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2008 CRIMINAL PROCEDURE CASES

Case Title

SANTOS-CONCIO vs. DEPARTMENT OF JUSTICE (G.R. No. 175057 - January 29,2008)

BOISER, vs. PEOPLE OF THE PHILIPPINES (G.R. No. 180299 - January 31, 2008)

BALANGAUAN vs. COURT OF APPEALS (G. R. No. 174350 - August 13, 2008)

SANTOS vs BERNARDO (AM No. MTJ-07-1670 - July 23, 2008)

MENDOZA vs. ALARMA (G.R. No. 151970 - May 7, 2008)

JOSE vs. SUAREZ (G.R. No. 176795 - June 30, 2008)

GALO MONGE vs. PEOPLE OF THE PHILIPPINES (G.R. No. 170308 - March 7, 2008)

CRUZ vs. THE PEOPLE OF THE PHILIPPINES (G.R. No. 176504 - September 03,2008)

PEOPLE OF THE PHILIPPINES vs. ROSAS (G.R. No. 177825 -

FERRER, vs. SANDIGANBAYAN (G.R. No. 161067 - March 14, 2008)

MA. ROSARIO SANTOS-CONCIO, MA. SOCORROV. VIDANES, MARILOU ALMADEN, CIPRIANOLUSPO, MORLY STEWART NUEVA, HAROLDJAMES NUEVA, NORBERT VIDANES, FRANCISCORIVERA, MEL FELICIANO, and JEAN OWENERCIA, vs.DEPARTMENT OF JUSTICE, HON. RAUL M.GONZALEZ, as Secretary of the Department ofJustice, NATIONAL CAPITAL REGION -NATIONAL BUREAU OF INVESTIGATION, PANELOF INVESTIGATING PROSECUTORS createdunder Department of Justice DepartmentOrder No. 165 dated 08 March 2006, LEO B.DACERA III, as Chairman of the Panel ofInvestigating Prosecutors, and DEANA P.PEREZ, MA. EMILIA L. VICTORIO, EDEN S.WAKAY-VALDES and PETER L. ONG, asMembers of the Panel of InvestigatingProsecutors, the EVALUATING PANEL createdunder Department of Justice DepartmentOrder No. 90 dated 08 February 2006,JOSELITA C. MENDOZA as Chairman of theEvaluating Panel, and MERBA WAGA, RUEL

LASALA and ARNOLD ROSALES, as Members ofthe Evaluating Panel, .G.R. No. 175057 January 29, 2008

D E C I S I O NCARPIO MORALES, J.:On challenge via petition for review on certiorari arethe Court of Appeals May 24, 2006 Decision andOctober 10, 2006 Resolution1 in CA-G.R. SP No.93763 dismissing herein petitioners’ petition forcertiorari and prohibition that sought to (i) annulrespondent Department of Justice (DOJ) DepartmentOrder Nos. 902 and 1653 dated February 8, 2006 andMarch 8, 2006, respectively, and all orders,proceedings and issuances emanating therefrom,and (ii) prohibit the DOJ from further conducting apreliminary investigation in what has been dubbedas the "Ultra Stampede" case. In the days leading to February 4, 2006, peoplestarted to gather in throngs at the Philsports Arena(formerly Ultra) in Pasig City, the publicized site ofthe first anniversary episode of "Wowowee," anoontime game show aired by ABS-CBNBroadcasting Corporation (ABS-CBN). With highhopes of winning the bonanza, hundreds queued fordays and nights near the venue to assurethemselves of securing tickets for the show. Littledid they know that in taking a shot at instantfortune, a number of them would pay the ultimatewager and place their lives at stake, all in the nameof bagging the prizes in store.Came the early morning of February 4, 2006 withthousands more swarming to the venue. Hoursbefore the show and minutes after the people wereallowed entry through two entry points at six o’clockin the morning, the obstinate crowd along Capt.Javier Street jostled even more just to get close tothe lower rate pedestrian gate. The mad rush of theunruly mob generated much force, triggering thehorde to surge forward with such momentum thatled others to stumble and get trampled upon by theapproaching waves of people right after the gateopened. This fatal stampede claimed 71 lives, 69 ofwhom were women, and left hundreds wounded4

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which necessitated emergency medical support andprompted the cancellation of the show’s episode. The Department of Interior and Local Government(DILG), through then Secretary Angelo Reyes,immediately created an inter-agency fact-findingteam5 to investigate the circumstances surroundingthe stampede. The team submitted its report6 to theDOJ on February 7, 2006. By Department Order No. 90 of February 8, 2006,respondent DOJ Secretary Raul Gonzalez (Gonzalez)constituted a Panel (Evaluating Panel)7 to evaluatethe DILG Report and "determine whether there issufficient basis to proceed with the conduct of apreliminary investigation on the basis of thedocuments submitted." The Evaluating Panel later submitted to Gonzalez aFebruary 20, 2006 Report8 concurring with the DILGReport but concluding that there was no sufficientbasis to proceed with the conduct of a preliminaryinvestigation in view of the following considerations:

a) No formal complaint/s had beenfiled by any of the victims and/ortheir relatives, or any lawenforcement agency authorized to filea complaint, pursuant to Rule 110 ofthe Revised Rules of CriminalProcedure;b) While it was mentioned in the Fact-Finding Report that there were 74deaths and 687 injuries, nodocuments were submitted to provethe same, e.g. death certificates,autopsy reports, medical certificates,etc.;c) The Fact-Finding Report did notindicate the names of the personsinvolved and their specificparticipation in the "Ultra Incident"; d) Most of the victims did notmention, in their sworn statements,the names of the persons whom theyalleged to be responsible for the"Ultra Incident".9

Respondent National Bureau of Investigation-National Capital Region (NBI-NCR), acting on theEvaluating Panel’s referral of the case to it forfurther investigation, in turn submitted to the DOJan investigation report, by a March 8, 2006transmittal letter (NBI-NCR Report10), withsupporting documents recommending the conductof preliminary investigation for RecklessImprudence resulting in Multiple Homicide andMultiple Physical Injuries11 against petitioners andseven others12 as respondents. Acting on the recommendation of the NBI-NCR,Gonzalez, by Department Order No. 165 of March 8,2006, designated a panel of state prosecutors13

(Investigating Panel) to conduct the preliminaryinvestigation of the case, docketed as I.S. No. 2006-291, "NCR-NBI v. Santos-Concio, et al.," and ifwarranted by the evidence, to file the appropriateinformation and prosecute the same before theappropriate court. The following day or on March 9,2006, the Investigating Panel issued subpoenas14

directing the therein respondents to appear at thepreliminary investigation set on March 20 and 27,2006. At the initial preliminary investigation, petitionerssought clarification and orally moved for theinhibition, disqualification or desistance of theInvestigating Panel from conducting theinvestigation.15 The Investigating Panel did notformally resolve the motion, however, as petitionersmanifested their reservation to file an appropriatemotion on the next hearing scheduled on March 27,2006, without prejudice to other remedies.16 On March 23, 2006, petitioners filed a petition forcertiorari and prohibition with the Court of Appealswhich issued on March 27, 2006 a Resolution17

granting the issuance of a temporary restrainingorder,18 conducted on April 24, 2006 a hearing onthe application for a writ of preliminary injunction,and subsequently promulgated the assailed twoissuances. In the meantime, the Investigating Panel, byResolution19 of October 9, 2006, found probablecause to indict the respondents-herein petitioners

for Reckless Imprudence resulting in MultipleHomicide and Physical Injuries, and recommendedthe conduct of a separate preliminary investigationagainst certain public officials.20 Petitioners’ Motionfor Reconsideration21 of the said October 9, 2006Resolution, filed on October 30, 2006 "withabundance of caution," is pending resolution, and inthe present petition they additionally pray for itsannulment. In asserting their right to due process, specifically toa fair and impartial preliminary investigation,petitioners impute reversible errors in the assailedissuances, arguing that:

Respondents have already prejudgedthe case, as shown by the publicdeclarations of Respondent Secretaryand the Chief Executive, and have,therefore, lost their impartiality toconduct preliminary investigation.Respondents have already prejudgedthe case as shown by the indecenthaste by which the proceedings wereconducted.The alleged complaint-affidavits filedagainst Petitioners were not underoath.The supposed complaint-affidavitsfiled against Petitioners failed to statethe acts or omissions constituting thecrime. Although Respondents may have thepower to conduct criminalinvestigation or preliminaryinvestigation, Respondents do nothave the power to conduct both inthe same case.22 (Emphasis andunderscoring supplied)

The issues shall, for logical reasons, be resolved inreverse sequence. On the Investigatory Power of the DOJIn the assailed Decision, the appellate court ruledthat the Department Orders were issued within thescope of authority of the DOJ Secretary pursuant to

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the Administrative Code of 198723 bestowinggeneral investigatory powers upon the DOJ. Petitioners concede that the DOJ has the power toconduct both criminal investigation and preliminaryinvestigation but not in their case,24 they invokingCojuangco, Jr. v. PCGG.25 They posit that inCojuangco, the reshuffling of personnel was notconsidered by this Court which ruled that the entitywhich conducted the criminal investigation isdisqualified from conducting a preliminaryinvestigation in the same case. They add that theDOJ cannot circumvent the prohibition by simplycreating a panel to conduct the first, and another toconduct the second. In insisting on the arbitrariness of the twoDepartment Orders which, so they claim, paved theway for the DOJ’s dual role, petitioners trace thebasis for the formation of the five-prosecutorInvestigating Panel to the NBI-NCR Report whichwas spawned by the supposed criminalinvestigation26 of the Evaluating Panel the membersof which included two, albeit different, prosecutors.While petitioners do not assail the constitution ofthe Evaluating Panel,27 they claim that it did not justevaluate the DILG Report but went further andconducted its own criminal investigation byinterviewing witnesses, conducting an ocularinspection, and perusing the evidence.Petitioners’ position does not lie. Cojuangco wasborne out of a different factual milieu. In Cojuangco, this Court prohibited the PresidentialCommission on Good Government (PCGG) fromconducting a preliminary investigation of thecomplaints for graft and corruption since it hadearlier found a prima facie case – basis of itsissuance of sequestration/freeze orders and thefiling of an ill-gotten wealth case involving the sametransactions. The Court therein stated that it is"difficult to imagine how in the conduct of suchpreliminary investigation the PCGG could evenmake a turn about and take a position contradictoryto its earlier findings of a prima facie case," and soheld that "the law enforcer who conducted thecriminal investigation,

gathered the evidence and thereafter filed thecomplaint for the purpose of preliminaryinvestigation cannot be allowed to conduct thepreliminary investigation of his own complaint."28

The present case deviates from Cojuangco.The measures taken by the Evaluating Panel do notpartake of a criminal investigation, they havingbeen done in aid of evaluation in order to relate theincidents to their proper context. Petitioners’ ownvideo footage of the ocular inspection discloses thispurpose. Evaluation for purposes of determiningwhether there is sufficient basis to proceed with theconduct of a preliminary investigation entails notonly reading the report or documents in isolation,but also deems to include resorting to reasonablynecessary means such as ocular inspection andphysical evidence examination. For, ultimately, anyconclusion on such sufficiency or insufficiencyneeds to rest on some basis or justification. Had the Evaluating Panel carried out measurespartaking of a criminal investigation, it would havegathered the documents that it enumerated aslacking. Notatu dignum is the fact that theEvaluating Panel was dissolved functus oficio uponrendering its report. It was the NBI, a constituentunit29 of the DOJ, which conducted the criminalinvestigation. It is thus foolhardy to inhibit theentire DOJ from conducting a preliminaryinvestigation on the sheer ground that the DOJ’sconstituent unit conducted the criminalinvestigation. Moreover, the improbability of the DOJ contradictingits prior finding is hardly appreciable. It bearsrecalling that the Evaluating Panel found nosufficient basis to proceed with the conduct of apreliminary investigation. Since the EvaluatingPanel’s report was not adverse to petitioners,prejudgment may not be attributed "vicariously," soto speak, to the rest of the state prosecutors.Partiality, if any obtains in this case, in fact weighsheavily in favor of petitioners. On the Alleged Defects of the ComplaintOn the two succeeding issues, petitioners fault theappellate court’s dismissal of their petition despite,

so they claim, respondents’ commission of graveabuse of discretion in proceeding with thepreliminary investigation given the fatal defects inthe supposed complaint.Petitioners point out that they cannot be compelledto submit their counter-affidavits because the NBI-NCR Report, which they advert to as the complaint-affidavit, was not under oath. While they admit thatthere were affidavits attached to the NBI-NCRReport, the same, they claim, were not executed bythe NBI-NCR as the purported complainant, leavingthem as "orphaned" supporting affidavits without asworn complaint-affidavit to support.These affidavits, petitioners further point out,nonetheless do not qualify as a complaint30 withinthe scope of Rule 110 of the Rules of Court as theallegations therein are insufficient to initiate apreliminary investigation, there being no statementof specific and individual acts or omissionsconstituting reckless imprudence. They bewail theassumptions or conclusions of law in the NBI-NCRReport as well as the bare narrations in theaffidavits that lack any imputation relating to themas the persons allegedly responsible. IN FINE, petitioners contend that absent any act oromission ascribed to them, it is unreasonable toexpect them to confirm, deny or explain their side. A complaint for purposes of conducting apreliminary investigation differs from a complaintfor purposes of instituting a criminal prosecution.Confusion apparently springs because twocomplementary procedures adopt the usage of thesame word, for lack of a better or alternative term,to refer essentially to a written charge. There shouldbe no confusion about the objectives, however,since, as intimated during the hearing before theappellate court, preliminary investigation isconducted precisely to elicit further facts orevidence.31 Being generally inquisitorial, thepreliminary investigation stage is often the onlymeans of discovering the persons who may bereasonably charged with a crime, to enable thepreparation of a complaint or information.32

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Consider the following pertinent provision of Rule112 of the Revised Rules on Criminal Procedure:

SEC. 3. Procedure. – The preliminaryinvestigation shall be conducted inthe following manner:(a) The complaint shall state theaddress of the respondent and shallbe accompanied by the affidavitsof the complainant and hiswitnesses, as well as othersupporting documents toestablish probable cause. Theyshall be in such number of copies asthere are respondents, plus two (2)copies for the official file. Theaffidavits shall be subscribed andsworn to before any prosecutor orgovernment official authorized toadminister oath, or, in their absenceor unavailability, before a notarypublic, each of whom must certifythat he personally examined theaffiants and that he is satisfied thatthey voluntarily executed andunderstood their affidavits.33

(Emphasis and underscoringsupplied)

As clearly worded, the complaint is not entirely theaffidavit of the complainant, for the affidavit istreated as a component of the complaint. Thephraseology of the above-quoted rule recognizesthat all necessary allegations need not be containedin a single document. It is unlike a criminal"complaint or information" where the avermentsmust be contained in one document charging onlyone offense, non-compliance with which renders itvulnerable to a motion to quash.34

The Court is not unaware of the practice ofincorporating all allegations in one documentdenominated as "complaint-affidavit." It does notpronounce strict adherence to only one approach,however, for there are cases where the extent ofone’s personal knowledge may not cover the entiregamut of details material to the alleged offense.

The private offended party or relative of thedeceased may not even have witnessed thefatality,35 in which case the peace officer or lawenforcer has to rely chiefly on affidavits ofwitnesses. The Rules do not in fact preclude theattachment of a referral or transmittal letter similarto that of the NBI-NCR. Thus, in Soriano v.Casanova,36 the Court held:

A close scrutiny of the letterstransmitted by the BSP and PDIC tothe DOJ shows that these were notintended to be the complaintenvisioned under the Rules. It may beclearly inferred from the tenor of theletters that the officers merelyintended to transmit the affidavits ofthe bank employees to the DOJ.Nowhere in the transmittal letters isthere any averment on the part of theBSP and PDIC officers of personalknowledge of the events andtransactions constitutive of thecriminal violations alleged to havebeen made by the accused. In fact,the letters clearly stated that whatthe OSI of the BSP and the LIS of thePDIC did was to respectfully transmitto the DOJ for preliminaryinvestigation the affidavits andpersonal knowledge of the acts of thepetitioner. These affidavits weresubscribed under oath by thewitnesses who executed them beforea notary public. Since the affidavits ,not the letters transmitting them,were intended to initiate thepreliminary investigation, we holdthat Section 3(a), Rule 112 of theRules of Court was substantiallycomplied with.Citing the ruling of this Court inEbarle v. Sucaldito, the Court ofAppeals correctly held that acomplaint for purposes of preliminary

investigation by the fiscal need notbe filed by the offended party. Therule has been that, unless theoffense subject thereof is onethat cannot be prosecuted deoficio , the same may be filed, forpreliminary investigation purposes,by any competent person. Thecrime of estafa is a public crimewhich can be initiated by "anycompetent person." The witnesseswho executed the affidavits based ontheir personal knowledge of the actscommitted by the petitioner fallwithin the purview of "any competentperson" who may institute thecomplaint for a public crime. x x x37

(Emphasis and underscoringsupplied)

A preliminary investigation can thus validly proceedon the basis of an affidavit of any competentperson, without the referral document, like the NBI-NCR Report, having been sworn to by the lawenforcer as the nominal complainant. To requireotherwise is a needless exercise. The cited case ofOporto, Jr. v. Judge Monserate38 does not appear todent this proposition. After all, what is required is toreduce the evidence into affidavits, for whilereports and even raw information may justify theinitiation of an investigation, the preliminaryinvestigation stage can be held only after sufficientevidence has been gathered and evaluated whichmay warrant the eventual prosecution of the case incourt.39 In the present case, there is no doubt about theexistence of affidavits. The appellate court foundthat "certain complaint-affidavits were already filedby some of the victims,"40 a factual finding to whichthis Court, by rule, generally defers. A complaint for purposes of conducting preliminaryinvestigation is not required to exhibit the attendingstructure of a "complaint or information" laid downin Rule 110 (Prosecution of Offenses) which alreadyspeaks of the "People of the Philippines" as a

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party,41 an "accused" rather than a respondent,42

and a "court" that shall pronounce judgment.43 If a"complaint or information" filed in court does notcomply with a set of constitutive averments, it isvulnerable to a motion to quash.44 The filing of amotion to dismiss in lieu of a counter-affidavit isproscribed by the rule on preliminary investigation,however.45 The investigating officer is allowed todismiss outright the complaint only if it is notsufficient in form and substance or "no ground tocontinue with the investigation"46 is appreciated.

The investigating fiscal, to be sure,has discretion to determine thespecificity and adequacy ofaverments of the offense charged. Hemay dismiss the complaint forthwithif he finds it to be insufficient in formor substance or if he otherwise findsno ground to continue with theinquiry, or proceed with theinvestigation if the complaint is, in hisview, in due and proper form. Itcertainly is not his duty to require amore particular statement of theallegations of the complaint merelyupon the respondents’ motion, andspecially where after an analysis ofthe complaint and its supportingstatements he finds it sufficientlydefinite to apprise the respondents ofthe offenses which they are charged.Moreover, the procedural device of abill of particulars, as the SolicitorGeneral points out, appears to havereference to informations or criminalcomplaints filed in a competent courtupon which the accused arearraigned and required to plead, andstrictly speaking has no application tocomplaints initiating a preliminaryinvestigation which cannot result inany finding of guilt, but only ofprobable cause.47 (Italics and ellipses

in the original omitted; underscoringsupplied)

Petitioners’ claims of vague allegations orinsufficient imputations are thus matters that canbe properly raised in their counter-affidavits tonegate or belie the existence of probable cause. On the Claim of Bias and PrejudgmentOn the remaining issues, petitioners chargerespondents to have lost the impartiality to conductthe preliminary investigation since they hadprejudged the case, in support of which they citethe "indecent" haste in the conduct of theproceedings. Thus, they mention the conduct of thecriminal investigation within 24 working days48 andthe issuance of subpoenas immediately followingthe creation of the Investigating Panel.Petitioners likewise cite the following publicdeclarations made by Gonzalez as expressing hisconclusions that a crime had been committed, thatthe show was the proximate cause, and that theshow’s organizers are guilty thereof:

February 6, 2006: "[ ] should haveanticipated it because one week naiyan e. The crowds started gatheringsince one week before. This is simplynegligence x x x on the part ofthe organizers." February 14, 2006: "I think ABS-CBNis trying to minimize its ownresponsibility and it’s discerniblefrom the way by which talk showsnila being conducted on people whotalk about liabilities of others.

"The reason for thisincident was the program.If there was no program, therewould have been nostampede. There would havebeen no people. There wouldhave been no attempt bypeople to queue there for daysand rush for the nearest entrypoint."

March 20, 2006: "I’ll bet everythingI have that they are responsibleat least on the civil aspect."49

(Emphasis in the original)Continuing, petitioners point out that long beforethe conclusion of any investigation, Gonzalezalready ruled out the possibility that some othercause or causes led to the tragedy or that someoneelse or perhaps none should be made criminallyliable; and that Gonzalez had left the preliminaryinvestigation to a mere determination of who withinABS-CBN are the program’s organizers who shouldbe criminally prosecuted.Petitioners even cite President Arroyo’s declarationin a radio interview on February 14, 2006 that"[y]ang stampede na iyan, Jo, ay isang trahedya napinapakita yung kakulangan at pagkapabaya…nagpabaya ng organisasyon na nag-organize nito."To petitioners, the declarations admittedly50 madeby Gonzalez tainted the entire DOJ, including theEvaluating and Investigating Panels, since theDepartment is subject to the direct control andsupervision of Gonzalez in his capacity as DOJSecretary who, in turn, is an alter ego of thePresident. Petitioners thus fault the appellate court in notfinding grave abuse of discretion on the part of theInvestigating Panel members who "refused to inhibitthemselves from conducting the preliminaryinvestigation despite the undeniable bias andpartiality publicly displayed by their superiors."51 Pursuing, petitioners posit that the bias of the DOJSecretary is the bias of the entire DOJ.52 They thusconclude that the DOJ, as an institution, publiclyadjudged their guilt based on a pre-determinednotion of supposed facts, and urge that theInvestigating Panel and the entire DOJ for thatmatter should inhibit from presiding and decidingover such preliminary investigation because they,as quasi-judicial officers, do not possess the "coldneutrality of an impartial judge."53 Responding to the claim of prejudgment,respondents maintain that the above-citedstatements of Gonzalez and the President merely

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indicate that the incident is of such nature andmagnitude as to warrant a natural inference that itwould not have happened in the ordinary course ofthings and that any reasonable mind wouldconclude that there is a causal connection betweenthe show’s preparations and the resultant deathsand injuries. Petitioners’ fears are speculatory. Speed in the conduct of proceedings by a judicial orquasi-judicial officer cannot per se be instantlyattributed to an injudicious performance offunctions.54 For one’s prompt dispatch may beanother’s undue haste. The orderly administrationof justice remains as the paramount and constantconsideration,55 with particular regard of thecircumstances peculiar to each case. The presumption of regularity56 includes the publicofficer’s official actuations in all phases of work.57

Consistent with such presumption, it was incumbentupon petitioners to present contradictory evidenceother than a mere tallying of days or numerical calculation.58

This, petitioners failed to discharge. The swiftcompletion of the Investigating Panel’s initial taskcannot be relegated as shoddy or shady withoutdiscounting the presumably regular performance ofnot just one but five state prosecutors.As for petitioners’ claim of undue haste indicatingbias, proof thereof is wanting. The pace of theproceedings is anything but a matter ofacceleration. Without any objection from theparties, respondents even accorded petitioners apreliminary investigation even when it was notrequired since the case involves an alleged offensewhere the penalty prescribed by law is below FourYears, Two Months and One Day.59 Neither is there proof showing that Gonzalezexerted undue pressure on his subordinates to tailortheir decision with his public declarations andadhere to a pre-determined result. The EvaluatingPanel in fact even found no sufficient basis, it bearsemphatic reiteration, to proceed with the conduct ofa preliminary investigation, and one member of the

Investigating Panel even dissented to its October 9,2006 Resolution. To follow petitioner’s theory of institutional biaswould logically mean that even the NBI hadprejudged the case in conducting a criminalinvestigation since it is a constituent agency of theDOJ. And if the theory is extended to the President’sdeclaration, there would be no more arm of thegovernment credible enough to conduct a criminalinvestigation and a preliminary investigation. On petitioners citation of Ladlad v. Velasco60 wherea public declaration by Gonzalez was found toevince a "determination to file the Information evenin the absence of probable cause,"61 their attentionis drawn to the following ruling of this Court inRoberts, Jr. v. Court of Appeals:62

Ordinarily, the determination ofprobable cause is not lodged with thisCourt. Its duty in an appropriate caseis confined to the issue of whetherthe executive or judicialdetermination, as the case may be, ofprobable cause was done without orin excess of jurisdiction or with graveabuse of discretion amounting towant of jurisdiction. This is consistentwith the general rule that criminalprosecution may not be restrained orstayed by injunction, preliminary orfinal. There are, however,exceptions to this rule x x xenumerated in Brocka vs. Enrile (192SCRA 183, 188-189 [1990]) x x x. Inthese exceptional cases, this Courtmay ultimately resolve the existenceor non-existence of probable cause byexamining the records of thepreliminary investigation x x x.63

(Emphasis and underscoringsupplied)

Even assuming arguendo that petitioners’ case fallsunder the exceptions enumerated in Brocka, anyresolution on the existence or lack of probablecause or, specifically, any conclusion on the issue of

prejudgment as elucidated in Ladlad, is made todepend on the records of the preliminaryinvestigation. There have been, as the appellatecourt points out, no finding to speak of when thepetition was filed, much less one that is subject tojudicial review due to grave abuse.64 At thatincipient stage, records were wanting if not nil sincethe Investigating Panel had not yet resolved anymatter brought before it, save for the issuance ofsubpoenas. The Court thus finds no reversible erroron the part of the appellate court in dismissing petitioners’ petition for certiorari and prohibitionand in refraining from reviewing the merits of thecase until a ripe and appropriate case is presented.Otherwise, court intervention would have been onlypre-emptive and piecemeal. Oddly enough, petitioners eventually concede thatthey are "not asking for a reversal of a ruling onprobable cause."65

A word on the utilization by petitioners of the videofootages provided by ABS-CBN. While petitionersdeny wishing or causing respondents to be biasedand impartial,66 they admit67 that the media, ABS-CBN included, interviewed Gonzalez in order to elicithis opinion on a matter that ABS-CBN knew waspending investigation and involving a number of itsown staff. Gonzalez’s actuations may leave much tobe desired; petitioners’ are not, however, totallyspotless as circumstances tend to show that theywere asking for or fishing from him something thatcould later be used against him to favor their cause.A FINAL WORD. The Court takes this occasion toecho its disposition in Cruz v. Salva68 where itcensured a fiscal for inexcusably allowing unduepublicity in the conduct of preliminary investigationand appreciated the press for wisely declining anunusual probing privilege. Agents of the law oughtto recognize the buoys and bounds of prudence indischarging what they may deem as an earnesteffort to herald the government’s endeavor insolving a case. WHEREFORE, the petition is DENIED. Costs against petitioners.SO ORDERED.

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LYNDON D. BOISER, vs. PEOPLE OF THEPHILIPPINESG.R. No. 180299

January 31, 2008

R E S O L U T I O N

NACHURA, J.:

Before the Court is a petition for review oncertiorari[2] assailing the Decision of the Court ofAppeals (CA), dated June 5, 2007 in CA-G.R. CEB-SP.No. 02368.[3]

The main issue in this case is whether the CAcommitted reversible error in affirming the decisionof the RTC which denied petitioner’s omnibusmotion to quash the informations filed against him.

Based on the findings of the CA, the pertinent factsof the case are as follows:

On June 4, 2004, three (3) Informations were filedagainst petitioner, charging him with acts oflasciviousness, other acts of child abuse, and rape[4]

of minor AAA before the Regional Trial Court (RTC),Branch 1, Tagbilaran, Bohol.

On June 11, 2004, petitioner filed a Motion prayingthat a hearing be conducted to determine theexistence of probable cause and to hold inabeyance the issuance of a warrant of arrestagainst him. On June 16, 2004, private respondentfiled an Opposition thereto.

On June, 18, 2004, the family court issued three (3)separate Orders in the three (3) criminal cases,directing the prosecution to submit additionalevidence on the cases along with the transcript ofproceedings during the preliminary investigation.On June 20, 2004, the prosecutor filed aManifestation saying that the prosecution had noadditional evidence to present and that due to thenon-availability of a stenographer who could takedown notes during the preliminary investigation onApril 28, 2004 and May 7, 2004, he personally tookdown notes, and submitted certified photocopies of

the same to the court. On July 2, 2004, the familycourt directed the City Prosecution Office inTagbilaran City to complete the preliminaryinvestigation in a regular manner with duly recordedproceedings attended by a stenographer. On August4, 2004, a Reinvestigation Report was submitted bythe prosecutor maintaining the existence ofprobable cause in the three cases.

On August 9, 2004, petitioner filed an OmnibusMotion for Determination of Probable Cause. OnSeptember 10, 2004, the family court issued three(3) separate Orders finding probable cause againstpetitioner in the three (3) cases, issued a warrant ofarrest against him and fixed the corresponding bailfor each case. On November 19 and 24, 2004,petitioner filed Motions to Inhibit the judge ofBranch 1 from hearing the 3 cases. The judgeacceded. Thereafter, the cases were raffled toBranch 2 of the same court. On March 1, 2005,petitioner again filed a Motion to Inhibit the judge ofBranch 2. The same was granted and the case wasraffled to Branch 4 of the same court. Then again,petitioner filed a Motion to Inhibit the Judge ofBranch 4. The three (3) cases were then raffled toBranch 49 of the said court.

On August 19, 2005, petitioner filed an OmnibusMotion to Quash the three (3) Informations to whichprivate respondent filed an Opposition. On June 30,2006, Branch 49 issued a Joint Order denying theaforesaid motion. A Motion for Reconsideration wasfiled by petitioner citing absence of probable causeand lack of jurisdiction over his person as groundsin support of his motion. However, upon the requestof private respondent’s parents, the Judge ofBranch 49 inhibited himself from hearing the three(3) cases. Finally, the cases were raffled to Branch 3of the RTC of Tagbilaran City, Bohol, presided overby Judge Venancio J. Amila (Judge Amila).

On November 6, 2006, the lower court issued anOmnibus Order denying petitioner’s omnibusmotion for reconsideration to quash the

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informations. On November 22, 2006, petitionerfiled anew an Urgent Omnibus Motion to Quash. OnNovember 30, 2006, the RTC issued an Orderdenying the second omnibus motion to quash, andset the arraignment on December 15, 2006. A daybefore the arraignment, petitioner filed a SecondOmnibus Motion for Reconsideration of the orderdenying his motion to quash.

On December 15, 2006, petitioner reminded JudgeAmila of his second omnibus motion forreconsideration. Judge Amila, in open court, deniedfor lack of merit the second omnibus motion forreconsideration. Upon arraignment, petitionerrefused to enter a plea for the 3 cases. Accordingly,a plea of not guilty was entered for petitioner foreach of the 3 criminal cases.

On January 2, 2007, petitioner filed a Petition forcertiorari[5] before the CA claiming that the familycourt acted with grave abuse of discretion in issuingthe orders denying his omnibus motions to quashthe information.

On June 5, 2007, the CA rendered a Decision[6]

affirming the Orders of the RTC. In denying thepetition, the CA ratiocinated that it cannot reversethe RTC orders because: (1) an order denying amotion to quash is interlocutory and not appealable;and (2) the petitioner failed to positively provegrave abuse of discretion on the part of the RTCjudge in the issuance of the assailed orders. Thefallo of the Decision reads: WHEREFORE, premises considered, the petition ishereby DENIED. The assailed orders of therespondent judge are hereby AFFIRMED.

Costs against the petitioner.

SO ORDERED.[7]

A motion for reconsideration was filed by petitionerwhich the CA denied in a Resolution[8] datedSeptember 19, 2007.

On November 16, 2007, petitioner filed the instantcase raising the following arguments: The Honorable Court of Appeals has decided [a]question of substance, not theretofore determinedby the Supreme Court, or has decided it in a waynot in accord with law or with the applicabledecisions of the Supreme Court:

That the Honorable Court of Appeals has so fardeparted from the accepted and usual course ofjudicial proceedings, or so far sanctioned suchdeparture by the lower court.[9]

We resolve to deny the petition.A petition for certiorari under Rule 65 is not theproper remedy against an order denying a motion toquash. The accused should instead go to trial,without prejudice on his part to present the specialdefenses he had invoked in his motion and, if aftertrial on the merits, an adverse decision is rendered,to appeal therefrom in the manner authorized bylaw.[10] Based on the findings of the investigatingprosecutor and of the trial judge, probable causeexists to indict petitioner for the 3 offenses. Absentany showing of arbitrariness on the part of theinvestigating prosecutor or any other officerauthorized by law to conduct preliminaryinvestigation, courts as a rule must defer to saidofficer’s finding and determination of probablecause, since the determination of the existence ofprobable cause is the function of the prosecutor.[11]

It is obvious to this Court that petitioner’sinsistent filing of numerous motions to inhibit thejudge hearing the 3 criminal cases and of motionsto quash is a ploy to delay the proceedings, areprehensible tactic that impedes the orderlyadministration of justice. If he is truly innocent,petitioner should bravely go to trial and prove hisdefense. After all, the purpose of a preliminaryinvestigation is merely to determine whether acrime has been committed and whether there isprobable cause to believe that the person accusedof the crime is probably guilty thereof and should beheld for trial. A finding of probable cause needs only

to rest on evidence showing that more likely thannot a crime has been committed and wascommitted by the suspect. Probable cause need notbe based on clear and convincing evidence of guilt,neither on evidence establishing guilt beyondreasonable doubt, and definitely, not on evidenceestablishing absolute certainty of guilt.[12]

As to the allegation of petitioner that the RTC hasnot acquired jurisdiction over his person, this issuehas been rendered moot and academic withpetitioner’s arraignment in the 3 cases and histaking part in the proceedings therein.

WHEREFORE, in view of the foregoing, the petitionis DENIED for lack of merit. Costs against thepetitioner.

SO ORDERED.

9

SPOUSES BERNYL BALANGAUAN & KATHERENEBALANGAUAN vs.THE HONORABLE COURT OF APPEALS, SPECIALNINETEENTH (19TH) DIVISION, CEBU CITY &THE HONGKONG AND SHANGHAI BANKINGCORPORATION, LTD.G. R. No. 174350 August 13, 2008x - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -- - - - - - - - - - - - x D E C I S I O N CHICO-NAZARIO, J.:

Before Us is a Petition for Certiorari under

Rule 65 of the Revised Rules of Court assailing the28 April 2006 Decision[1] and 29 June 2006Resolution[2] of the Court of Appeals in CA-G.R.CEB-SP No. 00068, which annulled and set aside the6 April 2004[3] and 30 August 2004[4] Resolutionsof the Department of Justice (DOJ) in I.S. No. 02-9230-I, entitled “The Hongkong and ShanghaiBanking Corporation v. Katherine Balangauan, etal.” The twin resolutions of the DOJ affirmed, inessence, the Resolution of the Office of the CityProsecutor,[5] Cebu City, which dismissed for lack ofprobable cause the criminal complaint for Estafaand/or Qualified Estafa, filed against petitioner-Spouses Bernyl Balangauan (Bernyl) and KathereneBalangauan (Katherene) by respondent Hong Kongand Shanghai Banking Corporation, Ltd. (HSBC).

In this Petition for Certiorari, petitioners

Bernyl and Katherene urge this Court to “reverseand set aside the Decision of the Court of Appeals,Special nineteenth (sic) [19th] division (sic), Cebu

City (sic) and accordingly, dismiss the complaintagainst the [petitioners Bernyl and Katherene] inview of the absence of probable cause to warrantthe filing of an information before the Court and forutter lack of merit.”[6]

As culled from the records, the antecedents

of the present case are as follows: Petitioner Katherene was a Premier

Customer Services Representative (PCSR) ofrespondent bank, HSBC. As a PCSR, she managedthe accounts of HSBC depositors with PremierStatus. One such client and/or depositor handled byher was Roger Dwayne York (York).

York maintained several accounts with

respondent HSBC. Sometime in April 2002, he wentto respondent HSBC’s Cebu Branch to transact withpetitioner Katherene respecting his Dollar and PesoAccounts. Petitioner Katherene being on vacation atthe time, York was attended to by another PCSR. While at the bank, York inquired about the status ofhis time deposit in the amount of P2,500,000.00. The PCSR representative who attended to him,however, could not find any record of saidplacement in the bank’s data base.

York adamantly insisted, though, that

through petitioner Katherene, he made a placementof the aforementioned amount in a higher-earningtime deposit. York further elaborated that petitionerKatherene explained to him that the alleged higher-earning time deposit scheme was supposedly beingoffered to Premier clients only. Upon furtherscrutiny and examination, respondent HSBC’s bankpersonnel discovered that: (1) on 18 January 2002,York pre-terminated a P1,000,000.00 time deposit;(2) there were cash movement tickets andwithdrawal slips all signed by York for the amount ofP1,000,000.00; and (3) there were regularmovements in York’s accounts, i.e., beginning in themonth of January 2002, monthly deposits in theamount of P12,500.00 and P8,333.33 were made,

which York denied ever making, but surmised werethe regular interest earnings from the placement ofthe P2,500,000.00.

It was likewise discovered that the above-

mentioned deposits were transacted usingpetitioner Katherene’s computer and work stationusing the code or personal password “CEO8.” Thesignificance of code “CEO8,” according to the bankpersonnel of respondent HSBC, is that, “[i]t is onlyMs. Balangauan who can transact from [the]computer in the work station CEO-8, as she isprovided with a swipe card which she keeps solecustody of and only she can use, and which sheutilizes for purposes of performing banktransactions from that computer.”[7]

Bank personnel of respondent HSBC likewise

recounted in their affidavits that prior to the filing ofthe complaint for estafa and/or qualified estafa,they were in contact with petitioners Bernyl andKatherene. Petitioner Bernyl supposedly met withthem on two occasions. At first he disavowed anyknowledge regarding the whereabouts of York’smoney but later on admitted that he knew that hiswife invested the funds with Shell Company. Helikewise admitted that he made the phone bankingdeposit to credit York’s account with the P12,500.00and the P8,333.33 using their landline telephone. With respect to petitioner Katherene, she allegedlyspoke to the bank personnel and York on severaloccasions and admitted that the funds were indeedinvested with Shell Company but that York knewabout this.

So as not to ruin its name and goodwill

among its clients, respondent HSBC reimbursed Yorkthe P2,500,000.00.

Based on the foregoing factual

circumstances, respondent HSBC, through itspersonnel, filed a criminal complaint for Estafaand/or Qualified Estafa before the Office of the CityProsecutor, Cebu City.

10

Petitioners Bernyl and Katherene submitted

their joint counter-affidavit basically denying theallegations contained in the affidavits of theaforenamed employees of respondent HSBC as wellas that made by York. They argued that theallegations in the Complaint-Affidavits were purefabrications. Specifically, petitioner Katherenedenied 1) having spoken on the telephone with Dyand York; and 2) having admitted to the personnelof respondent HSBC and York that she took theP2,500,000.00 of York and invested the same withShell Corporation. Petitioner Bernyl similarly denied1) having met with Dy, Iñigo, Cortes and Arcuri; and2) having admitted to them that York knew aboutpetitioner Katherene’s move of investing theformer’s money with Shell Corporation.

Respecting the P12,500.00 and P8,333.33

regular monthly deposits to York’s account madeusing the code “CEO8,” petitioners Bernyl andKatherene, in their defense, argued that since it wasa deposit, it was her duty to accept the funds fordeposit. As regards York’s time deposit withrespondent HSBC, petitioners Bernyl and Kathereneinsisted that the funds therein were never entrustedto Katherene in the latter’s capacity as PCSREmployee of the former because monies deposited“at any bank would not and will not be entrusted tospecific bank employee but to the bank as a whole.”

Following the requisite preliminary

investigation, Assistant City Prosecutor (ACP) VictorC. Laborte, Prosecutor II of the OCP, Cebu City, in aResolution[8] dated 21 February 2003, found noprobable cause to hold petitioners Bernyl andKatherene liable to stand trial for the criminalcomplaint of estafa and/or qualified estafa,particularly Article 315 of the Revised Penal Code. Accordingly, the ACP recommended the dismissalof respondent HSBC’s complaint.

The ACP explained his finding, viz:

As in any other cases, wemay never know the ultimate truth ofthis controversy. But on balance, theevidence on record tend to besupportive of respondents’ contentionrather than that of complaint.

x x x x First of all, it is well to dwell on

what Mr. York said in his affidavit.Thus:

`18. For

purposes of openingthese two timedeposits (sic) accounts,Ms. Balangauan askedme to sign severalBank documents onseveral occasions, thenature of which I wasunfamiliar with.’

`20. I

discovered later thatthese were withdrawalslips and cashmovement tickets, withwhich documents Ms.Balangauan apparentlywas able to withdrawthe amount from myaccounts, and take thesame from thepremises of the Bank.’

In determining the credibility

of an evidence, it is well to considerthe probability or improbability ofone’s statements for it has been saidthat there is no test of the truth ofhuman testimony except its

conformity to our knowledge,observation and experience.

Mr. York could not have been

that unwary and unknowinglyinnocent to claim unfamiliarity withwithdrawal slips and cash movementtickets which Ms. Balangauan madehim to sign on several occasions. Heis a premier client of HSBCmaintaining an account in millions ofpesos. A withdrawal slip and cashmovement tickets could not have hadsuch intricate wordings orterminology so as to render themnon-understandable even to anordinary account holder. Mr. Yorkadmittedly is a long-standing client ofthe bank. Within the period of ‘long-standing’ he certainly must haveeffected some withdrawals. It goeswithout saying therefore that theoccasions that Ms. Balangauancaused him to sign withdrawal slipsare not his first encounter with suchkinds of documents.

The one ineluctable conclusion

therefore that can be drawn from thepremises is that Mr. York freely andknowingly knew what was going onwith his money, who has inpossession of them and where it wasinvested. These take out theelements of deceit, fraud, abuse ofconfidence and without the owner’sconsent in the crimes charged.

The other leg on which

complainant’s cause of action standsrest on its claim for sum of moneyagainst respondents allegedly after itreimbursed Mr. York for his missingaccount supposedly taken/withdrawn

11

by Ms. Balangauan. The bank’s actionagainst respondents would be a civilsuit against them which apparently italready did after the bank steps intothe shoes of Mr. York and becomesthe creditor of Ms. Balangauan.[9]

The ACP then concluded that:

By and large, the evidence on

record do (sic) not engender enoughbases to establish a probable causeagainst respondents.[10]

On 1 July 2003, respondent HSBC appealedthe above-quoted resolution and foregoingcomment to the Secretary of the DOJ by means of aPetition for Review.

In a Resolution dated 6 April 2004, the Chief

State Prosecutor, Jovencito R. Zuño, for theSecretary of the DOJ, dismissed the petition. Indenying respondent HSBC’s recourse, the ChiefState Prosecutor held that:

Sec. 12 (c) of Department

Circular No. 70 dated July 2, 2000provides that the Secretary of Justicemay, motu proprio, dismiss outrightthe petition if there is no showing ofany reversible error in the questionedresolution.

We carefully examined the

petition and its attachments andfound no reversible error that wouldjustify a reversal of the assailedresolution which is in accord with thelaw and evidence on the matter.

Respondent HSBC’s Motion forReconsideration was likewise denied with finality bythe DOJ in a lengthier Resolution dated 30 August2004.

The DOJ justified its ruling in this wise: A perusal of the motion

reveals no new matter or argumentwhich was not taken intoconsideration in our review of thecase. Hence, we find no cogentreason to reconsider our resolution.Appellant failed to present any iota ofevidence directly showing thatrespondent Katherene Balangauantook the money and invested itsomewhere else. All it tried toestablish was that Kathereneunlawfully took the money andfraudulently invested it somewhereelse x x x, because after thewithdrawals were made, the moneynever reached Roger York asappellant adopted hook, line andsinker the latter’s declaration, despiteYork’s signatures on the withdrawalslips covering the total amount ofP2,500,000.00 x x x. While appellanthas every reason to suspectKatherene for the loss of theP2,500,000.00 as per York’s bankstatements, the cash deposits wereidentified by the numerals “CEO8”and it was only Katherene who couldtransact from the computer in thework station CEO-8, plus allegedphotographs showing Katherene“leaving her office at 5:28 p.m. with abulky plastic bag presumablycontaining cash” since a portion ofthe funds was withdrawn, we do not,however, dwell on possibilities,suspicion and speculation. We rulebased on hard facts and solidevidence.

Moreover, an examination of

the petition for review reveals thatappellant failed to append thereto allannexes to respondents’ urgentmanifestations x x x together withsupplemental affidavits of Melanie deOcampo and Rex B. Balucan x x x,which are pertinent documentsrequired under Section 5 ofDepartment Circular No. 70 dated July3, 2000.[11]

Respondent HSBC then went to the Court of

Appeals by means of a Petition for Certiorari underRule 65 of the Revised Rules of Court.

On 28 April 2006, the Court of Appealspromulgated its Decision granting respondentHSBC’s petition, thereby annulling and setting asidethe twin resolutions of the DOJ. The fallo of the assailed decision reads:

WHEREFORE, in view of theforegoing premises, judgment ishereby rendered by us GRANTING thepetition filed in this case. The assailedResolutions dated April 6, 2004 andAugust 30, 2004 are ANNULLED andSET ASIDE.

The City Prosecutor of Cebu

City is hereby ORDERED to file theappropriate Information against theprivate respondents.[12]

Petitioners Bernyl and Katherene’s motion forreconsideration proved futile, as it was denied bythe appellate court in a Resolution dated 29 June2006. Hence, this petition for certiorari filed under Rule 65of the Revised Rules of Court.

12

Petitioners Bernyl and Katherene filed thepresent petition on the argument that the Court ofAppeals committed grave abuse of discretion inreversing and setting aside the resolutions of theDOJ when: (1) “[i]t reversed the resolution of theSecretary of Justice, Manila dated August 30, 2004and correspondingly, gave due course to thePetition for Certiorari filed by HSBC on April 28,2006 despite want of probable cause to warrant thefiling of an information against the hereinpetitioners”[13]; (2) “[i]t appreciated the dubiousevidence adduced by HSBC albeit the absence oflegal standing or personality of the latter”[14]; (3)“[i]t denied the motions for reconsideration on June29, 2006 notwithstanding the glaring evidenceproving the innocence of the petitioners”[15]; (4)“[i]t rebuffed the evidence of the herein petitionersin spite of the fact that, examining such evidencealone would establish that the money in questionwas already withdrawn by Mr. Roger DwayneYork”[16]; and (5) “[i]t failed to dismiss outright thepetition by HSBC considering that the requiredaffidavit of service was not made part or attached inthe said petition pursuant to Section 13, Rule 13 inrelation to Section 3, Rule 46, and Section 2, Rule56 of the Rules of Court.”[17]

Required to comment on the petition,

respondent HSBC remarked that the filing of thepresent petition is improper and should bedismissed. It argued that the correct remedy is anappeal by certiorari under Rule 45 of the RevisedRules of Court.

Petitioners Bernyl and Katherene, on the

other hand, asserted in their Reply[18] that thepetition filed under Rule 65 was rightfully filedconsidering that not only questions of law wereraised but questions of fact and error of jurisdictionas well. They insist that the Court of Appeals“clearly usurped into the jurisdiction and authorityof the Public Prosecutor/Secretary of justice (sic) x xx.”[19]

Given the foregoing arguments, there isneed to address, first, the issue of the mode ofappeal resorted to by petitioners Bernyl andKatherene. The present petition is one for certiorariunder Rule 65 of the Revised Rules of Court. Noticethat what is being assailed in this recourse is thedecision and resolution of the Court of Appealsdated 28 April 2006 and 29 June 2006, respectively. The Revised Rules of Court, particularly Rule 45thereof, specifically provides that an appeal bycertiorari from the judgments or final orders orresolutions of the appellate court is by verifiedpetition for review on certiorari.[20]

In the present case, there is no question that

the 28 April 2006 Decision and 29 June 2006Resolution of the Court of Appeals granting therespondent HSBC’s petition in CA-G.R. CEB. SP No.00068 is already a disposition on the merits. Therefore, both decision and resolution, issued bythe Court of Appeals, are in the nature of a finaldisposition of the case set before it, and which,under Rule 45, are appealable to this Court via aPetition for Review on Certiorari, viz:

SECTION 1. Filing of petition

with Supreme Court. – A partydesiring to appeal by certiorari from ajudgment or final order or resolutionof the Court of Appeals, theSandiganbayan, the Regional TrialCourt or other courts wheneverauthorized by law, may file with theSupreme Court a verified petition forreview on certiorari. The petition shallraise only questions of law whichmust be distinctly set forth.(Emphasis supplied.) It is elementary in remedial law that a writ of

certiorari will not issue where the remedy of appealis available to an aggrieved party. A remedy isconsidered "plain, speedy and adequate" if it willpromptly relieve the petitioners from the injurious

effects of the judgment and the acts of the lowercourt or agency.[21] In this case, appeal was notonly available but also a speedy and adequateremedy.[22] And while it is true that in accordancewith the liberal spirit pervading the Rules of Courtand in the interest of substantial justice,[23] thisCourt has, before,[24] treated a petition forcertiorari as a petition for review on certiorari,particularly if the petition for certiorari was filedwithin the reglementary period within which to file apetition for review on certiorari;[25] this exceptionis not applicable to the present factual milieu.

Pursuant to Sec. 2, Rule 45 of the Revised

Rules of Court:

SEC. 2. Time for filing;extension. – The petition shall be filedwithin fifteen (15) days from notice ofthe judgment or final order orresolution appealed from, or of thedenial of the petitioner’s motion fornew trial or reconsideration filed indue time after notice of thejudgment. x x x.

a party litigant wishing to file a petition for reviewon certiorari must do so within 15 days from receiptof the judgment, final order or resolution sought tobe appealed. In this case, petitioners Bernyl andKatherene’s motion for reconsideration of theappellate court’s Resolution was denied by theCourt of Appeals in its Resolution dated 29 June2006, a copy of which was received by petitionerson 4 July 2006. The present petition was filed on 1September 2006; thus, at the time of the filing ofsaid petition, 59 days had elapsed, way beyond the15-day period within which to file a petition forreview under Rule 45, and even beyond anextended period of 30 days, the maximum periodfor extension allowed by the rules had petitionerssought to move for such extra time. As the facts

13

stand, petitioners Bernyl and Katherene had lost theright to appeal via Rule 45.

Be that as it may, alternatively, if thedecision of the appellate court is attended by graveabuse of discretion amounting to lack or excess ofjurisdiction, then such ruling is fatally defective onjurisdictional ground and may be questioned evenafter the lapse of the period of appeal under Rule45[26] but still within the period for filing a petitionfor certiorari under Rule 65.

We have previously ruled that grave abuse

of discretion may arise when a lower court ortribunal violates and contravenes the Constitution,the law or existing jurisprudence. By grave abuseof discretion is meant such capricious and whimsicalexercise of judgment as is equivalent to lack ofjurisdiction. The abuse of discretion must be grave,as where the power is exercised in an arbitrary ordespotic manner by reason of passion or personalhostility and must be so patent and gross as toamount to an evasion of positive duty or to a virtualrefusal to perform the duty enjoined by or to act atall in contemplation of law.[27] The word“capricious,” usually used in tandem with the term“arbitrary,” conveys the notion of willful andunreasoning action. Thus, when seeking thecorrective hand of certiorari, a clear showing ofcaprice and arbitrariness in the exercise ofdiscretion is imperative.[28]

In reversing and setting aside the resolutions

of the DOJ, petitioners Bernyl and Katherenecontend that the Court of Appeals acted with graveabuse of discretion amounting to lack or excess ofjurisdiction.

The Court of Appeals, when it resolved to

grant the petition in CA-G.R. CEB. SP No. 00068, didso on two grounds, i.e., 1) that “the publicrespondent (DOJ) gravely abused his discretion infinding that there was no reversible error on thepart of the Cebu City Prosecutor dismissing the case

against the private respondent without stating thefacts and the law upon which this conclusion wasmade”[29]; and 2) that “the public respondent (DOJ)made reference to the facts and circumstances ofthe case leading to his finding that no probablecause exists, x x x (the) very facts andcircumstances (which) show that there exists aprobable cause to believe that indeed the privaterespondents committed the crimes x x x chargedagainst them.”[30]

It explained that:

In refusing to file the

appropriate information against theprivate respondents because he ‘doesnot dwell on possibilities, suspicionand speculation’ and that he rules‘based on hard facts and solidevidence’, (sic) the public respondentexceeded his authority and gravelyabused his discretion. It must beremembered that a finding ofprobable cause does not require aninquiry into whether there is sufficientevidence to procure a conviction. It isenough that it is believed that the actor omission complained of constitutesthe offense charged. The term doesnot mean ‘actual or positive cause;’(sic) nor does it import absolutecertainty. It is merely based onopinion and reasonable belief.[Citation omitted.] A trial is thereprecisely for the reception ofevidence of the prosecution insupport of the charge.

In this case, the petitioner had

amply established that it has a primafacie case against the privaterespondents. As observed by thepublic respondent in his secondassailed resolution, petitioner was

able to present photographs ofprivate respondent Ms. Balangauanleaving her office carrying a bulkyplastic bag. There was also the factthat the transactions in Mr. York’saccount used the code ‘CEO8’ whichpresumably point to the privaterespondent Ms. Balangauan as theauthor thereof for she is the oneassigned to such work station.

Furthermore, petitioner was

able to establish that it was Ms.Balangauan who handled Mr. York’saccount and she was the oneauthorized to make the placement ofthe sum of P2,500,000.00. Since saidsum is nowhere to be found in therecords of the bank, then, apparently,Ms. Balangauan must be made toaccount for the same.[31]

The appellate court then concluded that:

These facts engender a well-founded belief that that (sic) a crimehas been committed and that theprivate respondents are probablyguilty thereof. In refusing to file thecorresponding information against theprivate respondents despite thepresence of the circumstancesmaking out a prima facie case againstthem, the public respondent gravelyabused his discretion amounting toan evasion of a positive duty or to avirtual refusal either to perform theduty enjoined or to act at all incontemplation of law.[32]

The Court of Appeals found fault in the DOJ’sfailure to identify and discuss the issues raised by

14

the respondent HSBC in its Petition for Review filedtherewith. And, in support thereof, respondent HSBCmaintains that it is incorrect to argue that “it wasnot necessary for the Secretary of Justice to havehis resolution recite the facts and the law on whichit was based,” because courts and quasi-judicialbodies should faithfully comply with Section 14,Article VIII of the Constitution requiring thatdecisions rendered by them should state clearly anddistinctly the facts of the case and the law on whichthe decision is based.[33]

Petitioners Bernyl and Katherene, joined by

the Office of the Solicitor General, on the otherhand, defends the DOJ and assert that thequestioned resolution was complete in that it statedthe legal basis for denying respondent HSBC’spetition for review – “that (after) an examination(of) the petition and its attachment [it] found noreversible error that would justify a reversal of theassailed resolution which is in accord with the lawand evidence on the matter.”

It must be remembered that a preliminary

investigation is not a quasi-judicial proceeding, andthat the DOJ is not a quasi-judicial agency exercisinga quasi-judicial function when it reviews the findingsof a public prosecutor regarding the presence ofprobable cause. In Bautista v. Court of Appeals,[34]this Court held that a preliminary investigation isnot a quasi-judicial proceeding, thus:

[T]he prosecutor in a preliminaryinvestigation does not determine theguilt or innocence of the accused. Hedoes not exercise adjudication norrule-making functions. Preliminaryinvestigation is merely inquisitorial,and is often the only means ofdiscovering the persons who may bereasonably charged with a crime andto enable the fiscal to prepare hiscomplaint or information. It is not atrial of the case on the merits and has

no purpose except that ofdetermining whether a crime hasbeen committed and whether there isprobable cause to believe that theaccused is guilty thereof. While thefiscal makes that determination, hecannot be said to be acting as aquasi-court, for it is the courts,ultimately, that pass judgment on theaccused, not the fiscal. Though some cases[35] describe the public

prosecutor’s power to conduct a preliminaryinvestigation as quasi-judicial in nature, this is trueonly to the extent that, like quasi-judicial bodies,the prosecutor is an officer of the executivedepartment exercising powers akin to those of acourt, and the similarity ends at this point.[36] Aquasi-judicial body is an organ of government otherthan a court and other than a legislature whichaffects the rights of private parties through eitheradjudication or rule-making.[37] A quasi-judicialagency performs adjudicatory functions such thatits awards, determine the rights of parties, and theirdecisions have the same effect as judgments of acourt. Such is not the case when a publicprosecutor conducts a preliminary investigation todetermine probable cause to file an Informationagainst a person charged with a criminal offense, orwhen the Secretary of Justice is reviewing theformer’s order or resolutions. In this case, since theDOJ is not a quasi-judicial body, Section 14, ArticleVIII of the Constitution finds no application. Be thatas it may, the DOJ rectified the shortness of its firstresolution by issuing a lengthier one when itresolved respondent HSBC’s motion forreconsideration.

Anent the substantial merit of the case,

whether or not the Court of Appeals’ decision andresolution are tainted with grave abuse of discretionin finding probable cause, this Court finds thepetition dismissible.

The Court of Appeals cannot be said to have

acted with grave abuse of discretion amounting tolack or excess of jurisdiction in reversing and settingaside the resolutions of the DOJ. In the resolutionsof the DOJ, it affirmed the recommendation of ACPLaborte that no probable cause existed to warrantthe filing in court of an Information for estafa and/orqualified estafa against petitioners Bernyl andKatherene. It was the reasoning of the DOJ that“[w]hile appellant has every reason to suspectKatherene for the loss of the P2,500,000.00 as perYork’s bank statements, the cash deposits wereidentified by the numerals ‘CEO8’ and it was onlyKatherene who could transact from the computer inthe work station CEO-8, plus alleged photographsshowing Katherene ‘leaving her office at 5:28 p.m.with a bulky plastic bag presumably containingcash’ since a portion of the funds was withdrawn,we do not, however, dwell on possibilities, suspicionand speculation. We rule based on hard facts andsolid evidence.”[38]

We do not agree. Probable cause has been defined as the

existence of such facts and circumstances as wouldexcite belief in a reasonable mind, acting on thefacts within the knowledge of the prosecutor, thatthe person charged was guilty of the crime forwhich he was prosecuted.[39] A finding of probablecause merely binds over the suspect to stand trial. It is not a pronouncement of guilt.[40]

The executive department of the

government is accountable for the prosecution ofcrimes, its principal obligation being the faithfulexecution of the laws of the land. A necessarycomponent of the power to execute the laws is theright to prosecute their violators,[41] theresponsibility for which is thrust upon the DOJ. Hence, the determination of whether or notprobable cause exists to warrant the prosecution incourt of an accused is consigned and entrusted to

15

the DOJ. And by the nature of his office, a publicprosecutor is under no compulsion to file aparticular criminal information where he is notconvinced that he has evidence to prop up theaverments thereof, or that the evidence at handpoints to a different conclusion.

But this is not to discount the possibility of

the commission of abuses on the part of theprosecutor. It is entirely possible that theinvestigating prosecutor has erroneously exercisedthe discretion lodged in him by law. This, however,does not render his act amenable to correction andannulment by the extraordinary remedy ofcertiorari, absent any showing of grave abuse ofdiscretion amounting to excess of jurisdiction.[42]

And while it is this Court’s general policy not

to interfere in the conduct of preliminaryinvestigations, leaving the investigating officerssufficient discretion to determine probable cause,[43] we have nonetheless made some exceptions tothe general rule, such as when the acts of theofficer are without or in excess of authority,[44]resulting from a grave abuse of discretion. Although there is no general formula or fixed rulefor the determination of probable cause, since thesame must be decided in the light of the conditionsobtaining in given situations and its existencedepends to a large degree upon the finding oropinion of the judge conducting the examination,such a finding should not disregard the facts beforethe judge (public prosecutor) or run counter to theclear dictates of reason.[45]

Applying the foregoing disquisition to the

present petition, the reasons of DOJ for affirming thedismissal of the criminal complaints for estafaand/or qualified estafa are determinative of whetheror not it committed grave abuse of discretionamounting to lack or excess of jurisdiction. Inrequiring “hard facts and solid evidence” as thebasis for a finding of probable cause to holdpetitioners Bernyl and Katherene liable to stand trial

for the crime complained of, the DOJ disregards thedefinition of probable cause – that it is a reasonableground of presumption that a matter is, or may be,well-founded, such a state of facts in the mind ofthe prosecutor as would lead a person of ordinarycaution and prudence to believe, or entertain anhonest or strong suspicion, that a thing is so.[46] The term does not mean “actual and positivecause” nor does it import absolute certainty.[47] Itis merely based on opinion and reasonable belief;[48] that is, the belief that the act or omissioncomplained of constitutes the offense charged. While probable cause demands more than “baresuspicion,” it requires “less than evidence whichwould justify conviction.” Herein, the DOJ reasonedas if no evidence was actually presented byrespondent HSBC when in fact the records of thecase were teeming; or it discounted the value ofsuch substantiation when in fact the evidencepresented was adequate to excite in a reasonablemind the probability that petitioners Bernyl andKatherene committed the crime/s complained of. Inso doing, the DOJ whimsically and capriciouslyexercised its discretion, amounting to grave abuseof discretion, which rendered its resolutionsamenable to correction and annulment by theextraordinary remedy of certiorari.

From the records of the case, it is clear that

a prima facie case for estafa/qualified estafa existsagainst petitioners Bernyl and Katherene. A perusalof the records, i.e., the affidavits of respondentHSBC’s witnesses, the documentary evidencepresented, as well as the analysis of the factualmilieu of the case, leads this Court to agree with theCourt of Appeals that, taken together, they areenough to excite the belief, in a reasonable mind,that the Spouses Bernyl Balangauan and KathereneBalangauan are guilty of the crime complained of. Whether or not they will be convicted by a trialcourt based on the same evidence is not aconsideration. It is enough that acts or omissionscomplained of by respondent HSBC constitute thecrime of estafa and/or qualified estafa.

Collectively, the photographs of petitioner

Katherene leaving the premises of respondent HSBCcarrying a bulky plastic bag and the affidavits ofrespondent HSBC’s witnesses sufficiently establishacts adequate to constitute the crime of estafaand/or qualified estafa. What the affidavits bear outare the following: that York was a Premier Client ofrespondent HSBC; that petitioner Katherenehandled all the accounts of York; that not one ofYork’s accounts reflect the P2,500,000.00 allegedlydeposited in a higher yielding account; that prior tothe discovery of her alleged acts and omissions,petitioner Katherene supposedly persuaded York toinvest in a “new product” of respondent HSBC, i.e.,a higher interest yielding time deposit; that Yorkmade a total of P2,500,000.00 investment in the“new product” by authorizing petitioner Balangauanto transfer said funds to it; that petitioner Katherenesupposedly asked York to sign several transactiondocuments in order to transfer the funds to the“new product”; that said documents turned out tobe withdrawal slips and cash movement tickets;that at no time did York receive the cash as a resultof signing the documents that turned out to bewithdrawal slips/cash movement tickets; that York’saccount was regularly credited “loose change” inthe amounts of P12,500.00 and P8,333.33beginning in the month after the alleged “transfer”of York’s funds to the “new product”; that theregular deposits of loose change were transactedwith the use of petitioner Katherene’s work terminalaccessed by her password “CEO8”; that the “CEO8”password was keyed in with the use of a swipe cardalways in the possession of petitioner Katherene;that one of the loose-change deposits wastransacted via the phone banking feature ofrespondent HSBC and that when traced, the phonenumber used was the landline number of the houseof petitioners Bernyl and Katherene; thatrespondent HSBC’s bank personnel, as well as York,supposedly a) talked with petitioner Katherene onthe phone, and that she allegedly admitted that themissing funds were invested with Shell Company, of

16

which York approved, and that it was only for oneyear; and b) met with petitioner Bernyl, and that thelatter at first denied having knowledge of his wife’scomplicity, but later on admitted that he knew ofthe investment with Shell Company, and that hesupposedly made the loose-change deposit viaphone banking; that after 23 April 2002, York wastold that respondent HSBC had no “new product” orthat it was promoting investment with ShellCompany; that York denied having any knowledgethat his money was invested outside of respondentHSBC; and that petitioner Katherene would not havebeen able to facilitate the alleged acts or omissionswithout taking advantage of her position or office,as a consequence of which, HSBC had to reimburseYork the missing P2,500,000.00.

From the above, the alleged circumstances

of the case at bar make up the elements of abuse ofconfidence, deceit or fraudulent means, anddamage under Art. 315 of the Revised Penal Codeon estafa and/or qualified estafa. They give rise tothe presumption or reasonable belief that theoffense of estafa has been committed; and, thus,the filing of an Information against petitionersBernyl and Katherene is warranted. Thatrespondent HSBC is supposed to have nopersonality to file any criminal complaint againstpetitioners Bernyl and Katherene does not ipsofacto clear them of prima facie guilt. The samegoes for their basic denial of the acts or omissionscomplained of; or their attempt at shifting the doubtto the person of York; and their claim that witnessesof respondent HSBC are guilty of fabricating thewhole scenario. These are matters of defense; theirvalidity needs to be tested in the crucible of a full-blown trial. Lest it be forgotten, the presence orabsence of the elements of the crime is evidentiaryin nature and is a matter of defense, the truth ofwhich can best be passed upon after a full-blowntrial on the merits. Litigation will prove petitionersBernyl and Katherene’s innocence if their defensebe true.

In fine, the relaxation of procedural rulesmay be allowed only when there are exceptionalcircumstances to justify the same. Try as we might,this Court cannot find grave abuse of discretion onthe part of the Court of Appeals, when it reversedand set aside the resolutions of the DOJ. There is noshowing that the appellate court acted in anarbitrary and despotic manner, so patent or grossas to amount to an evasion or unilateral refusal toperform its legally mandated duty. On the contrary,we find the assailed decision and resolution of theCourt of Appeals to be more in accordance with theevidence on record and relevant laws andjurisprudence than the resolutions of the DOJ.

Considering the allegations, issues andarguments adduced and our disquisition above, wehereby dismiss the instant petition for being thewrong remedy under the Revised Rules of Court, aswell as for petitioner Bernyl and Katherene’s failureto sufficiently show that the challenged Decisionand Resolution of the Court of Appeals wererendered in grave abuse of discretion amounting tolack or excess of jurisdiction.

WHEREFORE, premises considered, theinstant Petition for Certiorari is DISMISSED for lackof merit. The 28 April 2006 Decision and the 29June 2006 Resolution of the Court of Appeals in CA-G.R. CEB- SP No. 00068, are hereby AFFIRMED. With costs against petitioners -- Spouses BernylBalangauan and Katherene Balangauan.

SO ORDERED.

ATTY. RODERICK M. SANTOS and ALEXANDERANDRESvsJUDGE LAURO BERNARDO, Municipal TrialCourt, Bocaue, Bulacan, A.M. No. MTJ-07-1670 (Formerly OCA IPI No.06-1822-MTJ) July 23, 2008 DECISION AZCUNA, J.:

This is an administrative case againstrespondent MTC Judge Lauro Bernardo for his

alleged impropriety, manifest bias and partiality,grave abuse of discretion, and gross ignorance ofthe law/procedure relative to Criminal Case No. 06-004 entitled “People of the Philippines v. Atty.Roderick M. Santos and Boyet Andres.”

On February 9, 2006, Atty. Roderick M.

Santos and Alexander Andres filed a verifiedAffidavit-Complaint charging respondent of:

Impropriety –

Respondent is using government resources

in the discharge of his functions for his personalpleasure and convenience. Specifically, he allowshis girlfriend, a certain “Boots,” to stay and use asher lounge the judge’s chamber in violation of hisduty under Rule 2.01 of the Code of Judicial Conductto maintain proper decorum. On many occasions,even when there is a hearing, his girlfriend stays inthe chamber, hindering the full performance ofrespondent’s duties as he has to attend to herwhims and caprices, plus the fact that his girlfriendis just cooling herself in the air-conditioned roomwhile litigants have to bear the cramped hot spaceof the courtroom. This act also invites suspicionsince her mere presence therein is an indication ofwho to talk to regarding a case. Following the caseof Presado v. Genova,[1] the act of respondentconstitutes serious misconduct.

Manifest Bias and Partiality –

Respondent committed manifest bias andpartiality when he allowed the filing of CriminalCase No. 06-004 for Grave Coercion against thecomplainants because it was his chance to get backat Atty. Santos against whom he is harboring agrudge after the latter moved for his inhibition inCriminal Case Nos. 04-430 and 04-572.

Instead of conducting a preliminary

investigation after the filing of the complaint to findprobable cause to hold complainants herein for trial,

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respondent immediately signed the criminalcomplaint upon its filing and ordered that the casebe set for “preliminary hearing” on January 12,2006. His own branch clerk certified that the“complainant and her witnesses only subscribedtheir statement before the presiding judge.” Worse,respondent allowed the criminal case to be filedeven if it is based on hearsay evidence, as thecomplainant therein, one Dr. Elida D. Yanga, was notin the place at the time the alleged offensehappened. From the documents gathered, theundue haste by which respondent acted is veryevident because the complaint-affidavit, thecriminal complaint, and the subpoena have thecommon date of January 4, 2006. More so, thesubpoena was immediately served on complainantson January 5, 2006.

Grave Abuse of Discretion and Unfaithfulness tothe Law –

Respondent committed grave abuse of

discretion when he did not conduct a preliminaryinvestigation in Crim. Case No. 06-004. Underparagraph 2, Section 1, Rule 112 of the RevisedRules on Criminal Procedure (Rules),[2] preliminaryinvestigation is required to be conducted before thefiling of a complaint or information for offenseswhere the penalty prescribed by law is at least fouryears, two months and one day. The maximumimposable penalty for Grave Coercion is six yearsimprisonment; hence, complainants should havebeen accorded the right to preliminary investigationwhereby they could have demonstrated that thecomplaint is worthless. Respondent, however,chose to be ignorant of the basic provisions of theRules in order to exact revenge and cause them tounduly stand trial. Despite the Motion to QuashComplaint with Prayer for Voluntary Inhibition filedby complainants to give him a chance to correct hiserror by at least referring the case to the Office ofthe Provincial Prosecutor of Bulacan for the conductof the requisite preliminary investigation, heremained adamant by issuing an order referring the

case instead to the Executive Judge of Bulacan forits raffle to another MTC judge. This act showedrespondent’s deliberate intent to make thecomplainants accused persons in a criminal case.

By allowing the immediate filing of a

patently unmeritorious case, respondent taintedAtty. Santos’ good reputation: he is a lawpractitioner with companies in Makati, Pasig andManila as clients; he is a businessman and was alsoa former chairman of the board and current boarddirector of St. Martin of Tours Credit andDevelopment Cooperative, the largest creditcooperative in Region III; and he is a frequenttraveler, going abroad at least once a year. Withthe worthless criminal case filed against him,respondent puts a sore obstacle to Atty. Santos’ wayof life that is truly an undeserved inconvenience.

On April 11, 2006, respondent filed his

Comment arguing in the main that the chargesagainst him are hearsay, without factual and legalbasis, and are a malicious imputation upon hisperson; and that the acts stated in the complaintwere based solely on the bare allegations of thecomplainants as no corroborative statements ofwitnesses were presented to prove the same. Incontradicting complainants’ representation, hestated thus:

As to the charge of Impropriety: “Boots” (whose maiden name was Ma.

Rosario M. Layuga) is now respondent’s lawful wife,as proven by a marriage certificate showing theircivil union before a Caloocan City Regional TrialCourt (RTC) judge on March 14, 2006. There was nooccasion or intention on his part to make thejudge’s chamber a residential or dwelling place. Instead, his wife’s presence is “actually dictated bya moral duty in the exercise of maritalresponsibility” since he has been allergic to somefoods, particularly fish and some beans. In fact, lastOctober 2005, after eating fish, respondent nearly

lost his life due to a severe allergy had it not beenfor the timely medical intervention administered ata nearby hospital. Aside from this, he is sufferingfrom irregular heartbeat which causes constant riseof his blood pressure and uric acid. Also, his wife isnot merely present in the chamber since, while inthere, she is also attending to some activities. Being self-employed and with extensive exposureto trading, she administers the family propertyconsisting of leased premises and landholdings inPandi, Bulacan.

Respondent’s relation to his wife is “serious,

open and known to the public” and that theatmosphere prevailing in the court’s chamber evenin the alleged presence of his wife is “anatmosphere of friendship, respect and decency.” Herelated that he and his wife are regular participantsof Marriage Encounter prayer meetings as well as inthe prayer assemblies conducted by the Couples forChrist. Respondent is an active member of theRotary Club of Sta. Maria and Knights of Columbus,Marian Council of Sta. Maria, Bulacan while his wifeis a member of the Inner Wheel Club of thePhilippines. As members, they are activeparticipants in the clubs’ community projects andother civic activities. On top of these, respondentjudge presented Resolution No. 06-03-025, dated 20March 2006, of the Sangguniang Bayan of Bocaue,Bulacan signifying its “unilateral decree of supportand commendation to [respondent] in recognition ofhis long years of commendable and meritoriousservice in the dispensation of justice” and theCertificate of Commendation, dated 30 March 2006,issued by the Mayor of the Municipality of Bocaue.

As to the charge of Manifest Bias and

Partiality: Complainants interpreted that when

respondent signed the criminal complaint as well assubscribed the affidavits of the witnesses underoath he already made a finding of probable cause.

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This is not correct because his signature was onlyfor the purpose of administering an oath, asevidenced by the certification issued by the clerk ofcourt. The fact is that the criminal case did notreach the stage of preliminary investigation sincecomplainants filed a Motion for Inhibition which wasreadily granted. Respondent conducted the courtproceedings in accordance with the provisions ofthe Rules, particularly Sections 3 (a) and 8 (b) ofRule 112.[3]

As to the charge of Grave Abuse of

Discretion and Unfaithfulness to the Law: Admittedly, preliminary investigation must

be conducted before the filing of a complaint orinformation for an offense where the penaltyprescribed by law is at least four years, two monthsand one day without regard to fine. In the case ofGrave Coercion, however, there is no need for apreliminary investigation since prision correccional(six months and one day to six years), which is theimposable penalty for said crime, does not fallwithin the required penalty of prision correccionalmaximum (four years, two months and one day). The criminal case against complainants shouldproceed in accordance with Section 8 (b) of Rule112.

When respondent issued a subpoena setting

the case for preliminary hearing it was taken as ameasure of “damage control.” Knowing that amember of the Bar is being charged before thecourt, it might have afforded the parties the chanceto thresh out their differences and possibly settleamicably. Likewise, his order to forward the case tothe Office of the Executive Judge was but a result ofhis voluntary inhibition from the case, which he hadchosen to definitely rule upon instead of furtherquashing the criminal complaint since the Motionfiled by complainants prayed respondent to resolvetwo “judiciously irreconcilable” issues.

As a background, the enmity betweenrespondent and Atty. Santos started in CriminalCase Nos. 04-430 and 04-572 wherein the latterappeared as private prosecutor in Criminal Case No.04-430 for Reckless Imprudence Resulting toDamage to Property. The accused in said case lateron filed a similar case (docketed as Criminal CaseNo. 04-572) against Atty. Santos’ client. Respondent found probable cause in both cases. Atty. Santos questioned this ruling but, on appeal,the RTC sustained the findings. Atty. Santos did notelevate the matter to the appellate court until thedecision became final.

In order for liability to attach for ignorance of

the law, the assailed order, decision or actuation ofthe judge in the performance of official duties mustnot only be found erroneous but most importantly itmust be established that he was moved by badfaith, dishonesty or some other like motive. In thiscase, respondent has nothing to gain, material orotherwise, from the outcome of the criminal action;he met the parties only during the proceedings incourt, not before its filing, and he inhibited himselfpromptly from the case. Atty. Santos instead is theone who has animosity to respondent; he mustrealize and understand that what he (respondent)had done is just all in a day’s work and nothingpersonal about it.

In their Reply, the complainants argued that

aside from converting the judge’s chamber into a“nursing home” or “convalescent center” what ismore troubling is respondent’s own admission thathis wife’s activities therein are not limited to the“[care] for the sick” but also to her involvement intrading, which is highly irregular and improper sincethey are being conducted within the court’spremises. As regards the commendations receivedby respondent, the complainants stated that it ismost likely that everybody working in the MunicipalGovernment of Bocaue got an award because it wasgiven during its 400th foundation day; that the “pro-forma” certificates do not show whether he

deserves it or not; and in any event, these awardsare totally irrelevant to the case. Incidentally,complainants also mentioned that court sessions inBocaue usually start late almost at 2:00 p.m. orlater, instead of 1:30 p.m.

Likewise, complainants commented on the

“disturbing procedure” followed by respondent,which is, allowing the criminal complaint to beimmediately entered in the criminal docket (thus,converting it to a criminal case by a mere stroke ofthe clerk of court’s pen) and signing the criminalcomplaint aside from the affidavit-complaint withoutfirst finding probable case. This, according to them,is contrary to the provision of Sec. 3 (a), Rule 112 ofthe Rules which states that only the affidavits mustbe subscribed and sworn to, a rule that respondentmust follow when he is to conduct his investigatoryfunctions under Sec. 3 or Sec. 9 (b), Rule 112.[4] Complainants also dismissed respondent’sreasoning that his actuation was based on Sec. 3 (a)and Sec. 9 (b), Rule 112 because, as proven by theabsence of any transcript of stenographic notes(TSN), the latter did not conduct searchingquestions and answers to Dr. Yanga and herwitnesses. He has to explain, therefore, why headmitted a complaint based on hearsay evidencesince the person who was not the object of thealleged coercive acts is the one who is the offendedparty in the criminal case.

Complainants insisted that since themaximum penalty imposable for the offense ofGrave Coercion is six years, a preliminaryinvestigation should have been held. Moreover,they maintained that Rule 112 is a completeprocedure in itself; hence, as stated in Sec. 9 (b), itis the duty of respondent to dismiss the complaintor find probable cause within ten (10) days from itsfiling and not to call for a “preliminary hearing,”which is a non-existent procedure in the Rules.

Lastly, Atty. Santos denied that he was the

one who has hard feelings against respondent.Instead, he claimed that it is a matter of record, in

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the Order resolving the Motion for VoluntaryInhibition in Crim. Case Nos. 04-430 and 04-572,that the latter branded him as somebody he couldnot “co-exist with … in the quest for a just andequitable administration of justice.” Atty. Santosalleged that respondent even furnished theExecutive Judge of Bulacan with a copy of the Orderto broadcast that he is a difficult lawyer to dealwith. He emphasized that this administrativecomplaint is not about his client in Crim. Case No.04-572 but is concerned with the injusticecommitted by respondent when he willingly anddeliberately violated established rules and legaldoctrines just so complainants would suffer undueinjury by being tried for a fabricated case of GraveCoercion.

Parrying the supplementary allegations, on

the other hand, respondent countered in hisRejoinder that it is unfair for complainants toconclude, much more insinuate, that his wife hassomething to do with any impropriety by her merepresence in the chamber. He reiterated that hercompany is necessitated by his health condition andthat, anyway, she also has her own business toattend to – that of managing the family inheritanceof leased premises in the nearby town of Pandi,Bulacan, and actively engaging herself in anindependent business concern, held not in MTC-Bocaue, which is the large-scale trading of electrictransformers, metal scraps and heavy equipmententrusted to her by her uncles and close relatives.

As to the charge of frequent delay of courtsessions, respondent stated that he has beenalways present and ready to begin the proceedingsbut it is the desire of most lawyers to start at 2:00p.m., more or less, because most of them, includingthe public prosecutor and the PAO lawyer, comefrom RTC hearings and even all the way fromMalolos City. To compensate for the lost time,however, he averred that court sessions adjourneven up to 6:30 p.m. so that all cases may beaccommodated.

Respondent clarified that when he signed theaffidavits of Dr. Yanga and her witnesses it was onlyfor the purpose of administering the oath of theperson filing the criminal complaint. He positedthat the proper rule that must be applied is not Sec.3 (a), Rule 112, which refers to the procedure inpreliminary investigation, but Sec. 3, Rule 110[5] onthe institution of criminal actions providing that thecomplaint must be subscribed by the offendedparty, any peace officer, or other public officercharged with the enforcement of the law violated. Further, while respondent conceded that there wasreally no TSN available because no hearing washeld he asserted that under Sec. 9 (b) of Rule 112 ajudge is authorized to just personally evaluate theevidence before him to find probable cause insteadof personally examining in writing and under oaththe complainant and his witnesses in the form ofsearching questions and answers. Finally,respondent firmly held on to his position that GraveCoercion is not one of the crimes requiringpreliminary investigation since the minimumpenalty imposable for said offense is six months andone day.

On February 20, 2007, the Office of the Court

Administrator (OCA) found respondentadministratively liable for gross ignorance of thelaw, and recommended the imposition of a fine inthe amount of P20,000 considering this is his firsttime to be sanctioned for a serious charge. In itsReport, the OCA stated:

Whether of not there is a need

for preliminary investigation underSection 1 in relation to Section 9 ofRule 112 of the Revised Rules onCriminal Procedure depends upon themaximum imposable penalty for thecrime charged in the complaint filedwith the City Prosecutor’s Office andnot upon the imposable penalty forthe crime found to have beencommitted by respondent.

In San Agustin v. People, the Courtheld:

“However, we donot agree with theruling of the Court ofAppeals that there wasno need for the CityProsecutor to conduct apreliminaryinvestigation since thecrime charged underthe Information filedwith the MeTC wasarbitrary detentionunder Article 124,paragraph 1 of theRevised Penal Codepunishable by arrestomayor in its maximumperiod to prisioncorreccional in itsminimum period, whichhas a range of fourmonths and one day totwo years and fourmonths. Whether ornot there is a needfor a preliminaryinvestigation underSection 1 in relationto Section 9 [nowSection 8] of Rule112 of the RevisedRules of CriminalProcedure dependsupon the imposablepenalty for the crimecharged in thecomplaint filed withthe City or ProvincialProsecutor’s Officeand not upon the

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imposable penaltyfor the crime foundto have beencommitted by therespondent after apreliminaryinvestigation. In thiscase, the crimecharged in thecomplaint of the NBIfiled in the Departmentof Justice waskidnapping/seriousillegal detention, theimposable penalty forwhich is reclusionperpetua to death.”

The maximum imposablepenalty for grave coercion is six yearsimprisonment and such entitled theaccused to their right to a preliminaryinvestigation to save them from therigors of trials in case no probablecause exists to warrant the filing ofthe criminal complaint or informationagainst them. Respondent Judge shouldhave remanded the case to the publicprosecutor for the purposes ofpreliminary investigation. [TheSupreme] Court in a catena of casesheld:

“The absence of

preliminaryinvestigation does notaffect the court’sjurisdiction over thecase. Nor do theyimpair the validity ofthe information orotherwise render it

defective, but if therewere no preliminaryinvestigation and thedefendants, beforeentering their plea,invite the attention ofthe court to theirabsence, the courtinstead of dismissingthe information, shouldconduct suchinvestigation, order thefiscal to conduct it orremand the case to theinferior court so thatpreliminaryinvestigation may beconducted.”

The issue raised bycomplainant does not pertain to anerror of judgment or to one pertainingto the exercise of sound discretion byrespondent. Rather, the issue iswhether respondent complied withthe procedural rules so elementarythat to digress from them amounts toignorance of the law. Since the ruleson preliminary investigation are basicand clearly expressed in the RevisedRules of Criminal Procedure,respondent’s actuation in denying thesame is deemed to have beenattended by gross ignorance of thelaw and procedure. [The Supreme] Court hasconsistently held that lack ofconversance with legal principlessufficiently basic and elementaryconstitutes gross ignorance of thelaw. As an advocate of justice and avisible representation of the law, ajudge is expected to be proficient inthe interpretation of our laws.

Respondent clearly strayedfrom the well-trodden path when hegrossly misapplied the Revised Rulesof Criminal Procedure. (Citationsomitted) As regards the other charges, the OCA

dismissed them for complainants’ failure to adducesufficient evidence to substantiate the allegations.

The Report and Recommendation of the OCA

are sustained. There is no merit in respondent’s supposition

that Grave Coercion is an offense not subject topreliminary investigation because the minimumpenalty imposable for the said offense, which is sixmonths and one day, falls short of the minimumpenalty of four years, two months and one dayrequired by the Rules. The OCA correctly appliedSan Agustin v. People.[6] Certainly, the need for apreliminary investigation under Sec. 1 in relation toSec. 8 of Rule 112 of the Rules depends upon theimposable penalty for the crime charged inthe complaint or information filed and not uponthe imposable penalty for the offense which may befound to have been committed by the accused aftera preliminary investigation. In the case of GraveCoercion, the Revised Penal Code provides a penaltyof prision correccional or anywhere between sixmonths and one day to six years; thus, apreliminary investigation must still be held sincethere is a possibility that the complainants wouldstand to suffer the maximum penalty imposable forthe offense. The purpose of a preliminaryinvestigation is to protect the innocent from hasty,malicious and oppressive prosecutions, from anunnecessary open and public accusation of a crime,and from the trouble, expense and anxiety of atrial. It also protects the State from a useless andexpensive litigation. Above all, it is a part of theguarantees of freedom and fair play.[7]

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Notably, however, by the time the criminalcomplaint of Dr. Yanga against herein complainantswas filed on January 3, 2006, respondent wasalready without authority to conduct preliminaryinvestigation since effective October 3, 2005,judges of Municipal Trial Courts and MunicipalCircuit Trial Courts are no longer authorized toconduct the same, pursuant to A.M. No. 05-8-26-SC(Re: Amendment of Rules 112 and 114 of theRevised Rules on Criminal Procedure by Removingthe Conduct of Preliminary Investigation fromJudges of the First Level Courts).[8] The appropriateaction of respondent, therefore, should have beento immediately refer the complaint to the Office ofthe Provincial Prosecutor of Bulacan so that apreliminary investigation could proceed withreasonable dispatch. His issuance of a subpoenadirecting complainants to appear before the courton January 12, 2006 for a “preliminary hearing,”although the hearing did not materialize after hisvoluntary inhibition from the case on January 10,2006, was definitely out of order. At this point, it isclear that respondent committed gross ignorance ofan existing procedure which is basic andelementary.

Meanwhile, as to the impropriety purportedly

committed by respondent in his own chamber, theOCA rightly found that complainants failed toprovide specific details that would validate anymisuse or abuse of government funds and/orfacilities. Nonetheless, it is opportune to remindrespondent as well as other trial court judges, whoare the “front-liners” in the promotion of thepeople's faith in the judiciary, of the directivesembodied in the following administrative circulars:

1. Administrative Circular(A.C.) No. 3-92 (Prohibition againstUse of Halls of Justice for Residential orCommercial Purposes)[9] – All judgesand court personnel are reminded thatthe Halls of Justice may be used only

for purposes directly related to thefunctioning and operation of the courtsof justice, and may not be devoted toany other use, least of all as residentialquarters of the judges or courtpersonnel, or for carrying on thereinany trade or profession. Attention isdrawn to this Court’s ruling in A.M. No.RTJ-89-327 (Nellie Kelly Austria v. JudgeSinguat Guerra) whereby we declaredthat the use of the court’s premisesinevitably degrades the honor anddignity of the court in addition toexposing judicial records to danger ofloss or damage.

2. A.C. No. 01-99 (Enhancingthe Dignity of Courts as Temples ofJustice and Promoting Respect for theirOfficial and Employees)[10] –Considering the courts as temples ofjustice, their dignity and sanctity must,at all times, be preserved andenhanced. In inspiring public respectfor the justice system, court officialsand employees are directed, amongothers, never to use their offices as aresidence or for any other purpose thanfor court or judicial functions.

3. A.C. No. 09-99 (BanningSmoking and Selling of Goods withinCourt Houses and Offices)[11] – Conformably with A.C. No. 01-99, this circular disallowed, among others, within court houses and, morespecifically, session halls and offices ofcourt officials and personnel, the sellingof goods of any kind, especially bypersons who are not court employees.

In fine, as the New Code of Judicial Conduct

for the Philippine Judiciary[12] mandates, judgesshould avoid impropriety and the appearance of

impropriety in all of their activities. They should notuse or lend the prestige of the judicial office toadvance their private interests, or those of amember of their family or of anyone else, nor shallthey convey or permit others to convey theimpression that anyone is in a special positionimproperly to influence them in the performance ofjudicial duties.[13]

WHEREFORE, respondent Judge LAURO

BERNARDO, MTC, Bocaue, Bulacan, is foundGUILTY of gross ignorance of the law and basicrules of procedure and is hereby FINED in theamount of P20,000, with a STERN WARNING that arepetition of the same or similar act in the futureshall be dealt with more severely.

Let a copy of this Decision be attached to the

personnel record of respondent in the Office of theAdministrative Services, Office of the CourtAdministrator.

SO ORDERED.

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WINSTON MENDOZA and FE MICLAT,

vs.FERNANDO ALARMA and FAUSTA ALARMA,

G.R. No. 151970

May 7, 2008

D E C I S I O N

CARPIO, J.:

The Case

Before the Court is a petition for review oncertiorari1 assailing the Decision2 dated 9 July 2001and Resolution3 dated 30 January 2002 of the Courtof Appeals in CA-G.R. CV No. 58139.

The Facts

Spouses Fernando and Fausta Alarma (respondents)are the owners of an 11.7 hectare parcel of land(land) located in Iba, Zambales. The land, identifiedas Cadastral Lot No. 2087 of Iba Cadastre, wasposted as a property bond for the provisional libertyof a certain Joselito Mayo, charged with illegalpossession of firearms in Criminal Case No. 1417-I,entitled "People of the Philippines v. GregorioCayan, et al."

When the accused failed to appear in court asdirected on 19 March 1984, the trial court orderedhis arrest and the confiscation of his bail bond infavor of the government. It also directed thebondsmen to produce within a period of 30 days theperson of the accused and to show cause whyjudgment should not be entered against the bailbond. However, without a judgment being renderedagainst the bondsmen, the trial court issued a writof execution against the land in an Order dated 14April 1986.4 The land was eventually sold at publicauction and petitioners Winston Mendoza and FeMiclat emerged as the highest bidders. Thus, theland was awarded to petitioners and theyimmediately took possession of the same.

Sometime thereafter, respondents filed a complaintfor recovery of property against petitioners with theRegional Trial Court of Iba, Zambales, Branch 70,5

grounded on the nullity of the entire proceedingsrelating to the property bond. During the pre-trialconducted on 3 May 1988, the parties agreed thatthe property would be placed in the possession ofrespondents. On 2 August 1989, the court renderedits decision dismissing the complaint and declaringthat the Order dated 14 April 1986 was a judgmenton the bond.

On appeal, the appellate court reversed thedecision of the trial court and nullified theproceedings on the execution, sale, and issuance ofthe writ of possession.6 Thereafter, petitioners fileda petition for review on certiorari with this Court,docketed as G.R. No. 101103 and entitled "WinstonMendoza, et al. v. Court of Appeals, et al." In aResolution dated 18 March 1992, this Court deniedthe petition and ruled with finality that the assailed14 April 1986 Order was not a judgment on thebond.7

Meanwhile, petitioners applied for the registration ofthe land with the Regional Trial Court of Iba,Zambales, Branch 70.8 On 9 September 1987, thetrial court granted the registration and issuedOriginal Certificate of Title (OCT) No. O-7249 in thename of petitioners.

The Trial Court’s Ruling

Respondents then filed an action for the annulmentof title and reconveyance of ownership of the landcovered by OCT No. O-7249 with the Regional TrialCourt of Iba, Zambales, Branch 71.9 On 24September 1997, the trial court dismissed the

23

action contending that it had no jurisdiction to annulthe judgment rendered by the Regional Trial Courtof Iba, Zambales, Branch 70, a co-equal court.10 Thetrial court declared further that since the issue ofthe case was the validity of OCT No. O-7249, thecase should have been filed with the Court ofAppeals which has exclusive original jurisdictionover annulment of judgments of a Regional TrialCourt.

The Ruling of the Court of Appeals

Respondents filed an appeal with the Court ofAppeals which reversed the findings of the trialcourt and annulled OCT No. O-7249.11 The appellatecourt also ordered that a new title over the propertybe issued in the name of respondents. Petitionersfiled a Motion for Reconsideration which theappellate court denied in a Resolution dated 30January 2002.

Hence, this petition.

The Issue

The sole issue for our resolution is whether theCourt of Appeals erred in finding a defect in theproceedings and in ordering the annulment of OCTNo. O-7249.

Petitioners contend that even if the executionproceedings were nullified, they were not privy tothe irregularities of the auction sale. Thus, asbuyers in good faith, they must be protected by thelaw.

Respondents, on the other hand, maintain that thebasis for the acquisition of the land and the

issuance of title over it had already been declaredvoid by this Court in G.R. No. 101103. Thus,petitioners cannot now claim good faith. With novalid title to the land, petitioners must reconvey theland to respondents.

The Court’s Ruling

The petition lacks merit.

Section 21, Rule 114 of the Revised Rules onCriminal Procedure states:

SEC. 21. — Forfeiture of bail. When thepresence of the accused is required by thecourt or these Rules, his bondsmen shall benotified to produce him before the court on agiven date and time. If the accused fails toappear in person as required, his bail shallbe declared forfeited and the bondsmengiven thirty (30) days within which toproduce their principal and to show causewhy no judgment should be rendered againstthem for the amount of their bail. Within thesaid period, the bondsmen must:

(a) produce the body of their principalor give the reason for his non-production; and

(b) explain why the accused did notappear before the court when firstrequired to do so.

Failing in these two requisites, a judgmentshall be rendered against the bondsmen,jointly and severally, for the amount of thebail. The court shall not reduce or otherwise

mitigate the liability of the bondsmen, unlessthe accused has been surrendered or isacquitted.

The provision clearly provides for the procedure tobe followed before a bail bond may be forfeited anda judgment on the bond rendered against thesurety. In Reliance Surety & Insurance Co., Inc. v.Amante, Jr.,12 we outlined the two occasions uponwhich the trial court judge may rule adverselyagainst the bondsmen in cases when the accusedfails to appear in court. First, the non-appearance bythe accused is cause for the judge to summarilydeclare the bond as forfeited. Second, thebondsmen, after the summary forfeiture of thebond, are given 30 days within which to produce theprincipal and to show cause why a judgment shouldnot be rendered against them for the amount of thebond. It is only after this 30-day period, duringwhich the bondsmen are afforded the opportunity tobe heard by the trial court, that the trial court mayrender a judgment on the bond against thebondsmen. Judgment against the bondsmen cannotbe entered unless such judgment is preceded by theorder of forfeiture and an opportunity given to thebondsmen to produce the accused or to adducesatisfactory reason for their inability to do so.13

In the present case, it is undisputed that theaccused failed to appear in person before the courtand that the trial court declared his bail forfeited.The trial court gave the bondsmen, respondents inthis case, a 30-day period to produce the accusedor a reasonable explanation for their non-production. However, two years had passed fromthe time the court ordered the forfeiture and still nojudgment had been rendered against the bondsmenfor the amount of the bail. Instead, an order of

24

execution was issued and the property was put upfor sale and awarded to petitioners, the highestbidders.

These turn of events distinctly show that there wasa failure of due process of law. The execution wasissued, not on a judgment, because there was none,but simply and solely on the declaration offorfeiture.

An order of forfeiture of the bail bond is conditionaland interlocutory, there being something more tobe done such as the production of the accusedwithin 30 days. This process is also calledconfiscation of bond. In People v. Dizon,14 we heldthat an order of forfeiture is interlocutory andmerely requires appellant "to show cause whyjudgment should not be rendered against it for theamount of the bond." Such order is different from ajudgment on the bond which is issued if the accusedwas not produced within the 30-day period. Thejudgment on the bond is the one that ultimatelydetermines the liability of the surety, and when itbecomes final, execution may issue at once.15

However, in this case, no such judgment was everissued and neither has an amount been fixed forwhich the bondsmen may be held liable. The lawwas not strictly observed and this violatedrespondents’ right to procedural due process.

In addition, we find that the issue of good faith inbuying the property at the auction sale is no longermaterial. This Court in a previous case had alreadyruled upon the invalidity of the execution and saleof the land. As a result, the basis for which title tothe land had been issued has no more leg to standon. The appellate court, therefore, was correct inordering the annulment of the title to the land as a

matter of course. There being no valid title nor anyright to possess the land, reconveyance to therespondents is only proper under thecircumstances.

WHEREFORE, we DENY the petition. We AFFIRMthe 9 July 2001 Decision and 30 January 2002Resolution of the Court of Appeals in CA-G.R. CV No.58139.

SO ORDERED.

SPS. CAROLINA and REYNALDO JOSE, vs.SPS. LAUREANO and PURITA SUAREZG.R. No. 176795 June 30, 2008

D E C I S I O N

TINGA, J.:

Petitioners filed this case assailing the Decision1 ofthe Court of Appeals in CA-G.R. CEB SP No. 00397dated 17 August 2006 which affirmed the Orders2of the Regional Trial Court (RTC) of Cebu City,Branch 19 restraining Branches 2 and 5 of theMunicipal Trial Court in Cities (MTCC) of Cebu Cityfrom proceeding with the criminal cases forviolation of Batas Pambansa Bilang 22 (B.P. Blg. 22)filed against respondent Purita Suarez.

The facts of the case follow.

Respondents, spouses Laureano and Purita Suarez,had availed of petitioner Carolina Jose’s (Carolina)offer to lend money at the daily interest rate of 1%to 2%. However, Carolina and her husband,petitioner Reynaldo Jose, later on increased theinterest to 5% per day, which respondents wereforced to accept because they allegedly had noother option left. It then became a practice thatpetitioners would give the loaned money to Puritaand the latter would deposit the same in her andher husband’s account to cover the maturingpostdated checks they had previously issued inpayment of their other loans. Purita would thenissue checks in favor of petitioners in payment ofthe amount borrowed from them with the agreed5% daily interest.

On 7 May 2004, respondents filed a Complaint3against petitioners seeking the declaration of"nullity of interest of 5% per day, fixing of interest,recovery of interest payments"4 and the issuance ofa writ of preliminary injunction, alleging that theinterest rate of 5% a day is iniquitous, contrary tomorals, done under vitiated consent and imposedusing undue influence by taking improperadvantage of their financial distress. They claimedthat due to serious liquidity problems, they wereforced to rely on borrowings from banks andindividual lenders, including petitioners, and thatthey had to scramble for funds to cover thematuring postdated checks they issued to covertheir other borrowings. In their prayer, respondentsstated:

WHEREFORE, it is prayed that upon the filing of theinstant case and in accordance with the 1997 Ruleson Civil Procedure[,] a writ of preliminary injunctionor at least a temporary restraining order be issuedrestraining defendant from enforcing the checks aslisted in Annex "E" including the filing of criminalcases for violation of B.P. [Blg.] 22 and restrainingdefendants from entering plaintiffs’ store andpremises to get cash sales and other items against

25

plaintiffs will [sic] under such terms and conditionsas this Court may affix.5

Thereafter, at the instance of Carolina, severalcases for violation of B.P. Blg. 226 were filed againstrespondent Purita before the MTCC of Cebu City,Branches 2 and 5. Purita, in turn filed motions tosuspend the criminal proceedings on the ground ofprejudicial question, on the theory that the checkssubject of the B.P. Blg. 22 cases are void for beingcontra bonos mores or for having been issued inpayment of the iniquitous and unconscionableinterest imposed by petitioners. The motions weredenied.7

Respondents thereafter filed before the RTC a"Motion for Writ of Preliminary Injunction withTemporary Restraining Order"8 seeking to restrainthe MTCCs from further proceeding with the B.P. Blg.22 cases on the ground of prejudicial question.Petitioners opposed the motion. Nevertheless, theRTC through its 20 December 2004 Order9 issued awrit of preliminary injunction, thereby enjoining theMTCCs from proceeding with the cases againstPurita. Petitioners sought reconsideration of theorder but their motion was denied due course in theRTC’s 3 February 2005 Order.10

Petitioners elevated the case to the Court ofAppeals11 and questioned the propriety of theRTC’s issuance of a preliminary injunction based ona prejudicial question. The appellate court statedthat respondents had sought to annul the checks forbeing void pursuant to Article 1422 of the Civil Codewhich provides that "a contract which is the directresult of a previous illegal contract, is also void andinexistent." Accordingly, the appellate courtconcluded that if the checks subject of the criminalcases were later on declared null and void, thensaid checks could not be made the bases of criminalprosecutions under B.P. Blg. 22. In other words, theoutcome of the determination of the validity of thesaid checks is determinative of guilt or innocence ofPurita in the criminal case.12

The appellate court also observed that respondents’resort to an application for preliminary injunctioncould not be considered as forum shopping since itis the only remedy available to them consideringthe express proscription of filing a petition forcertiorari against interlocutory orders issued incases under B.P. Blg. 22 which are governed by therules on summary procedure.13

Before us, petitioners submit that because underSection 6, Rule 111 of the Rules on CriminalProcedure a petition to suspend proceedings on theground of prejudicial question should be filed in thesame criminal action, the RTC has no jurisdiction toissue the writ of preliminary injunction as it is notthe court where the B.P. Blg. 22 cases were filed.Moreover, they argue that respondents are guilty offorum shopping because after the denial of theirmotion to suspend the proceedings before Branches2 and 5 of the MTCC, they resorted to the filing of amotion for preliminary injunction before the RTCalso on the ground of prejudicial question;therefore, they succeeded in getting the relief inone forum (RTC) which they had failed to obtain inthe first forum (MTCCs). Likewise, petitioners claimthat the Court of Appeals erred in holding that thecivil case poses a prejudicial question to the B.P.Blg. 22 cases, thus resulting in the erroneoussuspension of the proceedings the latter cases.Finally, petitioners posit that the RTC erred inissuing the preliminary injunction becauserespondents have no clear and unmistakable rightto its issuance.14

Respondents, for their part, state that the possibilityof a ruling in the civil case to the effect that thesubject checks are contra bonos mores and hencenull and void constitutes a prejudicial question inthe B.P. Blg. 22 cases. Thus, proceeding with thetrial in the criminal cases without awaiting theoutcome of the civil case is fraught withmischievous consequences.15 They cite the case ofMedel v. Court of Appeals,16 wherein the Court

nullified the interest rate of 5.5% per month forbeing contra bonos mores under Article 1306 of theCivil Code, and recomputed the interest due at therate of 1% per month.17 Thus, if their loans arecomputed at 1% per month, it would mean that thechecks subject of the B.P. Blg. 22 cases are not onlyfully paid but are also in fact overpaid. They alsoinvoke the case of Danao v. Court of Appeals18wherein the Court allegedly ruled that there is noviolation of B.P. Blg. 22 if the dishonored checkshave been paid.19 They claim that since the 5%interest per day was not contained in any writtenagreement, per Article 195620 of the Civil Code,petitioners are bound to return the total interestthey collected from respondents. Respondents pointout that they incorporated in their complaint anapplication for preliminary injunction and temporaryrestraining order to restrain Carolina from enforcingthe interest and from filing criminal cases forviolation of B.P. Blg. 22. Quoting the RTC,respondents explain:

Since there was no proof at that time that plaintiffsustain or are about to sustain damages orprejudice if the acts complained of are not enjoined,the application was not acted upon by the Court.When the attention of the Court was invited by theplaintiffs of the refusal of the MTC, Branches 2 and5, to suspend the criminal proceedings despitebeing appraised of the pendency of this case, theCourt has to act accordingly.21

Respondents maintain that they are not guilty offorum shopping because after the denial by theMTCCs of their motion to suspend proceedings, theironly available remedy was the filing of anapplication for preliminary injunction in the existingcivil case filed earlier than the B.P. Blg. 22 cases. Inany case, respondents argue that the rule on forumshopping is not intended to deprive a party to acase of a legitimate remedy.22 Finally, they claimthat the case falls under the exceptions to the rulethat the prosecution of criminal cases may not beenjoined by a writ of injunction, considering that in

26

this case there is a prejudicial question which is subjudice, and that there is persecution rather thanprosecution.23

The case hinges on the determination of whetherthere exists a prejudicial question whichnecessitates the suspension of the proceedings inthe MTCCs.

We find that there is none and thus we resolve togrant the petition.

A prejudicial question generally comes into play in asituation where a civil action and a criminal actionare both pending and there exists in the former anissue which must be preemptively resolved beforethe latter may proceed, because howsoever theissue raised in the civil action is resolved would bedeterminative juris et de jure of the guilt orinnocence of the accused in the criminal case. Therationale behind the principle of prejudicial questionis to avoid two conflicting decisions. It has twoessential elements: (i) the civil action involves anissue similar or intimately related to the issue raisedin the criminal action; and (ii) the resolution of suchissue determines whether or not the criminal actionmay proceed.24

Now the prejudicial question posed by respondentsis simply this: whether the daily interest rate of 5%is void, such that the checks issued by respondentsto cover said interest are likewise void for beingcontra bonos mores, and thus the cases for B.P. Blg.22 will no longer prosper.

The prejudicial question theory advanced byrespondents must fail.

In the first place, the validity or invalidity of theinterest rate is not determinative of the guilt ofrespondents in the criminal cases. The Court hasconsistently declared that the cause or reason forthe issuance of a check is inconsequential indetermining criminal culpability under B.P. Blg.

22.25 In several instances, we have held that whatthe law punishes is the issuance of a bouncingcheck and not the purpose for which it was issuedor the terms and conditions relating to its issuance;and that the mere act of issuing a worthless checkis malum prohibitum provided the other elements ofthe offense are properly proved.26

The nature and policy of B.P. Blg. 22 were aptlyenunciated by the Court in Meriz v. People,27 whenit stated:

x x x. [B.P. Blg.] 22 does not appear to concern itselfwith what might actually be envisioned by theparties, its primordial intention being to insteadensure the stability and commercial value of checksas being virtual substitutes for currency. It is apolicy that can easily be eroded if one has yet todetermine the reason for which checks are issued,or the terms and conditions for their issuance,before an appropriate application of the legislativeenactment can be made. The gravamen of theoffense under [B.P. Blg.] 22 is the act of making orissuing a worthless check or a check that isdishonored upon presentment for payment. The acteffectively declares the offense to be one of malumprohibitum. The only valid query then is whetherthe law has been breached, i.e., by the mere act ofissuing a bad check, without so much regard as tothe criminal intent of the issuer.28

Thus, whether or not the interest rate imposed bypetitioners is eventually declared void for beingcontra bonos mores will not affect the outcome ofthe B.P. Blg. 22 cases because what will ultimatelybe penalized is the mere issuance of bouncingchecks. In fact, the primordial question posedbefore the court hearing the B.P. Blg. 22 cases iswhether the law has been breached, that is, if abouncing check has been issued.

The issue has in fact been correctly addressed bythe MTCCs when respondents’ motion to suspendthe criminal proceedings was denied upon the

finding that there exists no prejudicial questionwhich could be the basis for the suspension of theproceedings. The reason for the denial of the motionis that the "cases can very well proceed for theprosecution of the accused in order to determineher criminal propensity … as a consequence of theissuance of several checks which subsequently …bounced" for "what the law punishes is the issuanceand/or drawing of a check and upon presentmentfor deposit or encashment, it was dishonored due toinsufficient funds [or] account closed." 29

There being no prejudicial question, the RTC and,consequently, the Court of Appeals gravely erredwhen they allowed the suspension of theproceedings in the B.P. Blg. 22 cases.

Now, on to other matters.

We find that respondents are guilty of forumshopping. There is forum shopping when a partyseeks to obtain remedies in an action in one court,which had already been solicited, and in othercourts and other proceedings in other tribunals.Forum shopping is the act of one party againstanother, when an adverse judgment has beenrendered in one forum, of seeking another andpossibly favorable opinion in another forum otherthan by appeal or by special civil action ofcertiorari; or the institution of two or more acts orproceedings grounded on the same cause on thesupposition that one or the other court would makea favorable disposition.30

Respondents filed their motions to suspendproceedings in the MTCCs hearing the B.P. Blg. 22cases but unfortunately, the same were denied.Failing to get the relief they wanted, respondentssought before the RTC, the suspension of thecriminal proceedings which was granted.Respondents tried to extricate themselves from thecharge of forum shopping by explaining that afterthe denial of their motions to suspend, their onlyremedy was the application for preliminary

27

injunction in the civil case—a relief which they hadalready asked for in their complaint and which wasalso initially not granted to them. Any which waythe situation is viewed, respondents’ actsconstituted forum shopping since they sought apossibly favorable opinion from one court afteranother had issued an order unfavorable to them.

The Court notes that three cases, namely, Ras v.Rasul,31 Medel v. CA32 and Danao v. Court ofAppeals33—finding no application to the instantcase—were mentioned by the RTC, the Court ofAppeals and by respondents themselves in supportof their position.

Ras v. Rasul cropped up in the order of the RTCwhich was quoted with approval by the Court ofAppeals. According to the RTC, the ruling in the saidcase allegedly "can be squarely applied in this casewhich nullified and set aside the conviction in acriminal case because of a prejudicial question."34We do not agree. The Ras case involves a petitionfor nullification of a deed of sale on the ground offorgery. While the civil case was pending, aninformation for estafa was filed against therespondent in the civil case. The Court ruled thatthere were prejudicial questions considering thatthe defense against the charge of forgery in the civilcase is based on the very same facts which wouldbe determinative of the guilt or innocence of therespondent in the estafa case. The instant case isdifferent from Ras inasmuch as the determination ofwhether the 5% daily interest is contra bonos moresand therefore void, or that the total amount loanedfrom petitioners has been sufficiently paid, will notaffect the guilt or innocence of Purita because thematerial question in the B.P. Blg. 22 cases iswhether Purita had issued a bad check, regardlessof the purpose or condition of its issuance.

Medel v. CA is the case upon which respondentsanchor their claim that the interest due on theirloans is only 1% per month and thus they havealready overpaid their obligation to petitioners. In

Medel, the Court declared that the rate of 5.5%interest per month on a P500,000.00 loan isiniquitous, unconscionable and hence contrary tomorals, and must equitably be reduced to 12% perannum. While the Medel case made a finding thatthe stipulated interest rate is excessive and thusmay be equitably reduced by the courts, we do notsee how a reduction of the interest rate, shouldthere be any, or a subsequent declaration that theamount due has been fully paid, will have an effecton the determination of whether or not Purita had infact issued bouncing checks.

Meanwhile, respondents misunderstood our ruling inDanao v. Court of Appeals, which they claim to haveruled that there could be no violation of B.P. Blg. 22if the dishonored checks have been paid. In Danao,the accused was convicted by the trial court forhaving issued two checks which eventuallybounced. The Court found that there was no proof ofreceipt by the accused of any notice of nonpaymentof the checks, and thus there was no way ofdetermining when the five-day period prescribed inSection 2 of B.P. Blg. 22 would start and end. Thus,the presumption or prima facie evidence ofknowledge of the insufficiency of funds or credit atthe time of the issuance of the checks did not arise.While there was a finding that the accused hadalready paid her obligations prior to receipt of thecomplainant’s demand letter,35 there was nodeclaration from the Court that such paymentexonerated accused from liability for having issuedbouncing checks. Instead, accused was acquitteddue to insufficiency of evidence, and not becauseshe had paid the amount covered by the dishonoredchecks36 or that the obligation was deemed paid.

WHEREFORE, the petition is GRANTED. Theimpugned Decision of the Court of Appeals dated 17August 2006 and its Resolution dated 27 February2007, in CA-G.R. CEB-SP No. 00397, are SET ASIDE.The preliminary injunction issued by the RegionalTrial Court of Cebu City, Branch 19 in its Orderdated 20 December 2004 in Civil Case No. CEB-

30278 enjoining the proceedings in the criminalcases for violation of B.P. Blg. 22 is LIFTED AND SETASIDE and the MTCC of Cebu City, Branches 2 and 5are ORDERED to proceed with dispatch with thearraignment and trial in the B.P. Blg. 22 casespending before them.

SO ORDERED.

GALO MONGE

vs.PEOPLE OF THE PHILIPPINES

G.R. No. 170308

March 7, 2008

R E S O L U T I O N

TINGA, J.:

28

This is a Petition for Review1 under Rule 45 of theRules of Court whereby petitioner Galo Monge(petitioner) assails the Decision2 of the Court ofAppeals dated 28 June 2005 which affirmed hisconviction as well as the discharge of accusedEdgar Potencio (Potencio) as a state witness.

The factual antecedents follow. On 20 July 1994,petitioner and Potencio were found by barangaytanods Serdan and Molina in possession of andtransporting three (3) pieces of mahogany lumber inBarangay Santo Domingo, Iriga City. Right there andthen, the tanods demanded that they be shown therequisite permit and/or authority from theDepartment of Environment and Natural Resources(DENR) but neither petitioner nor Potencio was ableto produce any.3 Petitioner fled the scene in thatinstant whereas Potencio was brought to the policestation for interrogation, and thereafter, to theDENR-Community Environment and NaturalResources Office (DENR-CENRO).4 The DENR-CENROissued a seizure receipt for the three pieces oflumber indicating that the items, totaling 77 boardfeet of mahogany valued at P1,925.00, had beenseized from Potencio.5 Later on, petitioner wasarrested, but Potencio’s whereabouts had beenunknown since the time of the seizure6 until hesurfaced on 3 January 1998.7

An information was filed with the Regional TrialCourt of Iriga City, Branch 35 charging petitionerand Potencio with violation of Section 688 ofPresidential Decree (P.D.) No. 705,9 as amended byExecutive Order (E.O.) No. 277, series of 1997. Theinculpatory portion of the information reads:

That on or about the 20th day of [July 1994],at about 9:30 o’clock in the morning, in

Barangay Sto. Domingo, Iriga City,Philippines and within the jurisdiction of thisHonorable Court, the above-named accused,conspiring, confederating with each other,without any authority of law, nor armed withnecessary permit/license or otherdocuments, with intent to gain, did then andthere willfully, unlawfully and feloniously,transport and have in their possession three(3) pieces of Mahogany of assorted[dimension] with a[n] appropriate volume ofseventy-seven (77) board feet or pointeighteen (0.18) cubic meter with a totalmarket value of P1,925.00, Philippinecurrency, to the damage and prejudice of theDENR in the aforesaid amount.

CONTRARY TO LAW.10

At the 26 November 1996 arraignment, petitionerentered a negative plea.11

Trial ensued. On 17 June 1997, Serdan testified onthe circumstances of the apprehension but forfailing to appear in court for cross examination, histestimony was stricken out.12 On 16 January 1998,Potencio was discharged to be used as a statewitness on motion of the prosecutor.13 Accordingly,he testified on the circumstances of the arrest butclaimed that for a promised fee he was merelyrequested by petitioner, the owner of the log, toassist him in hauling the same down from themountain. Potencio’s testimony was materiallycorroborated by Molina.14 Petitioner did not contestthe allegations, except that it was not he butPotencio who owned the lumber. He lamented thatcontrary to what Potencio had stated in court, it wasthe latter who hired him to bring the log from the

site to the sawmill where the same was to be sawninto pieces.15

The trial court found petitioner guilty as charged.Petitioner was imposed nine (9) years, four (4)months and one (1) day to ten (10) years and eight(8) months of prision mayor in its medium andmaximum periods and ordered to pay the costs.16

Aggrieved, petitioner elevated the case to the Courtof Appeals where he challenged the discharge ofPotencio as a state witness on the ground that thelatter was not the least guilty of the offense andthat there was no absolute necessity for histestimony.17 The appellate court dismissed thischallenge and affirmed the findings of the trialcourt. However, it modified the penalty to anindeterminate prison sentence of six (6) years ofprision correccional as minimum to ten (10) yearsand eight (8) months of prision mayor asmaximum.18 His motion for reconsideration wasdenied, hence the present appeal wherebypetitioner reiterates his challenge against thedischarge of Potencio.

The petition is utterly unmeritorious.

Petitioner and Potencio were caught in flagrantedelicto transporting, and thus in possession of,processed mahogany lumber without properauthority from the DENR. Petitioner has neverdenied this fact. But in his attempt to exoneratehimself from liability, he claims that it was Potencio,the owner of the lumber, who requested hisassistance in hauling the log down from themountain and in transporting the same to thesawmill for processing. The contention is unavailing.

29

Section 68 of P.D. No. 705, as amended by E.O. No.277, criminalizes two distinct and separateoffenses, namely: (a) the cutting, gathering,collecting and removing of timber or other forestproducts from any forest land, or timber fromalienable or disposable public land, or from privateland without any authority; and (b) the possessionof timber or other forest products without the legaldocuments required under existing laws andregulations.19 DENR Administrative Order No. 59series of 1993 specifies the documents required forthe transport of timber and other forest products.Section 3 thereof materially requires that thetransport of lumber be accompanied by a certificateof lumber origin duly issued by the DENR-CENRO. Inthe first offense, the legality of the acts of cutting,gathering, collecting or removing timber or otherforest products may be proven by the authorizationduly issued by the DENR. In the second offense,however, it is immaterial whether or not the cutting,gathering, collecting and removal of forest productsare legal precisely because mere possession offorest products without the requisite documentsconsummates the crime.20

It is thus clear that the fact of possession bypetitioner and Potencio of the subject mahoganylumber and their subsequent failure to produce therequisite legal documents, taken together, hasalready given rise to criminal liability under Section68 of P.D. No. 705, particularly the second actpunished thereunder. The direct and affirmativetestimony of Molina and Potencio as a state witnesson the circumstances surrounding the apprehensionwell establishes petitioner’s liability. Petitionercannot take refuge in his denial of ownership overthe pieces of lumber found in his possession nor inhis claim that his help was merely solicited by

Potencio to provide the latter assistance intransporting the said lumber. P.D. No. 705 is aspecial penal statute that punishes acts essentiallymalum prohibitum. As such, in prosecutions underits provisions, claims of good faith are by no meansreliable as defenses because the offense iscomplete and criminal liability attaches once theprohibited acts are committed.21 In other words,mere possession of timber or other forest productswithout the proper legal documents, even absentmalice or criminal intent, is illegal.22 It wouldtherefore make no difference at all whether it waspetitioner himself or Potencio who owned thesubject pieces of lumber.

Considering the overwhelming body of evidencepointing to nothing less than petitioner’s guilt of theoffense charged, there is no cogent reason toreverse his conviction.

Petitioner’s challenge against Potencio’s dischargeas a state witness must also fail. Not a few casesestablished the doctrine that the discharge of anaccused so he may turn state witness is left to theexercise of the trial court’s sound discretion23

limited only by the requirements set forth in Section17,24 Rule 119 of the Rules of Court. Thus, whetherthe accused offered to be discharged appears to bethe least guilty and whether there is objectively anabsolute necessity for his testimony are questionsthat lie within the domain of the trial court, it beingcompetent to resolve issues of fact. Thediscretionary judgment of the trial court withrespect this highly factual issue is not to beinterfered with by the appellate courts except incase of grave abuse of discretion.25 No such graveabuse is present in this case. Suffice it to say thatissues relative to the discharge of an accused must

be raised in the trial court as they cannot beaddressed for the first time on appeal.26

Moreover and more importantly, an orderdischarging an accused from the information inorder that he may testify for the prosecution hasthe effect of an acquittal.27 Once the discharge isordered by the trial court, any future developmentshowing that any or all of the conditions provided inSection 17, Rule 119 have not actually been fulfilledwill not affect the legal consequence of anacquittal.28 Any witting or unwitting error of theprosecution, therefore, in moving for the dischargeand of the court in granting the motion—noquestion of jurisdiction being involved—will notdeprive the discharged accused of the benefit ofacquittal and of his right against double jeopardy. Acontrary rule would certainly be unfair to thedischarged accused because he would then befaulted for a failure attributable to the prosecutor. Itis inconceivable that the rule has adopted theabhorrent legal policy of placing the fate of thedischarged accused at the mercy of anyone whomay handle the prosecution.29 Indeed, the onlyinstance where the testimony of a dischargedaccused may be disregarded is when hedeliberately fails to testify truthfully in court inaccordance with his commitment,30 as provided forin Section 18, Rule 119. Potencio lived up to hiscommitment and for that reason, petitioner’schallenge against his discharge must be dismissed.

WHEREFORE, the petition is DENIED and theassailed decision of the Court of Appeals isAFFIRMED.

SO ORDERED.

30

Carpio, Acting Chairperson, Carpio-Morales, Azcuna,Velasco, Jr., JJ., concur

FERDINAND A. CRUZ VS. THE PEOPLE OF THEPHILIPPINESG.R. No. 176504, September 03, 2008

D E C I S I O N

CHICO-NAZARIO, J.:

Before Us is a Petition for Review on Certiorari underRule 45 of the Rules of Court which assails theDecision[1] dated 27 April 2006 of the Court ofAppeals in CA-G.R. CR No. 27661 which affirmed theDecision[2] and the Order[3] of the Regional TrialCourt (RTC) of Makati City, Branch 140, findingpetitioner Ferdinand A. Cruz (Ferdinand) guiltybeyond reasonable doubt of the crime of QualifiedTheft.

On 10 July 1997, an Information was filed before the

RTC of Makati City charging Ferdinand with QualifiedTheft. The accusatory portion of the Informationreads:That on or about the 25th day of October 1996, inthe City of Makati, Metro Manila, Philippines, a placewithin the jurisdiction of this Honorable Court, theabove-named accused, being then employed asMarketing Manager of Porta-Phone Rentals, Inc. withoffice address located at 3/F ENZO Bldg., Sen. GilPuyat Avenue, Makati City, herein represented byJuanito M. Tan, Jr. and had access to the funds of thesaid corporation, with intent to gain and without theknowledge and consent of said corporation, withgrave abuse of confidence, did then and therewillfully, unlawfully and feloniously take, steal andcarry away the amount of P15,000.00 belonging tosaid Porta-Phone Rentals, Inc., to the damage andprejudice of the latter in the aforesaid amount ofP15,000.00.[4]

The case was docketed as Criminal Case No. 97-945. During the arraignment on 22 August 1997,Ferdinand, with the assistance of counsel de parte,entered a plea of not guilty.[5] Thereafter, trial on themerits ensued.

At the trial, the prosecution presented the followingwitnesses: (1) Juanito M. Tan, Jr., the GeneralManager of Porta-Phone Rentals, Inc. (Porta Phone)when the incident in question took place. Hetestified that Ferdinand appropriated for himself theamount of P15,000.00, an amount which shouldhave been remitted to the company; (2) CatherineVillamar (Catherine), the Credit and CollectionOfficer of Porta-Phone, who discovered thatFerdinand issued a receipt for P15,000.00 fromHemisphere-Leo Burnett (Hemisphere), and whoalso testified that Ferdinand misappropriated theamount for his own benefit and, when sheconfronted him, said he had unpaid reimbursementsfrom the company; (3) Luningning Morando, theaccounting supervisor of Porta-Phone, corroboratedthe alleged fact that Ferdinand received the amountand did not turn over the same to the company; and

(4) Wilson J. So, Chief Executive Officer of Porta-Phone, who testified that meetings were held todemand from Ferdinand the subject sum of money.

As documentary evidence, the prosecution offeredthe following: Exhibit "A" - Official Receipt No. 2242,the receipt in which Ferdinand acknowledged thathe received the amount of P15,000.00 fromHemisphere; Exhibit "B" - the Minutes of theMeeting held on 30 October 1996 attended byWilson So, Juanito Tan, Luningning Morando andFerdinand, wherein Wilson So asked Ferdinand thereason for the former's refusal to remit theP15,000.00 to the company, and Ferdinandanswered that there was no need to turn over thesaid amount because he had outstandingreimbursements from the company in the amount ofP8,518.08; Exhibit "C" - the Resignation Letter ofFerdinand; Exhibit "D" - the Inter-Office DemandLetter dated 7 November 1996, addressed toFerdinand from Juanito M. Tan, Jr. requiring theformer to return the amount of P15,000.00; Exhibit"E" - the Handwritten Explanation of Ferdinanddated 8 December 1996, that he remitted theamount to Luningning Morando; Exhibit "F"- Inter-Office Memorandum dated 8 November 1996,issued by Juanito Tan and addressed to LuningningMorando to explain her side regarding the allegationof Ferdinand that she received the P15,000.00;Exhibit "G"- Inter-Office Memorandum prepared byLuningning Morando dated 9 November 1996,denying the allegation that she received theamount of P15,000.00 from Ferdinand; Exhibit "H"-Inter-Office Memorandum dated 11 November 1996,issued by Juanito Tan for Ferdinand to furtherexplain his side in light of Luningning Morando'sdenial that she received the amount. It also advisedFerdinand to wait for the verification andcomputation of his claim for reimbursements;Exhibit "I"- Formal Demand Letter dated 25November 1996, addressed to Ferdinand and issuedby the legal counsel of Porta-Phone Rentals, Inc.,asking the former to return to the company thesubject amount; Exhibit "J"- the Affidavit of

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Complaint executed by Juanito Tan againstFerdinand; Exhibit "K"- the Collection List dated 30October 1996, showing that Ferdinand receivedfrom Hemisphere the amount of P15,000.00, andthe same was not turned over to Catherine; Exhibit"L"- Reply-Affidavit dated 5 February 1997,executed by Juanito M. Tan, Jr.; Exhibit "M"- the Sur-Rejoinder Affidavit of Juanito M. Tan, Jr. dated 21February 1997.

The collective evidence adduced by the prosecutionshows that at around 5:30 p.m. of 25 October 1996,in the City of Makati, Ferdinand, who is a MarketingManager of Porta-Phone, a domestic corporationengaged in the lease of cellular phones and othercommunication equipment, went to the office ofPorta-Phone located on the third floor of EnzoBuilding, Senator Gil Puyat Avenue, and took hold ofa pad of official receipts from the desk of Catherine,Porta-Phone's collection officer. With the pad ofofficial receipts in his hands, Ferdinand proceededto his client, Hemisphere, and delivered articles ofcommunication equipment. Although he was not anauthorized person to receive cash and issuereceipts for Porta-Phone, Ferdinand received fromHemisphere the amount of P15,000.00 asrefundable deposit for the aforesaid equipment. On26 October 1996, Ferdinand went to Porta-Phoneand returned the pad of receipts, but failed todeliver the cash he received from Hemisphere. On28 October 1996, the next working day, Catherinechecked the booklet of official receipts and foundthat one of the official receipts was missing. Thegreen duplicate of the missing official receipt,however, showed that Ferdinand received theamount of P15,000.00 from Hemisphere. Uponlearning of Ferdinand's receipt of the said amount,Catherine confronted Ferdinand, who answered thathe deposited the amount to his personal bankaccount. Catherine then instructed Ferdinand toremit the amount the next day.[6] Catherine reportedthe incident to the accounting supervisor,Luningning Morando, who, in turn, reported thesame to the General Manager, Junito Tan. The

following day, Ferdinand went to the office but didnot deliver the amount to Catherine, reasoning thatPorta-Phone still owed him unpaid reimbursements.[7] This incident came to the knowledge of ChiefExecutive Officer Wilson So. Thus, on 30 October1996, Wilson So invited Ferdinand, Juanito andLuningning to a meeting. In the meeting, Wilson Sodemanded that Ferdinand return the collection.Ferdinand refused to turn over the amount to thecompany. He would return the amount only upon hisreceipt of his reimbursements from the company.Since Ferdinand adamantly withheld the collectedamount, Juanito issued a demand letter dated 7November 1996, ordering the former to deliver theamount to the company. Ferdinand answered, thistime claiming that he had already remitted theamount to Luningning. With this, Juanito issued amemorandum dated 8 November 1996, addressedto Luningning asking her to explain her sideregarding the allegation of Ferdinand that shereceived the P15,000.00. Luningning completelydenied having received the amount from Ferdinand.Juanito then issued another letter to Ferdinand tofurther explain his side in view of Luningning'sdenial that she received the amount. In the letter,Juanito also advised Ferdinand to wait for theverification and computation of his claim forreimbursements. With the conflicting claims ofLuningning and Ferdinand, another meeting was seton 14 November 1996. In that meeting Luningningagain denied having received the amount.Ferdinand did not appear in the meeting. Later, aformal demand letter was issued to Ferdinand byPorta-Phone's legal counsel, which letter wentunheeded. Several attempts to reach Ferdinandproved to be futile. This prompted the company tofile a criminal complaint against Ferdinand.

The defense alleged that the amount involved wasalready turned over to the company throughLuningning. To substantiate this, the defensepresented Ferdinand as its only witness.

Ferdinand testified that on 25 October 1996, he

delivered to Hemisphere several communicationgadgets and received from the same the amount ofP15,000.00 as refundable deposit (the amountrequired by Porta-Phone from its lessor-client toanswer for the damage that may befall the itemsleased) for the delivered items. Since he did notbring with him the official receipt of Porta-Phone, hemerely acknowledged having received the amountin an Acknowledgement Receipt issued byHemisphere. Considering that it was already late inthe afternoon when he delivered the communicationitems, Ferdinand brought the said amount home.The following day, he went to the company'saccounting supervisor, Luningning, to turn over toher the amount. Luningning received the moneyand instructed Ferdinand to fill up the details of thetransaction in Official Receipt No. 2242. WhenFerdinand asked Luningning to affix her signature tothe official receipt to acknowledge that she receivedthe amount, the latter declined and instead askedthe former to affix his signature, since it was he whoclosed the deal.

Later, on 28 October 1996, Catherine approachedhim and asked him to affix his signature to thetriplicate copy of Official Receipt No. 2242.

Ferdinand admitted that he attended the meeting of30 October 1996 with Juanito, Luningning andWilson So. He, however, claimed that the discussioncentered on his entitlement to reimbursements fromthe company. Thereupon, Wilson So got angry withhim and asked him to resign, owing to his persistentclaim for reimbursement. After this, the companywithheld his salary, prompting him to file a laborcase against the same on 4 November 1996.

On 30 June 2001, the RTC rendered a decisionfinding Ferdinand guilty beyond reasonable doubt ofthe crime charged. The decretal portion of the RTCdecision reads:

WHEREFORE, finding the accused FERDINAND A.CRUZ, GUILTY beyond reasonable doubt for the

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crime of QUALIFIED THEFT, he is hereby sentencedto suffer imprisonment of TEN (10) YEARS and ONE(1) DAY of prision mayor as minimum to FOURTEEN(14) YEARS, EIGHT (8) MONTHS and ONE (1) DAY ofreclusion temporal, as maximum; to indemnify theoffended party in the amount of FIFTEENTHOUSAND (P15,000.00) PESOS and to pay thecosts.[8]

On 2 August 2001, Ferdinand filed a Motion for NewTrial on two grounds: (1) absence of a preliminaryinvestigation for the crime of qualified theft; and (2)newly discovered evidence. Anent the first ground,it must be noted that in the beginning, Ferdinandwas being indicted for Estafa/Falsification of PrivateDocument. The prosecutor later found that theproper charge should be for Qualified Theft.Ferdinand argued that since his counter-affidavitswere for the charge Estafa/Falsification of PrivateDocument, he claimed that preliminaryinvestigation for Qualified Theft was absent. Withregard to the second ground, Ferdinand argued thatnewly discovered evidence, i.e., the testimony of acertain Marilen Viduya, could change the judgmenton the case. The RTC granted the motion based onthe second ground, and set aside its 30 June 2001decision.

Marilen Viduya, a former employee of Hemisphere,testified that she asked Ferdinand to affix hissignature to an acknowledgement receipt for theamount of P15,000.00, which was the refundabledeposit of Hemisphere for the equipment delivered,because Ferdinand did not bring with him theofficial receipt of Porta-Phone. She also averred thatLuningning went to Hemisphere and conducted aninventory of the delivered communication items.Luningning admitted to her that the P15,000.00 wasalready remitted to Porta-Phone.

In an Order[9] dated 15 July 2003, the RTC declaredthat it did not find the testimony of Marilen Viduyapersuasive. It revived and reinstated its 30 June2001 decision convicting Ferdinand of the crime

charged.

Dissatisfied, Ferdinand appealed the judgment tothe Court of Appeals.

The Court of Appeals, on 27 April 2006,promulgated its Decision affirming the decision ofthe RTC, thus:WHEREFORE, the present appeal is DENIED. The 30June 2001 Decision of the Regional Trial Court,Branch 140, in Makati City, is hereby AFFIRMED.[10]

Ferdinand filed a Motion for Reconsideration whichwas denied by the Court of Appeals in a Resolutiondated 4 October 2006.

Hence, the instant petition.

Ferdinand contends that he was denied due processas his trial was pursued without prior clearancefrom the Department of Labor pursuant toDepartment of Justice (DOJ) Circular No. 16 whichallegedly states that "clearance must be soughtfrom the Ministry of Labor and /or the Office of thePresident before taking cognizance of complaintsfor preliminary investigation and the filing in courtof the corresponding information of cases arisingout of, or related to, a labor dispute." He avers thatthis circular is designed to avoid undue harassmentthat the employer may use to cow employees frompursuing money claims against the former.

He also argues that due process was not accordedsince he was indicted for qualified theft, even as hewas initially investigated for estafa/falsification ofprivate documents. It must be noted that theoriginal indictment was for estafa/falsification ofprivate documents but later the prosecutor found itproper to charge him with qualified theft. Accordingto him although he was given the chance to filecounter-affidavits on the charge ofestafa/falsification of private documents, he was notgiven the opportunity to answer during the

preliminary investigation of the crime of qualifiedtheft.

Finally, Ferdinand maintains that his guilt was notestablished beyond reasonable doubt, absentevidence of the presence of the elements of thecrime charged and given the weakness of theevidence proffered by the prosecution.

Ferdinand's arguments are not meritorious.

The settled rule is that when an accused pleads tothe charge, he is deemed to have waived the rightto preliminary investigation and the right toquestion any irregularity that surrounds it.[11] In theinstant case, Ferdinand did not present evidencethat arraignment was forced upon him. On thecontrary, he voluntarily pleaded to the charge andactively participated in the trial of the case.

Besides, the prior clearance requirement beforetaking cognizance of complaints under the cited DOJcircular is not applicable to the case of Ferdinand.The RTC found that the money claim which theLabor Arbiter awarded to Ferdinand covered only hissalary during the month of November 1996. It mustbe noted that the crime attributed to Ferdinand wascommitted on 25 October 1996 before Ferdinandwas entitled to the money claim. In other words, thecrime was first committed before the accrual of themoney claim. This being the case, it is not remotethat it was Ferdinand who used the labor case,which he filed before the Labor Arbiter, to haveleverage against the company in the criminal case.

It is not correct for Ferdinand to claim thatpreliminary investigation on the charge of qualifiedtheft was not accorded him. The truth is, Ferdinandwas able to answer the initial charge ofestafa/falsification of private documents through hiscounter-affidavits. Based on the same complaintaffidavit and the same sets of evidence presentedby the complainant, the prosecutor deemed itproper to charge Ferdinand with qualified theft.

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Since the same allegations and evidence wereproffered by the complainant in the qualified theft,there is no need for Ferdinand to be given theopportunity to submit counter-affidavits anew, as hehad already answered said allegations when hesubmitted counter-affidavits for the originalindictment of estafa/falsification of privatedocuments.

The RTC correctly convicted Ferdinand of the crimeof qualified theft.

The elements of the crime of theft are the following:(1) there was a taking of personal property; (2) theproperty belongs to another; (3) the taking waswithout the consent of the owner; (4) the taking wasdone with intent to gain; and (5) the taking wasaccomplished without violence or intimidationagainst the person or force upon things.[12] UnderArticle 310 of the Revised Penal Code, theft isqualified when it is, among others, committed withgrave abuse of confidence, to wit:

ART. 310. Qualified theft. - The crime of theft shallbe punished by the penalties next higher by twodegrees than those respectively specified in thenext preceding article, if committed x x x with graveabuse of confidence x x x.

The prosecution established, beyond the shadow ofdoubt that Ferdinand took and kept the fifteenthousand peso-collection from the company's client.Although Ferdinand insists he remitted the amountpersonally to Luningning, this claim is self-serving. Ifindeed he personally delivered the P15,000.00, hewould have at least required Luningning toacknowledge the receipt thereof before he partedwith the same. The Court of Appeals incisivelypointed out that it was implausible for Ferdinand tohave acceded to executing an acknowledgmentreceipt in favor of Hemisphere so as to give thelatter protection from his company, and yet he didnot ask for some kind of receipt when he allegedlyturned over the money to Luningning. Quite

specious is Ferdinand's argument that he would nothave had in his possession a copy of Official ReceiptNo. 2242, had he not delivered the amount toLuningning. Ferdinand acquired the receipt, notbecause he remitted the amount, but because hetook a sheet from a booklet of receipts containingOfficial Receipt number 2242 and issued the sameto Hemisphere despite his lack of authority to do so,to maliciously induce the client into believing thathe would remit the amount to Porta-Phone.

The collected amount belonged to Porta-Phone andnot to Ferdinand. When he received the same, hewas obliged to turn it over to the company since hehad no right to retain it or to use it for his ownbenefit, because the amount was a refundabledeposit for the communication items leased out byPorta-Phone to Hemisphere. As he had kept it forhimself while knowing that the amount was not his,the presence of the element of unlawful taking issettled.

Intent to gain (animus lucrandi) is presumed to bealleged in an information, in which it is charged thatthere was unlawful taking (apoderamiento) andappropriation by the offender of the things subjectof asportation.[13] In this case, it was apparent thatthe reason why Ferdinand took the money was thathe intended to gain by it. In the meeting held on 30October 1996, Ferdinand admitted having receivedthe amount and kept it until his reimbursementsfrom the company would be released to him. Thus,in the initial hearing of 23 September 1997,Ferdinand's counsel made this declaration:

Court: By the way pañero, what is the defense ofthe accused?

x x x x

Atty. Dizon: Denial your honor. Denial. While it istrue that he did not return that P15,000.00 pesos, it

is because the company owes the accused morethan P20,000.00.[14]

In the course of his testimony, Ferdinand claimedthat he had remitted the amount to Luningning. Thisinsistent claim for reimbursements by Ferdinandwould in fact show that he had the intention to takethe subject money; hence, intent to gain is mademore manifest.

Ferdinand's lack of authority to receive the amountis apparent, because he is not one of the collectionofficers authorized to collect and receive payment,thus:Atty.Salvador:

You made mention of collectibles, who isauthorized by the company to collect thecollectibles?

Witness:

My accounting group is the only groupauthorized to make collections for and onbehalf of the company.

Atty.Salvador:

Can you give the names of this accountinggroup that you have mentioned?

Witness:

Yes sir, the group is composed of : CathyVillamar; Dull Abular; and Evic Besa.

Atty.Salvador:

Is the accused part of the group?

Witness:

No sir.[15]

The lack of consent by the owner of the asportedmoney is manifested by the fact that Porta-Phoneconsistently sought the return of the same fromFerdinand in the meetings held for this purpose andin the various letters issued by the company.

As a marketing manager of Porta-Phone, Ferdinandmade use of his position to obtain the refundabledeposit due to Porta-Phone and appropriate it for

34

himself. He could not have taken the amount had henot been an officer of the said company. Clearly, thetaking was done with grave abuse of confidence.

Ferdinand likewise assails the testimony ofprosecution witness Juanito, who retracted hisaffidavit of desistance in favor of the former andexplained on the witness stand that he had agreedto execute the same due to personal favorsbestowed on him by Ferdinand. Ferdinand assertsthat Juanito's retraction should not be givencredence. This contention is unconvincing. As aptlydiscussed by the Court of Appeals:[W]hile his desistance may cast doubt on hissubsequent testimony, We are not unmindful thathe was in fact grilled by the defense regarding hismotives in revoking his earlier desistance and heremained steadfast in his testimony that[Ferdinand] was never authorized by Porta-Phone tocollect payments and that during the meeting of 30October 1996, [Ferdinand] refused to return themoney. Rather than destroy his credibility, thedefense's grilling regarding the reasons for his filinghis earlier desistance even strengthened the valueof his testimony for he only executed the samebecause of some personal favors from [Ferdinand].And while [Ferdinand] suggests that subsequentrevocation of his desistance in open court may bedue this time to favors extended by Porta-Phonecannot be sustained when taken together with thefact that [Juanito] was long been separted fromPorta-Phone when he testified. In fact Porta-Phone'sCEO did not even have kind words for [Juanito]when the former testified. x x x.[16]

In sum, this Court, yields to the factual findings ofthe trial court which were affirmed by the Court ofAppeals, there being no compelling reason to veeraway from the same. This is in line with the preceptstating that when the trial court's findings havebeen affirmed by the appellate court, said findingsare generally conclusive and binding upon thisCourt.

The RTC imposed on petitioner the indeterminate

penalty of Ten (10) Years and One (1) Day of prisionmayor as minimum to Fourteen (14) Years, Eight (8)Months and One (1) Day of reclusion temporal, asmaximum. Under Article 310 of the Revised PenalCode, the penalty for Qualified Theft is two degreeshigher than that specified in Article 309. Paragraph1 of Article 309 provides that if the value of thething stolen is more than P12,000.00 but does notexceed P22,000.00, the penalty shall be prisionmayor in its minimum and medium periods. In thiscase, the amount stolen was P15,000.00. Twodegrees higher than prision mayor minimum andmedium is reclusion temporal in its medium andmaximum periods. Applying the IndeterminateSentence Law, the minimum shall be prision mayorin its maximum period to reclusion temporal in itsminimum period or within the range of 10 years and1 day to 14 years and 8 months. There beingneither aggravating nor mitigating circumstance inthe commission of the offense, the maximum periodof the indeterminate sentence shall be within therange of 16 years, 5 months and 11 days to 18years, 2 months and 20 days. The minimum penaltyimposed by the RTC is correct. However, themaximum period imposed by RTC should beincreased to 16 years, 5 months and 11 days.

WHEREFORE, the Decision of the Court of Appealsdated 27 April 2006 in CA-G.R. CR No. 27661 findingFerdinand A. Cruz GUILTY of the crime of QualifiedTheft is hereby AFFIRMED with MODIFICATION.Ferdinand A. Cruz is hereby sentenced to suffer theindeterminate penalty of 10 years and 1 day ofprision mayor, as minimum, to 16 years, 5 monthsand 11 days of reclusion temporal, as maximum.

SO ORDERED.

PEOPLE OF THE PHILIPPINES

vs.

RENE ROSAS

G.R. No. 177825

October 24, 2008

D E C I S I O N

LEONARDO-DE CASTRO, J.:

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Assailed before this Court is the decision[1]dated November 29, 2006 of the Court of Appeals inCA-G.R. CR-HC No. 00301 which affirmed thedecision of the Regional Trial Court (RTC) ofKabacan, Cotabato, Branch 22, in Criminal Case No.98-105, finding accused-appellant Rene Rosas guiltybeyond reasonable doubt of the crime of Murderand sentencing him to suffer the penalty ofreclusion perpetua.

In the court of origin, accused-appellant wascharged with the crime of Murder in anInformation[2] dated October 13, 1998. The crimewas alleged to have been committed, as follows:

That on September 15, 1995,in the Municipality of Kabakan,Province of Cotabato, Philippines, thesaid accused, armed with a gun, withintent to kill did then and there,willfully, unlawfully, feloniously andwith treachery, attack, assault andshot NESTOR ESTACIO, therebyhitting and inflicting upon the lattermultiple gunshot wounds on thedifferent parts of his body, whichcaused his instantaneous death.

CONTRARY TO LAW.

When arraigned on January 5, 1999, accused-appellant, assisted by counsel de oficio, pleaded notguilty to the crime charged. Thereafter, trial on themerits ensued, in the course of which theprosecution presented the testimonies of Dr.Crisostomo Necessario, Jr., Municipal Health Officerof Kabacan, Cotabato; Wilfredo Bataga, mayor ofKabacan, Cotabato; Antonio Palomar Bataga, Jr.; andArceli Estacio, widow of the victim.

For its part, the defense presented accused-appellant himself and his girlfriend, Karen Nayona.

The prosecution’s version of the incident issuccinctly summarized by the Office of the SolicitorGeneral in its Appellee’s Brief,[3] to wit:

On September 15,1995 , around eleven o’clock in themorning, Antonio Palomar Bataga, Jr.was outside the billiard hall alongAglipay Street near the publicterminal and market of Kabacan,Poblacion, Kabacan, Cotabato. Around 15 meters away, he sawappellant Rene Rosas standing besidethe post near a store across thestreet. Palomar knew appellant longbefore, as they were both intogambling. Thereafter, the victim,Nestor Estacio, arrived alone onboard his motorcycle. He stopped in

front of the Salcedo Newsstand to buya newspaper without switching off hismotorcycle’s engine. Before he coulddrive off, a Weena bus, which wasleaving the Bus Terminal about thattime, blocked his way. Then,appellant, who was coming from theleft side behind the victim, shot thelatter with a pistol at close range. After the victim fell on the ground,more gunshots were heard, whichgunshots were fired at him to makesure that he was dead. After theshooting, appellant jumped into amotorcycle and escaped.

Meanwhile, aroundthat same time and fifteen (15)meters away, in a carinderia locatedat the Bus Terminal in Poblacion,Kabacan, Cotabato, several gunshotswere heard. Wilfredo Bataga, whowas the owner of the said carinderiaand also the commanding officer ofthe 39th Infantry Batallion assigned inKabacan, Cotabato, immediatelyproceeded to where the gunshotscame from. He saw appellant aboutto run and a dead body being carriedby four persons into a tricycle. Wilfredo upon seeing that appellantwas armed with a 45-caliber pistol,ran after the latter but lost him in thecrowd.

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On October 27, 1995 ,Wilfredo was handed with acartographic sketch of the suspectmade by the National Bureau ofInvestigation. He indorsed thecartographic sketch to the police ofthe Poblacion and reported theincident.

On August 5, 1998 ,around 5:30 in the afternoon,appellant was spotted a meter awayin front of Wilfredo’s house. Wilfredoupon seeing appellant took out hiscopy of the cartographic sketch andconfronted appellant that it was hispicture. Appellant answered “Siguroako nga.” Appellant was thenimmediately arrested.

The post-mortemexamination conducted by Dr.Crisostomo Necessario, MunicipalHealth Officer of Kabacan, Cotabatorevealed that the victim sustainedmultiple gunshot wounds in thelumbar region (lower back area), agunshot wound in the epigastric area(upper mid-portion of the abdomennear the chest) and the mid-leftportion of the hypogastric area (leftabdomen). Thereafter, Dr. Necessarioissued a Medical Report attributing

the victim’s death to hypovolemicshock caused by gunshot wounds.

On the other hand, accused-appellant’sversion is hinged mainly on denial and alibi. Hetestified that in the morning of September 15, 1995,he was at his boarding house located along USMAvenue, Kabacan, Cotabato. The following day, hewent home to Mintal Relocation in Davao City andcame back to Kabacan, Cotabato on August 5,1998. On that day, while accused-appellant was ina public market, a certain Dodong Riveraapproached and informed him that he should talk toMayor Wilfredo Bataga because a group of men wasout to kill him. So, accused-appellant proceeded tothe house of Mayor Bataga who showed him acartographic sketch. When accused-appellant wasasked if it was him on the sketch, he replied,“Siguro, ako nga.” He was then taken to theKabacan Police Station where he was detained.

Karen Nayona, accused-appellant’s girlfriend,merely corroborated his testimony that he was inthe boarding house at USM Avenue, Kabacan,Cotabato in the morning of September 15, 1995. Then, at around 11 o’clock in the morning, they metand went to a fastfood restaurant located alongUSM Avenue. There, she told accused-appellantthat she was two months pregnant with his baby.

In a decision[4] dated February 1, 2001, thetrial court rendered its decision convicting accused-appellant of the crime of murder, the dispositiveportion of which reads:

WHEREFORE, in view of all theforegoing and finding the accusedRene Rosas alias Boy Rosal guiltybeyond reasonable doubt of the crimeof murder qualified by treachery,judgment is hereby renderedsentencing the accused with penaltyof Reclusion Perpetua and to pay theheirs of Nestor Estacio the sum ofP50,000.00 for his death, P40,000.00for funeral and burial expenses andP50,000.00 for moral damages.

SO ORDERED.

Pursuant to Section 3(c) of Rule122 of the Revised Rules of CriminalProcedure,[5] accused-appellantappealed his conviction to theSupreme Court via a notice of appeal.[6]

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On February 4, 2002, this Court accepted theappeal and docketed the same as G.R. No. 148879.[7]

On September 22, 2004, conformably withour pronouncement in People v. Mateo[8] whichmodified the provisions of the Rules of Court insofaras they provide for direct appeals from the RTC tothis Court in cases where the penalty imposed bythe trial court is death, reclusion perpetua or lifeimprisonment, this Court resolved to refer the caseto the Court of Appeals, whereat it was docketed asCA-G.R. CR-HC No. 00301, for appropriate actionand disposition.[9]

In its decision dated November 29, 2006, theCourt of Appeals upheld the conviction of accused-appellant. The decretal portion of the decisionreads:

WHEREFORE, the assaileddecision is hereby AFFIRMED, withmodification that the award for actualdamages is DELETED for reasonsalready discussed; in lieu thereof, anaward of temperate damages in theamount of Twenty Five Thousand(P25,000.00) Pesos is herebyGRANTED.

SO ORDERED.

From the Court of Appeals, the case was thenelevated to this Court upon filing by accused-appellant of a notice of appeal on January 2, 2007.[10] In its Resolution[11] of July 23, 2007, the Courtresolved to require both parties to submit theirrespective supplemental briefs, if they so desire. The parties, however, opted not to file supplementalbriefs and manifested that they were merelyadopting their briefs filed before the appellatecourt.

In this appeal, accused-appellant assigns thefollowing errors:

I

THE LOWER COURT ERRED INCONVICTING THE ACCUSED-APPELLANT OF MURDER WHEN THELATTER’S GUILT WAS NOT PROVENBEYOND REASONABLE DOUBT.

II

THE LOWER COURT ERRED INCONVICTING THE ACCUSED-APPELLANT WITH MURDER WHEN THEQUALIFYING CIRCUMSTANCE OFTREACHERY WAS NOT ALLEGED WITHSPECIFICITY IN THE INFROMATIONPURSUANT TO SECTION 8, RULE 110OF THE REVISED RULES ON CRIMINALPROCEDURE.[12]

Accused-appellant insists that the prosecutionfailed to prove his guilt beyond reasonable doubt. He assails the credibility of the prosecutionwitnesses whose testimonies he pictured asinconsistent and fabricated. He also avers that theprosecution failed to establish his identity as theperpetrator of the crime as nobody actually saw himshoot the victim.

After a careful consideration of the evidenceof this case, we find no reason to reverse thedecision of the Court of Appeals which affirmed theRTC decision in Criminal Case No. 98-105.

Accused-appellant cites an inconsistency inthe testimonies of prosecution witnesses WilfredoBataga and Antonio Palomar Bataga, Jr. WhileWilfredo testified that he saw accused-appellantabout to run from the crime scene after theshooting, Antonio, on the other hand, testified thataccused-appellant jumped into a motorcycle andescaped after the incident. According to accused-

38

appellant, their contradicting testimonies should notbe accorded any weight and credence.

To our mind, the alleged inconsistency in thetestimonies of the aforesaid prosecution witnessesis not sufficient to adversely affect the credibility ofthe prosecution witnesses. It merely pertains toaccused-appellant’s mode of escape, which cannotovercome the categorical and positive identificationof accused-appellant by both witnesses as theperson who shot the victim. It is perfectly naturalfor different witnesses testifying on the occurrenceof a crime to give varying details as there may besome details which one witness may notice whilethe other may not observe or remember. In fact,jurisprudence even warns against a perfectdovetailing of narration by different witnesses as itcould mean that their testimonies were fabricatedand rehearsed.[13] In the instant case, whileprosecution witnesses Antonio and Wilfredo differ intheir narration of minor details, they identifiedwithout equivocation the accused-appellant as theperpetrator of the crime. Antonio declared on thewitness stand:

PROS. DIZON, JR.:

Q. By the way, doyou know the accused in thiscase?

A. Yes, sir.

Q. Do you know ReneRosas?

A Yes, sir.

Q. Do you know the other nameof Rene Rosas?

A. Yes, sir.

Q. Tell the Court what is the othername or the alias of Rene Rosas?

A. Boy Rosal, sir.

Q. Now, prior to 1995 have youknown Rene Rosas?

A. Yes, sir.

Q. For how long did you knowRene Rosas prior to 1995?

A. Long time ago, sir.

Q. How come you know him?

A. Because of our gamblingactivities.

Q. By the way, do you gamble?

A. Yes, sir.

Q. Now, how about the victimhere, Mr. Estacio, do you know him?

A. Yes, sir.

Q. How come you know him?

A. Because he was an employeeof the Municipal Hall, sir.

Q. You said you were outside theBilliard Hall at 11:00 o’clock in the morning, now while you werethere on September 15, 1995, was there any unusual incident thathappened?

A. Yes, there was, sir.

Q. Tell the Court, what was thatunusual incident that happened?

A. The killing of Nestor Estacio,sir.

Q. Now, did you see the killing ofNestor Estacio?

A. Yes, sir.

Q. Now, you said you saw thekilling of Nestor Estacio, what was the weapon used in the killing of Mr.Estacio?

A. Pistol, sir.

Q. How long was that?

A. Just a short pistol, sir.

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Q. Now, you said that NestorEstacio was killed, did you see who killed Nestor Estacio?

ATTY. BALAGOT:

Your Honor please, leading,Your Honor.

PROS. DIZON, JR.:

He testified already, YourHonor please, that he saw.

COURT:

Yes, he may answer.

A. Yes, sir.

Q. Please name him.

A. Rene Rosas, sir.[14]

Antonio Bataga, Jr. could not have made amistake with respect to accused-appellant’s identityconsidering that he knew accused-appellant longbefore he witnessed the shooting incident in 1995. Antonio who was in the vicinity of the crime scenewould thus be able to unmistakably recognizeaccused-appellant when the incident happened ataround 11 o’clock in the morning.

Antonio’s testimony corroborated that ofWilfredo Bataga, thus:

PROS. DIZON, JR.:

Q. Why were you there, wasthere any incident of happeningthat occurred?

A. When I heard severalgunbursts, I immediately proceededto the scene of the crime and Isaw the suspect including the lyingvictim Nestor Estacio which wasbrought along by four (4) personsin loading a tricycle in going toa hospital, sir.

xxx xxx xxx

Q. Now, you said you sawRene Rosas, what was he doingwhen you saw him?

A. When I saw him,he was already runningtogether with innocentcivilians towards the market,sir.

Q. Now, you said youalso saw the dead body of aperson, what is the name of

that person who you said isdead?

A. Nestor Estacio,sir.

Q. Now, what did youdo upon seeing the deadbody?

A. He was carriedupon by four persons insidethe tricycle for immediatemedication, sir.

Q. Now, you said yousaw the accused Rene Rosas,what did you do when you sawhim?

A. I chased him, sir. Iwas not able to arrest him dueto the thickness of the civiliansrunning together with him, sir.

xxx xxx xxx

ATTY. BALAGOT:

Q. You said that onSeptember 15, 1995, ataround 11:00 o’clock you were

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at your carinderia, is thatright?

A. Yes, sir.

Q. Now, yourcarinderia was located thattime at the old bus terminalbuilding, is that right?

A. Yes, sir.

Q. And you saidwhile you were there youheard gunshots?

A. Yes, sir.

Q. And you went tothe site from where thegunshots were heard?

A. Yes, sir.

Q. How far was yourcarinderia from the site whereyou heard those gunshots?

A. That was more orless 15 meters, sir.

Q Fifteen (15) if you will passthrough the terminal going to thatsite?

A In the middle of the terminal,sir.

Q Now, at that time, Mr.Witness , is it not right thatyou passed through JacintoStreet particularly at the backof the old terminal building?

A I intended to conduct ahamper; a block in front of KuKuan so that I could arrest thesuspect and I personally foundout and identified the runningperson to be Rene Rosas @Boy Rosas running togetherwith scampered civilians, sir.

B But you passedthrough Jacinto Street, Mr.Witness, is it right?

A Yes, sir, and I saw himpersonally.

Q And if you will passthrough Jacinto Street, first thewalking distance would bearound 15 meters, is thatright?

A I saw him personallythis way but I crossed theblock, sir.

Q Now, because at thatjuncture while you werewalking through that Street,you met this Rene Rosas, isthat right?

A I was not able to seehim but when I arrived at thescene of the crime I saw himpersonally and I chased himbut could not arrest him dueto the thickness of the civiliansrunning together with him.

Q Now, you claimed thatyou saw Rene Rosas theaccused personally, he wasrunning at the time when yousaw him, is that right?

A About to run when Ireached the scene of thecrime, sir.

Q Also there were otherpersons who were about torun at that time, is that right?

A Yes, sir, when I reachedthe scene to chase him he ranalready.

Q That you choose ReneRosas because that time hewas the bodyguard of Mr.Karutin, is that right?

A I was able to identifyhim when the cartographicsketch of the suspect comingfrom the NBI expert and Dr.Sevilla was given to me, sir.

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Q Mr. Witness, onSeptember 15, 1995, why didyou chase Rene Rosas?

A Because I saw in hisarm a pistol caliber 45, sir.[15]

Clearly, Wilfredo positively identifiedappellant as the person running away from thecrime scene towards the public market aftershooting the victim. Just like Antonio, Wilfredocould also not have been mistaken as to accused-appellant’s identity considering that he was just 15meters away from the crime scene and the crimewas committed in broad daylight.

Verily, the testimonies of Wilfredo andAntonio on material details are coherent,unequivocal and consistent with each other. Antonio, who was standing just a few meters away,saw accused-appellant shoot the victim frombehind, then board a motorcycle. On the otherhand, Wilfredo saw accused-appellant immediatelyafter the shooting fleeing from the scene of thecrime carrying a 45-caliber pistol. Clearly, bothwitnesses personally saw accused-appellant at thescene of the crime at the time it was committed.Contrary to accused-appellant’s assertion, thedeclarations and testimonies of Antonio andWilfredo established beyond reasonable doubt hisidentity as the author of the crime.

The trial court gave full faith and credence tothe testimonies of Wilfredo and Antonio. The time-tested doctrine is that a trial court’s assessment ofthe credibility of a witness is entitled to greatweight, and is even conclusive and binding on thisCourt. The reason is obvious. The trial court hasthe unique opportunity to observe at firsthand thewitnesses, particularly their demeanor, conduct andattitude in the course of the trial.[16]

Accused-appellant has not shown anyevidence of improper motive on the part of Wilfredoand Antonio that would have driven them to falselytestify against him. Where there is nothing toindicate that the witnesses for the prosecution wereactuated by improper motive, their positive andcategorical declarations on the witness stand underthe solemnity of an oath deserve full faith andcredence.[17]

There being no fact or circumstance of weightand substance that would otherwise warrant adifferent conclusion, the trial court’s evaluation ofthe credibility of the prosecution witnesses must besustained.

Accused-appellant relies on his alibi that hewas in his boarding house located along USMAvenue, Kabacan, Cotabato the whole morning ofSeptember 15, 1995. For alibi to prosper, however,

the accused must establish by clear and convincingevidence (a) his presence at another place at thetime of the perpetration of the offense and (b) thephysical impossibility of his presence at the sceneof the crime.[18] Where there is even the leastchance for the accused to be present at the crimescene, the defense of alibi will not hold water.[19]

Here, the evidence shows that USM Avenue,Kabacan, Cotabato where accused-appellantallegedly was on September 15, 1995 is only 1.5kilometers away from the public market andterminal in Poblacion, Kabacan, Cotabato where thecrime was committed.[20] According to the trialcourt, this distance between the crime scene andthe whereabouts of accused-appellant can easily benegotiated by foot within 10 to 15 minutes.[21] Inshort, accused-appellant failed to establish by clearand convincing evidence the physical impossibilityof his presence at the scene of the crime on thedate and time of its commission. Moreover, thedefense of alibi crumbles in the face of the positiveidentification of accused-appellant by the aforesaidprosecution witnesses as the perpetrator of thecrime.[22]

In his last-ditch effort to relieve him of liabilityfor the crime charged, accused-appellant arguesthat he cannot be convicted of murder because theInformation failed to state that treachery was aqualifying circumstance.

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Accused-appellant’s argument deserves scantconsideration. The recent case of People v.Sayaboc[23] reiterated the pronouncement inPeople v. Aquino[24] that even after the recentamendments to the Rules of Criminal Procedure,qualifying circumstances need not be preceded bydescriptive words such as “qualifying” or “qualifiedby” to properly qualify an offense. Section 8 of theRules of Criminal Procedure[25] does not require theuse of such words to refer to the circumstanceswhich raise the category of an offense. It is not theuse of the words “qualifying” or “qualified by” thatraises a crime to a higher category, but the specificallegation of an attendant circumstance which addsthe essential element raising the crime to a highercategory. It is sufficient that the qualifyingcircumstances be specified in the Information toapprise the accused of the charges against him toenable him to prepare fully for his defense, thusprecluding surprises during trial.

The Information in this case sufficientlyalleged the qualifying circumstance of treachery,thus:

“xxx, accused armed with agun, with intent to kill, did then andthere, willfully, unlawfully, feloniously,and with treachery, attack, assaultand shot Nestor Esatcio, xxx.”(Emphasis ours)

Not only was treachery sufficiently alleged, itwas likewise proven beyond reasonable doubt bythe evidence on record. It is a well-entrenched rulethat treachery is present when the offendercommits any of the crimes against persons,employing means, methods or forms in theexecution thereof which tend directly and speciallyto insure its execution, without risk to himselfarising from the defense which the offended partymight make. The essence of treachery is that theattack is deliberate and without warning, done in aswift and unexpected attack, affording the hapless,unarmed and unsuspecting victim no chance toresist or escape.[26]

In the instant case, Nestor Estacio wasattacked from behind and assaulted withoutwarning and provocation. Even when the alreadywounded Nestor fell on the ground, accused-appellant mercilessly fired several more shots athim. He obviously wanted to ensure the executionof the killing, without risk to himself, and depriveNestor of any opportunity to retaliate or defendhimself. The fact that accused-appellant brought agun with him indicated that he made a deliberateand conscious adoption of the means to kill Nestor. Further, the autopsy conducted by Dr. Necessariorevealed multiple gunshot wounds at the lower backarea of the lumbar region of Nestor. This autopsyindubitably indicates that the shots were fired frombehind on the unsuspecting victim. Clearly then,treachery or alevosia has been sufficientlyestablished.

We, thus, sustain the conviction of ReneRosas for the crime of murder as well as the penaltyimposed upon him. Under Article 248 of theRevised Penal Code, the penalty for the crime ofmurder is reclusion perpetua to death. Accused-appellant was correctly sentenced to sufferreclusion perpetua, the lower of the two indivisiblepenalties, since there was no other aggravatingcircumstance attending the commission of thecrime.[27]

We now come to the award of damages.

Conformably with existing jurisprudence, theheirs of Rene Rosas are entitled to civil indemnity inthe amount of P50,000.00, which is mandatory andis granted to the heirs of the victim without need ofproof other than the commission of the crime.[28] Likewise, moral damages in the amount ofP50,000.00 shall be awarded in favor of the heirs ofthe victim. Moral damages are awarded despite theabsence of proof of mental and emotional sufferingof the victim’s heirs. As borne out by human natureand experience, a violent death invariably andnecessarily brings about emotional pain andanguish on the part of the victim’s family.[29] Accused-appellant is also liable to pay exemplarydamages in the sum of P25,000.00 in view of thepresence of the qualifying aggravatingcircumstance of treachery.[30]

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With respect to actual damages, the victim’swidow, Arceli Estacio, testified that she spent a totalof P40,000.00 as burial and funeral expenses butshe failed to present receipts to substantiate herclaim. In People v. Abrazaldo,[31] we laid downthe doctrine that where the amount of actualdamages for funeral expenses cannot bedetermined because of the absence of receipts toprove them, temperate damages may be awardedin the amount of P25,000.00. Thus, in lieu of actualdamages, temperate damages in the amount ofP25,000.00 must be awarded to the heirs of ReneRosas because although the exact amount was notproved with certainty, it was reasonable to expectthat they incurred expenses for the coffin and burialof the victim.

WHEREFORE, the decision dated November29, 2006 of the Court of Appeals in CA-G.R. CR-HCNo. 00301 is hereby AFFIRMED. Accused-appellant Rene Rosas is found GUILTY beyondreasonable doubt of the crime of Murder andsentenced to suffer the penalty of reclusionperpetua. He is hereby ordered to indemnify theheirs of Nestor Estacio the following: (a) P50,000.00as civil indemnity; (b) P50,000.00 as moraldamages, (c) P25,000.00 as exemplary damages;and (d) P25,000.00 as temperate damages.

SO ORDERED.

Criminal Procedure: An absolution from a criminalcharge is not a bar to an administrative prosecutionor vice versa

Dominador C. Ferrer, Jr., vs. SandiganbayanG.R. No. 161067March 14, 2008

Austria-Martinez, J.

Synopsis:Before the Court is a Petition for Certiorari underrule 65 of the RRC, seeking to annul the Resolutionsof the Sandiganbayan. The Resolution of July 2,2003 denied the Motion for re-determination ofProbable Cause filed by accused Dominador Ferrer(petitioner), while the Resolution of October 22,2003 denied petitioner's Motion for Reconsiderationand Motion to Quash.

Antecedent Facts:On Jan. 29, 2001, an information for violation of R.A.No. 3019 was filed against petitioner. Petitioner fileda Motion for Reconsideration alleging that the Officeof the Ombudsman disregarded certain factualmatters which could negate the finding of probablecause.Public respondent issued a Resolution denyingpetitioner's Motion for Reinvestigation. It held thatpetitioner's contentions are all evidentiary in natureand may be properly considered only in a full-blowntrial.

Petitioner filed a Motion for Reconsideration. Shortlythereafter, he filed Supplemental Motion forreconsideration asserting that the complainantswere guilty of forum shopping, due to the earlierdismissal of the administrative case against him.

Public respondent issued a Resolution denying themotion for Reconsideration.Petitioner files a Motion for Leave to File a SecondMotion for Reconsideration. Again, he cited as hisground the alleged forum shopping of the privatecomplainants.On April 29, 2002, public respondent issued aResolution denying the Motion for Leave to File asecond Motion for Reconsideration. It held thatthere was no forum shopping since theadministrative and criminal cases are two differentactions, so neither resolution on the same wouldhave the effect of res judicata on the other. Thepublic respondent dismissed the second motion forreconsideration as pro forma and prohibited motion.

Petitioner then filed a Petition for Certiorari with thisCourt, docketed as G.R. No. 153592, which assailedthe Resolution of public respondent dated April 29,2002 as having been issued with grave abuse ofdiscretion amounting to lack of jurisdiction. On July1, 2002, the Court dismissed the petition for havingbeen filed out of time and for failure to pay therequired docket fees.On May 19, 2003, before he can be arraigned,petitioner filed yet another motion with publicrespondent, this time a Motion for Re-determinationof Probable Cause, invoking the ruling of the Officeof the President (OP), dated February 29, 2000,which absolved petitioner of the administrativeliability. The OP reviewed theadministrative case filed against petitioner with thePresidential Commission Against Graft andCorruption (PCAGC) and held petitioner acted ingood faith and within the scope of his authority.On July 2, 2003, the Sandiganbayan issued hereinassailed resolution denying the Motion for Re-determination of Probable cause.

Ruling:(1) The established rule is that an absolution from acriminal charge is not a bar to an administrativeprosecution, or vice versa. The dismissal of an

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administrative case does not necessarily bar thefiling of the criminal prosecution for the same orsimilar acts which were the subject of theadministrative complaint.

(2) The independent nature of a criminalprosecution dictates that the Sandiganbayan mustdetermine petitioner's criminal liability without itshands being tied with what transpired in theadministrative case.- The Court finds no cogent reason to depart fromthese rules.

Petitioner argues that the criminal case against himrequires a higher quantum of proof for conviction -that is proof beyond reasonable doubt - that theadministrative case, which needs only substantialevidence. He claims that from this circumstance, itfollows that the dismissal of the administrative caseshould carry with it the dismissal of the criminalcase. This argument has however been addressed injurisprudence. In Valencia v. Sandiganbayan, theAdministrative case against the accused wasdismissed by the Ombudsman on a finding that thecontract of loan entered into in pursuance of thepolice power of the accused as local chief executive,and that the accused had been re-elected to office.The Ombudsman however, still found probablecause to criminally charge the accused in court.When the accused filed a petition with the SupremeCourt to dismiss the criminal case before theSandiganbayan, the Court denied the petition. To sustain petitioner's arguments will be to requirethe Sandiganbayan and the Ombudsman to merelyadopt the results of administrative investigationswhich would not only diminish the powers and

duties of these constitutional offices but, alsoviolate the independent nature of criminal andadministrative cases against public officials. Thiswill also amount to untold delays in criminalproceedings before the Sandiganbayan andOmbudsman, as every criminal trial andinvestigations will be made to await the results ofpendingadministrative investigations, Such is not the intentof the framers of the Constitution and the lawsgoverning public officers. Petitioner cites Larin vs. Executive Secretary tosupport his arguments. That case however, is not onall fours with the present case.In Larin, the accused was first convicted by theSandiganbayan for violation of the National InternalRevenue Code and Sec. 3 (e) of Republic Act 3019.On the basis of this conviction to the SupremeCourt, however, he was acquitted upon a findingthat the acts he had committed were neither illegalnor irregular. When the accused sought a similardismissal of the administrative case, the SupremeCourt sustained him and ruled that since the sameacts for which he was administratively charged hadbeen found neither illegal nor irregular,his acquittal in the criminal case should entail thedismissal of the administrative case.

The present case differs from Larin because here,the administrative case was filed independently ofthe criminal case. The administrative case was notfiled on the basis of a criminal conviction, as in fact,the administrative case was dismissed withoutregard for the results of the criminal case. This is incontrast with Larin, where the administrative casewas dismissed only after its basis, the criminalconviction was overturned on appeal.

We cannot reverse Larin by ruling that petitioner'sdischarge from the administrative action shouldresult in the dismissal of the criminal case. Theargument cannot be sustained without violatingsettled principles. The rule is that administrativeliability is separate and distinct from penal and cilivliabilities. In Larin, no less than theSupreme Court acquitted the accused of charges ofwrongdoing; in the case at bar, no court of justicehas yet declared petitioner not guilty of committingillegal or irregular acts.

The independent nature of the criminal prosecutiondictates that the Sandiganbayan must determinepetitioner's criminal liability without its hands beingtied by what transpired in the administrative case.The court is duty-bound to exercise its independentjudgement. It is not ousted of its jurisdiction by theruling in the administrative proceeding. It isaxiomatic that when the court obtains jurisdictionover the case, it continues to retain it until the caseis terminated. Under the Rules of Court, petitioner's absolutionfrom administrative liability is not even one of thegrounds for Motion to Quash.

3.) Moreover, petitioner lacked the right to file theinstant petition as he already raised the issue of hisdischarge from administrative liability in hissupplemental motion for recommendation SB Resodated7/13/01.