ERNESTO FULLERO VS PEOPLE OF THE PHILIPPINES FACTS: In 1977 Ernesto Fullero was employed as a telegraph operator at the Bureau of Telecommunications Office in Iriga City. In 1982, he became the Acting Chief Operator of Iriga City Telecommunication’s Office. He was required to prepare and submit his CSC 212 (Personal Data Sheet (PDS)) to the Bureau of Telecommunication Regional Office Legazpi City. He made it appear that he was a licensed engineer by saying that he passed the Civil Engineering board of Examinations on May 30 and 31 of 1985 with a rating of 75.8%. Magistrado, a subordinate of petitioner at the BTO, Iriga City, sued the petitioner for unjust vexation as the latter kissed her on one occasion. While the case was pending, her lawyer asked her if Fullero was a licensed civil engineer since some persons simply referred to petitioner as “Mr. Fullero” whereas in the BTO, Iriga City, petitioner was known as “Engineer Fullero.” Suspicious of the true status of petitioner, she went to the Records Office of the BTO, Legazpi City, and requested if she can see petitioner’s PDS. Upon being shown rhe PDS, she observed that, under Item No. 18 thereof, petitioner appears to be a licensed civil engineer having passed the board examination for civil engineering given on 30-31 May 1985. Unconvinced by the statement in the PDS that he is a licensed civil engineer, she sought the advice of the PRC in Manila to check the records of petitioner. upon verification by the Professional Regulation Commission (PRC), it was revealed that Fullero took the exams on Uay 1984 and another in May 1985 with the general ratings of 56.75% and 56.10% respectively.

She then filed a criminal case of Falsification of Public Documents under Art. 171 of RPC against Fullero. The Trial Court convicted Fullero, and the C.A. affirmed the decision in toto, thus this instant Petition for Certiorari under Rule 45 of the Rules of Court seeking to set aside the decision of the Court of Appeals. Evidence: In establishing its charge of falsification against petitioner, the prosecution presented the following witnesses, namely: - Magistrado, - Joaquin C. Atayza, Regional Director of the PRC in Legazpi City, who testified that petitioner is not registered as a board passer for the civil engineering examination given on 30-31 May 1985. - Romeo Brizo, Human Resource Management Officer and Acting Records Officer of the BTO, Legazpi City, who testified that He said he personally knows the petitioner and is familiar with the latter’s signature because he regularly received petitioner’s daily time records and other documents bearing petitioner’s signature. He confirmed that the signature appearing in petitioner’s PDS was the signature of petitioner. - Emma Francisco, the Officer-In-Charge of the Records Section of the PRC, Manila, who declared that petitioner’s name was included in the master list of examinees in the May 1984 and 1985 civil engineering licensure examination where petitioner obtained a failing grade of 56.75%. and 56.10% respectively. - Edith C. Avenir, the Special Investigator III in the Legal Affairs Division of the CSC, Regional Office No. 5, Legazpi City, who brought to the court the letter of petitioner applying for the position of either Junior Telecommunications Engineer or Telecommunications Traffic Supervisor, and a certification

submitted by the petitioner stating that the latter is a licensed civil engineer. The prosecution also presented documentary evidence to bolster the foregoing testimonies of the prosecution witnesses: (1) a certification issued by Jose A. Arriola, Director II, PRC, Manila, attesting that petitioner’s name is not registered in the book of registry for licensed civil engineers; (2) certifications issued by Francisco affirming that petitioner failed in the 30-31 May 1985 board examination for civil engineering. (3) the PDS where petitioner stated that he passed the 30-31 May 1985 board examination for civil engineering with a rating of 75.8% and which was signed by him (4) certifications issued by Francisco attesting that petitioner failed the May 1990 board examination for civil engineering (5) transcript of stenographic notes in the perjury case filed by petitioner against Magistrado which states that, during the trial thereof, petitioner affirmed before the court hearing the case that he is a licensed civil engineer; (6) a letter signed and submitted by petitioner to the Regional Director of the CSC, Regional Office No. 5, Legazpi City, claiming to be a licensed civil engineer and applying for the position of either a Junior Telecommunications Engineer or Telecommunications Traffic Supervisor; (7) an Order dated 20 December 2001 of the CSC, Regional Office No. 5, finding petitioner administratively liable for conduct prejudicial to the best interest of the service and imposing upon him a penalty of six months suspension for falsifying his PDS which is also the subject matter of the instant case; (8) a certification submitted by the petitioner to the CSC, Regional Office No. 5, Legazpi City, showing that he is a licensed civil engineer; (9) the daily time records of Magistrado signed by petitioner

as the former’s superior; and (10) other documents bearing the signature of petitioner in blue ballpen. Petitioner’s Defense: The defense presented petitioner as its sole witness. No documentary evidence was proffered. Petitioner denied executing and submitting the subject PDS containing the statement that he passed the 30-31 May 1985 board examination for civil engineering. He likewise disowned the signature and thumb mark appearing therein. He claimed that the stroke of the signature appearing in the PDS differs from the stroke of his genuine signature. He added that the letters contained in the PDS he accomplished and submitted were typewritten in capital letters since his typewriter does not have small letters. As such, the subject PDS could not be his because it had both small and capital typewritten letters. Petitioner claimed that Magistrado had an ill motive in filing the instant case against him because he issued a memorandum against her for misbehavior in the BTO, Iriga City. He further argued that the RTC had no jurisdiction to try him there being no evidence that the alleged falsification took place in Legazpi Petitioner testified that he cannot recall the exact date when he issued the alleged memorandum against Magistrado and when during the trial of his perjury case against Magistrado, he claimed that he is a licensed civil engineer. He cannot also remember if he submitted a letter to the CSC, Regional Office No. 5, Legazpi City, applying for the position of either a Junior Telecommunications Engineer or Telecommunications Traffic Supervisor and the fact that he submitted therein a

certification that he is a licensed civil engineer He claims that nobody saw that he actually falsified said document thus his guilt was not proven beyond reasonable doubt. ISSUE: The initial query to be resolved is whose evidence between the prosecution and defense is credible. DECISION: Case law dictates that an accused can be convicted even if no eyewitness is available as long as sufficient circumstantial evidence had been presented by the prosecution.Circumstantial evidence is sufficient if: (a) There is more than one circumstance; (b) The facts from which the inferences are derived are proven; and (c) The combination of all the circumstances is such as to produce a conviction beyond reasonable Although none of the prosecution witnesses actually saw the petitioner falsifying the PDS, they, nonetheless, testified that that they are very familiar with the petitioner’s handwriting and signature. Magistrado and Brizo opine that the signature in the PDS belongs to petitioner. The foregoing testimonies are consistent with the documentary evidence submitted by the prosecution. The RTC and the Court of Appeals found the testimonies of Magistrado and Brizo as trustworthy and believable. They noted that petitioner’s signatures in the said documents are “strikingly similar, such that through the naked eye alone, it is patent that the signatures therein were written by one and the same person.”

In absolute disparity, the evidence for the defense is comprised of denials. Petitioner denied having accomplished and signed the PDS. He tried to impart that someone else had filled it up. However, aside from this self-serving and negative claim, he did not adduce any convincing proof to effectively refute the evidence for the prosecution. It is a hornbook doctrine that as between bare denials and positive testimony on affirmative matters, the latter is accorded greater evidentiary weight. Petitioner contended that the prosecution’s documentary evidence, consisting of Exhibits A, C, F, G, H, I, J, K, L, M, N, O, P, Q and R and their sub- markings, are inadmissible in evidence based on the following reasons: (1) Exhibit A, which is the Certification of the PRC dated 17 January 1998, confirming that petitioner’s name does not appear in the registry books of licensed civil engineers, was not properly identified during the trial. The proper person to identify the certification should have been the signatory therein which was PRC Director II Jose A. Arriola, or in his absence, a person who actually witnessed the execution of the certification. Prosecution witness Atayza, who was not present when the certification was executed, had identified the certification during the trial. Thus, the contents of the certification are mere hearsay; (2) Exhibit C, which is, according to petitioner, a machine copy of the PDS, does not show that it was the petitioner who prepared and submitted the PDS to BTO, Legazpi City. There was nothing in the PDS which requires a periodic submission of an updated PDS. Prosecution witness Brizo does not know whether petitioner’s PDS was personally delivered or mailed.

Hence, the identification and subsequent testimonies of the prosecution witnesses on the PDS are mere hearsay; (3) Exhibit F, which is the Transcript of Stenographic Notes dated 17 March 1998 of the perjury case filed by petitioner against Magistrado where petitioner allegedly admitted that he is a civil engineer, lacks proper identification as the stenographer or records officer was not presented in court; (4) Exhibit G, which is the alleged letter of petitioner to the Regional Director of the CSC, Region 5, Legazpi City, applying for the position of either a Junior Telecommunications Engineer or Telecommunications Traffic Supervisor; and Exhibit I, which is a machine copy of a certification allegedly issued by the PRC attesting thatpetitioner is a licensed civil engineer and which was allegedly submitted by petitioner to the Regional Director of the CSC, Region 5, Legazpi City, as his credential in applying for the aforesaid positions, are merely machine copies and the loss and unavailability of their original were not proven; and (5) Exhibits J, K, L, M, N, O, P, Q and R, which are the daily time records of Magistrado signed by petitioner and which were offered to compare petitioner’s alleged signature in the PDS with the said exhibits, are devoid of factual basis. Petitioner’s signatures in the said exhibits are, “with the use of naked eye,” not the same as his signature in the PDS. The Legazpi City RTC should have submitted these documents to a handwriting expert for examination instead of relying on the testimony of Magistrado Section 36, Rule 130 of the Revised Rules on Evidence, states that a witness can testify only to those facts which he knows of or comes from his personal knowledge, that is, which are derived from his perception. A witness, therefore, may not

testify as to what he merely learned from others either because he was told, or he read or heard the same. Such testimony is considered hearsay and may not be received as proof of the truth of what he has learned. This is known as the hearsay rule. The law, however, provides for specific exceptions to the hearsay rule. One of the exceptions is the entries in official records made in the performance of duty by a public officer. Official entries are admissible in evidence regardless of whether the officer or person who made them was presented and testified in court, since these entries are considered prima facie evidence of the facts stated therein. Other recognized reasons for this exception are necessity and trustworthiness. The necessity consists in the inconvenience and difficulty of requiring the official’s attendance as a witness to testify to innumerable transactions in the course of his duty. This will also unduly hamper public business. The trustworthiness consists in the presumption of regularity of performance of official duty by a publicofficer. Exhibit A, or the Certification of the PRC dated 17 January 1998, was signed by Arriola, Director II of the PRC, Manila. Although Arriola was not presented in court or did not testify during the trial to verify the said certification, such certification is considered as prima facie evidence of the facts stated therein and is therefore presumed to be truthful, because petitioner did not present any plausible proof to rebut its truthfulness. Exhibit A is therefore admissible in evidence. Section 3, Rule 128 of the Revised Rules on Evidence, provides that an evidence is admissible when it is relevant to the issue and is not excluded by the law or rules. Exhibit C, which according to petitioner is the machine copy of the PDS, is very relevant to the charge of falsification and is not

excluded by the law or rules. It was offered precisely to prove that petitioner committed the crime of falsification by making false statements in the PDS. Further, the information specifically accuses petitioner of falsifying such PDS. A scrutiny of Exhibit C would show that it is the very PDS which petitioner falsified and not a mere machine copy as alleged by petitioner. Being the original falsified document, it is the best evidence of its contents and is therefore not excluded by the law or rules. Section 2, Rule 132 of the Revised Rules on Evidence, explicitly provides that a transcript of the record of the proceedings made by the official stenographer, stenotypist or recorder and certified as correct by him shall be deemed prima facie a correct statement of such proceedings. Petitioner failed to introduce proof that Exhibit F, or the Transcript of Stenographic Notes is not what it purports to be. Thus, it is prima facie correct. One of the exceptions to the hearsay rule is the entries in official records made in the performance of duty by a public officer. Exhibit F, being an official entry in the court’s records, is admissible in evidence and there is no necessity to produce the concerned stenographer as a witness. Section 7, Rule 130 of the Revised Rules on Evidence, provides that when the original of a document is in the custody of a public officer or is recorded in a public office, its contents may be proved by a certified copy issued by the public officer in custody thereof. Exhibit G, which is the alleged letter of petitioner to the Regional Director of the CSC, Region 5, Legazpi City, applying for the position of either a Junior Telecommunications Engineer or Telecommunications Traffic Supervisor; and Exhibit I, which is the machine copy of a certification allegedly issued by the PRC attesting that

petitioner is a licensed civil engineer and which was allegedly submitted by petitioner to the Regional Director of the CSC, Region 5, Legazpi City, as his credential in applying for the aforesaid positions, are certified true copies of their original documents recorded or kept in the CSC, Regional Office No. 5, Legazpi City and, thus, admissible to prove the contents of their originals. Exhibits J to R, which are the daily time records of Magistrado signed by petitioner and which were offered to compare petitioner’s alleged signature in the PDS with the said exhibits, are admissible in evidence since they are relevant and material to the charge of falsification against petitioner. The signatures of petitioner in the said exhibits, the authenticity of which were not denied by petitioner, were presented to prove that these signatures were similar to petitioner’s signature in the PDS where he made the alleged falsification. Well-entrenched is the rule that resort to handwriting experts is not mandatory. Handwriting experts, while probably useful, are not indispensable in examining or comparing handwritings or signatures. Thus, Petition is denied.

PEOPLE V MATEO

AUSTRIA-MARTINEZ, J.:

Before the Court is an appeal from the Decision 1 dated September 30, 2005 of the Court of Appeals (CA) affirming with modification the Decision2 of the Regional Trial Court (RTC), Pasig City, Branch 160, finding appellant guilty of rape and sentencing him to reclusion perpetua.

In a Complaint dated November 2, 1995, AAA,3 assisted by her father, BBB, charged Norberto Mateo (appellant) with rape by means of force and intimidation. The Assistant City Prosecutor certified that it was filed with the prior authority of the City Prosecutor.4

The accusatory portion of the Complaint reads:

That on or about the 29th day of October 1995, in the City of Mandaluyong, Philippines, a place within the Jurisdiction of this Honorable Court, the above-named accused with lewd design and by means of force and intimidation, did, then and there willfully, unlawfully and feloniously have carnal knowledge with the undersigned against her will and consent.

Contrary to law.5

Upon arraignment, appellant, duly assisted by his counsel, pleaded not guilty to the offense charged. After trial the RTC rendered its decision dated August 29, 1997,6 the dispositive portion of which reads as follows:

WHEREFORE, foregoing considered [sic], the court finds accused NORBERTO MATEO Y DIZON GUILTY beyond

reasonable doubt of the crime of rape and hereby sentences said accused to a penalty of reclusion perpertua and to indemnify the offended party the amount of P50,000.00 and to pay the costs.7

Appellant initially appealed to this Court. Conformably with People v. Mateo,8 the Court transferred the case to the CA.

On September 30, 2005, the CA issued its assailed decision, the dispositive portion of which reads:

WHEREFORE, the assailed decision of the Regional Trial Court of Pasig City, Branch 160 finding accused Norberto Mateo y Dizon GUILTY beyond reasonable doubt of the crime of rape and imposing upon him the penalty of reclusion perpetua is hereby AFFIRMED with the MODIFICATION that accused is further ordered to indemnify the complainant in the amount of P50,000.00 as moral damages.9

The records of the case were elevated to this Court in view of the notice of appeal filed by appellant.

By Resolution10 dated February 1, 2006, this Court required the parties to file their supplemental briefs if they so desired within thirty days from notice. Counsel for appellant filed a Manifestation in lieu of a supplemental brief adopting the appellant's brief filed on January 26, 1999 as his supplemental brief. The Office of the Solicitor General (OSG) filed its supplemental brief.

Appellant raises the following assignment of errors:

I

THE COURT A QUO GRAVELY ERRED IN FINDING THAT THE GUILT OF THE ACCUSED-APPELLANT FOR THE CRIME CHARGED HAS BEEN PROVEN BEYOND REASONABLE DOUBT.

II

THE COURT A QUO GRAVELY ERRED IN FINDING THAT THE COMPLAINANT IS A MENTAL RETARDATE. 11

The appeal lacks merit.

The facts of the case:

The evidence for the prosecution established that AAA only finished grade one and does not know how to read and write except her name. On October 29, 1995, at around 1:00 p.m., AAA, then 16 years old, was at the house of her Ate Nimfa, located at Welfareville Compound, Mandaluyong City, when appellant arrived at the said house and drank gin.12 After a while, appellant approached AAA and pulled her13towards a grassy place which was three to four meters away.14 When they reached the grassy place, appellant removed AAA's shirt, shorts and panties and his own short pants.15 Appellant laid AAA on the ground, went on top of her and while holding her breast inserted his penis into her vagina.16 While doing this, appellant told AAA not to report or he would kill her.17

Zenaida Torno, a bantay bayan volunteer, who was then cooking at the outpost of Mandaluyong City, saw children at the monument near the Jose Fabella Memorial School looking at the direction of the swimming pool and shouting indecent words.18 Torno then went to the place and saw appellant

pumping on top of AAA. Torno asked him to stop but he still continued with what he was doing to AAA.19 Torno then asked the help of a man who was gathering grass at that time and the man boxed appellant and held him away from AAA.20 Torno then reported the incident to the authorities and brought the appellant and AAA to the barangay hall.21

Dr. Reyes conducted his examination of AAA on October 29, 1995 and prepared his report22 as Living Case No. MG-95-1275, thus:

Findings

x x x x

PHYSICAL INJURIES

Abrasions; linear, reddish, smallest is 4.0 cms and biggest is 10.0 cms. covering an area of 27.0 cms x 20.0 cms, back; 3.0 cms., thigh, middle 3rd antero-medial aspect left.

GENITAL EXAMINATIONS:

x x x Hymen, moderately tall with deep fresh hymenal laceration at 6:00 o'clock position corresponding to a face of a watch, which bleeds on slight pressure.

CONCLUSIONS:

1. The above-described extragenital physical injuries were noted on the body of the subject at the time of examination.

2. Deep, fresh hymenal laceration, present.23

Dr. Reyes testified that AAA could have been laid on a rough surface as shown by the multiple linear abrasions found at her back and the anterum medial aspect of her thigh;24 that she had been sexually penetrated possibly with the use of force and violence;25 that he noticed that AAA was suffering from some form of mental retardation as she was not responding to his question like a 17-year old26 girl should, compelling him to refer her to a neuro-psychiatrist for examination;27 that based on the result forwarded to him, AAA had a mental age of 5 years and 8 months with an IQ of 38.28

Appellant denied raping AAA. He testified that on October 29, 1995 at about 10:00 o'clock a.m., he and AAA met at the house of his Aunt Nimfa.29 They talked to each other regarding their relationship as AAA was his girlfriend. He told AAA that they better move to another place because they might be reprimanded by her mother.30 They proceeded to Fabella School and talked in front of the school. While they were conversing, a woman shouted at them.31 They approached the said woman and the latter asked what they were doing, to which appellant replied that they were merely talking with each other.32Not contented with his answer, they forcibly brought them to the barangay hall where the two were detained for more than an hour until AAA's parents arrived.33 AAA was immediately brought out of the detention cell while appellant was investigated further.34

Nelia Marquez, co-occupant of the house where appellant temporarily resided, corroborated appellant's testimony regarding his relationship with AAA. She testified that she frequently saw the two talking to each other. She even asked AAA whether they had a relationship to which AAA simply nodded her head.35

In convicting appellant, the RTC said that the issue hinged not only on the complainant's version but more importantly on the conduct of the complainant observed by the court in the course of the trial. The RTC observed that AAA appeared to be mentally deficient and behaved like a child when she answered even direct questions; that she did not remember her birthday and the exact place where appellant had sexually abused her except to say on a "grassy land or damuhan" and near a high monument when asked in what municipality; thus, it was not difficult to understand that when appellant pulled her to a grassy place, she did not shout or ask for help. The RTC found AAA's testimony to be credible and sincere. Coupled with the findings of the medico legal expert and the fact that appellant had sexual intercourse with AAA as testified to by Torno who actually saw the incident, the RTC found appellant guilty of the crime of rape beyond reasonable doubt.

On appeal, appellant contends that the testimony of alleged eyewitness Torno appeared to be too weak to overcome the constitutional presumption of innocence in favor of appellant; that Torno's testimony that while AAA was being raped, there were more than 15 children watching her and appellant; that said children were uttering indecent words as if suggesting what sexual position the two should perform, giving the impression that what transpired between the two was a voluntary take sexual intercourse between two consenting adults; that Torno was scandalized by what she saw at that time, as she even testified that she brought the two to the barangay hall, as they were doing a wrong thing. Appellant pointed out that in AAA's testimony she said that there were people around when appellant went on top of her and yet she did not ask help from them; that to inject an element of fear, AAA testified that appellant would kill her, however, no deadly weapon was used by appellant in threatening her; that the records are bereft of any sign of

struggle; and that the linear abrasions found on AAA's body could have been caused by sharp grass and the rough surface where the two lay, which was even admitted by the medico legalofficer.

Appellant pointed out that the RTC erred in admitting as evidence the psychological examination conducted on AAA, as it was never testified to by the doctors who examined her, but was only identified by the medico legal officer who had no expertise on the subject matter.

The CA found unpersuasive appellant's assault on Torno's credibility because judicial notice was taken of the fact that the rape scene is not always secluded or isolated, as it can be committed in places where people congregrate; that complainant's failure to struggle or to offer adequate resistance against appellant is of no moment, as physical resistance need not be established in rape when intimidation was exercised upon the victim and she submitted herself to the rapist's lust out of fear for her life and personal safety. The CA found satisfactory the explanation advanced by AAA that she was threatened with death which rendered her unable to scream or ask for help; that such threat or intimidation produced a reasonable fear in her mind that it would be carried out if she resisted the desires of appellant; that there was force when appellant pulled her to a grassy place, and there was intimidation when he threatened to kill her if she would report the incident; thus, the fact that no deadly weapon was used by appellant in making the threat had no bearing. The CA further found that the medical findings of Dr. Reyes also corroborated AAA's claim that she had been sexually molested by appellant.

While the CA ruled that the result of AAA's mental examination should not be admitted by the trial court, since the neuro-

psychiatrist who examined AAA was never presented in court, notwithstanding that no timely objection was raised during trial, the CA declared that AAA suffered some mental deficiency which was neither disputed nor challenged by appellant as he even admitted that AAA's mental capacity was very low; that the RTC judge had also observed AAA's mental retardation, as he mentioned it in his decision which sufficed even in the absence of an expert opinion on the matter.

The CA did not give credence to appellant's claim that he and AAA were sweethearts and the sexual act was consensual; that except for appellant's own declaration, he did not present anything to prove their alleged love relationship and was unable to prove that carnal knowledge between him and AAA was consensual. Thus, the CA affirmed appellant's conviction and also awarded to the victim the amount ofP50,000.00 as moral damages.

It has often been said, to the point of being repetitive, that when the credibility of the witness is in issue, the trial court's assessment is accorded great weight unless it is shown that it has overlooked a certain fact or circumstance of weight which the lower court may have overlooked, misunderstood or misappreciated and which, if properly considered, would alter the results of the case.36 The RTC has the unique advantage of monitoring and observing at close range the demeanor, deportment and conduct of the witnesses as they regale the trial court with their testimonies.37 In this case, the RTC found AAA's testimony credible and sincere and gave it full probative weight. We find no cogent reason to overturn the CA’s affirmance of such finding.

Article 33538 of the Revised Penal Code as amended by Section 11 of Republic Act No. 765939 was the law applicable at the time of the rape. It provides:

Art. 335. When and how rape is committed. — Rape is committed by having carnal knowledge of a woman under any of the following circumstances.

1. By using force or intimidation;

2. When the woman is deprived of reason or otherwise unconscious; and

3. When the woman is under 12 years of age or is demented.

x x x x

The gravamen of rape is carnal knowledge of a woman against her will or without her consent.40

In this case, the prosecution was able to establish the fact that appellant had carnal knowledge of AAA against her will or without her consent, thus:

Q. When he was on top of you, what did he do if any with your private parts?

A. He inserted his private part to my vagina.

Q. How long was his private part inserted to your private part?

A. 8.30.

Q. How many minutes that his private party was inserted to your private part?

A. Alas dose po.

Q. Was it for a short time or for a long time?

A. Matagal po.

Q. When his private part was inside your private part, what was the movement of the body of Norberto.

A. --

Atty. Pio

Leading your honor.

COURT:

What was he doing after inserting his private part, what did he do?

A. He held my breast.

Prosecutor Borlas:

Q. How about the buttocks, what were the movements being made by him?

A. He was grinding his buttocks.

Q. And while he was on top of you what if any did he tell you?

A. Not to report him.

Q. What was your reaction to what he said?

A. Papatayin daw ako.

Q. What did you think he will do if you will report the incident?

A. He will kill me.

Q. So, after he got up on top of you what else transpired?

A. No more.41

Torno corroborated AAA's testimony on the carnal knowledge as she actually saw appellant pumping on top of AAA. Also, the medico-legal officer testified and presented his undisputed findings of the presence of a deep, fresh hymenal laceration which further established that AAA had been sexually penetrated. When the victim's testimony of her violation is corroborated by the physical evidence of penetration, there is sufficient foundation for concluding that there was carnal knowledge.42

Appellant's attack on Torno's credibility by claiming that Torno's testimony showed that she was only scandalized by what she saw AAA and appellant were doing in the open and which in her opinion was wrong would not detract from the fact that Torno actually saw appellant having carnal knowledge of AAA.

The prosecution was able to establish that force and intimidation were employed by appellant to perpetuate the offense charged.

As the CA correctly found, appellant pulled AAA from the house of her Ate Nimfa and brought her to a grassy place. Notably, AAA was only 16 years old then while appellant was already 21, a construction worker. Moreover, while appellant was on top of AAA, he told the latter not to report his act as

she would be killed. AAA's perception that bodily harm might be inflicted on her by appellant while she was being raped made her vulnerable to appellant's intimidation, which was sufficient for AAA to submit to appellant's desires.

Appellant's claim that AAA testified that there were people around when the rape incident took place and yet AAA did not ask help from them is not persuasive. The people seen by AAA during the rape incident were the children who were positioned at the monument which was a few meters away from the grassy land where AAA and appellant were at that time,43 and who were even shouting indecent words. She was not able to shout because she was scared.44 AAA's failure to shout for help does not vitiate the credibility of her account that she was raped. To reiterate, AAA was only 16 years old at the time of the rape and inexperienced in the ways of the world.

Appellant's claim that the records do not show any sign or presence of struggle is irrelevant. Physical resistance is not an essential element of the felony, and need not be established when intimidation is exercised upon the victim and the latter submits herself, against her will, to the rapist's embrace because of fear for her life and personal safety.45 It is enough that the malefactor intimidated the complainant into submission. Failure to shout or offer tenacious resistance did not make voluntary the complainant's submission to the criminal acts of the accused.46 Furthermore, not every victim of rape can be expected to act with reason or in conformity with the usual expectations of everyone.47 The workings of a human mind placed under emotional stress are unpredictable; people react differently. Some may shout, some may faint, while others may be shocked into insensibility.48 Also, the inequality of their physical strength made any resistance on AAA's part futile.49

Moreover, the fact that there was no weapon used by the accused does not rule out force in the rape committed.50 It is a settled rule that the force contemplated by law in the commission of rape is relative, depending on the age, size and strength of the parties.51 It is not necessary that the force and intimidation employed in accomplishing it be so great and of such character as could not be resisted; it is only necessary that the force or intimidation be sufficient to consummate the purpose which the accused had in mind.52

Intimidation, more subjective than not, is peculiarly addressed to the mind of the person against whom it may be employed, and its presence is basically incapable of being tested by any hard and fast rule.53Intimidation is normally best viewed in the light of the perception and judgment of the victim at the time and occasion of the crime.54 AAA was threatened that she would be killed, which created a fear in her mind which caused her to submit to appellant's bestial lust.

AAA, a minor, cannot be expected to react under such circumstances like a mature woman. Because of her immaturity, she can be easily intimidated, subdued, and terrified by a strong man like appellant.55Minor victims like AAA are easily intimidated and browbeaten into silence even by the mildest threat on their lives.56

During the trial, the prosecution presented evidence tending to show that AAA was a mental retardate. It is settled that sexual intercourse with a woman who is a mental retardate constitutes statutory rape, which does not require proof that the accused used force or intimidation in having carnal knowledge of the victim for conviction.57 However, this fact was not alleged in the complaint filed in this case and therefore cannot be the basis for conviction.58

In any event, the prosecution presented adequate evidence which showed that the appellant used force and intimidation in committing the crime of rape, and which the RTC relied upon in convicting appellant. The absence of evidence of any improper motive on the part of AAA to testify as principal witness of the prosecution strongly tends to sustain the conclusion that no such improper motive existed at the time she testified and her testimony is worthy of full faith and credit.59

Article 335 of the Revised Penal Code as amended by Section 11 of R.A. No. 7659 provides the penalty of reclusion perpetua for the carnal knowledge of a woman procured through force or intimidation and without any other attendant circumstance. Thus, the RTC correctly imposed the penalty of reclusion perpetua.

With respect to the civil liability of appellant, we find that the CA correctly affirmed the RTC's award to the offended party in the amount of P50,000.00 as civil indemnity, as well as the CA's additional award ofP50,000.00 as moral damages even without need of further proof, considering that AAA sustained mental, physical and psychological suffering.60

WHEREFORE, the Decision dated September 30, 2005 of the Court of Appeals is AFFIRMED.

SO ORDERED.

VEGA V SSS

ABAD, J.:

This case is about the lack of authority of a sheriff to execute upon a property that the judgment obligor had long sold to another although the registered title to the property remained in the name of the former.

The Facts and the Case

Magdalena V. Reyes (Reyes) owned a piece of titled land1 in Pilar Village, Las Piñas City. On August 17, 1979 she got a housing loan from respondent Social Security System (SSS) for which she mortgaged her land.2 In late 1979, however, she asked the petitioner spouses Antonio and Leticia Vega (the Vegas) to assume the loan and buy her house and lot since she wanted to emigrate.3

Upon inquiry with the SSS, an employee there told the Vegas that the SSS did not approve of members transferring their mortgaged homes. The Vegas could, however, simply make a private arrangement with Reyes provided they paid the monthly amortizations on time. This practice, said the SSS employee, was commonplace.4 Armed with this information, the Vegas agreed for Reyes to execute in their favor a deed of assignment of real property with assumption of mortgage and paid Reyes 20,000.00 after she undertook to update the amortizations before leaving the country. The Vegas then took possession of the house in January 1981.5

But Reyes did not readily execute the deed of assignment. She left the country and gave her sister, Julieta Reyes Ofilada (Ofilada), a special power of attorney to convey ownership of

the property. Sometime between 1983 and 1984, Ofilada finally executed the deed promised by her sister to the Vegas. Ofilada kept the original and gave the Vegas two copies. The latter gave one copy to the Home Development Mortgage Fund and kept the other.6 Unfortunately, a storm in 1984 resulted in a flood that destroyed the copy left with them.7

In 1992, the Vegas learned that Reyes did not update the amortizations for they received a notice to Reyes from the SSS concerning it.8 They told the SSS that they already gave the payment to Reyes but, since it appeared indifferent, on January 6, 1992 the Vegas updated the amortization themselves and paid 115,738.48 to the SSS, through Antonio Vega’s personal check.9 They negotiated seven additional remittances and the SSS accepted 8,681.00 more from the Vegas.10

Meanwhile, on April 16, 1993 respondent Pilar Development Corporation (PDC) filed an action for sum of money against Reyes before the Regional Trial Court (RTC) of Manila in Civil Case 93-6551. PDC claimed that Reyes borrowed from Apex Mortgage and Loans Corporation (Apex) 46,500.00 to buy the lot and construct a house on it.11 Apex then assigned Reyes’ credit to the PDC on December 29, 1992,12 hence, the suit by PDC for the recovery of the unpaid debt. On August 26, 1993 the RTC rendered judgment, ordering Reyes to pay the PDC the loan of 46,398.00 plus interest and penalties beginning April 11, 1979 as well as attorney’s fees and the costs.13 Unable to do so, on January 5, 1994 the RTC issued a writ of execution against Reyes and its Sheriff levied on the property in Pilar Village.14

On February 16, 1994 the Vegas requested the SSS to acknowledge their status as subrogees and to give them an update of the account so they could settle it in full. The SSS

did not reply. Meantime, the RTC sheriff published a notice for the auction sale of the property on February 24, March 3 and 10, 1994.15 He also served on the Vegas notice of that sale on or about March 20, 1994.16 On April 5, 1994, the Vegas filed an affidavit of third party claimant and a motion for leave to admit a motion in intervention to quash the levy on the property.17

Still, stating that Vegas’ remedy lay elsewhere, the RTC directed the sheriff to proceed with the execution.18 Meantime, the Vegas got a telegram dated August 29, 1994, informing them that the SSS intended to foreclose on the property to satisfy the unpaid housing debt of 38,789.58.19 On October 19, 1994 the Vegas requested the SSS in writing for the exact computation of the indebtedness and for assurance that they would be entitled to the discharge of the mortgage and delivery of the proper subrogation documents upon payment. They also sent a 37,521.95 manager’s check that the SSS refused to accept.20

On November 8, 1994 the Vegas filed an action for consignation, damages, and injunction with application for preliminary injunction and temporary restraining order against the SSS, the PDC, the sheriff of RTC Branch 19, and the Register of Deeds before the RTC of Las Piñas in Civil Case 94-2943. Still, while the case was pending, on December 27, 1994 the SSS released the mortgage to the PDC.21 And on August 22, 1996 the Register of Deeds issued TCT T-56657 to the PDC.22 A writ of possession subsequently evicted the Vegas from the property.

On May 8, 2002 the RTC decided Civil Case 94-2943 in favor of the Vegas. It ruled that the SSS was barred from rejecting the Vegas’ final payment of 37,521.95 and denying their assumption of Reyes’ debt, given the SSS’ previous acceptance

of payments directly from them. The Vegas were subrogated to the rights of Reyes and substituted her in the SSS housing loan and mortgage contract. That the Vegas had the receipts show that they were the ones who made those payments. The RTC ordered the PDC to deliver to the Vegas the certificate of title covering the property. It also held the SSS and PDC solidarily liable to the Vegas for 300,000.00 in moral damages, 30,000.00 in exemplary damages, and 50,000.00 in attorney’s fees and for costs of the suit.23

The SSS appealed to the Court of Appeals (CA) in CA G.R. CV 77582. On August 30, 2007 the latter court reversed the RTC decision24 for the reasons that the Vegas were unable to produce the deed of assignment of the property in their favor and that such assignment was not valid as to PDC. Their motion for reconsideration having been denied, the Vegas filed this petition for review on certiorari under Rule 45.25

The Issues Presented

The issues in this case are:

1. Whether or not the Vegas presented adequate proof of Reyes’ sale of the subject property to them;

2. In the affirmative, whether or not Reyes validly sold her SSS-mortgaged property to the Vegas; and

3. In the affirmative, whether or not the sheriff validly sold the same at public auction to satisfy Reyes’ debt to PDC.

The Rulings of the Court

One. The CA ruled that the Vegas were unable to prove that Reyes assigned the subject property to them, given that they failed to present the deed of assignment in their favor upon a claim that they lost it.26 But the rule requiring the presentation of the original of that deed of assignment is not absolute. Secondary evidence of the contents of the original can be adduced, as in this case, when the original has been lost without bad faith on the part of the party offering it.27

Here, not only did the Vegas prove the loss of the deed of assignment in their favor and what the same contained, they offered strong corroboration of the fact of Reyes’ sale of the property to them. They took possession of the house and lot after they bought it. Indeed, they lived on it and held it in the concept of an owner for 13 years before PDC came into the picture. They also paid all the amortizations to the SSS with Antonio Vega’s personal check, even those that Reyes promised to settle but did not. And when the SSS wanted to foreclose the property, the Vegas sent a manager’s check to it for the balance of the loan. Neither Reyes nor any of her relatives came forward to claim the property. The Vegas amply proved the sale to them.

Two. Reyes acquired the property in this case through a loan from the SSS in whose favor she executed a mortgage as collateral for the loan. Although the loan was still unpaid, she assigned the property to the Vegas without notice to or the consent of the SSS. The Vegas continued to pay the amortizations apparently in Reyes’ name. Meantime, Reyes apparently got a cash loan from Apex, which assigned the credit to PDC. This loan was not secured by a mortgage on the property but PDC succeeded in getting a money judgment against Reyes and had it executed on the property. Such property was still in Reyes’ name but, as pointed out above,

the latter had disposed of it in favor of the Vegas more than 10 years before PDC executed on it.

The question is: was Reyes’ disposal of the property in favor of the Vegas valid given a provision in the mortgage agreement that she could not do so without the written consent of the SSS?

The CA ruled that, under Article 123728 of the Civil Code, the Vegas who paid the SSS amortizations except the last on behalf of Reyes, without the latter’s knowledge or against her consent, cannot compel the SSS to subrogate them in her rights arising from the mortgage. Further, said the CA, the Vegas’ claim of subrogation was invalid because it was done without the knowledge and consent of the SSS as required under the mortgage agreement.29

But Article 1237 cannot apply in this case since Reyes consented to the transfer of ownership of the mortgaged property to the Vegas. Reyes also agreed for the Vegas to assume the mortgage and pay the balance of her obligation to SSS. Of course, paragraph 4 of the mortgage contract covering the property required Reyes to secure SSS’ consent before selling the property. But, although such a stipulation is valid and binding, in the sense that the SSS cannot be compelled while the loan was unpaid to recognize the sale, it cannot be interpreted as absolutely forbidding her, as owner of the mortgaged property, from selling the same while her loan remained unpaid. Such stipulation contravenes public policy, being an undue impediment or interference on the transmission of property.30

Besides, when a mortgagor sells the mortgaged property to a third person, the creditor may demand from such third person the payment of the principal obligation. The reason for this is

that the mortgage credit is a real right, which follows the property wherever it goes, even if its ownership changes. Article 212931 of the Civil Code gives the mortgagee, here the SSS, the option of collecting from the third person in possession of the mortgaged property in the concept of owner.32 More, the mortgagor-owner’s sale of the property does not affect the right of the registered mortgagee to foreclose on the same even if its ownership had been transferred to another person. The latter is bound by the registered mortgage on the title he acquired.1awphi1

After the mortgage debt to SSS had been paid, however, the latter had no further justification for withholding the release of the collateral and the registered title to the party to whom Reyes had transferred her right as owner. Under the circumstance, the Vegas had the right to sue for the conveyance to them of that title, having been validly subrogated to Reyes’ rights.

Three. The next question is: was Reyes’ sale of the property to the Vegas binding on PDC which tried to enforce the judgment credit in its favor on the property that was then still mortgaged to the SSS?

The CA ruled that Reyes’ assignment of the property to the Vegas did not bind PDC, which had a judgment credit against Reyes, since such assignment neither appeared in a public document nor was registered with the register of deeds as Article 1625 of the Civil Code required. Article 1625 reads:

Art. 1625. An assignment of a credit, right or action shall produce no effect as against third persons, unless it appears in a public instrument, or the instrument is recorded in the Registry of Property in case the assignment involves real property. (1526)

But Article 1625 referred to assignment of credits and other incorporeal rights. Reyes did not assign any credit or incorporeal right to the Vegas. She sold the Vegas her house and lot. They became owner of the property from the time she executed the deed of assignment covering the same in their favor. PDC had a judgment for money against Reyes only. A court’s power to enforce its judgment applies only to the properties that are indisputably owned by the judgment obligor.33 Here, the property had long ceased to belong to Reyes when she sold it to the Vegas in 1981.

The PDC cannot take comfort in the fact that the property remained in Reyes’ name when it bought the same at the sheriff sale. The PDC cannot assert that it was a buyer in good faith since it had notice of the Vegas’ claim on the property prior to such sale.

Under the circumstances, the PDC must reconvey the subject property to the Vegas or, if this is no longer possible, pay them its current market value as the trial court may determine with interest of 12 percent per annum from the date of the determination of such value until it is fully paid. Further, considering the distress to which the Vegas were subjected after the unlawful levy on their property, aggravated by their subsequent ouster from it through a writ of possession secured by PDC, the RTC was correct in awarding the Vegas moral damages of 300,000.00, exemplary damages of 30,000.00 and attorney’s fees of 50,000.00 plus costs of the suit. But these are to be borne solely by PDC considering that the SSS had nothing to do with the sheriff’s levy on the property. It released the title to the PDC simply because it had a sheriff’s sale in its favor.

The PDC is, however, entitled to reimbursement from the Vegas of the sum of 37,820.15 that it paid to the SSS for the release of the mortgaged title.

WHEREFORE, the Court GRANTS the petition, REVERSES the assailed decision of the Court of Appeals in CA-G.R. CV 77582 dated August 30, 2007, and in its place DIRECTS respondent Pilar Development Corporation:

1. To convey to petitioner spouses Antonio and Leticia Vega the title to and possession of the property subject of this case, covered by Transfer Certificate of Title 56657 of the Register of Deeds of Las Piñas City, for the issuance of a new title in their names; and

2. To pay the same petitioner spouses moral damages of 300,000.00, exemplary damages of 30,000.00, and attorney’s fees of 50,000.00.

On the other hand, the Court DIRECTS petitioner spouses to reimburse respondent Pilar Development Corp. the sum of 37,820.15, representing what it paid the respondent SSS for the release of the mortgaged certificate of title.

SO ORDERED.

VITARICH V CHONA LOCSIN

MENDOZA, J.:

This is a petition for review under Rule 45 of the Rules of Court seeking to reverse and set aside the November 26, 2007 Decision1 of the Court of Appeals, Cagayan de Oro (CA-CDO), in CA G.R. CV No.73726,2 which reversed the August 9, 2001 Decision of the Regional Trial Court, Branch 23, General Santos City (RTC), in Civil Case No. 6287, in favor of petitioner Vitarich Corporation (Vitarich).

THE FACTS:

Respondent Chona Losin (Losin) was in the fastfood and catering services business named Glamours Chicken House, with address at Parang Road, Cotabato City. Since 1993, Vitarich, particularly its Davao Branch, had been her supplier of poultry meat.3 In 1995, however, her account was transferred to the newly opened Vitarich branch in General Santos City.

In the months of July to November 1996, Losin’s orders of dressed chicken and other meat products allegedly amounted to 921,083.10. During this said period, Losin’s poultry meat needs for her business were serviced by Rodrigo Directo (Directo)and Allan Rosa (Rosa), both salesmen and authorized collectors of Vitarich, and Arnold Baybay (Baybay), a supervisor of said corporation. Unfortunately, it was also during the same period that her account started to experience problems because of the fact that Directo delivered stocks to her even without prior booking which is the customary process of doing business with her.4

On August 24, 1996, Directo’s services were terminated by Vitarich without Losin’s knowledge. He left without turning over some supporting invoices covering the orders of Losin. Rosa and Baybay, on the other hand, resigned on November 30, 1996 and December 30, 1996, respectively. Just like Directo, they did not also turn over pertinent invoices covering Losin’s account.5

On February 12, 1997, demand letters were sent to Losin covering her alleged unpaid account amounting to 921,083.10. Because of said demands, she checked her records and discovered that she had an overpayment to Vitarich in the amount of 500,000.00. She relayed this fact to Vitarich and further informed the latter that checks were issued and the same were collected by Directo.6

It appears that Losin had issued three (3) checks amounting to 288,463.30 which were dishonored either for reasons - Drawn Against Insufficient Funds (DAIF) or Stop Payment.7

On March 2, 1998, Vitarich filed a complaint for Sum of Money against Losin, Directo, Rosa, and Baybay before the RTC.

On August 9, 2001, the RTC rendered its Decision8 in favor of Vitarich, the dispositive portion of which reads:

WHEREFORE, judgment is hereby rendered in favor of plaintiff, ordering defendant Chona Losin to pay plaintiff the following:

1. P297,462.50 representing the three checks which had been stopped payment with interest at 12% per annum from the date of this Decision until the whole amount is fully paid;

2. P101,450.20 representing the unpaid sales (Exhibits ‘L’ and ‘M’) with interest at 12% from date of this Decision until the whole amount is fully paid;

3. P20,000.00 in concept of attorney’s fees; and

4. The cost of suit.

As to the complaint against defendant Allan Rosa and Arnold Baybay, the same is dismissed. The complaint against Rodrigo Directo still remains and is hereby ordered archived until he could be served with summons.

SO ORDERED.9

Not satisfied with the RTC decision, Losin appealed to the CA presenting the following:

ASSIGNMENT OF ERRORS:

I. THE LOWER COURT ERRED IN NOT APPRECIATING THE OVERPAYMENT MADE BY DEFENDANT-APPELLANT TO VITARICH CORPORATION;

II. THE LOWER COURT ERRED IN ORDERING THE PAYMENT OF THE THREE (3) CHECKS WITH STOP PAYMENT ORDERS AND WITHOUT ANY ANTECEDENT DOCUMENTARY EVIDENCES FOR THE TWO (2) CHECKS, NAMELY: RCBC CHECK NO. CX 046324 AND RCBC CHECK NO. CX 046327 ; AND

III. THE LOWER COURT ERRED IN NOT FINDING VITARICH CORPORATION NEGLIGENT IN THE SELECTION OF ITS EMPLOYEES AND NEITHER FINDING THE CORPORATION LIABLE FOR DAMAGES A CLEAR VIOLATION OF ARTICLE 2180 OF THE CIVIL CODE.10

On November 26, 2007, the CA rendered the assailed decision in favor of Losin. Pertinently, the said decision reads:

It is axiomatic that we should not interfere with the judgment of the trial court in determining the credibility of witnesses, unless there appears in the record some fact or circumstances of weight and influence which has been overlooked or the significance of which has been misinterpreted. The reason is that the trial court is in a better position to determine questions involving credibility having heard the witnesses and having observed their deportment and manner of testifying during the trial unless there is showing that the findings of the lower court are totally devoid of support or glaringly erroneous as to constitute palpable error or grave abuse of discretion. This is such an instance.

By the contract of agency, a person binds himself to render some service or to do something in representation or on behalf of another, with the consent or authority of the latter. Thus, the elements of agency are (i) consent, express or implied, of the parties to establish the relationship; (ii) the object is the execution of a juridical act in relation to a third person; (iii) the agent acts as a representative and not for himself; and (iv) the agent acts within the scope of his authority.

The Civil Code defines a contract of agency as follows:

"Art. 1868. By the contract of agency, a person binds himself to render some service or to do something in representation or on behalf of another, with the consent or authority of the latter."

As far as Losin is concerned, Directo was a duly authorized agent of Vitarich Corporation. As such, it fell upon Directo to place her orders of dressed chicken and other related products to their General Santos City branch. All such orders were taken from the Vitarich bodega by Directo as testified by Alona Calinawan, then bookkeeper of Vitarich from March 1995 to September 1998, who was responsible for all the customers’ accounts, receivables and withdrawals of dressed chicken from their bodega.

A perusal of the records would show that Vitarich included in their list of collectibles from Losin several amounts that were not supported by their Charge Sales Invoices such as 44,987.70, 3,300.00; 28,855.40; 98,166.20; P73,806.00; and 93,888.80 and which form part of their total claim of 912,083.10. Furthermore, Vitarich also submitted Charge Sales Invoices showing the amount of 70,000.00, 41,792.40, 104,137.40 and 158,522.80 as part of their exhibits but which amounts are not included in its summary statement of collectibles against Losin.

It is noted that the dressed chicken and other related products as manifested by the Charge Sales Invoices, were taken out of the bodega and received by Directo, who is now ‘at large.’ There was no evidence presented by Vitarich to prove that aforesaid stocks were delivered to Losin. Contrary to what Vitarich claimed that Directo resigned on August 24, 1996, exhibit ‘X’ shows that he was ‘terminated.’ The fact can not be put aside that Directo was the salesman and authorized collector and by law, the agent of Vitarich. Criminal acts

committed by Directo by his non-remittance of the proceeds of the checks given by Losin, is his separate accountability with Vitarich and should not be imputed to their client, Losin. In fact, defendant Directo absconded when plaintiff-appellee started to question his ‘collectibles.’ The totality of Directo’s acts clearly indicated a deliberate attempt to escape liability.

The Civil Code provides:

"Art. 1921. If the agency has been entrusted for the purpose of contracting with specified persons, its revocation shall not prejudice the latter if they were not given notice thereof."

"Art. 1922. If the agent had general powers, revocation of the agency does not prejudice third persons who acted in good faith and without knowledge of the revocation. Notice of the revocation in a newspaper of general circulation is a sufficient warning to third persons." (Emphasis Ours)

The reason for the law is obvious. Since the third persons have been made to believe by the principal that the agent is authorized to deal with them, they have the right to presume that the representation continues to exist in the absence of notification by the principal.

Nowhere in the records can it be found that Losin was notified of the fact that Directo was no longer representing the interest of Vitarich and that the latter has terminated Directo’s services. There is also an absence of any proof to show that Directo’s termination has been published in a newspaper of general circulation.

It is well settled that a question of fact is to be determined by the evidence offered to support the particular contention. In defendant-appellant’s ‘Statement of Payments Made to Vitarich,’ prepared and signed by Losin’s bookkeeper, Imelda S. Cinco, all the checks enumerated therein coincides with the bank statements submitted by RCBC, thus corroborating Losin’s claim that she has paid Vitarich. Vitarich’s contention that ‘defendant Baybay tried very hard to hide his accountabilities to the plaintiff x x x but failed to explain why the account remained unpaid,’ confirms its belief that their own agents as such, are accountable for transactions made with third persons. "As a Sales Supervisor, he is principally liable for the behavior of his subordinates (Directo & Rosa) and for the enforcement of company rules" which may have gone beyond their authority to do such acts.

Anent the third assigned error that the lower court erred in not finding Vitarich negligent in the selection of its employees thereby making the former liable for damages under Article 2180 of the Civil Code, We find the same to be without basis as said article explicitly holds that:

"‘ART. 2180. The obligation imposed by Article 2176 is demandable not only for one’s own acts or omissions, but also for those of persons for whom one is responsible.

x x x x x x x x x

x x x x x x x x x

x x x x x x x x x

Employers shall be liable for the damages caused by their employees and household helpers acting within the

scope of their assigned tasks, even though the former are not engaged in any business or industry.

x x x x x x x x x."

Pursuant to Article 2180 of the Civil Code, that vicarious liability attaches only to an employer when the tortuous conduct of the employee relates to, or is in the course of, his employment. The question to ask should be whether at the time of the damage or injury, the employee is engaged in the affairs or concerns of the employer or, independently, in that of his own? Vitarich incurred no liability when Directo’s conduct, act or omission went beyond the range of his employment.

Section 1, Rule 133 of the Rules of Court provides:

"‘SECTION 1. Preponderance of evidence, how determined. - In civil cases, the party having the burden of proof must establish his case by a preponderance of evidence. In determining where the preponderance or superior weight of evidence on the issues involved lies, the court may consider all the facts and circumstances of the case, the witnesses’ manner of testifying, their intelligence, their means and opportunity of knowing the facts to which they are testifying, the nature of the facts to which they testify, the probability or improbability of their testimony, their interest or want of interest, and also their personal credibility so far as the same may legitimately appear upon the trial. The court may also consider the number of witnesses, though the preponderance is not necessarily with the greater number."

"Preponderance of evidence’ is the weight, credit, and value of the aggregate evidence on either side and is usually

considered to be synonymous with the term ‘greater weight of the evidence’ or greater weight of the credible evidence." It is evidence which is more convincing to the court as worthy of belief than that which is offered in opposition thereto.

x x x x x x x x x

We reviewed the factual and legal issues of this case in light of the general rules of evidence and the burden of proof in civil cases, as explained by the Supreme Court in Jison v. Court of Appeals:

"xxx Simply put, he who alleges the affirmative of the issue has the burden of proof, and upon the plaintiff in a civil case, the burden of proof never parts. However, in the course of trial in a civil case, once plaintiff makes out a prima facie case in his favour, the duty or the burden of evidence shifts to defendant to controvert plaintiff’s prima facie case, otherwise, a verdict must be returned in favour of plaintiff. Moreover, in civil cases, the party having the burden of proof must produce a preponderance of evidence thereon, with plaintiff having to rely on the strength of his own evidence and not upon the weakness of the defendants. The concept of ‘preponderance of evidence’ refers to evidence which is of greater weight, or more convincing, that which is offered in opposition to it; at bottom, it means probability of truth."

Hence, Vitarich who has the burden of proof must produce such quantum of evidence, with the former having to rely on the strength of its own evidence and not on the weakness of the defendant-appellant Losin’s.

In this light, we have meticulously perused the records of this case and [found] that the court a quo had erred in appreciating the evidence presented.

In deciding this appeal, the Court relies on the rule that a party who has the burden of proof in a civil case must establish his cause of action by a preponderance of evidence. When the evidence of the parties is in equipoise, or when there is a doubt as to where the preponderance of evidence lies, the party with the burden of proof fails and the petition/complaint must thus be denied. We find that plaintiff-appellee Vitarich failed to prove that the goods were ever delivered and received by Losin, said charge sales invoices being undated and unsigned by Losin being the consignee of the goods.

On the other hand, Losin could not also prove that she has overpaid Vitarich. Hence, her contention that she has overpaid Vitarich and her prayer for refund of the alleged overpaid amount, must necessarily fail.

ACCORDINGLY, the instant appeal is hereby GRANTED and the appealed judgment is hereby SET ASIDE andVACATED. No pronouncement as to cost.

SO ORDERED.11

Hence, this petition for review alleging that---

AS THE FINDINGS OF FACTS OF THE COURT OF APPEALS SQUARELY CONTRADICTS THAT OF THE TRIAL COURT, PETITIONER HUMBLY REQUESTS THE SUPREME COURT TO INQUIRE INTO THE ERRONEOUS

CONCLUSIONS OF FACTS MADE BY THE COURT OF APPEALS.12

As a general rule, a petition for review under Rule 45 of the Rules of Court covers questions of law only. Questions of fact are not reviewable and passed upon by this Court in its exercise of judicial review. The distinction between questions of law and questions of fact has been well defined. A question of law exists when the doubt or difference centers on what the law is on a certain state of facts. A question of fact, on the other hand, exists if the doubt centers on the truth or falsity of the alleged facts.13

The rule, however, admits of exceptions, namely: (1) when the findings are grounded entirely on speculations, surmises, or conjectures; (2) when the inference made is manifestly mistaken, absurd, or impossible; (3) when there is a grave abuse of discretion; (4) when the judgment is based on misappreciation of facts; (5) when the findings of fact are conflicting; (6) when in making its findings, the same are contrary to the admissions of both appellant and appellee; (7) when the findings are contrary to those of the trial court; (8) when the findings are conclusions without citation of specific evidence on which they are based; (9) when the facts set forth in the petition as well as in the petitioner’s main and reply briefs are not disputed by the respondent; and (10) when the findings of fact are premised on the supposed absence of evidence and contradicted by the evidence on record.14

The aforementioned exceptions, particularly the seventh exception, finds relevance in the case at bench since the findings of the CA are clearly in conflict with that of the trial court. For this reason, the Court is constrained to reevaluate the evidence adduced by both parties to resolve the issues

which boil down to whether or not Losin is liable to Vitarich and, if so, to what extent.

The Court resolves the issues partly in favor of Vitarich.

Initially, Vitarich claims a total of 921,083.10 from respondent Losin, Directo, Rosa and Baybay (defendants in Civil Case No. 6287 for Sum of Money). According to Vitarich, "[t]he successive and sudden resignations of defendants Directo, Baybay and Rosa and the sudden change of mind of defendant Losin after previously acknowledging her accounts are part of an elaborate and sinister scheme of defendants, acting singly or collectively, in conspiracy or not, in defrauding plaintiff corporation xxx."15

The RTC ruled in favor of Vitarich, ordering Losin to pay the following: (1) 297,462.50 representing the three (3) checks, the payment for which was stopped, with corresponding interest at 12% per annum from the date of the RTC decision until fully paid; (2) 101,450.20 for the unpaid sales also with interest at 12% per annum from the date of the RTC decision until fully paid; (3) 20,000.00 for attorney’s fees; and (4) cost of suit.16 It appears that Vitarich did not challenge this part of the RTC decision anymore.17

After Losin obtained a favorable RTC decision, Vitarich now seeks relief from this Court through this petition for review.

After an assessment of the evidentiary records, the Court opines and so holds that the CA erred in reversing the RTC decision. Losin is clearly liable to Vitarich.

Records bear out that Losin transacted with Vitarich’s representative Directo.18 Vitarich presented several charge

sales invoices19 and statement of account20 to support Losin’s accountability for the products delivered to her. A total of 921,083.10 was initially charged to her. Losin, on the other hand, presented a copy of the list of checks allegedly issued to Vitarich through its agent Directo,21 and a Statement of Payments Made to Vitarich22 to support her allegation of payment.

It is worth noting that both Vitarich and Losin failed to make a proper recording and documentation of their transactions making it difficult to reconcile the evidence presented by the parties to establish their respective claims.

As a general rule, one who pleads payment has the burden of proving it. In Jimenez v. NLRC,23 the Court ruled that the burden rests on the debtor to prove payment, rather than on the creditor to prove non-payment. The debtor has the burden of showing with legal certainty that the obligation has been discharged by payment.

True, the law requires in civil cases that the party who alleges a fact has the burden of proving it. Section 1, Rule 131 of the Rules of Court24 provides that the burden of proof is the duty of a party to prove the truth of his claim or defense, or any fact in issue by the amount of evidence required by law. In this case, however, the burden of proof is on Losin because she alleges an affirmative defense, namely, payment. Losin failed to discharge that burden.

After examination of the evidence presented, this Court is of the opinion that Losin failed to present a single official receipt to prove payment.25 This is contrary to the well-settled rule that a receipt, which is a written and signed acknowledgment that money and goods have been delivered, is the best evidence of the fact of payment although not exclusive.26 All

she presented were copies of the list of checks allegedly issued to Vitarich through its agent Directo,27 a Statement of Payments Made to Vitarich,28 and apparently copies of the pertinent history of her checking account with Rizal Commercial Banking Corporation (RCBC). At best, these may only serve as documentary records of her business dealings with Vitarich to keep track of the payments made but these are not enough to prove payment.

Article 1249, paragraph 2 of the Civil Code provides:

The delivery of promissory notes payable to order, or bills of exchange or other mercantile documents shall produce the effect of payment only when they have been cashed, or when through the fault of the creditor they have been impaired. [Emphasis supplied]

In the case at bar, no cash payment was proved. It was neither confirmed that the checks issued by Losin were actually encashed by Vitarich. Thus, the Court cannot consider that payment, much less overpayment, made by Losin.

Now, the Court ascertains the extent of Losin’s liability. A perusal of the records shows that Vitarich included in its list of collectibles,29 several amounts that were not properly supported by Charge Sales Invoice, to wit, (1) 44,987.70; (2) 3,300.00;(3) 28,855.40; (4) 98,166.20; (5) 73,806.00; and (6) 93,888.80.30 It bears noting that the Charge Sales Invoices presented for the amounts listed as collectibles were undated and unsigned by Losin, the supposed consignee of the goods (except Exh. L). Of the six amounts, the Court particularly considered the 93,888.80 as it was the amount of one of the checks issued by Losin. Indeed, the Court cannot disregard the fact that Losin issued a corresponding check for the following amounts:

(1) 93,888.96(dated August 27, 1996);31 (2) 50,265.00 (dated August 30, 1996);32 and (3) 144,309.50 (dated August 31, 1996).33 The Court believes that Losin would not have issued those checks had she not received the goods so delivered to her. The first two (2) checks were apparently received by the Vitarich but were not encashed because of Losin’s instruction to RCBC. Thus, Losin is liable to Vitarich but not for the total amount of the three (3) mentioned checks but only for the amount of 93,888.96 and 50,265.00 corresponding to the first two (2) checks. Losin cannot be held liable for the amount of the third check 144,309.50 because Vitarich did not claim for this amount. The amount of 144,309.50 for some reason, was not among those listed in the list of collectibles of Vitarich.341avvphi1

Aside from the earlier mentioned liabilities¸the Court also holds Losin liable for the amount of 78,281.00 which was also among those listed as collectible by Vitarich. Although the Charge Sales Invoice35 bearing this amount was undated, it nevertheless, appears that the goods corresponding to this amount were actually received by Losin’s mother. This was even testified to by Rosa36 and confirmed by Losin herself.37 With the exception of the amounts corresponding to the two (2) checks discussed above and the amount of 18,281.00 as appearing in Exh. L, the other amounts appearing on the rest of the Charge Sales Invoice and on the Statement of Account presented by Vitarich cannot be charged on Losin for failure of Vitarich to prove that these amounts are chargeable to her. Vitarich even failed to prove that the rest of the goods as appearing on the other Charge Sales Invoices were actually delivered and received by her or her representative since these Charge Sales Invoices were undated and unsigned. Thus, Losin is liable to pay Vitarich the

amounts of 93,888.96, 50,265.00 and 78,281.00or a total of 222,434.96 only.

Inasmuch as the case at bar involves an obligation not arising from a loan or forbearance of money, but consists in the payment of a sum of money, the legal rate of interest is 6% per annum of the amount demanded.38 Interest shall continue to run from February 12, 1997, the date when Vitarich demanded payment of the sum amounting to 921,083.10 from Losin (and not from the time of the filing of the Complaint) until finality of the Decision (not until fully paid). The rate of interest shall increase to 12% per annum only from such finality until its satisfaction, the interim period being deemed to be equivalent to a forbearance of credit.391avvphi1

Regarding the grant of attorney’s fees, the Court agrees with the RTC that said award is justified. Losin refused to pay Vitarich despite the latter’s repeated demands. It was left with no recourse but to litigate and protect its interest. We, however, opt to reduce the same to 10,000.00 from 20,000.00.

The claims against Rosa and Baybay who allegedly did not fully account for their sales transactions have not been substantially proven by evidence. In fact, it appears that Rosa and Baybay resigned. Resignation would not have been possible unless accountabilities with Vitarich had been settled first. It was only the services of Directo that was apparently terminated by Vitarich.40 Summons, however, was not served on him, so he could not be made to account for the shortages of collection.

WHEREFORE, the November 26, 2007 Decision of the Court of Appeals is REVERSED and SET ASIDE. The August 9,

2001 Decision of the Regional Trial Court of General Santos City, Branch 23, is REINSTATED subject toMODIFICATIONS. Thus, the dispositive portion should read as follows:

WHEREFORE, judgment is hereby rendered ordering Chona Losin to pay Vitarich Corporation the following:

(1) 222,434.96 representing the two checks, with Check Nos. CX 046324 dated August 27, 1996 and CX 046325 dated August 30, 1996 which had been stopped payment and the amount as appearing in Charge Sales Invoice marked as Exhibit ‘L’ subject to an interest rate of 6% per annum from February 12, 1997, the date when Vitarich demanded payment of the sum amounting to 921,083.10 from Losin until finality of the Decision. The rate of interest shall increase to 12% per annum only from such finality until its satisfaction, the interim period being deemed to be equivalent to a forbearance of credit;

(2) 10,000.00 representing attorney’s fees; and

(3) Cost of suit.

The complaint against Allan Rosa and Arnold Baybay is dismissed. The complaint against Rodrigo Directo is ordered archived until he could be served with summons.

SO ORDERED.

SAMUEL LEE V KBC BANK

CARPIO, J.:

The Case

This is a petition[1] for review on certiorari under Rule 45

of the Rules of Court. The petition challenges the 10 February

2004 Decision[2] and 27 July 2004 Resolution[3] of the Court of

Appeals in CA-G.R. SP No. 78004. The Court of Appeals set

aside the 26 March 2003 Order[4] of the Regional Trial Court

(RTC), National Capital Judicial Region, Branch 58, Makati City,

in Criminal Case Nos. 02-344-45.

The Facts

Midas Diversified Export Corporation (MDEC)

obtained a $1,400,000 loan from KBC Bank N.V. (KBC

Bank). KBC Bank is a Belgian corporation licensed to

do business in the Philippines. On 12 August 1997,

Samuel U. Lee (Lee), assistant treasurer and director

of MDEC, executed a promissory note in favor of KBC

Bank and a deed of assignment transferring all of

MDEC’s rights over Confirmed Purchase Order No.

MTC-548 to KBC Bank. Confirmed Purchase Order No.

MTC-548 was allegedly dated 15 July 1997, issued by

Otto Versand, a company based in Germany, and

covered a shipment of girl’s basic denim jeans

amounting to $1,863,050.

MDEC obtained another loan, amounting to $65,000, from KBC Bank. On 14 November 1997, Maybelle L. Lim (Lim), treasurer and assistant secretary of MDEC, executed a promissory note in favor of KBC Bank and a deed of assignment transferring all of MDEC’s rights over Confirmed Purchase Order No. WC-128 to KBC Bank. Confirmed Purchase Order No. WC-128 was allegedly dated 1 October 1997, issued by Otto Versand, and covered a shipment of boy’s bermuda jeans amounting to $841,500. On 23 December 1997, Lim renewed the 12 August 1997 promissory note and issued a notice of renewal and drawdown certificate to KBC Bank. On 29 December 1997, Lim executed an amended deed of assignment transferring all of MDEC’s rights over Confirmed Purchase Order No. MTC-548 to KBC Bank. MDEC was considered in default in paying the $65,000 loan on 30 January 1998. Under a facility agreement between KBC Bank and MDEC, any default in payment of any obligation under the agreement would render MDEC in default with regard to the $65,000 loan — MDEC defaulted in paying two other obligations under the agreement. MDEC also failed to pay the $1,400,000 loan when it became due on 9 February 1998. On 17 March 1998, KBC Bank sent a letter to Otto Versand verifying the validity of Confirmed Purchase Order

Nos. MTC-548 and WC-128. On 19 March 1998, Otto Versand sent a facsimile message to KBC Bank stating that (1) it did not issue the purchase orders, (2) it did not order or receive the items covered by the purchase orders, and (3) it would not pay MDEC any amount. In a complaint-affidavit[5] dated 21 April 1998, Liza M. Pajarillo, manager of the corporate division of KBC Bank, charged Lee and Lim of estafa. In his Resolution[6] dated 27 November 2001, State Prosecutor Josefino A. Subia (State Prosecutor Subia) found the existence of probable cause and recommended that two counts of estafa be filed against Lee and Lim. State Prosecutor Subia stated that:

After a careful evaluation of the evidence presented by the Bank, as well as of the respondents, we find the existence of a probable cause to indict respondents Samuel Lee and Maybelle Lee Lim. It is an established fact that the confirmed purchase order nos. MTC-548 and WC-128 presented with the Bank by the Midas thru respondents Samuel Lee and Maybelle Lee Lim were false and spurious, having been unequivocably repudiated and/or disowned by Otto Versand, Germany, the foreign buyer who allegedly issued the same, as evidenced by a telefax message sent to the Bank by Otto Versand. Evidently, respondent Samuel Lee signed the following documents, to wit: the “conforme” portion of the US$2.0 million short-term trade facility, the promissory note and the corresponding deed of assignment both

dated August 12, 1997, covering the confirmed purchase order no[.] MTC-548, while respondent Maybelle Lee Lim signed in the promissory note and the corresponding deed of assignment both dated Nov. 14, 1997, the renewed promissory note and the notice of renewal and drawdown certificate both dated Dec. 23, 1997. Respondents Samuel Lee and Maybelle Lee Lim, thus cannot escape indictment, aside from signing those relevant loan documents, as they also clearly helped one another in fraudulently representing to the Bank that indeed said confirmed two (2) purchased [sic] orders does [sic] exists [sic] and that Midas have [sic] their [sic] rights, titles and interests thereto. With their fraudulent representation, they were able to entice or induce the Bank to extend [to] them the loan of USD$1.4 million and USD$ 65,000 under the short-term trade facility previously granted to them.[7]

Accordingly, two informations for estafa against Lee and

Lim were filed with the RTC. After finding probable cause,

Judge Winlove M. Dumayas (Judge Dumayas) of the RTC

issued warrants of arrest against Lee and Lim. Lee and Lim filed a petition[8] for review dated 26 April 2002 with the Department of Justice. Lee and Lim challenged State Prosecutor Subia’s 27 November 2001 Resolution and 17 April 2002 Order denying their motion for reconsideration. They claimed that:

I. THE RESOLUTIONS OF 27 NOVEMBER 2001 AND 17 APRIL 2002 MERELY RELIED ON HEARSAY EVIDENCE WHICH CANNOT BE THE BASIS FOR A FINDING OF A PROBABLE CAUSE.

II. THE ASSAILED RESOLUTIONS WERE

ISSUED BASED ONLY ON THE UNCORROBORATED ALLEGATIONS OF PAJARILLO THAT LEE AND LIM MADE FRAUDULENT REPRESENTATIONS TO [KBC BANK].

III. THE ASSAILED RESOLUTIONS ERRED

IN HOLDING LEE AND LIM TO BE CRIMINALLY LIABLE DESPITE THE TWO LOANS CREATING MERELY CIVIL LIABILITY ON THE PART OF MIDAS.[9]

In his Resolution[10] dated 12 July 2002, Secretary

Hernando B. Perez (Secretary Perez) directed the withdrawal

of the informations filed against Lee and Lim. Secretary Perez

held that the facsimile message constituted hearsay evidence:

The twin charges of estafa are primarily anchored on respondents’ alleged fraudulent representations to [KBC Bank] that the two purchase orders were fake or sham. To prove this point, Ms. Pajarillo of [KBC Bank] claims that she received a fax message from a representative of Otto Versand, stating that the latter company did not issue the purchase

orders mentioned. There was no sworn statement from a responsible officer of Otto Versand presented to attest to the allegation that the subject purchase orders were fake. Since Ms. Pajarillo did not have personal knowledge of the fact that the subject purchase orders were in fact fake, her testimony cannot be the basis for finding probable cause against respondents. Ms. Pajarillo can testify only to those facts that she knew of her personal knowledge. Admittedly, she derived knowledge of the supposed spurious character of the purchase orders from a mere fax copy of a message that [KBC Bank] received from a certain representative of Otto Versand in Germany, someone who she did not even know personally. Unfortunately, this fax copy is hearsay evidence and therefore, inadmissible to prove the truth of what it contains (Pastor vs. Gaspar, 2 Phil 592).[11] (Emphasis supplied)

KBC Bank filed a motion[12] for reconsideration dated 2

August 2002 with the Department of Justice. Lee and Lim had not been arraigned. In a motion[13] dated 18 October 2002 and filed with the RTC, Assistant City Prosecutor Nora C. Sibucao (Assistant City Prosecutor Sibucao) prayed for the withdrawal of the informations filed against Lee and Lim. Assistant City Prosecutor Sibucao stated that:

The Prosecution, through the undersigned Trial Prosecutor, unto the Honorable Court, most respectfully moves and prays for the withdrawal of Information filed in the above-entitled cases in view of the resolution of the Department of Justice promulgated on July 12, 2002 reversing the resolution of the City Prosecutor of Makati City.[14]

The RTC’s Ruling

In his one-page Order[15] dated 26 March 2003, Judge Dumayas granted Assistant City Prosecutor Sibucao’s motion to withdraw the informations against Lee and Lim. Judge Dumayas held that:

This Court, after an in-depth scrutiny of the arguments raised by the prosecution and private complainant, finds the contentions of the prosecution to be sufficient and meritorious.

Accordingly, the Motion to Withdraw Information filed by the Prosecution is hereby granted and the two (2) informations for the crime of Estafa penalized under par. 2 (a) of the Revised Penal Code are hereby withdrawn from the docket of this court.[16]

KBC Bank filed with the Court a petition[17] for review on

certiorari under Rule 45 of the Rules of Court. KBC Bank

claimed that:

I.

The court a quo committed reversible error in issuing the questioned Order without specifying its legal basis.

II.

The court a quo committed reversible error in prematurely acting upon the Makati Prosecutor’s Motion to Withdraw of Information.

III.

The court a quo committed reversible error in finding that no probable cause exists to hold respondents for trial for estafa under Article 315, par. 2(a) and in granting the Makati Prosecutor’s Motion to Withdraw Information.[18]

In a Resolution[19] dated 23 June 2003, the Court

referred the petition to the Court of Appeals pursuant to

Section 6,[20] Rule 56 of the Rules of Court. In his

Resolution[21] dated 19 November 2003, Secretary Simeon A.

Datumanong denied KBC Bank’s 2 August 2002 motion for

reconsideration.

The Court of Appeals’ Ruling

In its 10 February 2004 Decision, the Court of Appeals set aside Judge Dumayas’ 26 March 2003 Order. The Court of Appeals held that:

It has long been established that the filing of a complaint or information in Court initiates a criminal action. The Court thereby acquires jurisdiction over the case, which is the authority to hear and determine the case. When after the filing of the complaint or information, a warrant for the arrest of the accused is issued by the trial court and the accused either voluntarily submitted himself to the Court or was duly arrested, the Court thereby acquired jurisdiction over the person of the accused.

x x x x The trial judge practically concurred with the findings of the Secretary of Justice that the “fax copy is hearsay evidence and therefore, inadmissible to prove the truth that it contains”, contrary to the well-reasoned findings of the investigating prosecutor. It is emphasized that a preliminary investigation is not the occasion for the full and exhaustive display of the parties’ evidence; it is for the presentation of such evidence only as may engender a well-grounded belief

that an offense has been committed and that the accused is probably guilty thereof. The issue of admissibility or inadmissibility of evidence is a matter of defense that is best ventilated in a full-blown trial; preliminary investigation is not the occasion for the exhaustive display of presentation of evidence.[22]

Hence, the present petition.

The Issues

In their petition, Lee and Lim raised as issues that:

I

THE COURT EXCEEDED ITS AUTHORITY IN PASSING UPON THE ISSUE OF WHETHER OR NOT THERE WAS PRIMA FACIE EVIDENCE OF ESTAFA AGAINST THE PETITIONERS, AN ISSUE THAT WAS PENDING BEFORE THE SECRETARY OF JUSTICE

x x x x

II

QUESTION IS NOT ONE OF ADMISSIBILITY OF EVIDENCE BUT THE NEED IN PRELIMINARY INVESTIGATION FOR EVIDENCE OF VALUE TO ESTABLISH PROBABLE CAUSE

x x x x

III

RESPONDENT COURT DID NOT PREMATURELY ALLOW THE WITHDRAWAL OF THE INFORMATIONS

x x x x

IV

THE TRIAL COURT DID NOT ABDICATE ITS DUTY TO DETERMINE THE SUFFICIENCY OF THE PROSECUTION’S REASON FOR WITHDRAWING THE INFORMATIONS.[23]

The Court’s Ruling

The petition is unmeritorious. Lee and Lim claim that the Court of Appeals erred when it reviewed the findings of Secretary Perez. They stated that:

[T]he Court of Appeals cannot indirectly review the findings of the Secretary under the pretext of correcting the actuation of the trial court. x x x

[T]he only ruling before the Court of Appeals is the ruling of the trial court x x x.

But the Court of Appeals ignored the fact that the case before it is not one for the review of the final order of the Secretary of Justice, acting as a quasi-judicial officer, which is governed by Rule 43 of the Rules of Court. The actual case filed with it was rather a petition for review on certiorari of the dismissal order of the trial court under Rule 45.[24]

The Court is not impressed. The Court of Appeals

reviewed Judge Dumayas’ 26 March 2003 Order, not Secretary

Perez’s 12 July 2002 Resolution. The Court of Appeals held

that Judge Dumayas erred when he failed to make his own

evaluation and merely relied on Secretary Perez’s

recommendation that there was no probable cause. The Court

of Appeals stated that:

In a more recent case, the Supreme Court ruled that:

“A judge acts with grave abuse of discretion when he grants a prosecutor’s motion to dismiss the criminal charges against an accused on the basis solely of the recommendation of the Secretary of Justice — his reliance on the prosecutor’s averment that the Secretary of Justice had recommended the dismissal of the case against the petitioner is an abdication of the

trial court’s duty and jurisdiction to determine a prima facie case in blatant violation of the Court’s pronouncement in Crespo vs. Mogul.”

When the trial judge issued its Order of February 14, 2002 directing the issuance of warrants of arrest against the respondents, he clearly found probable cause to sustain the filing of criminal complaints against the latter. The issuance of a warrant of arrest is not a ministerial function of the court — it calls for the exercise of judicial discretion on the part of the issuing magistrate. If the trial court judge finds it appropriate to dismiss the Informations, the same should be based upon his own personal individual conviction that there is no case against the accused/respondents. To rely solely on the recommendation of the Secretary of Justice, to say the least, is an abdication of the judge[’]s duty and jurisdiction to determine a prima facie case. What was imperatively required was the trial judge’s own assessment of just evidence, it not being sufficient for the valid and proper exercise of judicial discretion merely to accept the prosecution’s word for its supposed insufficiency.[25]

Lee and Lim claim that the Court of Appeals erred when

it ruled that the admissibility of the facsimile message is a

matter best ventilated in a full-blown trial. They stated that:

At any rate, the Court of Appeals also said in its decision that the issue of admissibility of evidence assailed as hearsay is a matter of

defense to be ventilated in a full blown trial. It held that preliminary investigation is not the occasion for exhaustive display of evidence and the issue of admissibility or inadmissibility of evidence is a matter of defense to be ventilated at the trial.

But the Secretary of Justice’s rejection of the “fax copy” of Otto Versand’s letter as hearsay evidence merely affirmed petitioners’ right to due process in a preliminary investigation. x x x x x x x Ms. Pajarillo authenticated it by stating under oath that she received it. The cause for its rejection is the fact that its contents are purely hearsay since Ms. Pajarillo who testified about them had no personal knowledge of the fact that the purchase orders were false. The author of the fax message did not swear under oath to the truth of the statement in the document contrary to what section 3 (e) of Rule 112 mandates. The Office of the Solicitor General agreed with the petitioners. In the comment dated October 28, 2003 that it filed with the Court of Appeals, it said: x x x x

20. In this case, the Secretary of Justice’s realistic judicial appraisal of the merits of petitioner’s complaint-affidavit show that its evidence of estafa is insufficient for lack of proof of

the requisite element of deceit. So much so that if the case were tried, the trial court would be bound to order an acquittal.[26]

The Court is not impressed. Whether the facsimile message is admissible in evidence and whether the element of deceit in the crime of estafa is present are matters best ventilated in a full-blown trial, not in the preliminary investigation. In Andres v. Justice Secretary Cuevas,[27] the Court held that:

[A preliminary investigation] is not the occasion for the full and exhaustive display of [the prosecution’s] evidence. The presence or absence of the elements of the crime is evidentiary in nature and is a matter of defense that may be passed upon after a full-blown trial on the merits.

In fine, the validity and merits of a party’s defense or accusation, as well as the admissibility of testimonies and evidence, are better ventilated during trial proper than at the preliminary investigation level.[28] (Emphasis supplied)

Lee and Lim claim that the Court of Appeals erred when

it ruled that Judge Dumayas failed to make his own evaluation

and merely relied on Secretary Perez’s recommendation that

there was no probable cause. They stated that:

Contrary to the Court of Appeals[’] ruling, the trial court made an effort to evaluate the merit of the prosecution’s motion to withdraw the informations. It evaluated the merits of both the prosecution’s motion and respondent bank’s opposition to the motion. x x x

Clearly, it cannot be said that the trial court abandoned its responsibility of making an independent assessment of the sufficiency of the prosecution motion [sic]. Indeed, it scrutinized the arguments of respondent bank just as it did the arguments of the prosecution in order to determine for itself whether or not the withdrawal of the informations was warranted.[29]

The Court is not impressed. Judge Dumayas failed to

make his own evaluation in granting the motion to withdraw

the informations. Judge Dumayas’ 26 March 2003 Order

states in full:

This Court, after an in-depth scrutiny of the arguments raised by the prosecution and private complainant, finds the contentions of the prosecution to be sufficient and meritorious.

Accordingly, the Motion to Withdraw Information filed by the Prosecution is hereby granted and the two (2) informations for the crime of Estafa penalized under par. 2 (a) of the Revised Penal Code are hereby withdrawn from the docket of this court.

In Co v. Lim,[30] the Court held that:

Once a case is filed with the court, any disposition of it rests on the sound discretion of the court. The trial court is not bound to adopt the resolution of the Secretary of Justice, since it is mandated to independently evaluate or assess the merits of the case. Reliance on the resolution of the Secretary of Justice alone would be an abdication of its duty and jurisdiction to determine a prima facie case. The trial court may make an independent assessment of the merits of the case based on the affidavits and counter-affidavits, documents, or evidence appended to the Information; the records of the public prosecutor, which the court may order the latter to produce before the court; or any evidence already adduced before the court by the accused at the time the motion is filed by the public prosecutor. X X X X [T]HE TRIAL JUDGE DID NOT POSITIVELY STATE THAT THE EVIDENCE PRESENTED AGAINST THE RESPONDENTS WASINSUFFICIENT FOR A PRIMA FACIE CASE, NOR DID THE AFOREQUOTED ORDER INCLUDE A DISCUSSION OF THE MERITS OF THE CASE BASED ON AN EVALUATION OR ASSESSMENT OF THE EVIDENCE ON RECORD. IN OTHER WORDS, THE DISMISSAL OF THE CASE WAS BASED UPON

CONSIDERATIONS OTHER THAN THE JUDGE’S OWN PERSONAL INDIVIDUAL CONVICTION THAT THERE WAS NO CASE AGAINST THE RESPONDENTS. THUS, THE TRIAL JUDGE IMPROPERLY RELINQUISHED THE DISCRETION THAT HE WAS BOUND TO EXERCISE, AND THE ORDERS DATED 11 FEBRUARY 2004 AND 29 JUNE 2004 ARE INVALID FOR HAVING BEEN ISSUED IN GRAVE ABUSE OF DISCRETION. (EMPHASIS SUPPLIED)

IN BALTAZAR V. CHUA,[31] THE COURT HELD THAT:

CONSIDERING THAT THE TRIAL COURT HAS THE POWER AND DUTY TO LOOK INTO THE PROPRIETY OF THE PROSECUTION’S MOTION TO DISMISS, WITH MUCH MORE REASON IS IT FOR THE TRIAL COURT TO EVALUATE AND TO MAKE ITS OWN APPRECIATION AND CONCLUSION, WHETHER THE MODIFICATION OF THE CHARGES AND THE DROPPING OF ONE OF THE ACCUSED IN THE INFORMATION, AS RECOMMENDED BY THE JUSTICE SECRETARY, IS SUBSTANTIATED BY EVIDENCE. THIS SHOULD BE THE STATE OF AFFAIRS, SINCE THE DISPOSITION OF THE CASE — SUCH AS ITS CONTINUATION OR DISMISSAL OR EXCLUSION OF AN ACCUSED — IS REPOSED IN THE SOUND DISCRETION OF THE TRIAL COURT. IN THE CASE UNDER CONSIDERATION, THE CITY PROSECUTOR INDICTED JAIME AND JOVITO FOR THE CRIMES OF MURDER AND

FRUSTRATED MURDER. HOWEVER, UPON REVIEW, THE SECRETARY OF JUSTICE DOWNGRADED THE CHARGES TO HOMICIDE AND FRUSTRATED HOMICIDE. THE SECRETARY ALSO DROPPED JAIME FROM THE CHARGES. THIS RESOLUTION PROMPTED THE CITY PROSECUTOR TO FILE A MANIFESTATION AND MOTION FOR THE WITHDRAWAL OF THE INFORMATIONS FOR MURDER AND FRUSTRATED MURDER AND FOR THE ADMISSION OF NEW INFORMATIONS FOR HOMICIDE AND FRUSTRATED HOMICIDE AGAINST JOVITO ONLY, WHICH WAS GRANTED BY JUDGE CRUZ IN HIS ORDER DATED 18 NOVEMBER 1997. JUDGE CRUZ, HOWEVER, FAILED TO MAKE AN INDEPENDENT ASSESSMENT OF THE MERITS OF THE CASES AND THE EVIDENCE ON RECORD OR IN THE POSSESSION OF THE PUBLIC PROSECUTOR. IN GRANTING THE MOTION OF THE PUBLIC PROSECUTOR TO WITHDRAW THE INFORMATIONS, THE TRIAL COURT NEVER MADE ANY ASSESSMENT WHETHER THE CONCLUSIONS ARRIVED AT BY THE SECRETARY OF JUSTICE WAS SUPPORTED BY EVIDENCE. IT DID NOT EVEN TAKE A LOOK AT THE BASES ON WHICH THE JUSTICE SECRETARY DOWNGRADED THE CHARGES AGAINST JOVITO AND EXCLUDED JAIME THEREFROM.[32] (EMPHASIS SUPPLIED)

IN ARK TRAVEL EXPRESS V. THE PRESIDING JUDGE OF

MAKATI,[33] THE COURT HELD THAT:

IT IS SETTLED THAT WHEN CONFRONTED WITH A MOTION TO WITHDRAW AN INFORMATION ON THE GROUND OF LACK OF PROBABLE CAUSE BASED ON A RESOLUTION OF THE SECRETARY OF THE DEPARTMENT OF JUSTICE, THE BOUNDEN DUTY OF THE TRIAL COURT IS TO MAKE AN INDEPENDENT ASSESSMENT OF THE MERITS OF SUCH MOTION. HAVING ACQUIRED JURISDICTION OVER THE CASE, THE TRIAL COURT IS NOT BOUND BY SUCH RESOLUTION BUT IS REQUIRED TO EVALUATE IT BEFORE PROCEEDING FURTHER WITH THE TRIAL AND SHOULD EMBODY SUCH ASSESSMENT IN THE ORDER DISPOSING THE MOTION. THE SUBJECT MTC ORDERS DO NOT SHOW THAT THE MTC MADE AN INDEPENDENT ASSESSMENT OF THE MERITS OF THE MOTION TO WITHDRAW INFORMATIONS. X X X THE MTC SHOULD HAVE MADE AN INDEPENDENT EVALUATION AND EMBODIED ITS ASSESSMENT IN AT LEAST ONE OF ITS ASSAILED ORDERS.[34] (EMPHASIS SUPPLIED)

IN LEDESMA V. COURT OF APPEALS,[35] THE COURT

HELD THAT:

ONCE A COMPLAINT OR INFORMATION IS FILED IN COURT, ANY DISPOSITION OF THE CASE SUCH AS ITS DISMISSAL OR ITS CONTINUATION RESTS ON THE SOUND DISCRETION OF THE COURT. TRIAL JUDGES ARE THUS REQUIRED TO MAKE THEIR OWN ASSESSMENT OF WHETHER THE SECRETARY OF JUSTICE COMMITTED GRAVE ABUSE OF DISCRETION IN GRANTING OR DENYING THE APPEAL, SEPARATELY AND INDEPENDENTLY OF THE PROSECUTION’S OR THE SECRETARY’S EVALUATION THAT SUCH EVIDENCE IS INSUFFICIENT OR THAT NO PROBABLE CAUSE TO HOLD THE ACCUSED FOR TRIAL EXISTS. THEY SHOULD EMBODY SUCH ASSESSMENT IN THEIR WRITTEN ORDER DISPOSING OF THE MOTION.

X X X X THE TRIAL COURT’S ORDER IS INCONSISTENT WITH OUR REPETITIVE CALLS FOR AN INDEPENDENT AND COMPETENT ASSESSMENT OF THE ISSUE(S) PRESENTED IN THE MOTION TO DISMISS. THE TRIAL JUDGE WAS TASKED TO EVALUATE THE SECRETARY’S RECOMMENDATION FINDING THE ABSENCE OF PROBABLE CAUSE TO HOLD PETITIONER CRIMINALLY LIABLE FOR LIBEL. HE FAILED TO DO SO. HE MERELY RULED TO PROCEED WITH THE TRIAL WITHOUT STATING HIS REASONS FOR DISREGARDING THE SECRETARY’S RECOMMENDATION.[36] (EMPHASIS SUPPLIED)

IN THE PRESENT CASE, JUDGE DUMAYAS, IN HIS 26

MARCH 2003 ORDER, DID NOT (1) POSITIVELY STATE THAT

THE EVIDENCE AGAINST LEE AND LIM IS INSUFFICIENT, (2)

INCLUDE A DISCUSSION OF THE MERITS OF THE CASE, (3)

ASSESS WHETHER SECRETARY PEREZ’S CONCLUSION IS

SUPPORTED BY EVIDENCE, (4) LOOK AT THE BASIS OF

SECRETARY PEREZ’S RECOMMENDATION, (5) EMBODY HIS

ASSESSMENT IN THE ORDER, AND (6) STATE HIS REASONS

FOR GRANTING THE MOTION TO WITHDRAW THE

INFORMATIONS. JUDGE DUMAYAS’ FAILURE TO MAKE HIS OWN EVALUATION OF THE MERITS OF THE CASE VIOLATES KBC BANK’S RIGHT TO DUE PROCESS AND CONSTITUTES GRAVE ABUSE OF DISCRETION. JUDGE DUMAYAS’ 26 MARCH 2003 ORDER GRANTING THE MOTION TO WITHDRAW THE INFORMATIONS IS VOID.[37] WHEREFORE, THE PETITION IS DENIED. THE COURT AFFIRMS THE 10 FEBRUARY 2004 DECISION AND 27 JULY 2004 RESOLUTION OF THE COURT OF APPEALS IN CA-G.R. SP NO. 78004. THE CASE IS REMANDED TO THE REGIONAL TRIAL COURT, NATIONAL CAPITAL JUDICIAL REGION, BRANCH 58, MAKATI CITY FOR EVALUATION ON WHETHER PROBABLE CAUSE EXISTS TO HOLD THE ACCUSED FOR TRIAL. SO ORDERED.

LEPANTO CONSOLIDATED MINING COMPANY VS. MORENO DUMAPIS ET.AL.

FACTS: Petitioner is a domestic juridical entity engaged in mining to which the respondents are employed. All three were assigned at the “highgrade” area where most of the ores mined are considered of high grade content. On September 15, 2000, at 2:00 p.m., Dwayne Chambers (Chambers) who was then acting as Assistant Resident Manager of the Mine, went underground to conduct a routinary inspection of the workers and the working conditions therein. However, realizing that “highgrading:” was being committed he reported the incident to the security investigation office.

After investigating, the Security Investigators Paul Pespes, Jr. and Felimon Ringor executed a Joint Affidavit, which provides that Mr. Dwayne Chambers saw and surprised several unidentified miners, including their supervisor and Stationary Guard Ceasarion Damoslog, committing Highgrading activities and that Security Guard Ceasarion Damoslog honestly confessed his direct participation then claimed that he was allegedly convinced by Mr. Joel Gumatin, one of the miners assigned to cooperate with them to commit Highgrading. Also, Mr. Pablo Daguio, the shiftboss also positively confirmed the Highgrading activity. Furthermore, we also learned from the confession of Mr. Maximo Madao that its was messrs. Joel Gumatin and Brent Suyam who took their issued rock drilling machine then drilled holes and blasted the same with the assistance of Thomas Garcia, John Kitoyan, Benedict Arocod, Samsom Damian, Daniel Fegsar and Francisco Liagao. Petitioner

found the respondents guilty and dismissed them from employment.

Consequently, respondents together with the nine other miners, filed a Complaint for illegal dismissal but the Labor Arbiter dismissed the complaint for lack of merit. The miners appealed the decision of the LA to the National Labor Relations Commission which rendered a decision declaring the dismissal of respondents as illegal, but affirming the dismissal of the nine other complainant miners. Petitioner’s motion for reconsideration was denied for lack of merit by the NLRC. Petitioner then filed a petition for certiorari under Rule 65 of the Rules of Court with the CA but the CA affirmed the decision of the NLRC and denied petitioner’s Motion for Reconsideration. ISSUE: Whether or not the NLRC and CA is correct in finding the dismissal of respondents illegal and in considering the Joint Affidavit of the Security Investigators as hearsay and therefore inadmissible. HELD: The NLRC and CA is correct in concluding that the Joint Affidavit of Security Investigators Paul D. Pespes, Jr. and Felimon Ringor is hearsay and thus, inadmissible. Their narration of factual events was not based on their personal knowledge but on disclosures made by Chambers and Daguio thereby falling squarely within Section 36, Rule 130 of the Rules of Court which provides that Witness can testify only to those facts which he knows of his personal knowledge, that is, which are derived from his own perception, except as otherwise provided in these rules.

The SC also ruled that, it is true that, Administrative bodies like the NLRC are not bound by the technical niceties of law and procedure and the rules obtaining in courts of

law. Indeed, the Revised Rules of Court and prevailing jurisprudence may be given only stringent application, i.e., by analogy or in a suppletory character and effect. Thus, the CA and the NLRC erred in ruling that the Joint Affidavit is inadmissible for being hearsay. The Joint Affidavit of the Security Investigators is admissible for what it is, an investigation report.

However, the Court clarified that the admissibility of evidence should not be confused with its probative value. Admissibility refers to the question of whether certain pieces of evidence are to be considered at all, while probative value refers to the question of whether the admitted evidence proves an issue. Thus, a particular item of evidence may be admissible, but its evidentiary weight depends on judicial evaluation within the guidelines provided by the rules of evidence.

While it is true that administrative or quasi-judicial bodies like the NLRC are not bound by the technical rules of procedure in the adjudication of cases, this procedural rule should not be construed as a license to disregard certain fundamental evidentiary rules. The evidence presented must at least have a modicum of admissibility for it to have probative value. Not only must there be some evidence to support a finding or conclusion, but the evidence must be substantial. Substantial evidence is more than a mere scintilla. It means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. Thus, even though technical rules of evidence are not strictly complied with before the LA and the NLRC, their decision must be based on evidence that must, at the very least, be substantial.

Pursuant to the aforementioned doctrines it was revealed that the facts alleged therein by the Security

Investigators are not of their own personal knowledge. They simply referred to the facts allegedly relayed to them by Chambers, Damoslog, Daguio, and Madao. The Court is convinced that the Joint Affidavit, being sourced from Chambers, Damoslog, Daguio and Madao, has no probative value to support evidence to warrant the dismissal of the respondents. Chambers and Daguio did not identify the miners involved in the act of highgrading. In addition, Damoslog’s first and second sworn statements did not implicate respondents, and Madao recanted his statement implicating respondent Liagao. As earlier discussed, the sworn statements and joint affidavits of the sources do not corroborate but actually cast doubt as to the veracity of the statements in the Joint Affidavit.