete her 21 years until October, 1938. Alone, therefore, she is without capacity to protect herself, being, as she is, subject to patria potestas and legal guardianship of her parents. The case at bar comes squarely within the doctrine of the Tolentino case because here the offended party was still a minor when the complaint was filed. Her father was therefore within his right to file the complaint in the light of the doctrine we have mentioned. Of course, if she is already of age and is in complete possession of her mental and physical faculties no one would dispute her paramount right to avenge the wrong done to the exclusion of her

parents and other relatives mentioned in the law, as was stated in the case of U.S. vs. De la Costa, 9 Phil., 22. It is true that in U.S. vs. Bautista, 40 Phil., 735, this Court declared that a complaint filed by a minor confers jurisdiction upon the court, but such ruling merely passed upon the issue touching on the validity of a complaint filed by a minor and not on the question whether a complaint filed by her parents, she being a minor, is valid or not. On the contrary, from the context of the decision it may be inferred that if the offended party, who is under age, does not file or does not want to file the complaint against her offender, her parents may do so "being under obligation to render protection to those under their power and lawful guardianship and to represent them in the exercise of all the actions which may redound to their benefit." The right of the parents to take action to vindicate the wrong done to their minor children and to the whole family is justified by Groizard in the following wise: Now then, if according to the civil law, it is the father and in his absence the mother, and in the absence of both the guardian, to whom belongs the right to represent a minor in the exercise of all the actions which redound for his benefit; and if, according to the procedural law, a minor cannot appear at the hearing without his personal incapacity being substituted by the authority of the parents or guardian, how it can be admitted, against what sound principles teach, positive legislation has established and science has exalted, that the legislator has here intended to make a very serious exception, destitute of all foundations and full of dangers and fatal consequences to a minor? This is inadmissible, and, therefore, under sound interpretation, the spirit of the law must in this case, prevail over its letter. If this opinion need greater support, it would be found on the very ground that moved our, and almost all foreign, legislators to put insurmountable obstacles to the public prosecution for the crime of seduction, subjecting, up to a certain point, by very special reasons, the general interest consisting of the prosecution and punishment of all crimes to the interest of the aggrieved party and her family in that their vice or faults, their fame and honor may not be exposed to the public nor to the heated controversies before the courts of justice. . . . (U.S. vs. Bautista, 40 Phil., 742)1wphl.nt Petition is denied, without pronouncement as to cost. Bengzon, Acting C. J., Padilla, Montemayor, Reyes, A., Jugo, Labrador, Concepcion, and Reyes, J. B. L., JJ., concur.. Footnotes 1 This is a reiteration of the ruling laid down in People vs. Varela, G.R. No. 45564, June 9, 1937.