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2008 CRIMINAL PROCEDURE CASES

Case Title Page

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

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

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

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

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MENDOZA vs. ALARMA (G.R. No. 151970 - May 7, 2008) 40

JOSE vs. SUAREZ (G.R. No. 176795 - June 30, 2008) 43

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

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

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PEOPLE OF THE PHILIPPINES vs. ROSAS (G.R. No. 177825 - October 24, 2008)

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

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MA. ROSARIO SANTOS-CONCIO, MA. SOCORRO V. VIDANES, MARILOU ALMADEN, CIPRIANO LUSPO, MORLY STEWART NUEVA, HAROLD JAMES NUEVA, NORBERT VIDANES, FRANCISCO RIVERA, MEL FELICIANO, and JEAN OWEN ERCIA, vs.DEPARTMENT OF JUSTICE, HON. RAUL M. GONZALEZ, as

Secretary of the Department of Justice, NATIONAL CAPITAL REGION - NATIONAL BUREAU OF INVESTIGATION, PANEL OF INVESTIGATING PROSECUTORS created under Department of Justice Department Order No. 165 dated 08 March 2006, LEO B. DACERA III, as Chairman of the Panel of Investigating Prosecutors, and DEANA P. PEREZ, MA. EMILIA L. VICTORIO, EDEN S. WAKAY-VALDES and PETER L. ONG, as Members of the Panel of Investigating Prosecutors, the EVALUATING PANEL created under Department of Justice Department Order No. 90 dated 08 February 2006, JOSELITA C. MENDOZA as Chairman of the Evaluating Panel, and MERBA WAGA, RUEL LASALA and ARNOLD ROSALES, as Members of the Evaluating Panel, .G.R. No. 175057 January 29, 2008

D E C I S I O NCARPIO MORALES, J.:On challenge via petition for review on certiorari are the Court of Appeals May 24, 2006 Decision and October 10, 2006 Resolution1 in CA-G.R. SP No. 93763 dismissing herein petitioners’ petition for certiorari and prohibition that sought to (i) annul respondent Department of Justice (DOJ) Department Order Nos. 902 and 1653 dated February 8, 2006 and March 8, 2006, respectively, and all orders, proceedings and issuances emanating therefrom, and (ii) prohibit the DOJ from further conducting a preliminary investigation in what has been dubbed as the "Ultra Stampede" case. In the days leading to February 4, 2006, people started to gather in throngs at the Philsports Arena (formerly Ultra) in Pasig City, the publicized site of the first anniversary episode of "Wowowee," a noontime game show aired by ABS-CBN Broadcasting Corporation (ABS-CBN). With high hopes of winning the bonanza, hundreds queued for days and nights near the venue to assure themselves of securing tickets for the show. Little did they know that in taking a shot at instant fortune, a number of them would pay the ultimate wager and place their lives at stake, all in the name of bagging the prizes in store.Came the early morning of February 4, 2006 with thousands more swarming to the venue. Hours before the show and minutes after the people were allowed entry through two entry points at six o’clock in the morning, the obstinate crowd along Capt. Javier Street jostled even more just to get close to the lower rate pedestrian gate. The mad rush of the unruly mob generated much force, triggering the horde to surge forward with such momentum that led others to stumble and get trampled upon by the approaching waves of people right after the gate opened. This fatal stampede claimed 71 lives, 69 of whom were women, and left hundreds wounded4 which necessitated emergency medical support and prompted the cancellation of the show’s episode. The Department of Interior and Local Government (DILG), through then Secretary Angelo Reyes, immediately created an inter-agency fact-

finding team5 to investigate the circumstances surrounding the stampede. The team submitted its report6 to the DOJ on February 7, 2006. By Department Order No. 90 of February 8, 2006, respondent DOJ Secretary Raul Gonzalez (Gonzalez) constituted a Panel (Evaluating Panel)7 to evaluate the DILG Report and "determine whether there is sufficient basis to proceed with the conduct of a preliminary investigation on the basis of the documents submitted." The Evaluating Panel later submitted to Gonzalez a February 20, 2006 Report8 concurring with the DILG Report but concluding that there was no sufficient basis to proceed with the conduct of a preliminary investigation in view of the following considerations:

a) No formal complaint/s had been filed by any of the victims and/or their relatives, or any law enforcement agency authorized to file a complaint, pursuant to Rule 110 of the Revised Rules of Criminal Procedure;b) While it was mentioned in the Fact-Finding Report that there were 74 deaths and 687 injuries, no documents were submitted to prove the same, e.g. death certificates, autopsy reports, medical certificates, etc.;c) The Fact-Finding Report did not indicate the names of the persons involved and their specific participation in the "Ultra Incident"; d) Most of the victims did not mention, in their sworn statements, the names of the persons whom they alleged to be responsible for the "Ultra Incident".9

Respondent National Bureau of Investigation-National Capital Region (NBI-NCR), acting on the Evaluating Panel’s referral of the case to it for further investigation, in turn submitted to the DOJ an investigation report, by a March 8, 2006 transmittal letter (NBI-NCR Report10), with supporting documents recommending the conduct of preliminary investigation for Reckless Imprudence resulting in Multiple Homicide and Multiple Physical Injuries11 against petitioners and seven others12 as respondents. Acting on the recommendation of the NBI-NCR, Gonzalez, by Department Order No. 165 of March 8, 2006, designated a panel of state prosecutors13 (Investigating Panel) to conduct the preliminary investigation of the case, docketed as I.S. No. 2006-291, "NCR-NBI v. Santos-Concio, et al.," and if warranted by the evidence, to file the appropriate information and prosecute the same before the appropriate court. The following day or on March 9, 2006, the Investigating Panel issued subpoenas14 directing the therein respondents to appear at the preliminary investigation set on March 20 and 27, 2006. At the initial preliminary investigation, petitioners sought clarification and orally moved for the inhibition, disqualification or desistance of the

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Investigating Panel from conducting the investigation.15 The Investigating Panel did not formally resolve the motion, however, as petitioners manifested their reservation to file an appropriate motion on the next hearing scheduled on March 27, 2006, without prejudice to other remedies.16 On March 23, 2006, petitioners filed a petition for certiorari and prohibition with the Court of Appeals which issued on March 27, 2006 a Resolution17 granting the issuance of a temporary restraining order,18

conducted on April 24, 2006 a hearing on the application for a writ of preliminary injunction, and subsequently promulgated the assailed two issuances. In the meantime, the Investigating Panel, by Resolution19 of October 9, 2006, found probable cause to indict the respondents-herein petitioners for Reckless Imprudence resulting in Multiple Homicide and Physical Injuries, and recommended the conduct of a separate preliminary investigation against certain public officials.20 Petitioners’ Motion for Reconsideration21 of the said October 9, 2006 Resolution, filed on October 30, 2006 "with abundance of caution," is pending resolution, and in the present petition they additionally pray for its annulment. In asserting their right to due process, specifically to a fair and impartial preliminary investigation, petitioners impute reversible errors in the assailed issuances, arguing that:

Respondents have already prejudged the case, as shown by the public declarations of Respondent Secretary and the Chief Executive, and have, therefore, lost their impartiality to conduct preliminary investigation.Respondents have already prejudged the case as shown by the indecent haste by which the proceedings were conducted.The alleged complaint-affidavits filed against Petitioners were not under oath.The supposed complaint-affidavits filed against Petitioners failed to state the acts or omissions constituting the crime. Although Respondents may have the power to conduct criminal investigation or preliminary investigation, Respondents do not have the power to conduct both in the same case .22 (Emphasis and underscoring supplied)

The issues shall, for logical reasons, be resolved in reverse sequence. On the Investigatory Power of the DOJIn the assailed Decision, the appellate court ruled that the Department Orders were issued within the scope of authority of the DOJ Secretary pursuant to the Administrative Code of 198723 bestowing general investigatory powers upon the DOJ.

Petitioners concede that the DOJ has the power to conduct both criminal investigation and preliminary investigation but not in their case,24 they invoking Cojuangco, Jr. v. PCGG.25 They posit that in Cojuangco, the reshuffling of personnel was not considered by this Court which ruled that the entity which conducted the criminal investigation is disqualified from conducting a preliminary investigation in the same case. They add that the DOJ cannot circumvent the prohibition by simply creating a panel to conduct the first, and another to conduct the second. In insisting on the arbitrariness of the two Department Orders which, so they claim, paved the way for the DOJ’s dual role, petitioners trace the basis for the formation of the five-prosecutor Investigating Panel to the NBI-NCR Report which was spawned by the supposed criminal investigation26 of the Evaluating Panel the members of which included two, albeit different, prosecutors. While petitioners do not assail the constitution of the Evaluating Panel,27 they claim that it did not just evaluate the DILG Report but went further and conducted its own criminal investigation by interviewing witnesses, conducting an ocular inspection, and perusing the evidence.Petitioners’ position does not lie. Cojuangco was borne out of a different factual milieu. In Cojuangco, this Court prohibited the Presidential Commission on Good Government (PCGG) from conducting a preliminary investigation of the complaints for graft and corruption since it had earlier found a prima facie case – basis of its issuance of sequestration/freeze orders and the filing of an ill-gotten wealth case involving the same transactions. The Court therein stated that it is "difficult to imagine how in the conduct of such preliminary investigation the PCGG could even make a turn about and take a position contradictory to its earlier findings of a prima facie case," and so held that "the law enforcer who conducted the criminal investigation, gathered the evidence and thereafter filed the complaint for the purpose of preliminary investigation cannot be allowed to conduct the preliminary investigation of his own complaint."28 The present case deviates from Cojuangco.The measures taken by the Evaluating Panel do not partake of a criminal investigation, they having been done in aid of evaluation in order to relate the incidents to their proper context. Petitioners’ own video footage of the ocular inspection discloses this purpose. Evaluation for purposes of determining whether there is sufficient basis to proceed with the conduct of a preliminary investigation entails not only reading the report or documents in isolation, but also deems to include resorting to reasonably necessary means such as ocular inspection and physical evidence examination. For, ultimately, any conclusion on such sufficiency or insufficiency needs to rest on some basis or justification. Had the Evaluating Panel carried out measures partaking of a criminal investigation, it would have gathered the documents that it enumerated as lacking. Notatu dignum is the fact that the Evaluating Panel was

dissolved functus oficio upon rendering its report. It was the NBI, a constituent unit29 of the DOJ, which conducted the criminal investigation. It is thus foolhardy to inhibit the entire DOJ from conducting a preliminary investigation on the sheer ground that the DOJ’s constituent unit conducted the criminal investigation. Moreover, the improbability of the DOJ contradicting its prior finding is hardly appreciable. It bears recalling that the Evaluating Panel found no sufficient basis to proceed with the conduct of a preliminary investigation. Since the Evaluating Panel’s report was not adverse to petitioners, prejudgment may not be attributed "vicariously," so to speak, to the rest of the state prosecutors. Partiality, if any obtains in this case, in fact weighs heavily in favor of petitioners. On the Alleged Defects of the ComplaintOn the two succeeding issues, petitioners fault the appellate court’s dismissal of their petition despite, so they claim, respondents’ commission of grave abuse of discretion in proceeding with the preliminary investigation given the fatal defects in the supposed complaint.Petitioners point out that they cannot be compelled to submit their counter-affidavits because the NBI-NCR Report, which they advert to as the complaint-affidavit, was not under oath. While they admit that there were affidavits attached to the NBI-NCR Report, the same, they claim, were not executed by the NBI-NCR as the purported complainant, leaving them as "orphaned" supporting affidavits without a sworn complaint-affidavit to support.These affidavits, petitioners further point out, nonetheless do not qualify as a complaint30 within the scope of Rule 110 of the Rules of Court as the allegations therein are insufficient to initiate a preliminary investigation, there being no statement of specific and individual acts or omissions constituting reckless imprudence. They bewail the assumptions or conclusions of law in the NBI-NCR Report as well as the bare narrations in the affidavits that lack any imputation relating to them as the persons allegedly responsible. IN FINE, petitioners contend that absent any act or omission ascribed to them, it is unreasonable to expect them to confirm, deny or explain their side. A complaint for purposes of conducting a preliminary investigation differs from a complaint for purposes of instituting a criminal prosecution. Confusion apparently springs because two complementary procedures adopt the usage of the same word, for lack of a better or alternative term, to refer essentially to a written charge. There should be no confusion about the objectives, however, since, as intimated during the hearing before the appellate court, preliminary investigation is conducted precisely to elicit further facts or evidence.31 Being generally inquisitorial, the preliminary investigation stage is often the only means of discovering the persons who may be reasonably charged with a crime, to enable the preparation of a complaint or information.32

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Consider the following pertinent provision of Rule 112 of the Revised Rules on Criminal Procedure:

SEC. 3. Procedure. – The preliminary investigation shall be conducted in the following manner:(a) The complaint shall state the address of the respondent and shall be accompanied by the affidavits of the complainant and his witnesses, as well as other supporting documents to establish probable cause. They shall be in such number of copies as there are respondents, plus two (2) copies for the official file. The affidavits shall be subscribed and sworn to before any prosecutor or government official authorized to administer oath, or, in their absence or unavailability, before a notary public, each of whom must certify that he personally examined the affiants and that he is satisfied that they voluntarily executed and understood their affidavits.33 (Emphasis and underscoring supplied)

As clearly worded, the complaint is not entirely the affidavit of the complainant, for the affidavit is treated as a component of the complaint. The phraseology of the above-quoted rule recognizes that all necessary allegations need not be contained in a single document. It is unlike a criminal "complaint or information" where the averments must be contained in one document charging only one offense, non-compliance with which renders it vulnerable to a motion to quash.34

The Court is not unaware of the practice of incorporating all allegations in one document denominated as "complaint-affidavit." It does not pronounce strict adherence to only one approach, however, for there are cases where the extent of one’s personal knowledge may not cover the entire gamut of details material to the alleged offense. The private offended party or relative of the deceased may not even have witnessed the fatality,35 in which case the peace officer or law enforcer has to rely chiefly on affidavits of witnesses. The Rules do not in fact preclude the attachment of a referral or transmittal letter similar to that of the NBI-NCR. Thus, in Soriano v. Casanova,36 the Court held:

A close scrutiny of the letters transmitted by the BSP and PDIC to the DOJ shows that these were not intended to be the complaint envisioned under the Rules. It may be clearly inferred from the tenor of the letters that the officers merely intended to transmit the affidavits of the bank employees to the DOJ. Nowhere in the transmittal letters is there any averment on the part of the BSP and PDIC officers of personal knowledge of the events and transactions constitutive of the criminal violations alleged to have been made by the accused. In fact, the letters clearly stated that what the OSI of the

BSP and the LIS of the PDIC did was to respectfully transmit to the DOJ for preliminary investigation the affidavits and personal knowledge of the acts of the petitioner. These affidavits were subscribed under oath by the witnesses who executed them before a notary public. Since the affidavits , not the letters transmitting them, were intended to initiate the preliminary investigation, we hold that Section 3(a), Rule 112 of the Rules of Court was substantially complied with.Citing the ruling of this Court in Ebarle v. Sucaldito, the Court of Appeals correctly held that a complaint for purposes of preliminary investigation by the fiscal need not be filed by the offended party. The rule has been that, unless the offense subject thereof is one that cannot be prosecuted de oficio , the same may be filed, for preliminary investigation purposes, by any competent person . The crime of estafa is a public crime which can be initiated by "any competent person." The witnesses who executed the affidavits based on their personal knowledge of the acts committed by the petitioner fall within the purview of "any competent person" who may institute the complaint for a public crime. x x x37 (Emphasis and underscoring supplied)

A preliminary investigation can thus validly proceed on the basis of an affidavit of any competent person, without the referral document, like the NBI-NCR Report, having been sworn to by the law enforcer as the nominal complainant. To require otherwise is a needless exercise. The cited case of Oporto, Jr. v. Judge Monserate38 does not appear to dent this proposition. After all, what is required is to reduce the evidence into affidavits, for while reports and even raw information may justify the initiation of an investigation, the preliminary investigation stage can be held only after sufficient evidence has been gathered and evaluated which may warrant the eventual prosecution of the case in court.39 In the present case, there is no doubt about the existence of affidavits. The appellate court found that "certain complaint-affidavits were already filed by some of the victims,"40 a factual finding to which this Court, by rule, generally defers. A complaint for purposes of conducting preliminary investigation is not required to exhibit the attending structure of a "complaint or information" laid down in Rule 110 (Prosecution of Offenses) which already speaks of the "People of the Philippines" as a party,41 an "accused" rather than a respondent,42 and a "court" that shall pronounce judgment.43 If a "complaint or information" filed in court does not comply with a set of constitutive averments, it is vulnerable to a motion to quash.44 The filing of a motion to dismiss in lieu of a counter-affidavit is proscribed by the

rule on preliminary investigation, however.45 The investigating officer is allowed to dismiss outright the complaint only if it is not sufficient in form and substance or "no ground to continue with the investigation"46 is appreciated.

The investigating fiscal, to be sure, has discretion to determine the specificity and adequacy of averments of the offense charged. He may dismiss the complaint forthwith if he finds it to be insufficient in form or substance or if he otherwise finds no ground to continue with the inquiry, or proceed with the investigation if the complaint is, in his view, in due and proper form. It certainly is not his duty to require a more particular statement of the allegations of the complaint merely upon the respondents’ motion, and specially where after an analysis of the complaint and its supporting statements he finds it sufficiently definite to apprise the respondents of the offenses which they are charged. Moreover, the procedural device of a bill of particulars, as the Solicitor General points out, appears to have reference to informations or criminal complaints filed in a competent court upon which the accused are arraigned and required to plead, and strictly speaking has no application to complaints initiating a preliminary investigation which cannot result in any finding of guilt, but only of probable cause.47 (Italics and ellipses in the original omitted; underscoring supplied)

Petitioners’ claims of vague allegations or insufficient imputations are thus matters that can be properly raised in their counter-affidavits to negate or belie the existence of probable cause. On the Claim of Bias and PrejudgmentOn the remaining issues, petitioners charge respondents to have lost the impartiality to conduct the preliminary investigation since they had prejudged the case, in support of which they cite the "indecent" haste in the conduct of the proceedings. Thus, they mention the conduct of the criminal investigation within 24 working days48 and the issuance of subpoenas immediately following the creation of the Investigating Panel.Petitioners likewise cite the following public declarations made by Gonzalez as expressing his conclusions that a crime had been committed, that the show was the proximate cause, and that the show’s organizers are guilty thereof:

February 6, 2006: "[ ] should have anticipated it because one week na iyan e. The crowds started gathering since one week before. This is simply negligence x x x on the part of the organizers." February 14, 2006: "I think ABS-CBN is trying to minimize its own responsibility and it’s discernible

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from the way by which talk shows nila being conducted on people who talk about liabilities of others.

"The reason for this incident was the program. If there was no program, there would have been no stampede. There would have been no people. There would have been no attempt by people to queue there for days and rush for the nearest entry point."

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

(Emphasis in the original)Continuing, petitioners point out that long before the conclusion of any investigation, Gonzalez already ruled out the possibility that some other cause or causes led to the tragedy or that someone else or perhaps none should be made criminally liable; and that Gonzalez had left the preliminary investigation to a mere determination of who within ABS-CBN are the program’s organizers who should be criminally prosecuted.Petitioners even cite President Arroyo’s declaration in a radio interview on February 14, 2006 that "[y]ang stampede na iyan, Jo, ay isang trahedya na pinapakita yung kakulangan at pagkapabaya… nagpabaya ng organisasyon na nag-organize nito."To petitioners, the declarations admittedly50 made by Gonzalez tainted the entire DOJ, including the Evaluating and Investigating Panels, since the Department is subject to the direct control and supervision of Gonzalez in his capacity as DOJ Secretary who, in turn, is an alter ego of the President. Petitioners thus fault the appellate court in not finding grave abuse of discretion on the part of the Investigating Panel members who "refused to inhibit themselves from conducting the preliminary investigation despite the undeniable bias and partiality publicly displayed by their superiors."51 Pursuing, petitioners posit that the bias of the DOJ Secretary is the bias of the entire DOJ.52 They thus conclude that the DOJ, as an institution, publicly adjudged their guilt based on a pre-determined notion of supposed facts, and urge that the Investigating Panel and the entire DOJ for that matter should inhibit from presiding and deciding over such preliminary investigation because they, as quasi-judicial officers, do not possess the "cold neutrality of an impartial judge."53 Responding to the claim of prejudgment, respondents maintain that the above-cited statements of Gonzalez and the President merely indicate that the incident is of such nature and magnitude as to warrant a natural inference that it would not have happened in the ordinary course of things and that any reasonable mind would conclude that there is a causal connection between the show’s preparations and the resultant deaths and injuries.

Petitioners’ fears are speculatory. Speed in the conduct of proceedings by a judicial or quasi-judicial officer cannot per se be instantly attributed to an injudicious performance of functions.54 For one’s prompt dispatch may be another’s undue haste. The orderly administration of justice remains as the paramount and constant consideration,55 with particular regard of the circumstances peculiar to each case. The presumption of regularity56 includes the public officer’s official actuations in all phases of work.57 Consistent with such presumption, it was incumbent upon petitioners to present contradictory evidence other than a mere tallying of days or numerical calculation.58 This, petitioners failed to discharge. The swift completion of the Investigating Panel’s initial task cannot be relegated as shoddy or shady without discounting the presumably regular performance of not just one but five state prosecutors.As for petitioners’ claim of undue haste indicating bias, proof thereof is wanting. The pace of the proceedings is anything but a matter of acceleration. Without any objection from the parties, respondents even accorded petitioners a preliminary investigation even when it was not required since the case involves an alleged offense where the penalty prescribed by law is below Four Years, Two Months and One Day.59 Neither is there proof showing that Gonzalez exerted undue pressure on his subordinates to tailor their decision with his public declarations and adhere to a pre-determined result. The Evaluating Panel in fact even found no sufficient basis, it bears emphatic reiteration, to proceed with the conduct of a preliminary investigation, and one member of the Investigating Panel even dissented to its October 9, 2006 Resolution. To follow petitioner’s theory of institutional bias would logically mean that even the NBI had prejudged the case in conducting a criminal investigation since it is a constituent agency of the DOJ. And if the theory is extended to the President’s declaration, there would be no more arm of the government credible enough to conduct a criminal investigation and a preliminary investigation. On petitioners citation of Ladlad v. Velasco60 where a public declaration by Gonzalez was found to evince a "determination to file the Information even in the absence of probable cause,"61 their attention is drawn to the following ruling of this Court in Roberts, Jr. v. Court of Appeals:62

Ordinarily, the determination of probable cause is not lodged with this Court. Its duty in an appropriate case is confined to the issue of whether the executive or judicial determination, as the case may be, of probable cause was done without or in excess of jurisdiction or with grave abuse of discretion amounting to want of jurisdiction. This is consistent with the general rule that criminal prosecution may not be restrained or stayed by injunction, preliminary

or final. There are, however, exceptions to this rule x x x enumerated in Brocka vs. Enrile (192 SCRA 183, 188-189 [1990]) x x x. In these exceptional cases, this Court may ultimately resolve the existence or non-existence of probable cause by examining the records of the preliminary investigation x x x.63 (Emphasis and underscoring supplied)

Even assuming arguendo that petitioners’ case falls under the exceptions enumerated in Brocka, any resolution on the existence or lack of probable cause or, specifically, any conclusion on the issue of prejudgment as elucidated in Ladlad, is made to depend on the records of the preliminary investigation. There have been, as the appellate court points out, no finding to speak of when the petition was filed, much less one that is subject to judicial review due to grave abuse.64 At that incipient stage, records were wanting if not nil since the Investigating Panel had not yet resolved any matter brought before it, save for the issuance of subpoenas. The Court thus finds no reversible error on the part of the appellate court in dismissing petitioners’ petition for certiorari and prohibition and in refraining from reviewing the merits of the case until a ripe and appropriate case is presented. Otherwise, court intervention would have been only pre-emptive and piecemeal. Oddly enough, petitioners eventually concede that they are "not asking for a reversal of a ruling on probable cause."65

A word on the utilization by petitioners of the video footages provided by ABS-CBN. While petitioners deny wishing or causing respondents to be biased and impartial,66 they admit67 that the media, ABS-CBN included, interviewed Gonzalez in order to elicit his opinion on a matter that ABS-CBN knew was pending investigation and involving a number of its own staff. Gonzalez’s actuations may leave much to be desired; petitioners’ are not, however, totally spotless as circumstances tend to show that they were asking for or fishing from him something that could later be used against him to favor their cause.A FINAL WORD. The Court takes this occasion to echo its disposition in Cruz v. Salva68 where it censured a fiscal for inexcusably allowing undue publicity in the conduct of preliminary investigation and appreciated the press for wisely declining an unusual probing privilege. Agents of the law ought to recognize the buoys and bounds of prudence in discharging what they may deem as an earnest effort to herald the government’s endeavor in solving a case. WHEREFORE, the petition is DENIED. Costs against petitioners.SO ORDERED.

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LYNDON D. BOISER, vs. PEOPLE OF THE PHILIPPINESG.R. No. 180299January 31, 2008

R E S O L U T I O N

NACHURA, J.:

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

The main issue in this case is whether the CA committed reversible error in affirming the decision of the RTC which denied petitioner’s omnibus motion to quash the informations filed against him.

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

On June 4, 2004, three (3) Informations were filed against petitioner, charging him with acts of lasciviousness, other acts of child abuse, and rape[4] of minor AAA before the Regional Trial Court (RTC), Branch 1, Tagbilaran, Bohol.

On June 11, 2004, petitioner filed a Motion praying that a hearing be conducted to determine the existence of probable cause and to hold in abeyance the issuance of a warrant of arrest against him. On June 16, 2004, private respondent filed an Opposition thereto.

On June, 18, 2004, the family court issued three (3) separate Orders in the three (3) criminal cases, directing the prosecution to submit additional evidence on the cases along with the transcript of proceedings during the preliminary investigation. On June 20, 2004, the prosecutor filed a Manifestation saying that the prosecution had no additional evidence to present and that due to the non-availability of a stenographer who could take down notes during the preliminary investigation on April 28, 2004 and May 7, 2004, he personally took down notes, and submitted certified photocopies of the same to the court. On July 2, 2004, the family court directed the City Prosecution Office in Tagbilaran City to complete the preliminary investigation in a regular manner with duly recorded proceedings attended by a stenographer. On August 4, 2004, a Reinvestigation Report was submitted by the prosecutor maintaining the existence of probable cause in the three cases.

On August 9, 2004, petitioner filed an Omnibus Motion for Determination of Probable Cause. On September 10, 2004, the family court issued three (3) separate Orders finding probable cause against petitioner in the three (3) cases, issued a warrant of arrest against him and fixed the corresponding bail for each case. On November 19 and 24, 2004, petitioner filed Motions to Inhibit the judge of Branch 1 from hearing the 3 cases. The judge acceded. Thereafter, the cases were raffled to Branch 2 of the same court. On March 1, 2005, petitioner again filed a Motion to Inhibit the judge of Branch 2. The same was granted and the case was raffled to Branch 4 of the same court. Then again, petitioner

filed a Motion to Inhibit the Judge of Branch 4. The three (3) cases were then raffled to Branch 49 of the said court.

On August 19, 2005, petitioner filed an Omnibus Motion to Quash the three (3) Informations to which private respondent filed an Opposition. On June 30, 2006, Branch 49 issued a Joint Order denying the aforesaid motion. A Motion for Reconsideration was filed by petitioner citing absence of probable cause and lack of jurisdiction over his person as grounds in support of his motion. However, upon the request of private respondent’s parents, the Judge of Branch 49 inhibited himself from hearing the three (3) cases. Finally, the cases were raffled to Branch 3 of the RTC of Tagbilaran City, Bohol, presided over by Judge Venancio J. Amila (Judge Amila).

On November 6, 2006, the lower court issued an Omnibus Order denying petitioner’s omnibus motion for reconsideration to quash the informations. On November 22, 2006, petitioner filed anew an Urgent Omnibus Motion to Quash. On November 30, 2006, the RTC issued an Order denying the second omnibus motion to quash, and set the arraignment on December 15, 2006. A day before the arraignment, petitioner filed a Second Omnibus Motion for Reconsideration of the order denying his motion to quash.

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

On January 2, 2007, petitioner filed a Petition for certiorari[5] before the CA claiming that the family court acted with grave abuse of discretion in issuing the orders denying his omnibus motions to quash the information.

On June 5, 2007, the CA rendered a Decision [6] affirming the Orders of the RTC. In denying the petition, the CA ratiocinated that it cannot reverse the RTC orders because: (1) an order denying a motion to quash is interlocutory and not appealable; and (2) the petitioner failed to positively prove grave abuse of discretion on the part of the RTC judge in the issuance of the assailed orders. The fallo of the Decision reads: WHEREFORE, premises considered, the petition is hereby DENIED. The assailed orders of the respondent judge are hereby AFFIRMED.

Costs against the petitioner.

SO ORDERED.[7]

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A motion for reconsideration was filed by petitioner which the CA denied in a Resolution[8] dated September 19, 2007.

On November 16, 2007, petitioner filed the instant case raising the following arguments: The Honorable Court of Appeals has decided [a] question of substance, not theretofore determined by the Supreme Court, or has decided it in a way not in accord with law or with the applicable decisions of the Supreme Court:

That the Honorable Court of Appeals has so far departed from the accepted and usual course of judicial proceedings, or so far sanctioned such departure by the lower court.[9]

We resolve to deny the petition.A petition for certiorari under Rule 65 is not the proper remedy against an order denying a motion to quash. The accused should instead go to trial, without prejudice on his part to present the special defenses he had invoked in his motion and, if after trial on the merits, an adverse decision is rendered, to appeal therefrom in the manner authorized by law.[10]

Based on the findings of the investigating prosecutor and of the trial judge, probable cause exists to indict petitioner for the 3 offenses. Absent any showing of arbitrariness on the part of the investigating prosecutor or any other officer authorized by law to conduct preliminary investigation, courts as a rule must defer to said officer’s finding and determination of probable cause, since the determination of the existence of probable cause is the function of the prosecutor.[11]

It is obvious to this Court that petitioner’s insistent filing of numerous motions to inhibit the judge hearing the 3 criminal cases and of motions to quash is a ploy to delay the proceedings, a reprehensible tactic that impedes the orderly administration of justice. If he is truly innocent, petitioner should bravely go to trial and prove his defense. After all, the purpose of a preliminary investigation is merely to determine whether a crime has been committed and whether there is probable cause to believe that the person accused of the crime is probably guilty thereof and should be held for trial. A finding of probable cause needs only to rest on evidence showing that more likely than not a crime has been committed and was committed by the suspect. Probable cause need not be based on clear and convincing evidence of guilt, neither on evidence establishing guilt beyond reasonable doubt, and definitely, not on evidence establishing absolute certainty of guilt.[12]

As to the allegation of petitioner that the RTC has not acquired jurisdiction over his person, this issue has been rendered moot and academic with petitioner’s arraignment in the 3 cases and his taking part in the proceedings therein.

WHEREFORE, in view of the foregoing, the petition is DENIED for lack of merit. Costs against the petitioner.

SO ORDERED.

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

Before Us is a Petition for Certiorari under Rule 65 of the

Revised Rules of Court assailing the 28 April 2006 Decision[1] and 29 June 2006 Resolution[2] of the Court of Appeals in CA-G.R. CEB-SP No. 00068, which annulled and set aside the 6 April 2004[3] and 30 August 2004[4] Resolutions of the Department of Justice (DOJ) in I.S. No. 02-9230-I, entitled “The Hongkong and Shanghai Banking Corporation v. Katherine Balangauan, et al.” The twin resolutions of the DOJ affirmed, in essence, the Resolution of the Office of the City Prosecutor,[5] Cebu City, which dismissed for lack of probable cause the criminal complaint for Estafa and/or Qualified Estafa, filed against petitioner-Spouses Bernyl Balangauan (Bernyl) and Katherene Balangauan (Katherene) by respondent Hong Kong and Shanghai Banking Corporation, Ltd. (HSBC).

In this Petition for Certiorari, petitioners Bernyl and Katherene

urge this Court to “reverse and set aside the Decision of the Court of Appeals, Special nineteenth (sic) [19th] division (sic), Cebu City (sic) and accordingly, dismiss the complaint against the [petitioners Bernyl and Katherene] in view of the absence of probable cause to warrant the filing of an information before the Court and for utter lack of merit.”[6]

As culled from the records, the antecedents of the present

case are as follows: Petitioner Katherene was a Premier Customer Services

Representative (PCSR) of respondent bank, HSBC. As a PCSR, she managed the accounts of HSBC depositors with Premier Status. One such client and/or depositor handled by her was Roger Dwayne York (York).

York maintained several accounts with respondent HSBC.

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

York adamantly insisted, though, that through petitioner

Katherene, he made a placement of the aforementioned amount in a higher-earning time deposit. York further elaborated that petitioner Katherene explained to him that the alleged higher-earning time deposit scheme was supposedly being offered to Premier clients only. Upon further scrutiny and examination, respondent HSBC’s bank personnel discovered that: (1) on 18 January 2002, York pre-terminated a

7

P1,000,000.00 time deposit; (2) there were cash movement tickets and withdrawal slips all signed by York for the amount of P1,000,000.00; and (3) there were regular movements in York’s accounts, i.e., beginning in the month of January 2002, monthly deposits in the amount of P12,500.00 and P8,333.33 were made, which York denied ever making, but surmised were the regular interest earnings from the placement of the P2,500,000.00.

It was likewise discovered that the above-mentioned deposits

were transacted using petitioner Katherene’s computer and work station using the code or personal password “CEO8.” The significance of code “CEO8,” according to the bank personnel of respondent HSBC, is that, “[i]t is only Ms. Balangauan who can transact from [the] computer in the work station CEO-8, as she is provided with a swipe card which she keeps sole custody of and only she can use, and which she utilizes for purposes of performing bank transactions from that computer.”[7]

Bank personnel of respondent HSBC likewise recounted in

their affidavits that prior to the filing of the complaint for estafa and/or qualified estafa, they were in contact with petitioners Bernyl and Katherene. Petitioner Bernyl supposedly met with them on two occasions. At first he disavowed any knowledge regarding the whereabouts of York’s money but later on admitted that he knew that his wife invested the funds with Shell Company. He likewise admitted that he made the phone banking deposit to credit York’s account with the P12,500.00 and the P8,333.33 using their landline telephone. With respect to petitioner Katherene, she allegedly spoke to the bank personnel and York on several occasions and admitted that the funds were indeed invested with Shell Company but that York knew about this.

So as not to ruin its name and goodwill among its clients,

respondent HSBC reimbursed York the P2,500,000.00. Based on the foregoing factual circumstances, respondent

HSBC, through its personnel, filed a criminal complaint for Estafa and/or Qualified Estafa before the Office of the City Prosecutor, Cebu City.

Petitioners Bernyl and Katherene submitted their joint counter-

affidavit basically denying the allegations contained in the affidavits of the aforenamed employees of respondent HSBC as well as that made by York. They argued that the allegations in the Complaint-Affidavits were pure fabrications. Specifically, petitioner Katherene denied 1) having spoken on the telephone with Dy and York; and 2) having admitted to the personnel of respondent HSBC and York that she took the P2,500,000.00 of York and invested the same with Shell Corporation. Petitioner Bernyl similarly denied 1) having met with Dy, Iñigo, Cortes and Arcuri; and 2) having admitted to them that York knew

about petitioner Katherene’s move of investing the former’s money with Shell Corporation.

Respecting the P12,500.00 and P8,333.33 regular monthly

deposits to York’s account made using the code “CEO8,” petitioners Bernyl and Katherene, in their defense, argued that since it was a deposit, it was her duty to accept the funds for deposit. As regards York’s time deposit with respondent HSBC, petitioners Bernyl and Katherene insisted that the funds therein were never entrusted to Katherene in the latter’s capacity as PCSR Employee of the former because monies deposited “at any bank would not and will not be entrusted to specific bank employee but to the bank as a whole.”

Following the requisite preliminary investigation, Assistant City

Prosecutor (ACP) Victor C. Laborte, Prosecutor II of the OCP, Cebu City, in a Resolution[8] dated 21 February 2003, found no probable cause to hold petitioners Bernyl and Katherene liable to stand trial for the criminal complaint of estafa and/or qualified estafa, particularly Article 315 of the Revised Penal Code. Accordingly, the ACP recommended the dismissal of respondent HSBC’s complaint.

The ACP explained his finding, viz:

As in any other cases, we may never

know the ultimate truth of this controversy. But on balance, the evidence on record tend to be supportive of respondents’ contention rather than that of complaint.

x x x x First of all, it is well to dwell on what Mr.

York said in his affidavit. Thus:

`18. For purposes of opening these two time deposits (sic) accounts, Ms. Balangauan asked me to sign several Bank documents on several occasions, the nature of which I was unfamiliar with.’

`20. I discovered

later that these were withdrawal slips and cash movement tickets, with which documents Ms. Balangauan apparently was

able to withdraw the amount from my accounts, and take the same from the premises of the Bank.’

In determining the credibility of an

evidence, it is well to consider the probability or improbability of one’s statements for it has been said that there is no test of the truth of human testimony except its conformity to our knowledge, observation and experience.

Mr. York could not have been that unwary

and unknowingly innocent to claim unfamiliarity with withdrawal slips and cash movement tickets which Ms. Balangauan made him to sign on several occasions. He is a premier client of HSBC maintaining an account in millions of pesos. A withdrawal slip and cash movement tickets could not have had such intricate wordings or terminology so as to render them non-understandable even to an ordinary account holder. Mr. York admittedly is a long-standing client of the bank. Within the period of ‘long-standing’ he certainly must have effected some withdrawals. It goes without saying therefore that the occasions that Ms. Balangauan caused him to sign withdrawal slips are not his first encounter with such kinds of documents.

The one ineluctable conclusion therefore

that can be drawn from the premises is that Mr. York freely and knowingly knew what was going on with his money, who has in possession of them and where it was invested. These take out the elements of deceit, fraud, abuse of confidence and without the owner’s consent in the crimes charged.

The other leg on which complainant’s

cause of action stands rest on its claim for sum of money against respondents allegedly after it reimbursed Mr. York for his missing account supposedly taken/withdrawn by Ms. Balangauan. The bank’s action against respondents would be a civil suit against them which apparently it already did after the bank steps into the shoes of Mr. York and becomes the creditor of Ms. Balangauan.[9]

8

The ACP then concluded that: By and large, the evidence on record do

(sic) not engender enough bases to establish a probable cause against respondents.[10]

On 1 July 2003, respondent HSBC appealed the above-quoted resolution and foregoing comment to the Secretary of the DOJ by means of a Petition for Review.

In a Resolution dated 6 April 2004, the Chief State Prosecutor,

Jovencito R. Zuño, for the Secretary of the DOJ, dismissed the petition. In denying respondent HSBC’s recourse, the Chief State Prosecutor held that:

Sec. 12 (c) of Department Circular No. 70

dated July 2, 2000 provides that the Secretary of Justice may, motu proprio, dismiss outright the petition if there is no showing of any reversible error in the questioned resolution.

We carefully examined the petition and its

attachments and found no reversible error that would justify a reversal of the assailed resolution which is in accord with the law and evidence on the matter.

Respondent HSBC’s Motion for Reconsideration was likewise denied with finality by the DOJ in a lengthier Resolution dated 30 August 2004.

The DOJ justified its ruling in this wise: A perusal of the motion reveals no new

matter or argument which was not taken into consideration in our review of the case. Hence, we find no cogent reason to reconsider our resolution. Appellant failed to present any iota of evidence directly showing that respondent Katherene Balangauan took the money and invested it somewhere else. All it tried to establish was that Katherene unlawfully took the money and fraudulently invested it somewhere else x x x, because after the withdrawals were made, the money never reached Roger York as appellant adopted hook, line and sinker the latter’s declaration, despite York’s signatures on the withdrawal slips

covering the total amount of P2,500,000.00 x x x. While appellant has every reason to suspect Katherene for the loss of the P2,500,000.00 as per York’s bank statements, the cash deposits were identified by the numerals “CEO8” and it was only Katherene who could transact from the computer in the work station CEO-8, plus alleged photographs showing Katherene “leaving her office at 5:28 p.m. with a bulky plastic bag presumably containing cash” since a portion of the funds was withdrawn, we do not, however, dwell on possibilities, suspicion and speculation. We rule based on hard facts and solid evidence.

Moreover, an examination of the petition

for review reveals that appellant failed to append thereto all annexes to respondents’ urgent manifestations x x x together with supplemental affidavits of Melanie de Ocampo and Rex B. Balucan x x x, which are pertinent documents required under Section 5 of Department Circular No. 70 dated July 3, 2000.[11]

Respondent HSBC then went to the Court of Appeals by

means of a Petition for Certiorari under Rule 65 of the Revised Rules of Court.

On 28 April 2006, the Court of Appeals promulgated its Decision granting respondent HSBC’s petition, thereby annulling and setting aside the twin resolutions of the DOJ. The fallo of the assailed decision reads:

WHEREFORE, in view of the foregoing premises, judgment is hereby rendered by us GRANTING the petition filed in this case. The assailed Resolutions dated April 6, 2004 and August 30, 2004 are ANNULLED and SET ASIDE.

The City Prosecutor of Cebu City is hereby

ORDERED to file the appropriate Information against the private respondents.[12]

Petitioners Bernyl and Katherene’s motion for reconsideration proved futile, as it was denied by the appellate court in a Resolution dated 29 June 2006.

Hence, this petition for certiorari filed under Rule 65 of the Revised Rules of Court.

Petitioners Bernyl and Katherene filed the present petition on the argument that the Court of Appeals committed grave abuse of discretion in reversing and setting aside the resolutions of the DOJ when: (1) “[i]t reversed the resolution of the Secretary of Justice, Manila dated August 30, 2004 and correspondingly, gave due course to the Petition for Certiorari filed by HSBC on April 28, 2006 despite want of probable cause to warrant the filing of an information against the herein petitioners”[13]; (2) “[i]t appreciated the dubious evidence adduced by HSBC albeit the absence of legal standing or personality of the latter”[14]; (3) “[i]t denied the motions for reconsideration on June 29, 2006 notwithstanding the glaring evidence proving the innocence of the petitioners”[15]; (4) “[i]t rebuffed the evidence of the herein petitioners in spite of the fact that, examining such evidence alone would establish that the money in question was already withdrawn by Mr. Roger Dwayne York”[16]; and (5) “[i]t failed to dismiss outright the petition by HSBC considering that the required affidavit of service was not made part or attached in the said petition pursuant to Section 13, Rule 13 in relation to Section 3, Rule 46, and Section 2, Rule 56 of the Rules of Court.”[17]

Required to comment on the petition, respondent HSBC

remarked that the filing of the present petition is improper and should be dismissed. It argued that the correct remedy is an appeal by certiorari under Rule 45 of the Revised Rules of Court.

Petitioners Bernyl and Katherene, on the other hand, asserted

in their Reply[18] that the petition filed under Rule 65 was rightfully filed considering that not only questions of law were raised but questions of fact and error of jurisdiction as well. They insist that the Court of Appeals “clearly usurped into the jurisdiction and authority of the Public Prosecutor/Secretary of justice (sic) x x x.”[19]

Given the foregoing arguments, there is need to address, first,

the issue of the mode of appeal resorted to by petitioners Bernyl and Katherene. The present petition is one for certiorari under Rule 65 of the Revised Rules of Court. Notice that what is being assailed in this recourse is the decision and resolution of the Court of Appeals dated 28 April 2006 and 29 June 2006, respectively. The Revised Rules of Court, particularly Rule 45 thereof, specifically provides that an appeal by certiorari from the judgments or final orders or resolutions of the appellate court is by verified petition for review on certiorari.[20]

In the present case, there is no question that the 28 April 2006

Decision and 29 June 2006 Resolution of the Court of Appeals granting the respondent HSBC’s petition in CA-G.R. CEB. SP No. 00068 is

9

already a disposition on the merits. Therefore, both decision and resolution, issued by the Court of Appeals, are in the nature of a final disposition of the case set before it, and which, under Rule 45, are appealable to this Court via a Petition for Review on Certiorari, viz:

SECTION 1. Filing of petition with

Supreme Court. – A party desiring to appeal by certiorari from a judgment or final order or resolution of the Court of Appeals, the Sandiganbayan, the Regional Trial Court or other courts whenever authorized by law, may file with the Supreme Court a verified petition for review on certiorari. The petition shall raise only questions of law which must be distinctly set forth. (Emphasis supplied.) It is elementary in remedial law that a writ of certiorari will not

issue where the remedy of appeal is available to an aggrieved party. A remedy is considered "plain, speedy and adequate" if it will promptly relieve the petitioners from the injurious effects of the judgment and the acts of the lower court or agency.[21] In this case, appeal was not only available but also a speedy and adequate remedy.[22] And while it is true that in accordance with the liberal spirit pervading the Rules of Court and in the interest of substantial justice,[23] this Court has, before,[24] treated a petition for certiorari as a petition for review on certiorari, particularly if the petition for certiorari was filed within the reglementary period within which to file a petition for review on certiorari;[25] this exception is not applicable to the present factual milieu.

Pursuant to Sec. 2, Rule 45 of the Revised Rules of Court:

SEC. 2. Time for filing; extension. – The petition shall be filed within fifteen (15) days from notice of the judgment or final order or resolution appealed from, or of the denial of the petitioner’s motion for new trial or reconsideration filed in due time after notice of the judgment. x x x.

a party litigant wishing to file a petition for review on certiorari must do so within 15 days from receipt of the judgment, final order or resolution sought to be appealed. In this case, petitioners Bernyl and Katherene’s motion for reconsideration of the appellate court’s Resolution was denied by the Court of Appeals in its Resolution dated 29 June 2006, a copy of which was received by petitioners on 4 July 2006. The present petition was filed on 1 September 2006; thus, at the time of the filing of said petition, 59 days had elapsed, way beyond the 15-day period within which to file a petition for review under Rule 45, and even beyond an

extended period of 30 days, the maximum period for extension allowed by the rules had petitioners sought to move for such extra time. As the facts stand, petitioners Bernyl and Katherene had lost the right to appeal via Rule 45.

Be that as it may, alternatively, if the decision of the appellate court is attended by grave abuse of discretion amounting to lack or excess of jurisdiction, then such ruling is fatally defective on jurisdictional ground and may be questioned even after the lapse of the period of appeal under Rule 45[26] but still within the period for filing a petition for certiorari under Rule 65.

We have previously ruled that grave abuse of discretion may

arise when a lower court or tribunal violates and contravenes the Constitution, the law or existing jurisprudence. By grave abuse of discretion is meant such capricious and whimsical exercise of judgment as is equivalent to lack of jurisdiction. The abuse of discretion must be grave, as where the power is exercised in an arbitrary or despotic manner by reason of passion or personal hostility and must be so patent and gross as to amount to an evasion of positive duty or to a virtual refusal to perform the duty enjoined by or to act at all in contemplation of law.[27] The word “capricious,” usually used in tandem with the term “arbitrary,” conveys the notion of willful and unreasoning action. Thus, when seeking the corrective hand of certiorari, a clear showing of caprice and arbitrariness in the exercise of discretion is imperative.[28]

In reversing and setting aside the resolutions of the DOJ,

petitioners Bernyl and Katherene contend that the Court of Appeals acted with grave abuse of discretion amounting to lack or excess of jurisdiction.

The Court of Appeals, when it resolved to grant the petition in

CA-G.R. CEB. SP No. 00068, did so on two grounds, i.e., 1) that “the public respondent (DOJ) gravely abused his discretion in finding that there was no reversible error on the part of the Cebu City Prosecutor dismissing the case against the private respondent without stating the facts and the law upon which this conclusion was made”[29]; and 2) that “the public respondent (DOJ) made reference to the facts and circumstances of the case leading to his finding that no probable cause exists, x x x (the) very facts and circumstances (which) show that there exists a probable cause to believe that indeed the private respondents committed the crimes x x x charged against them.”[30]

It explained that:

In refusing to file the appropriate

information against the private respondents because

he ‘does not dwell on possibilities, suspicion and speculation’ and that he rules ‘based on hard facts and solid evidence’, (sic) the public respondent exceeded his authority and gravely abused his discretion. It must be remembered that a finding of probable cause does not require an inquiry into whether there is sufficient evidence to procure a conviction. It is enough that it is believed that the act or omission complained of constitutes the offense charged. The term does not mean ‘actual or positive cause;’ (sic) nor does it import absolute certainty. It is merely based on opinion and reasonable belief. [Citation omitted.] A trial is there precisely for the reception of evidence of the prosecution in support of the charge.

In this case, the petitioner had amply

established that it has a prima facie case against the private respondents. As observed by the public respondent in his second assailed resolution, petitioner was able to present photographs of private respondent Ms. Balangauan leaving her office carrying a bulky plastic bag. There was also the fact that the transactions in Mr. York’s account used the code ‘CEO8’ which presumably point to the private respondent Ms. Balangauan as the author thereof for she is the one assigned to such work station.

Furthermore, petitioner was able to

establish that it was Ms. Balangauan who handled Mr. York’s account and she was the one authorized to make the placement of the sum of P2,500,000.00. Since said sum is nowhere to be found in the records of the bank, then, apparently, Ms. Balangauan must be made to account for the same.[31]

The appellate court then concluded that:

These facts engender a well-founded belief that that (sic) a crime has been committed and that the private respondents are probably guilty thereof. In refusing to file the corresponding information against the private respondents despite the presence of the circumstances making out a prima facie case against them, the public respondent

10

gravely abused his discretion amounting to an evasion of a positive duty or to a virtual refusal either to perform the duty enjoined or to act at all in contemplation of law.[32]

The Court of Appeals found fault in the DOJ’s failure to identify and discuss the issues raised by the respondent HSBC in its Petition for Review filed therewith. And, in support thereof, respondent HSBC maintains that it is incorrect to argue that “it was not necessary for the Secretary of Justice to have his resolution recite the facts and the law on which it was based,” because courts and quasi-judicial bodies should faithfully comply with Section 14, Article VIII of the Constitution requiring that decisions rendered by them should state clearly and distinctly the facts of the case and the law on which the decision is based.[33]

Petitioners Bernyl and Katherene, joined by the Office of the

Solicitor General, on the other hand, defends the DOJ and assert that the questioned resolution was complete in that it stated the legal basis for denying respondent HSBC’s petition for review – “that (after) an examination (of) the petition and its attachment [it] found no reversible error that would justify a reversal of the assailed resolution which is in accord with the law and evidence on the matter.”

It must be remembered that a preliminary investigation is not a

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

[T]he prosecutor in a preliminary investigation does not determine the guilt or innocence of the accused. He does not exercise adjudication nor rule-making functions. Preliminary investigation is merely inquisitorial, and is often the only means of discovering the persons who may be reasonably charged with a crime and to enable the fiscal to prepare his complaint or information. It is not a trial of the case on the merits and has no purpose except that of determining whether a crime has been committed and whether there is probable cause to believe that the accused is guilty thereof. While the fiscal makes that determination, he cannot be said to be acting as a quasi-court, for it is the courts, ultimately, that pass judgment on the accused, not the fiscal.

Though some cases[35] describe the public prosecutor’s

power to conduct a preliminary investigation as quasi-judicial in nature, this is true only to the extent that, like quasi-judicial bodies, the prosecutor is an officer of the executive department exercising powers akin to those of a court, and the similarity ends at this point. [36] A quasi-judicial body is an organ of government other than a court and other than a legislature which affects the rights of private parties through either adjudication or rule-making.[37] A quasi-judicial agency performs adjudicatory functions such that its awards, determine the rights of parties, and their decisions have the same effect as judgments of a court. Such is not the case when a public prosecutor conducts a preliminary investigation to determine probable cause to file an Information against a person charged with a criminal offense, or when the Secretary of Justice is reviewing the former’s order or resolutions. In this case, since the DOJ is not a quasi-judicial body, Section 14, Article VIII of the Constitution finds no application. Be that as it may, the DOJ rectified the shortness of its first resolution by issuing a lengthier one when it resolved respondent HSBC’s motion for reconsideration.

Anent the substantial merit of the case, whether or not the

Court of Appeals’ decision and resolution are tainted with grave abuse of discretion in finding probable cause, this Court finds the petition dismissible.

The Court of Appeals cannot be said to have acted with grave

abuse of discretion amounting to lack or excess of jurisdiction in reversing and setting aside the resolutions of the DOJ. In the resolutions of the DOJ, it affirmed the recommendation of ACP Laborte that no probable cause existed to warrant the filing in court of an Information for estafa and/or qualified estafa against petitioners Bernyl and Katherene. It was the reasoning of the DOJ that “[w]hile appellant has every reason to suspect Katherene for the loss of the P2,500,000.00 as per York’s bank statements, the cash deposits were identified by the numerals ‘CEO8’ and it was only Katherene who could transact from the computer in the work station CEO-8, plus alleged photographs showing Katherene ‘leaving her office at 5:28 p.m. with a bulky plastic bag presumably containing cash’ since a portion of the funds was withdrawn, we do not, however, dwell on possibilities, suspicion and speculation. We rule based on hard facts and solid evidence.”[38]

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

facts and circumstances as would excite belief in a reasonable mind, acting on the facts within the knowledge of the prosecutor, that the

person charged was guilty of the crime for which he was prosecuted.[39] A finding of probable cause merely binds over the suspect to stand trial. It is not a pronouncement of guilt.[40]

The executive department of the government is accountable

for the prosecution of crimes, its principal obligation being the faithful execution of the laws of the land. A necessary component of the power to execute the laws is the right to prosecute their violators,[41] the responsibility for which is thrust upon the DOJ. Hence, the determination of whether or not probable cause exists to warrant the prosecution in court of an accused is consigned and entrusted to the DOJ. And by the nature of his office, a public prosecutor is under no compulsion to file a particular criminal information where he is not convinced that he has evidence to prop up the averments thereof, or that the evidence at hand points to a different conclusion.

But this is not to discount the possibility of the commission of

abuses on the part of the prosecutor. It is entirely possible that the investigating prosecutor has erroneously exercised the discretion lodged in him by law. This, however, does not render his act amenable to correction and annulment by the extraordinary remedy of certiorari, absent any showing of grave abuse of discretion amounting to excess of jurisdiction.[42]

And while it is this Court’s general policy not to interfere in the

conduct of preliminary investigations, leaving the investigating officers sufficient discretion to determine probable cause,[43] we have nonetheless made some exceptions to the general rule, such as when the acts of the officer are without or in excess of authority,[44] resulting from a grave abuse of discretion. Although there is no general formula or fixed rule for the determination of probable cause, since the same must be decided in the light of the conditions obtaining in given situations and its existence depends to a large degree upon the finding or opinion of the judge conducting the examination, such a finding should not disregard the facts before the judge (public prosecutor) or run counter to the clear dictates of reason.[45]

Applying the foregoing disquisition to the present petition, the

reasons of DOJ for affirming the dismissal of the criminal complaints for estafa and/or qualified estafa are determinative of whether or not it committed grave abuse of discretion amounting to lack or excess of jurisdiction. In requiring “hard facts and solid evidence” as the basis for a finding of probable cause to hold petitioners Bernyl and Katherene liable to stand trial for the crime complained of, the DOJ disregards the definition of probable cause – that it is a reasonable ground of presumption that a matter is, or may be, well-founded, such a state of facts in the mind of the prosecutor as would lead a person of ordinary

11

caution and prudence to believe, or entertain an honest or strong suspicion, that a thing is so.[46] The term does not mean “actual and positive cause” nor does it import absolute certainty.[47] It is merely based on opinion and reasonable belief;[48] that is, the belief that the act or omission complained of constitutes the offense charged. While probable cause demands more than “bare suspicion,” it requires “less than evidence which would justify conviction.” Herein, the DOJ reasoned as if no evidence was actually presented by respondent HSBC when in fact the records of the case were teeming; or it discounted the value of such substantiation when in fact the evidence presented was adequate to excite in a reasonable mind the probability that petitioners Bernyl and Katherene committed the crime/s complained of. In so doing, the DOJ whimsically and capriciously exercised its discretion, amounting to grave abuse of discretion, which rendered its resolutions amenable to correction and annulment by the extraordinary remedy of certiorari.

From the records of the case, it is clear that a prima facie case

for estafa/qualified estafa exists against petitioners Bernyl and Katherene. A perusal of the records, i.e., the affidavits of respondent HSBC’s witnesses, the documentary evidence presented, as well as the analysis of the factual milieu of the case, leads this Court to agree with the Court of Appeals that, taken together, they are enough to excite the belief, in a reasonable mind, that the Spouses Bernyl Balangauan and Katherene Balangauan are guilty of the crime complained of. Whether or not they will be convicted by a trial court based on the same evidence is not a consideration. It is enough that acts or omissions complained of by respondent HSBC constitute the crime of estafa and/or qualified estafa.

Collectively, the photographs of petitioner Katherene leaving

the premises of respondent HSBC carrying a bulky plastic bag and the affidavits of respondent HSBC’s witnesses sufficiently establish acts adequate to constitute the crime of estafa and/or qualified estafa. What the affidavits bear out are the following: that York was a Premier Client of respondent HSBC; that petitioner Katherene handled all the accounts of York; that not one of York’s accounts reflect the P2,500,000.00 allegedly deposited in a higher yielding account; that prior to the discovery of her alleged acts and omissions, petitioner Katherene supposedly persuaded York to invest in a “new product” of respondent HSBC, i.e., a higher interest yielding time deposit; that York made a total of P2,500,000.00 investment in the “new product” by authorizing petitioner Balangauan to transfer said funds to it; that petitioner Katherene supposedly asked York to sign several transaction documents in order to transfer the funds to the “new product”; that said documents turned out to be withdrawal slips and cash movement tickets; that at no time did York receive the cash as a result of signing the

documents that turned out to be withdrawal slips/cash movement tickets; that York’s account was regularly credited “loose change” in the amounts of P12,500.00 and P8,333.33 beginning in the month after the alleged “transfer” of York’s funds to the “new product”; that the regular deposits of loose change were transacted with the use of petitioner Katherene’s work terminal accessed by her password “CEO8”; that the “CEO8” password was keyed in with the use of a swipe card always in the possession of petitioner Katherene; that one of the loose-change deposits was transacted via the phone banking feature of respondent HSBC and that when traced, the phone number used was the landline number of the house of petitioners Bernyl and Katherene; that respondent HSBC’s bank personnel, as well as York, supposedly a) talked with petitioner Katherene on the phone, and that she allegedly admitted that the missing funds were invested with Shell Company, of which York approved, and that it was only for one year; and b) met with petitioner Bernyl, and that the latter at first denied having knowledge of his wife’s complicity, but later on admitted that he knew of the investment with Shell Company, and that he supposedly made the loose-change deposit via phone banking; that after 23 April 2002, York was told that respondent HSBC had no “new product” or that it was promoting investment with Shell Company; that York denied having any knowledge that his money was invested outside of respondent HSBC; and that petitioner Katherene would not have been able to facilitate the alleged acts or omissions without taking advantage of her position or office, as a consequence of which, HSBC had to reimburse York the missing P2,500,000.00.

From the above, the alleged circumstances of the case at bar

make up the elements of abuse of confidence, deceit or fraudulent means, and damage under Art. 315 of the Revised Penal Code on estafa and/or qualified estafa. They give rise to the presumption or reasonable belief that the offense of estafa has been committed; and, thus, the filing of an Information against petitioners Bernyl and Katherene is warranted. That respondent HSBC is supposed to have no personality to file any criminal complaint against petitioners Bernyl and Katherene does not ipso facto clear them of prima facie guilt. The same goes for their basic denial of the acts or omissions complained of; or their attempt at shifting the doubt to the person of York; and their claim that witnesses of respondent HSBC are guilty of fabricating the whole scenario. These are matters of defense; their validity needs to be tested in the crucible of a full-blown trial. Lest it be forgotten, the presence or absence of the elements of the crime is evidentiary in nature and is a matter of defense, the truth of which can best be passed upon after a full-blown trial on the merits. Litigation will prove petitioners Bernyl and Katherene’s innocence if their defense be true.

In fine, the relaxation of procedural rules may be allowed only when there are exceptional circumstances to justify the same. Try as we might, this Court cannot find grave abuse of discretion on the part of the Court of Appeals, when it reversed and set aside the resolutions of the DOJ. There is no showing that the appellate court acted in an arbitrary and despotic manner, so patent or gross as to amount to an evasion or unilateral refusal to perform its legally mandated duty. On the contrary, we find the assailed decision and resolution of the Court of Appeals to be more in accordance with the evidence on record and relevant laws and jurisprudence than the resolutions of the DOJ.

Considering the allegations, issues and arguments adduced and our disquisition above, we hereby dismiss the instant petition for being the wrong remedy under the Revised Rules of Court, as well as for petitioner Bernyl and Katherene’s failure to sufficiently show that the challenged Decision and Resolution of the Court of Appeals were rendered in grave abuse of discretion amounting to lack or excess of jurisdiction.

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

SO ORDERED.

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

This is an administrative case against respondent MTC Judge Lauro Bernardo for his alleged impropriety, manifest bias and partiality, grave abuse of discretion, and gross ignorance of the law/procedure relative to Criminal Case No. 06-004 entitled “People of the Philippines v. Atty. Roderick M. Santos and Boyet Andres.”

On February 9, 2006, Atty. Roderick M. Santos and Alexander

Andres filed a verified Affidavit-Complaint charging respondent of:

Impropriety –

Respondent is using government resources in the discharge of his functions for his personal pleasure and convenience. Specifically, he allows his girlfriend, a certain “Boots,” to stay and use as her lounge the judge’s chamber in violation of his duty under Rule 2.01 of the Code of

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Judicial Conduct to maintain proper decorum. On many occasions, even when there is a hearing, his girlfriend stays in the chamber, hindering the full performance of respondent’s duties as he has to attend to her whims and caprices, plus the fact that his girlfriend is just cooling herself in the air-conditioned room while litigants have to bear the cramped hot space of the courtroom. This act also invites suspicion since her mere presence therein is an indication of who to talk to regarding a case. Following the case of Presado v. Genova,[1] the act of respondent constitutes serious misconduct.

Manifest Bias and Partiality –

Respondent committed manifest bias and partiality when he allowed the filing of Criminal Case No. 06-004 for Grave Coercion against the complainants because it was his chance to get back at Atty. Santos against whom he is harboring a grudge after the latter moved for his inhibition in Criminal Case Nos. 04-430 and 04-572.

Instead of conducting a preliminary investigation after the filing

of the complaint to find probable cause to hold complainants herein for trial, respondent immediately signed the criminal complaint upon its filing and ordered that the case be set for “preliminary hearing” on January 12, 2006. His own branch clerk certified that the “complainant and her witnesses only subscribed their statement before the presiding judge.” Worse, respondent allowed the criminal case to be filed even if it is based on hearsay evidence, as the complainant therein, one Dr. Elida D. Yanga, was not in the place at the time the alleged offense happened. From the documents gathered, the undue haste by which respondent acted is very evident because the complaint-affidavit, the criminal complaint, and the subpoena have the common date of January 4, 2006. More so, the subpoena was immediately served on complainants on January 5, 2006.

Grave Abuse of Discretion and Unfaithfulness to the Law –

Respondent committed grave abuse of discretion when he did

not conduct a preliminary investigation in Crim. Case No. 06-004. Under paragraph 2, Section 1, Rule 112 of the Revised Rules on Criminal Procedure (Rules),[2] preliminary investigation is required to be conducted before the filing of a complaint or information for offenses where the penalty prescribed by law is at least four years, two months and one day. The maximum imposable penalty for Grave Coercion is six years imprisonment; hence, complainants should have been accorded the right to preliminary investigation whereby they could have demonstrated that the complaint is worthless. Respondent, however, chose to be ignorant of the basic provisions of the Rules in order to exact revenge and cause them to unduly stand trial. Despite the Motion

to Quash Complaint with Prayer for Voluntary Inhibition filed by complainants to give him a chance to correct his error by at least referring the case to the Office of the Provincial Prosecutor of Bulacan for the conduct of the requisite preliminary investigation, he remained adamant by issuing an order referring the case instead to the Executive Judge of Bulacan for its raffle to another MTC judge. This act showed respondent’s deliberate intent to make the complainants accused persons in a criminal case.

By allowing the immediate filing of a patently unmeritorious

case, respondent tainted Atty. Santos’ good reputation: he is a law practitioner with companies in Makati, Pasig and Manila as clients; he is a businessman and was also a former chairman of the board and current board director of St. Martin of Tours Credit and Development Cooperative, the largest credit cooperative in Region III; and he is a frequent traveler, going abroad at least once a year. With the worthless criminal case filed against him, respondent puts a sore obstacle to Atty. Santos’ way of life that is truly an undeserved inconvenience.

On April 11, 2006, respondent filed his Comment arguing in

the main that the charges against him are hearsay, without factual and legal basis, and are a malicious imputation upon his person; and that the acts stated in the complaint were based solely on the bare allegations of the complainants as no corroborative statements of witnesses were presented to prove the same. In contradicting complainants’ representation, he stated thus:

As to the charge of Impropriety: “Boots” (whose maiden name was Ma. Rosario M. Layuga) is

now respondent’s lawful wife, as proven by a marriage certificate showing their civil union before a Caloocan City Regional Trial Court (RTC) judge on March 14, 2006. There was no occasion or intention on his part to make the judge’s chamber a residential or dwelling place. Instead, his wife’s presence is “actually dictated by a moral duty in the exercise of marital responsibility” since he has been allergic to some foods, particularly fish and some beans. In fact, last October 2005, after eating fish, respondent nearly lost his life due to a severe allergy had it not been for the timely medical intervention administered at a nearby hospital. Aside from this, he is suffering from irregular heartbeat which causes constant rise of his blood pressure and uric acid. Also, his wife is not merely present in the chamber since, while in there, she is also attending to some activities. Being self-employed and with extensive exposure to trading, she administers the family property consisting of leased premises and landholdings in Pandi, Bulacan.

Respondent’s relation to his wife is “serious, open and known to the public” and that the atmosphere prevailing in the court’s chamber even in the alleged presence of his wife is “an atmosphere of friendship, respect and decency.” He related that he and his wife are regular participants of Marriage Encounter prayer meetings as well as in the prayer assemblies conducted by the Couples for Christ. Respondent is an active member of the Rotary Club of Sta. Maria and Knights of Columbus, Marian Council of Sta. Maria, Bulacan while his wife is a member of the Inner Wheel Club of the Philippines. As members, they are active participants in the clubs’ community projects and other civic activities. On top of these, respondent judge presented Resolution No. 06-03-025, dated 20 March 2006, of the Sangguniang Bayan of Bocaue, Bulacan signifying its “unilateral decree of support and commendation to [respondent] in recognition of his long years of commendable and meritorious service in the dispensation of justice” and the Certificate of Commendation, dated 30 March 2006, issued by the Mayor of the Municipality of Bocaue.

As to the charge of Manifest Bias and Partiality: Complainants interpreted that when respondent signed the

criminal complaint as well as subscribed the affidavits of the witnesses under oath he already made a finding of probable cause. This is not correct because his signature was only for the purpose of administering an oath, as evidenced by the certification issued by the clerk of court. The fact is that the criminal case did not reach the stage of preliminary investigation since complainants filed a Motion for Inhibition which was readily granted. Respondent conducted the court proceedings in accordance with the provisions of the Rules, particularly Sections 3 (a) and 8 (b) of Rule 112.[3]

As to the charge of Grave Abuse of Discretion and

Unfaithfulness to the Law: Admittedly, preliminary investigation must be conducted before

the filing of a complaint or information for an offense where the penalty prescribed by law is at least four years, two months and one day without regard to fine. In the case of Grave Coercion, however, there is no need for a preliminary investigation since prision correccional (six months and one day to six years), which is the imposable penalty for said crime, does not fall within the required penalty of prision correccional maximum (four years, two months and one day). The criminal case against complainants should proceed in accordance with Section 8 (b) of Rule 112.

When respondent issued a subpoena setting the case for

preliminary hearing it was taken as a measure of “damage control.”

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Knowing that a member of the Bar is being charged before the court, it might have afforded the parties the chance to thresh out their differences and possibly settle amicably. Likewise, his order to forward the case to the Office of the Executive Judge was but a result of his voluntary inhibition from the case, which he had chosen to definitely rule upon instead of further quashing the criminal complaint since the Motion filed by complainants prayed respondent to resolve two “judiciously irreconcilable” issues.

As a background, the enmity between respondent and Atty.

Santos started in Criminal Case Nos. 04-430 and 04-572 wherein the latter appeared as private prosecutor in Criminal Case No. 04-430 for Reckless Imprudence Resulting to Damage to Property. The accused in said case later on filed a similar case (docketed as Criminal Case No. 04-572) against Atty. Santos’ client. Respondent found probable cause in both cases. Atty. Santos questioned this ruling but, on appeal, the RTC sustained the findings. Atty. Santos did not elevate the matter to the appellate court until the decision became final.

In order for liability to attach for ignorance of the law, the

assailed order, decision or actuation of the judge in the performance of official duties must not only be found erroneous but most importantly it must be established that he was moved by bad faith, dishonesty or some other like motive. In this case, respondent has nothing to gain, material or otherwise, from the outcome of the criminal action; he met the parties only during the proceedings in court, not before its filing, and he inhibited himself promptly from the case. Atty. Santos instead is the one who has animosity to respondent; he must realize and understand that what he (respondent) had done is just all in a day’s work and nothing personal about it.

In their Reply, the complainants argued that aside from

converting the judge’s chamber into a “nursing home” or “convalescent center” what is more troubling is respondent’s own admission that his wife’s activities therein are not limited to the “[care] for the sick” but also to her involvement in trading, which is highly irregular and improper since they are being conducted within the court’s premises. As regards the commendations received by respondent, the complainants stated that it is most likely that everybody working in the Municipal Government of Bocaue got an award because it was given during its 400 th foundation day; that the “pro-forma” certificates do not show whether he deserves it or not; and in any event, these awards are totally irrelevant to the case. Incidentally, complainants also mentioned that court sessions in Bocaue usually start late almost at 2:00 p.m. or later, instead of 1:30 p.m.

Likewise, complainants commented on the “disturbing

procedure” followed by respondent, which is, allowing the criminal

complaint to be immediately entered in the criminal docket (thus, converting it to a criminal case by a mere stroke of the clerk of court’s pen) and signing the criminal complaint aside from the affidavit-complaint without first finding probable case. This, according to them, is contrary to the provision of Sec. 3 (a), Rule 112 of the Rules which states that only the affidavits must be subscribed and sworn to, a rule that respondent must follow when he is to conduct his investigatory functions under Sec. 3 or Sec. 9 (b), Rule 112.[4] Complainants also dismissed respondent’s reasoning that his actuation was based on Sec. 3 (a) and Sec. 9 (b), Rule 112 because, as proven by the absence of any transcript of stenographic notes (TSN), the latter did not conduct searching questions and answers to Dr. Yanga and her witnesses. He has to explain, therefore, why he admitted a complaint based on hearsay evidence since the person who was not the object of the alleged coercive acts is the one who is the offended party in the criminal case.

Complainants insisted that since the maximum penalty imposable for the offense of Grave Coercion is six years, a preliminary investigation should have been held. Moreover, they maintained that Rule 112 is a complete procedure in itself; hence, as stated in Sec. 9 (b), it is the duty of respondent to dismiss the complaint or find probable cause within ten (10) days from its filing and not to call for a “preliminary hearing,” which is a non-existent procedure in the Rules.

Lastly, Atty. Santos denied that he was the one who has hard

feelings against respondent. Instead, he claimed that it is a matter of record, in the Order resolving the Motion for Voluntary Inhibition in Crim. Case Nos. 04-430 and 04-572, that the latter branded him as somebody he could not “co-exist with … in the quest for a just and equitable administration of justice.” Atty. Santos alleged that respondent even furnished the Executive Judge of Bulacan with a copy of the Order to broadcast that he is a difficult lawyer to deal with. He emphasized that this administrative complaint is not about his client in Crim. Case No. 04-572 but is concerned with the injustice committed by respondent when he willingly and deliberately violated established rules and legal doctrines just so complainants would suffer undue injury by being tried for a fabricated case of Grave Coercion.

Parrying the supplementary allegations, on the other hand,

respondent countered in his Rejoinder that it is unfair for complainants to conclude, much more insinuate, that his wife has something to do with any impropriety by her mere presence in the chamber. He reiterated that her company is necessitated by his health condition and that, anyway, she also has her own business to attend to – that of managing the family inheritance of leased premises in the nearby town of Pandi, Bulacan, and actively engaging herself in an independent business concern, held not in MTC-Bocaue, which is the large-scale trading of

electric transformers, metal scraps and heavy equipment entrusted to her by her uncles and close relatives.

As to the charge of frequent delay of court sessions, respondent stated that he has been always present and ready to begin the proceedings but it is the desire of most lawyers to start at 2:00 p.m., more or less, because most of them, including the public prosecutor and the PAO lawyer, come from RTC hearings and even all the way from Malolos City. To compensate for the lost time, however, he averred that court sessions adjourn even up to 6:30 p.m. so that all cases may be accommodated.

Respondent clarified that when he signed the affidavits of Dr.

Yanga and her witnesses it was only for the purpose of administering the oath of the person filing the criminal complaint. He posited that the proper rule that must be applied is not Sec. 3 (a), Rule 112, which refers to the procedure in preliminary investigation, but Sec. 3, Rule 110[5] on the institution of criminal actions providing that the complaint must be subscribed by the offended party, any peace officer, or other public officer charged with the enforcement of the law violated. Further, while respondent conceded that there was really no TSN available because no hearing was held he asserted that under Sec. 9 (b) of Rule 112 a judge is authorized to just personally evaluate the evidence before him to find probable cause instead of personally examining in writing and under oath the complainant and his witnesses in the form of searching questions and answers. Finally, respondent firmly held on to his position that Grave Coercion is not one of the crimes requiring preliminary investigation since the minimum penalty imposable for said offense is six months and one day.

On February 20, 2007, the Office of the Court Administrator

(OCA) found respondent administratively liable for gross ignorance of the law, and recommended the imposition of a fine in the amount of P20,000 considering this is his first time to be sanctioned for a serious charge. In its Report, the OCA stated:

Whether of not there is a need for

preliminary investigation under Section 1 in relation to Section 9 of Rule 112 of the Revised Rules on Criminal Procedure depends upon the maximum imposable penalty for the crime charged in the complaint filed with the City Prosecutor’s Office and not upon the imposable penalty for the crime found to have been committed by respondent.

In San Agustin v. People, the Court held:

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“However, we do not agree with the ruling of the Court of Appeals that there was no need for the City Prosecutor to conduct a preliminary investigation since the crime charged under the Information filed with the MeTC was arbitrary detention under Article 124, paragraph 1 of the Revised Penal Code punishable by arresto mayor in its maximum period to prision correccional in its minimum period, which has a range of four months and one day to two years and four months. Whether or not there is a need for a preliminary investigation under Section 1 in relation to Section 9 [now Section 8] of Rule 112 of the Revised Rules of Criminal Procedure depends upon the imposable penalty for the crime charged in the complaint filed with the City or Provincial Prosecutor’s Office and not upon the imposable penalty for the crime found to have been committed by the respondent after a preliminary investigation. In this case, the crime charged in the complaint of the NBI filed in the Department of Justice was kidnapping/serious illegal detention, the imposable penalty for which is reclusion perpetua to death.”

The maximum imposable penalty for grave coercion is six years imprisonment and such entitled the accused to their right to a preliminary investigation to save them from the rigors of trials in case no probable cause exists to warrant the filing of the criminal complaint or information against them.

Respondent Judge should have remanded the case to the public prosecutor for the purposes of preliminary investigation. [The Supreme] Court in a catena of cases held:

“The absence of

preliminary investigation does not affect the court’s jurisdiction over the case. Nor do they impair the validity of the information or otherwise render it defective, but if there were no preliminary investigation and the defendants, before entering their plea, invite the attention of the court to their absence, the court instead of dismissing the information, should conduct such investigation, order the fiscal to conduct it or remand the case to the inferior court so that preliminary investigation may be conducted.”

The issue raised by complainant does not pertain to an error of judgment or to one pertaining to the exercise of sound discretion by respondent. Rather, the issue is whether respondent complied with the procedural rules so elementary that to digress from them amounts to ignorance of the law. Since the rules on preliminary investigation are basic and clearly expressed in the Revised Rules of Criminal Procedure, respondent’s actuation in denying the same is deemed to have been attended by gross ignorance of the law and procedure. [The Supreme] Court has consistently held that lack of conversance with legal principles sufficiently basic and elementary constitutes gross ignorance of the law. As an advocate of justice and a visible representation of the law, a judge is expected to be proficient in the interpretation of our laws. Respondent clearly strayed from the well-trodden path when he grossly misapplied the Revised Rules of Criminal Procedure. (Citations omitted)

As regards the other charges, the OCA dismissed them for complainants’ failure to adduce sufficient evidence to substantiate the allegations.

The Report and Recommendation of the OCA are sustained. There is no merit in respondent’s supposition that Grave

Coercion is an offense not subject to preliminary investigation because the minimum penalty imposable for the said offense, which is six months and one day, falls short of the minimum penalty of four years, two months and one day required by the Rules. The OCA correctly applied San Agustin v. People.[6] Certainly, the need for a preliminary investigation under Sec. 1 in relation to Sec. 8 of Rule 112 of the Rules depends upon the imposable penalty for the crime charged in the complaint or information filed and not upon the imposable penalty for the offense which may be found to have been committed by the accused after a preliminary investigation. In the case of Grave Coercion, the Revised Penal Code provides a penalty of prision correccional or anywhere between six months and one day to six years; thus, a preliminary investigation must still be held since there is a possibility that the complainants would stand to suffer the maximum penalty imposable for the offense. The purpose of a preliminary investigation is to protect the innocent from hasty, malicious and oppressive prosecutions, from an unnecessary open and public accusation of a crime, and from the trouble, expense and anxiety of a trial. It also protects the State from a useless and expensive litigation. Above all, it is a part of the guarantees of freedom and fair play.[7]

Notably, however, by the time the criminal complaint of Dr.

Yanga against herein complainants was filed on January 3, 2006, respondent was already without authority to conduct preliminary investigation since effective October 3, 2005, judges of Municipal Trial Courts and Municipal Circuit Trial Courts are no longer authorized to conduct the same, pursuant to A.M. No. 05-8-26-SC (Re: Amendment of Rules 112 and 114 of the Revised Rules on Criminal Procedure by Removing the Conduct of Preliminary Investigation from Judges of the First Level Courts).[8] The appropriate action of respondent, therefore, should have been to immediately refer the complaint to the Office of the Provincial Prosecutor of Bulacan so that a preliminary investigation could proceed with reasonable dispatch. His issuance of a subpoena directing complainants to appear before the court on January 12, 2006 for a “preliminary hearing,” although the hearing did not materialize after his voluntary inhibition from the case on January 10, 2006, was definitely out of order. At this point, it is clear that respondent committed gross ignorance of an existing procedure which is basic and elementary.

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Meanwhile, as to the impropriety purportedly committed by respondent in his own chamber, the OCA rightly found that complainants failed to provide specific details that would validate any misuse or abuse of government funds and/or facilities. Nonetheless, it is opportune to remind respondent as well as other trial court judges, who are the “front-liners” in the promotion of the people's faith in the judiciary, of the directives embodied in the following administrative circulars:

1. Administrative Circular (A.C.) No. 3-92 (Prohibition against Use of Halls of Justice for Residential or Commercial Purposes)[9] – All judges and court personnel are reminded that the Halls of Justice may be used only for purposes directly related to the functioning and operation of the courts of justice, and may not be devoted to any other use, least of all as residential quarters of the judges or court personnel, or for carrying on therein any trade or profession. Attention is drawn to this Court’s ruling in A.M. No. RTJ-89-327 (Nellie Kelly Austria v. Judge Singuat Guerra) whereby we declared that the use of the court’s premises inevitably degrades the honor and dignity of the court in addition to exposing judicial records to danger of loss or damage.

2. A.C. No. 01-99 (Enhancing the Dignity of Courts as Temples of Justice and Promoting Respect for their Official and Employees)[10] – Considering the courts as temples of justice, their dignity and sanctity must, at all times, be preserved and enhanced. In inspiring public respect for the justice system, court officials and employees are directed, among others, never to use their offices as a residence or for any other purpose than for court or judicial functions.

3. A.C. No. 09-99 (Banning Smoking and Selling of Goods within Court Houses and Offices)[11] – Conformably with A.C. No. 01-99, this circular disallowed, among others, within court houses and, more specifically, session halls and offices of court officials and personnel, the selling of goods of any kind, especially by persons who are not court employees.

In fine, as the New Code of Judicial Conduct for the Philippine

Judiciary[12] mandates, judges should avoid impropriety and the appearance of impropriety in all of their activities. They should not use or lend the prestige of the judicial office to advance their private

interests, or those of a member of their family or of anyone else, nor shall they convey or permit others to convey the impression that anyone is in a special position improperly to influence them in the performance of judicial duties.[13]

WHEREFORE, respondent Judge LAURO BERNARDO,

MTC, Bocaue, Bulacan, is found GUILTY of gross ignorance of the law and basic rules of procedure and is hereby FINED in the amount of P20,000, with a STERN WARNING that a repetition of the same or similar act in the future shall be dealt with more severely.

Let a copy of this Decision be attached to the personnel record

of respondent in the Office of the Administrative Services, Office of the Court Administrator.

SO ORDERED.

WINSTON MENDOZA and FE MICLAT, vs.FERNANDO ALARMA and FAUSTA ALARMA, G.R. No. 151970 May 7, 2008

D E C I S I O NCARPIO, J.:The Case

Before the Court is a petition for review on certiorari1 assailing the Decision2 dated 9 July 2001 and Resolution3 dated 30 January 2002 of the Court of Appeals in CA-G.R. CV No. 58139.The FactsSpouses Fernando and Fausta Alarma (respondents) are the owners of an 11.7 hectare parcel of land (land) located in Iba, Zambales. The land, identified as Cadastral Lot No. 2087 of Iba Cadastre, was posted as a property bond for the provisional liberty of a certain Joselito Mayo, charged with illegal possession of firearms in Criminal Case No. 1417-I, entitled "People of the Philippines v. Gregorio Cayan, et al." When the accused failed to appear in court as directed on 19 March 1984, the trial court ordered his arrest and the confiscation of his bail bond in favor of the government. It also directed the bondsmen to produce within a period of 30 days the person of the accused and to show cause why judgment should not be entered against the bail bond. However, without a judgment being rendered against the bondsmen, the trial court issued a writ of execution against the land in an Order dated 14 April 1986.4 The land was eventually sold at public auction and petitioners Winston Mendoza and Fe Miclat emerged as the highest bidders. Thus, the land was awarded to petitioners and they immediately took possession of the same. Sometime thereafter, respondents filed a complaint for recovery of property against petitioners with the Regional Trial Court of Iba, Zambales, Branch 70,5 grounded on the nullity of the entire proceedings relating to the property bond. During the pre-trial conducted on 3 May 1988, the parties agreed that the property would be placed in the possession of respondents. On 2 August 1989, the court rendered its decision dismissing the complaint and declaring that the Order dated 14 April 1986 was a judgment on the bond. On appeal, the appellate court reversed the decision of the trial court and nullified the proceedings on the execution, sale, and issuance of the writ of possession.6 Thereafter, petitioners filed a petition for review on certiorari with this Court, docketed as G.R. No. 101103 and entitled "Winston Mendoza, et al. v. Court of Appeals, et al." In a Resolution dated 18 March 1992, this Court denied the petition and ruled with finality that the assailed 14 April 1986 Order was not a judgment on the bond.7 Meanwhile, petitioners applied for the registration of the land with the Regional Trial Court of Iba, Zambales, Branch 70.8 On 9 September 1987, the trial court granted the registration and issued Original Certificate of Title (OCT) No. O-7249 in the name of petitioners. The Trial Court’s RulingRespondents then filed an action for the annulment of title and reconveyance of ownership of the land covered by OCT No. O-7249 with the Regional Trial Court of Iba, Zambales, Branch 71.9 On 24 September 1997, the trial court dismissed the action contending that it had no jurisdiction to annul the judgment rendered by the Regional Trial Court of

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Iba, Zambales, Branch 70, a co-equal court.10 The trial court declared further that since the issue of the case was the validity of OCT No. O-7249, the case should have been filed with the Court of Appeals which has exclusive original jurisdiction over annulment of judgments of a Regional Trial Court.The Ruling of the Court of AppealsRespondents filed an appeal with the Court of Appeals which reversed the findings of the trial court and annulled OCT No. O-7249.11 The appellate court also ordered that a new title over the property be issued in the name of respondents. Petitioners filed a Motion for Reconsideration which the appellate court denied in a Resolution dated 30 January 2002.Hence, this petition.The IssueThe sole issue for our resolution is whether the Court of Appeals erred in finding a defect in the proceedings and in ordering the annulment of OCT No. O-7249. Petitioners contend that even if the execution proceedings were nullified, they were not privy to the irregularities of the auction sale. Thus, as buyers in good faith, they must be protected by the law. Respondents, on the other hand, maintain that the basis for the acquisition of the land and the issuance of title over it had already been declared void by this Court in G.R. No. 101103. Thus, petitioners cannot now claim good faith. With no valid title to the land, petitioners must reconvey the land to respondents.The Court’s RulingThe petition lacks merit. Section 21, Rule 114 of the Revised Rules on Criminal Procedure states:

SEC. 21. — Forfeiture of bail. When the presence of the accused is required by the court or these Rules, his bondsmen shall be notified to produce him before the court on a given date and time. If the accused fails to appear in person as required, his bail shall be declared forfeited and the bondsmen given thirty (30) days within which to produce their principal and to show cause why no judgment should be rendered against them for the amount of their bail. Within the said period, the bondsmen must:

(a) produce the body of their principal or give the reason for his non-production; and(b) explain why the accused did not appear before the court when first required to do so.

Failing in these two requisites, a judgment shall be rendered against the bondsmen, jointly and severally, for the amount of the bail. The court shall not reduce or otherwise mitigate the liability of the bondsmen, unless the accused has been surrendered or is acquitted.

The provision clearly provides for the procedure to be followed before a bail bond may be forfeited and a judgment on the bond rendered against the surety. In Reliance Surety & Insurance Co., Inc. v. Amante, Jr.,12 we outlined the two occasions upon which the trial court judge may rule adversely against the bondsmen in cases when the accused fails to appear in court. First, the non-appearance by the accused is cause for the judge to summarily declare the bond as forfeited. Second, the bondsmen, after the summary forfeiture of the bond, are given 30 days within which to produce the principal and to show cause why a judgment should not be rendered against them for the amount of the bond. It is only after this 30-day period, during which the bondsmen are afforded the opportunity to be heard by the trial court, that the trial court may render a judgment on the bond against the bondsmen. Judgment against the bondsmen cannot be entered unless such judgment is preceded by the order of forfeiture and an opportunity given to the bondsmen to produce the accused or to adduce satisfactory reason for their inability to do so.13

In the present case, it is undisputed that the accused failed to appear in person before the court and that the trial court declared his bail forfeited. The trial court gave the bondsmen, respondents in this case, a 30-day period to produce the accused or a reasonable explanation for their non-production. However, two years had passed from the time the court ordered the forfeiture and still no judgment had been rendered against the bondsmen for the amount of the bail. Instead, an order of execution was issued and the property was put up for sale and awarded to petitioners, the highest bidders. These turn of events distinctly show that there was a failure of due process of law. The execution was issued, not on a judgment, because there was none, but simply and solely on the declaration of forfeiture. An order of forfeiture of the bail bond is conditional and interlocutory, there being something more to be done such as the production of the accused within 30 days. This process is also called confiscation of bond. In People v. Dizon,14 we held that an order of forfeiture is interlocutory and merely requires appellant "to show cause why judgment should not be rendered against it for the amount of the bond." Such order is different from a judgment on the bond which is issued if the accused was not produced within the 30-day period. The judgment on the bond is the one that ultimately determines the liability of the surety, and when it becomes final, execution may issue at once.15 However, in this case, no such judgment was ever issued and neither has an amount been fixed for which the bondsmen may be held liable. The law was not strictly observed and this violated respondents’ right to procedural due process. In addition, we find that the issue of good faith in buying the property at the auction sale is no longer material. This Court in a previous case had already ruled upon the invalidity of the execution and sale of the land. As a result, the basis for which title to the land had been issued has no more leg to stand on. The appellate court, therefore, was correct in

ordering the annulment of the title to the land as a matter of course. There being no valid title nor any right to possess the land, reconveyance to the respondents is only proper under the circumstances.WHEREFORE, we DENY the petition. We AFFIRM the 9 July 2001 Decision and 30 January 2002 Resolution of the Court of Appeals in CA-G.R. CV No. 58139.SO ORDERED.

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

D E C I S I O N

TINGA, J.:

Petitioners filed this case assailing the Decision1 of the Court of Appeals in CA-G.R. CEB SP No. 00397 dated 17 August 2006 which affirmed the Orders2 of the Regional Trial Court (RTC) of Cebu City, Branch 19 restraining Branches 2 and 5 of the Municipal Trial Court in Cities (MTCC) of Cebu City from proceeding with the criminal cases for violation of Batas Pambansa Bilang 22 (B.P. Blg. 22) filed against respondent Purita Suarez.

The facts of the case follow.

Respondents, spouses Laureano and Purita Suarez, had availed of petitioner Carolina Jose’s (Carolina) offer to lend money at the daily interest rate of 1% to 2%. However, Carolina and her husband, petitioner Reynaldo Jose, later on increased the interest to 5% per day, which respondents were forced to accept because they allegedly had no other option left. It then became a practice that petitioners would give the loaned money to Purita and the latter would deposit the same in her and her husband’s account to cover the maturing postdated checks they had previously issued in payment of their other loans. Purita would then issue checks in favor of petitioners in payment of the amount borrowed from them with the agreed 5% daily interest.

17

On 7 May 2004, respondents filed a Complaint3 against petitioners seeking the declaration of "nullity of interest of 5% per day, fixing of interest, recovery of interest payments"4 and the issuance of a writ of preliminary injunction, alleging that the interest rate of 5% a day is iniquitous, contrary to morals, done under vitiated consent and imposed using undue influence by taking improper advantage of their financial distress. They claimed that due to serious liquidity problems, they were forced to rely on borrowings from banks and individual lenders, including petitioners, and that they had to scramble for funds to cover the maturing postdated checks they issued to cover their other borrowings. In their prayer, respondents stated:

WHEREFORE, it is prayed that upon the filing of the instant case and in accordance with the 1997 Rules on Civil Procedure[,] a writ of preliminary injunction or at least a temporary restraining order be issued restraining defendant from enforcing the checks as listed in Annex "E" including the filing of criminal cases for violation of B.P. [Blg.] 22 and restraining defendants from entering plaintiffs’ store and premises to get cash sales and other items against plaintiffs will [sic] under such terms and conditions as this Court may affix.5

Thereafter, at the instance of Carolina, several cases for violation of B.P. Blg. 226 were filed against respondent Purita before the MTCC of Cebu City, Branches 2 and 5. Purita, in turn filed motions to suspend the criminal proceedings on the ground of prejudicial question, on the theory that the checks subject of the B.P. Blg. 22 cases are void for being contra bonos mores or for having been issued in payment of the iniquitous and unconscionable interest imposed by petitioners. The motions were denied.7

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

Petitioners elevated the case to the Court of Appeals11 and questioned the propriety of the RTC’s issuance of a preliminary injunction based on a prejudicial question. The appellate court stated that respondents had sought to annul the checks for being void pursuant to Article 1422 of the Civil Code which provides that "a contract which is the direct result of a previous illegal contract, is also void and inexistent." Accordingly, the

appellate court concluded that if the checks subject of the criminal cases were later on declared null and void, then said checks could not be made the bases of criminal prosecutions under B.P. Blg. 22. In other words, the outcome of the determination of the validity of the said checks is determinative of guilt or innocence of Purita in the criminal case.12

The appellate court also observed that respondents’ resort to an application for preliminary injunction could not be considered as forum shopping since it is the only remedy available to them considering the express proscription of filing a petition for certiorari against interlocutory orders issued in cases under B.P. Blg. 22 which are governed by the rules on summary procedure.13

Before us, petitioners submit that because under Section 6, Rule 111 of the Rules on Criminal Procedure a petition to suspend proceedings on the ground of prejudicial question should be filed in the same criminal action, the RTC has no jurisdiction to issue the writ of preliminary injunction as it is not the court where the B.P. Blg. 22 cases were filed. Moreover, they argue that respondents are guilty of forum shopping because after the denial of their motion to suspend the proceedings before Branches 2 and 5 of the MTCC, they resorted to the filing of a motion for preliminary injunction before the RTC also on the ground of prejudicial question; therefore, they succeeded in getting the relief in one forum (RTC) which they had failed to obtain in the first forum (MTCCs). Likewise, petitioners claim that the Court of Appeals erred in holding that the civil case poses a prejudicial question to the B.P. Blg. 22 cases, thus resulting in the erroneous suspension of the proceedings the latter cases. Finally, petitioners posit that the RTC erred in issuing the preliminary injunction because respondents have no clear and unmistakable right to its issuance.14

Respondents, for their part, state that the possibility of a ruling in the civil case to the effect that the subject checks are contra bonos mores and hence null and void constitutes a prejudicial question in the B.P. Blg. 22 cases. Thus, proceeding with the trial in the criminal cases without awaiting the outcome of the civil case is fraught with mischievous consequences.15 They cite the case of Medel v. Court of Appeals,16 wherein the Court nullified the interest rate of 5.5% per month for being contra bonos mores under Article 1306 of the Civil Code, and recomputed the interest due at the rate of 1% per month.17 Thus, if their loans are computed at 1% per month, it would mean that the checks subject of the B.P. Blg. 22 cases are not only fully paid but are also in fact overpaid. They also invoke the case of Danao v. Court of Appeals18 wherein the Court allegedly ruled that there is no violation of B.P. Blg. 22 if the dishonored checks have been paid.19 They claim that since the 5% interest per day was not contained in any written agreement, per

Article 195620 of the Civil Code, petitioners are bound to return the total interest they collected from respondents. Respondents point out that they incorporated in their complaint an application for preliminary injunction and temporary restraining order to restrain Carolina from enforcing the interest and from filing criminal cases for violation of B.P. Blg. 22. Quoting the RTC, respondents explain:

Since there was no proof at that time that plaintiff sustain or are about to sustain damages or prejudice if the acts complained of are not enjoined, the application was not acted upon by the Court. When the attention of the Court was invited by the plaintiffs of the refusal of the MTC, Branches 2 and 5, to suspend the criminal proceedings despite being appraised of the pendency of this case, the Court has to act accordingly.21

Respondents maintain that they are not guilty of forum shopping because after the denial by the MTCCs of their motion to suspend proceedings, their only available remedy was the filing of an application for preliminary injunction in the existing civil case filed earlier than the B.P. Blg. 22 cases. In any case, respondents argue that the rule on forum shopping is not intended to deprive a party to a case of a legitimate remedy.22 Finally, they claim that the case falls under the exceptions to the rule that the prosecution of criminal cases may not be enjoined by a writ of injunction, considering that in this case there is a prejudicial question which is sub judice, and that there is persecution rather than prosecution.23

The case hinges on the determination of whether there exists a prejudicial question which necessitates the suspension of the proceedings in the MTCCs.

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

A prejudicial question generally comes into play in a situation where a civil action and a criminal action are both pending and there exists in the former an issue which must be preemptively resolved before the latter may proceed, because howsoever the issue raised in the civil action is resolved would be determinative juris et de jure of the guilt or innocence of the accused in the criminal case. The rationale behind the principle of prejudicial question is to avoid two conflicting decisions. It has two essential elements: (i) the civil action involves an issue similar or intimately related to the issue raised in the criminal action; and (ii) the resolution of such issue determines whether or not the criminal action may proceed.24

Now the prejudicial question posed by respondents is simply this: whether the daily interest rate of 5% is void, such that the checks issued

18

by respondents to cover said interest are likewise void for being contra bonos mores, and thus the cases for B.P. Blg. 22 will no longer prosper.

The prejudicial question theory advanced by respondents must fail.

In the first place, the validity or invalidity of the interest rate is not determinative of the guilt of respondents in the criminal cases. The Court has consistently declared that the cause or reason for the issuance of a check is inconsequential in determining criminal culpability under B.P. Blg. 22.25 In several instances, we have held that what the law punishes is the issuance of a bouncing check and not the purpose for which it was issued or the terms and conditions relating to its issuance; and that the mere act of issuing a worthless check is malum prohibitum provided the other elements of the offense are properly proved.26

The nature and policy of B.P. Blg. 22 were aptly enunciated by the Court in Meriz v. People,27 when it stated:

x x x. [B.P. Blg.] 22 does not appear to concern itself with what might actually be envisioned by the parties, its primordial intention being to instead ensure the stability and commercial value of checks as being virtual substitutes for currency. It is a policy that can easily be eroded if one has yet to determine the reason for which checks are issued, or the terms and conditions for their issuance, before an appropriate application of the legislative enactment can be made. The gravamen of the offense under [B.P. Blg.] 22 is the act of making or issuing a worthless check or a check that is dishonored upon presentment for payment. The act effectively declares the offense to be one of malum prohibitum. The only valid query then is whether the law has been breached, i.e., by the mere act of issuing a bad check, without so much regard as to the criminal intent of the issuer.28

Thus, whether or not the interest rate imposed by petitioners is eventually declared void for being contra bonos mores will not affect the outcome of the B.P. Blg. 22 cases because what will ultimately be penalized is the mere issuance of bouncing checks. In fact, the primordial question posed before the court hearing the B.P. Blg. 22 cases is whether the law has been breached, that is, if a bouncing check has been issued.

The issue has in fact been correctly addressed by the MTCCs when respondents’ motion to suspend the criminal proceedings was denied upon the finding that there exists no prejudicial question which could be the basis for the suspension of the proceedings. The reason for the denial of the motion is that the "cases can very well proceed for the prosecution of the accused in order to determine her criminal propensity … as a consequence of the issuance of several checks which

subsequently … bounced" for "what the law punishes is the issuance and/or drawing of a check and upon presentment for deposit or encashment, it was dishonored due to insufficient funds [or] account closed." 29

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

Now, on to other matters.

We find that respondents are guilty of forum shopping. There is forum shopping when a party seeks to obtain remedies in an action in one court, which had already been solicited, and in other courts and other proceedings in other tribunals. Forum shopping is the act of one party against another, when an adverse judgment has been rendered in one forum, of seeking another and possibly favorable opinion in another forum other than by appeal or by special civil action of certiorari; or the institution of two or more acts or proceedings grounded on the same cause on the supposition that one or the other court would make a favorable disposition.30

Respondents filed their motions to suspend proceedings in the MTCCs hearing the B.P. Blg. 22 cases but unfortunately, the same were denied. Failing to get the relief they wanted, respondents sought before the RTC, the suspension of the criminal proceedings which was granted. Respondents tried to extricate themselves from the charge of forum shopping by explaining that after the denial of their motions to suspend, their only remedy was the application for preliminary injunction in the civil case—a relief which they had already asked for in their complaint and which was also initially not granted to them. Any which way the situation is viewed, respondents’ acts constituted forum shopping since they sought a possibly favorable opinion from one court after another had issued an order unfavorable to them.

The Court notes that three cases, namely, Ras v. Rasul,31 Medel v. CA32 and Danao v. Court of Appeals33—finding no application to the instant case—were mentioned by the RTC, the Court of Appeals and by respondents themselves in support of their position.

Ras v. Rasul cropped up in the order of the RTC which was quoted with approval by the Court of Appeals. According to the RTC, the ruling in the said case allegedly "can be squarely applied in this case which nullified and set aside the conviction in a criminal case because of a prejudicial question."34 We do not agree. The Ras case involves a petition for nullification of a deed of sale on the ground of forgery. While the civil case was pending, an information for estafa was filed against the

respondent in the civil case. The Court ruled that there were prejudicial questions considering that the defense against the charge of forgery in the civil case is based on the very same facts which would be determinative of the guilt or innocence of the respondent in the estafa case. The instant case is different from Ras inasmuch as the determination of whether the 5% daily interest is contra bonos mores and therefore void, or that the total amount loaned from petitioners has been sufficiently paid, will not affect the guilt or innocence of Purita because the material question in the B.P. Blg. 22 cases is whether Purita had issued a bad check, regardless of the purpose or condition of its issuance.

Medel v. CA is the case upon which respondents anchor their claim that the interest due on their loans is only 1% per month and thus they have already overpaid their obligation to petitioners. In Medel, the Court declared that the rate of 5.5% interest per month on a P500,000.00 loan is iniquitous, unconscionable and hence contrary to morals, and must equitably be reduced to 12% per annum. While the Medel case made a finding that the stipulated interest rate is excessive and thus may be equitably reduced by the courts, we do not see how a reduction of the interest rate, should there be any, or a subsequent declaration that the amount due has been fully paid, will have an effect on the determination of whether or not Purita had in fact issued bouncing checks.

Meanwhile, respondents misunderstood our ruling in Danao v. Court of Appeals, which they claim to have ruled that there could be no violation of B.P. Blg. 22 if the dishonored checks have been paid. In Danao, the accused was convicted by the trial court for having issued two checks which eventually bounced. The Court found that there was no proof of receipt by the accused of any notice of nonpayment of the checks, and thus there was no way of determining when the five-day period prescribed in Section 2 of B.P. Blg. 22 would start and end. Thus, the presumption or prima facie evidence of knowledge of the insufficiency of funds or credit at the time of the issuance of the checks did not arise. While there was a finding that the accused had already paid her obligations prior to receipt of the complainant’s demand letter,35 there was no declaration from the Court that such payment exonerated accused from liability for having issued bouncing checks. Instead, accused was acquitted due to insufficiency of evidence, and not because she had paid the amount covered by the dishonored checks36 or that the obligation was deemed paid.

WHEREFORE, the petition is GRANTED. The impugned Decision of the Court of Appeals dated 17 August 2006 and its Resolution dated 27 February 2007, in CA-G.R. CEB-SP No. 00397, are SET ASIDE. The preliminary injunction issued by the Regional Trial Court of Cebu City, Branch 19 in its Order dated 20 December 2004 in Civil Case No. CEB-

19

30278 enjoining the proceedings in the criminal cases for violation of B.P. Blg. 22 is LIFTED AND SET ASIDE and the MTCC of Cebu City, Branches 2 and 5 are ORDERED to proceed with dispatch with the arraignment and trial in the B.P. Blg. 22 cases pending before them.

SO ORDERED.

GALO MONGEvs.PEOPLE OF THE PHILIPPINESG.R. No. 170308 March 7, 2008

R E S O L U T I O NTINGA, J.:This is a Petition for Review1 under Rule 45 of the Rules of Court whereby petitioner Galo Monge (petitioner) assails the Decision2 of the Court of Appeals dated 28 June 2005 which affirmed his conviction as well as the discharge of accused Edgar Potencio (Potencio) as a state witness.The factual antecedents follow. On 20 July 1994, petitioner and Potencio were found by barangay tanods Serdan and Molina in possession of and transporting three (3) pieces of mahogany lumber in Barangay Santo Domingo, Iriga City. Right there and then, the tanods demanded that they be shown the requisite permit and/or authority from the Department of Environment and Natural Resources (DENR) but neither petitioner nor Potencio was able to produce any.3 Petitioner fled the scene in that instant whereas Potencio was brought to the police station for interrogation, and thereafter, to the DENR-Community Environment and Natural Resources Office (DENR-CENRO).4 The DENR-CENRO issued a seizure receipt for the three pieces of lumber indicating that the items, totaling 77 board feet of mahogany valued at P1,925.00, had been seized from Potencio.5 Later on, petitioner was arrested, but Potencio’s whereabouts had been unknown since the time of the seizure6 until he surfaced on 3 January 1998.7

An information was filed with the Regional Trial Court of Iriga City, Branch 35 charging petitioner and Potencio with violation of Section 688

of Presidential Decree (P.D.) No. 705,9 as amended by Executive Order

(E.O.) No. 277, series of 1997. The inculpatory portion of the information reads:

That on or about the 20th day of [July 1994], at about 9:30 o’clock in the morning, in Barangay Sto. Domingo, Iriga City, Philippines and within the jurisdiction of this Honorable Court, the above-named accused, conspiring, confederating with each other, without any authority of law, nor armed with necessary permit/license or other documents, with intent to gain, did then and there willfully, unlawfully and feloniously, transport and have in their possession three (3) pieces of Mahogany of assorted [dimension] with a[n] appropriate volume of seventy-seven (77) board feet or point eighteen (0.18) cubic meter with a total market value of P1,925.00, Philippine currency, to the damage and prejudice of the DENR in the aforesaid amount.CONTRARY TO LAW.10

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

Trial ensued. On 17 June 1997, Serdan testified on the circumstances of the apprehension but for failing to appear in court for cross examination, his testimony was stricken out.12 On 16 January 1998, Potencio was discharged to be used as a state witness on motion of the prosecutor.13

Accordingly, he testified on the circumstances of the arrest but claimed that for a promised fee he was merely requested by petitioner, the owner of the log, to assist him in hauling the same down from the mountain. Potencio’s testimony was materially corroborated by Molina.14 Petitioner did not contest the allegations, except that it was not he but Potencio who owned the lumber. He lamented that contrary to what Potencio had stated in court, it was the latter who hired him to bring the log from the site to the sawmill where the same was to be sawn into pieces.15

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

Aggrieved, petitioner elevated the case to the Court of Appeals where he challenged the discharge of Potencio as a state witness on the ground that the latter was not the least guilty of the offense and that there was no absolute necessity for his testimony.17 The appellate court dismissed this challenge and affirmed the findings of the trial court. However, it modified the penalty to an indeterminate prison sentence of six (6) years of prision correccional as minimum to ten (10) years and eight (8) months of prision mayor as maximum.18 His motion for reconsideration was denied, hence the present appeal whereby petitioner reiterates his challenge against the discharge of Potencio.The petition is utterly unmeritorious.Petitioner and Potencio were caught in flagrante delicto transporting, and thus in possession of, processed mahogany lumber without proper

authority from the DENR. Petitioner has never denied this fact. But in his attempt to exonerate himself from liability, he claims that it was Potencio, the owner of the lumber, who requested his assistance in hauling the log down from the mountain and in transporting the same to the sawmill for processing. The contention is unavailing.Section 68 of P.D. No. 705, as amended by E.O. No. 277, criminalizes two distinct and separate offenses, namely: (a) the cutting, gathering, collecting and removing of timber or other forest products from any forest land, or timber from alienable or disposable public land, or from private land without any authority; and (b) the possession of timber or other forest products without the legal documents required under existing laws and regulations.19 DENR Administrative Order No. 59 series of 1993 specifies the documents required for the transport of timber and other forest products. Section 3 thereof materially requires that the transport of lumber be accompanied by a certificate of lumber origin duly issued by the DENR-CENRO. In the first offense, the legality of the acts of cutting, gathering, collecting or removing timber or other forest products may be proven by the authorization duly issued by the DENR. In the second offense, however, it is immaterial whether or not the cutting, gathering, collecting and removal of forest products are legal precisely because mere possession of forest products without the requisite documents consummates the crime.20

It is thus clear that the fact of possession by petitioner and Potencio of the subject mahogany lumber and their subsequent failure to produce the requisite legal documents, taken together, has already given rise to criminal liability under Section 68 of P.D. No. 705, particularly the second act punished thereunder. The direct and affirmative testimony of Molina and Potencio as a state witness on the circumstances surrounding the apprehension well establishes petitioner’s liability. Petitioner cannot take refuge in his denial of ownership over the pieces of lumber found in his possession nor in his claim that his help was merely solicited by Potencio to provide the latter assistance in transporting the said lumber. P.D. No. 705 is a special penal statute that punishes acts essentially malum prohibitum. As such, in prosecutions under its provisions, claims of good faith are by no means reliable as defenses because the offense is complete and criminal liability attaches once the prohibited acts are committed.21 In other words, mere possession of timber or other forest products without the proper legal documents, even absent malice or criminal intent, is illegal.22 It would therefore make no difference at all whether it was petitioner himself or Potencio who owned the subject pieces of lumber.Considering the overwhelming body of evidence pointing to nothing less than petitioner’s guilt of the offense charged, there is no cogent reason to reverse his conviction.Petitioner’s challenge against Potencio’s discharge as a state witness must also fail. Not a few cases established the doctrine that the discharge of an accused so he may turn state witness is left to the

20

exercise of the trial court’s sound discretion23 limited only by the requirements set forth in Section 17,24 Rule 119 of the Rules of Court. Thus, whether the accused offered to be discharged appears to be the least guilty and whether there is objectively an absolute necessity for his testimony are questions that lie within the domain of the trial court, it being competent to resolve issues of fact. The discretionary judgment of the trial court with respect this highly factual issue is not to be interfered with by the appellate courts except in case of grave abuse of discretion.25 No such grave abuse is present in this case. Suffice it to say that issues relative to the discharge of an accused must be raised in the trial court as they cannot be addressed for the first time on appeal.26

Moreover and more importantly, an order discharging an accused from the information in order that he may testify for the prosecution has the effect of an acquittal.27 Once the discharge is ordered by the trial court, any future development showing that any or all of the conditions provided in Section 17, Rule 119 have not actually been fulfilled will not affect the legal consequence of an acquittal.28 Any witting or unwitting error of the prosecution, therefore, in moving for the discharge and of the court in granting the motion—no question of jurisdiction being involved—will not deprive the discharged accused of the benefit of acquittal and of his right against double jeopardy. A contrary rule would certainly be unfair to the discharged accused because he would then be faulted for a failure attributable to the prosecutor. It is inconceivable that the rule has adopted the abhorrent legal policy of placing the fate of the discharged accused at the mercy of anyone who may handle the prosecution.29

Indeed, the only instance where the testimony of a discharged accused may be disregarded is when he deliberately fails to testify truthfully in court in accordance with his commitment,30 as provided for in Section 18, Rule 119. Potencio lived up to his commitment and for that reason, petitioner’s challenge against his discharge must be dismissed.WHEREFORE, the petition is DENIED and the assailed decision of the Court of Appeals is AFFIRMED.SO ORDERED.Carpio, Acting Chairperson, Carpio-Morales, Azcuna, Velasco, Jr., JJ., concur

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

D E C I S I O N

CHICO-NAZARIO, J.:

Before Us is a Petition for Review on Certiorari under Rule 45 of the Rules of Court which assails the Decision[1] dated 27 April 2006 of the Court of Appeals in CA-G.R. CR No. 27661 which affirmed the Decision[2] and the Order[3] of the Regional Trial Court (RTC) of Makati City, Branch 140, finding petitioner Ferdinand A. Cruz (Ferdinand) guilty beyond reasonable doubt of the crime of Qualified Theft.

On 10 July 1997, an Information was filed before the RTC of Makati City charging Ferdinand with Qualified Theft. The accusatory portion of the Information reads:That on or about the 25th day of October 1996, in the City of Makati, Metro Manila, Philippines, a place within the jurisdiction of this Honorable Court, the above-named accused, being then employed as Marketing Manager of Porta-Phone Rentals, Inc. with office address located at 3/F ENZO Bldg., Sen. Gil Puyat Avenue, Makati City, herein represented by Juanito M. Tan, Jr. and had access to the funds of the said corporation, with intent to gain and without the knowledge and consent of said corporation, with grave abuse of confidence, did then and there willfully, unlawfully and feloniously take, steal and carry away the amount of P15,000.00 belonging to said Porta-Phone Rentals, Inc., to the damage and prejudice of the latter in the aforesaid amount of P15,000.00.[4]

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

At the trial, the prosecution presented the following witnesses: (1) Juanito M. Tan, Jr., the General Manager of Porta-Phone Rentals, Inc. (Porta Phone) when the incident in question took place. He testified that Ferdinand appropriated for himself the amount of P15,000.00, an

amount which should have been remitted to the company; (2) Catherine Villamar (Catherine), the Credit and Collection Officer of Porta-Phone, who discovered that Ferdinand issued a receipt for P15,000.00 from Hemisphere-Leo Burnett (Hemisphere), and who also testified that Ferdinand misappropriated the amount for his own benefit and, when she confronted him, said he had unpaid reimbursements from the company; (3) Luningning Morando, the accounting supervisor of Porta-Phone, corroborated the alleged fact that Ferdinand received the amount and did not turn over the same to the company; and (4) Wilson J. So, Chief Executive Officer of Porta-Phone, who testified that meetings were held to demand from Ferdinand the subject sum of money.

As documentary evidence, the prosecution offered the following: Exhibit "A" - Official Receipt No. 2242, the receipt in which Ferdinand acknowledged that he received the amount of P15,000.00 from Hemisphere; Exhibit "B" - the Minutes of the Meeting held on 30 October 1996 attended by Wilson So, Juanito Tan, Luningning Morando and Ferdinand, wherein Wilson So asked Ferdinand the reason for the former's refusal to remit the P15,000.00 to the company, and Ferdinand answered that there was no need to turn over the said amount because he had outstanding reimbursements from the company in the amount of P8,518.08; Exhibit "C" - the Resignation Letter of Ferdinand; Exhibit "D" - the Inter-Office Demand Letter dated 7 November 1996, addressed to Ferdinand from Juanito M. Tan, Jr. requiring the former to return the amount of P15,000.00; Exhibit "E" - the Handwritten Explanation of Ferdinand dated 8 December 1996, that he remitted the amount to Luningning Morando; Exhibit "F"- Inter-Office Memorandum dated 8 November 1996, issued by Juanito Tan and addressed to Luningning Morando to explain her side regarding the allegation of Ferdinand that she received the P15,000.00; Exhibit "G"- Inter-Office Memorandum prepared by Luningning Morando dated 9 November 1996, denying the allegation that she received the amount of P15,000.00 from Ferdinand; Exhibit "H"- Inter-Office Memorandum dated 11 November 1996, issued by Juanito Tan for Ferdinand to further explain his side in light of Luningning Morando's denial that she received the amount. It also advised Ferdinand to wait for the verification and computation of his claim for reimbursements; Exhibit "I"- Formal Demand Letter dated 25 November 1996, addressed to Ferdinand and issued by the legal counsel of Porta-Phone Rentals, Inc., asking the former to return to the company the subject amount; Exhibit "J"- the Affidavit of Complaint executed by Juanito Tan against Ferdinand; Exhibit "K"- the Collection List dated 30 October 1996, showing that Ferdinand received from Hemisphere the amount of P15,000.00, and the same was not turned over to Catherine; Exhibit "L"- Reply-Affidavit dated 5 February 1997, executed by Juanito M. Tan, Jr.; Exhibit "M"- the Sur-Rejoinder Affidavit of Juanito M. Tan, Jr. dated 21 February 1997.

21

The collective evidence adduced by the prosecution shows that at around 5:30 p.m. of 25 October 1996, in the City of Makati, Ferdinand, who is a Marketing Manager of Porta-Phone, a domestic corporation engaged in the lease of cellular phones and other communication equipment, went to the office of Porta-Phone located on the third floor of Enzo Building, Senator Gil Puyat Avenue, and took hold of a pad of official receipts from the desk of Catherine, Porta-Phone's collection officer. With the pad of official receipts in his hands, Ferdinand proceeded to his client, Hemisphere, and delivered articles of communication equipment. Although he was not an authorized person to receive cash and issue receipts for Porta-Phone, Ferdinand received from Hemisphere the amount of P15,000.00 as refundable deposit for the aforesaid equipment. On 26 October 1996, Ferdinand went to Porta-Phone and returned the pad of receipts, but failed to deliver the cash he received from Hemisphere. On 28 October 1996, the next working day, Catherine checked the booklet of official receipts and found that one of the official receipts was missing. The green duplicate of the missing official receipt, however, showed that Ferdinand received the amount of P15,000.00 from Hemisphere. Upon learning of Ferdinand's receipt of the said amount, Catherine confronted Ferdinand, who answered that he deposited the amount to his personal bank account. Catherine then instructed Ferdinand to remit the amount the next day.[6] Catherine reported the incident to the accounting supervisor, Luningning Morando, who, in turn, reported the same to the General Manager, Junito Tan. The following day, Ferdinand went to the office but did not deliver the amount to Catherine, reasoning that Porta-Phone still owed him unpaid reimbursements.[7] This incident came to the knowledge of Chief Executive Officer Wilson So. Thus, on 30 October 1996, Wilson So invited Ferdinand, Juanito and Luningning to a meeting. In the meeting, Wilson So demanded that Ferdinand return the collection. Ferdinand refused to turn over the amount to the company. He would return the amount only upon his receipt of his reimbursements from the company. Since Ferdinand adamantly withheld the collected amount, Juanito issued a demand letter dated 7 November 1996, ordering the former to deliver the amount to the company. Ferdinand answered, this time claiming that he had already remitted the amount to Luningning. With this, Juanito issued a memorandum dated 8 November 1996, addressed to Luningning asking her to explain her side regarding the allegation of Ferdinand that she received the P15,000.00. Luningning completely denied having received the amount from Ferdinand. Juanito then issued another letter to Ferdinand to further explain his side in view of Luningning's denial that she received the amount. In the letter, Juanito also advised Ferdinand to wait for the verification and computation of his claim for reimbursements. With the conflicting claims of Luningning and Ferdinand, another meeting was set on 14 November 1996. In that meeting Luningning again denied having received the amount.

Ferdinand did not appear in the meeting. Later, a formal demand letter was issued to Ferdinand by Porta-Phone's legal counsel, which letter went unheeded. Several attempts to reach Ferdinand proved to be futile. This prompted the company to file a criminal complaint against Ferdinand.

The defense alleged that the amount involved was already turned over to the company through Luningning. To substantiate this, the defense presented Ferdinand as its only witness.

Ferdinand testified that on 25 October 1996, he delivered to Hemisphere several communication gadgets and received from the same the amount of P15,000.00 as refundable deposit (the amount required by Porta-Phone from its lessor-client to answer for the damage that may befall the items leased) for the delivered items. Since he did not bring with him the official receipt of Porta-Phone, he merely acknowledged having received the amount in an Acknowledgement Receipt issued by Hemisphere. Considering that it was already late in the afternoon when he delivered the communication items, Ferdinand brought the said amount home. The following day, he went to the company's accounting supervisor, Luningning, to turn over to her the amount. Luningning received the money and instructed Ferdinand to fill up the details of the transaction in Official Receipt No. 2242. When Ferdinand asked Luningning to affix her signature to the official receipt to acknowledge that she received the amount, the latter declined and instead asked the former to affix his signature, since it was he who closed the deal.

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

Ferdinand admitted that he attended the meeting of 30 October 1996 with Juanito, Luningning and Wilson So. He, however, claimed that the discussion centered on his entitlement to reimbursements from the company. Thereupon, Wilson So got angry with him and asked him to resign, owing to his persistent claim for reimbursement. After this, the company withheld his salary, prompting him to file a labor case against the same on 4 November 1996.

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

WHEREFORE, finding the accused FERDINAND A. CRUZ, GUILTY beyond reasonable doubt for the crime of QUALIFIED THEFT, he is hereby sentenced to suffer imprisonment of TEN (10) YEARS and ONE (1) DAY of prision mayor as minimum to FOURTEEN (14) YEARS, EIGHT (8) MONTHS and ONE (1) DAY of reclusion temporal, as

maximum; to indemnify the offended party in the amount of FIFTEEN THOUSAND (P15,000.00) PESOS and to pay the costs.[8]

On 2 August 2001, Ferdinand filed a Motion for New Trial on two grounds: (1) absence of a preliminary investigation for the crime of qualified theft; and (2) newly discovered evidence. Anent the first ground, it must be noted that in the beginning, Ferdinand was being indicted for Estafa/Falsification of Private Document. The prosecutor later found that the proper charge should be for Qualified Theft. Ferdinand argued that since his counter-affidavits were for the charge Estafa/Falsification of Private Document, he claimed that preliminary investigation for Qualified Theft was absent. With regard to the second ground, Ferdinand argued that newly discovered evidence, i.e., the testimony of a certain Marilen Viduya, could change the judgment on the case. The RTC granted the motion based on the second ground, and set aside its 30 June 2001 decision.

Marilen Viduya, a former employee of Hemisphere, testified that she asked Ferdinand to affix his signature to an acknowledgement receipt for the amount of P15,000.00, which was the refundable deposit of Hemisphere for the equipment delivered, because Ferdinand did not bring with him the official receipt of Porta-Phone. She also averred that Luningning went to Hemisphere and conducted an inventory of the delivered communication items. Luningning admitted to her that the P15,000.00 was already remitted to Porta-Phone.

In an Order[9] dated 15 July 2003, the RTC declared that it did not find the testimony of Marilen Viduya persuasive. It revived and reinstated its 30 June 2001 decision convicting Ferdinand of the crime charged.

Dissatisfied, Ferdinand appealed the judgment to the Court of Appeals.

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

Ferdinand filed a Motion for Reconsideration which was denied by the Court of Appeals in a Resolution dated 4 October 2006.

Hence, the instant petition.

Ferdinand contends that he was denied due process as his trial was pursued without prior clearance from the Department of Labor pursuant to Department of Justice (DOJ) Circular No. 16 which allegedly states that "clearance must be sought from the Ministry of Labor and /or the

22

Office of the President before taking cognizance of complaints for preliminary investigation and the filing in court of the corresponding information of cases arising out of, or related to, a labor dispute." He avers that this circular is designed to avoid undue harassment that the employer may use to cow employees from pursuing money claims against the former.

He also argues that due process was not accorded since he was indicted for qualified theft, even as he was initially investigated for estafa/falsification of private documents. It must be noted that the original indictment was for estafa/falsification of private documents but later the prosecutor found it proper to charge him with qualified theft. According to him although he was given the chance to file counter-affidavits on the charge of estafa/falsification of private documents, he was not given the opportunity to answer during the preliminary investigation of the crime of qualified theft.

Finally, Ferdinand maintains that his guilt was not established beyond reasonable doubt, absent evidence of the presence of the elements of the crime charged and given the weakness of the evidence proffered by the prosecution.

Ferdinand's arguments are not meritorious.

The settled rule is that when an accused pleads to the charge, he is deemed to have waived the right to preliminary investigation and the right to question any irregularity that surrounds it. [11] In the instant case, Ferdinand did not present evidence that arraignment was forced upon him. On the contrary, he voluntarily pleaded to the charge and actively participated in the trial of the case.

Besides, the prior clearance requirement before taking cognizance of complaints under the cited DOJ circular is not applicable to the case of Ferdinand. The RTC found that the money claim which the Labor Arbiter awarded to Ferdinand covered only his salary during the month of November 1996. It must be noted that the crime attributed to Ferdinand was committed on 25 October 1996 before Ferdinand was entitled to the money claim. In other words, the crime was first committed before the accrual of the money claim. This being the case, it is not remote that it was Ferdinand who used the labor case, which he filed before the Labor Arbiter, to have leverage against the company in the criminal case.

It is not correct for Ferdinand to claim that preliminary investigation on the charge of qualified theft was not accorded him. The truth is, Ferdinand was able to answer the initial charge of estafa/falsification of private documents through his counter-affidavits. Based on the same complaint affidavit and the same sets of evidence presented by the

complainant, the prosecutor deemed it proper to charge Ferdinand with qualified theft. Since the same allegations and evidence were proffered by the complainant in the qualified theft, there is no need for Ferdinand to be given the opportunity to submit counter-affidavits anew, as he had already answered said allegations when he submitted counter-affidavits for the original indictment of estafa/falsification of private documents.

The RTC correctly convicted Ferdinand of the crime of qualified theft.

The elements of the crime of theft are the following: (1) there was a taking of personal property; (2) the property belongs to another; (3) the taking was without the consent of the owner; (4) the taking was done with intent to gain; and (5) the taking was accomplished without violence or intimidation against the person or force upon things.[12] Under Article 310 of the Revised Penal Code, theft is qualified when it is, among others, committed with grave abuse of confidence, to wit:

ART. 310. Qualified theft. - The crime of theft shall be punished by the penalties next higher by two degrees than those respectively specified in the next preceding article, if committed x x x with grave abuse of confidence x x x.

The prosecution established, beyond the shadow of doubt that Ferdinand took and kept the fifteen thousand peso-collection from the company's client. Although Ferdinand insists he remitted the amount personally to Luningning, this claim is self-serving. If indeed he personally delivered the P15,000.00, he would have at least required Luningning to acknowledge the receipt thereof before he parted with the same. The Court of Appeals incisively pointed out that it was implausible for Ferdinand to have acceded to executing an acknowledgment receipt in favor of Hemisphere so as to give the latter protection from his company, and yet he did not ask for some kind of receipt when he allegedly turned over the money to Luningning. Quite specious is Ferdinand's argument that he would not have had in his possession a copy of Official Receipt No. 2242, had he not delivered the amount to Luningning. Ferdinand acquired the receipt, not because he remitted the amount, but because he took a sheet from a booklet of receipts containing Official Receipt number 2242 and issued the same to Hemisphere despite his lack of authority to do so, to maliciously induce the client into believing that he would remit the amount to Porta-Phone.

The collected amount belonged to Porta-Phone and not to Ferdinand. When he received the same, he was obliged to turn it over to the company since he had no right to retain it or to use it for his own benefit, because the amount was a refundable deposit for the communication items leased out by Porta-Phone to Hemisphere. As he had kept it for

himself while knowing that the amount was not his, the presence of the element of unlawful taking is settled.

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

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

x x x x

Atty. Dizon: Denial your honor. Denial. While it is true that he did not return that P15,000.00 pesos, it is because the company owes the accused more than P20,000.00.[14]

In the course of his testimony, Ferdinand claimed that he had remitted the amount to Luningning. This insistent claim for reimbursements by Ferdinand would in fact show that he had the intention to take the subject money; hence, intent to gain is made more manifest.

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

You made mention of collectibles, who is authorized by the company to collect the collectibles?

Witness: My accounting group is the only group authorized to make collections for and on behalf of the company.

Atty. Salvador:

Can you give the names of this accounting group that you have mentioned?

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

Atty. Salvador:

Is the accused part of the group?

Witness: No sir.[15]

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The lack of consent by the owner of the asported money is manifested by the fact that Porta-Phone consistently sought the return of the same from Ferdinand in the meetings held for this purpose and in the various letters issued by the company.

As a marketing manager of Porta-Phone, Ferdinand made use of his position to obtain the refundable deposit due to Porta-Phone and appropriate it for himself. He could not have taken the amount had he not been an officer of the said company. Clearly, the taking was done with grave abuse of confidence.

Ferdinand likewise assails the testimony of prosecution witness Juanito, who retracted his affidavit of desistance in favor of the former and explained on the witness stand that he had agreed to execute the same due to personal favors bestowed on him by Ferdinand. Ferdinand asserts that Juanito's retraction should not be given credence. This contention is unconvincing. As aptly discussed by the Court of Appeals:[W]hile his desistance may cast doubt on his subsequent testimony, We are not unmindful that he was in fact grilled by the defense regarding his motives in revoking his earlier desistance and he remained steadfast in his testimony that [Ferdinand] was never authorized by Porta-Phone to collect payments and that during the meeting of 30 October 1996, [Ferdinand] refused to return the money. Rather than destroy his credibility, the defense's grilling regarding the reasons for his filing his earlier desistance even strengthened the value of his testimony for he only executed the same because of some personal favors from [Ferdinand]. And while [Ferdinand] suggests that subsequent revocation of his desistance in open court may be due this time to favors extended by Porta-Phone cannot be sustained when taken together with the fact that [Juanito] was long been separted from Porta-Phone when he testified. In fact Porta-Phone's CEO did not even have kind words for [Juanito] when the former testified. x x x.[16]

In sum, this Court, yields to the factual findings of the trial court which were affirmed by the Court of Appeals, there being no compelling reason to veer away from the same. This is in line with the precept stating that when the trial court's findings have been affirmed by the appellate court, said findings are generally conclusive and binding upon this Court.

The RTC imposed on petitioner the indeterminate penalty of Ten (10) Years and One (1) Day of prision mayor as minimum to Fourteen (14) Years, Eight (8) Months and One (1) Day of reclusion temporal, as maximum. Under Article 310 of the Revised Penal Code, the penalty for Qualified Theft is two degrees higher than that specified in Article 309. Paragraph 1 of Article 309 provides that if the value of the thing stolen is more than P12,000.00 but does not exceed P22,000.00, the penalty shall be prision mayor in its minimum and medium periods. In this case, the amount stolen was P15,000.00. Two degrees higher than prision

mayor minimum and medium is reclusion temporal in its medium and maximum periods. Applying the Indeterminate Sentence Law, the minimum shall be prision mayor in its maximum period to reclusion temporal in its minimum period or within the range of 10 years and 1 day to 14 years and 8 months. There being neither aggravating nor mitigating circumstance in the commission of the offense, the maximum period of the indeterminate sentence shall be within the range of 16 years, 5 months and 11 days to 18 years, 2 months and 20 days. The minimum penalty imposed by the RTC is correct. However, the maximum period imposed by RTC should be increased to 16 years, 5 months and 11 days.

WHEREFORE, the Decision of the Court of Appeals dated 27 April 2006 in CA-G.R. CR No. 27661 finding Ferdinand A. Cruz GUILTY of the crime of Qualified Theft is hereby AFFIRMED with MODIFICATION. Ferdinand A. Cruz is hereby sentenced to suffer the indeterminate penalty of 10 years and 1 day of prision mayor, as minimum, to 16 years, 5 months and 11 days of reclusion temporal, as maximum.

SO ORDERED.

PEOPLE OF THE PHILIPPINES vs. RENE ROSASG.R. No. 177825October 24, 2008

D E C I S I O N LEONARDO-DE CASTRO, J.:

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

In the court of origin, accused-appellant was charged with the

crime of Murder in an Information[2] dated October 13, 1998. The crime was alleged to have been committed, as follows:

That on September 15, 1995, in the Municipality of Kabakan, Province of Cotabato, Philippines, the said accused, armed with a gun, with intent to kill did then and there, willfully, unlawfully, feloniously and with treachery, attack, assault and shot NESTOR ESTACIO, thereby hitting and inflicting upon the latter multiple gunshot wounds on the different parts of his body, which caused his instantaneous death. CONTRARY TO LAW.

When arraigned on January 5, 1999, accused-appellant, assisted by counsel de oficio, pleaded not guilty to the crime charged. Thereafter, trial on the merits ensued, in the course of which the prosecution presented the testimonies of Dr. Crisostomo Necessario, Jr., Municipal Health Officer of Kabacan, Cotabato; Wilfredo Bataga, mayor of Kabacan, Cotabato; Antonio Palomar Bataga, Jr.; and Arceli Estacio, widow of the victim. For its part, the defense presented accused-appellant himself and his girlfriend, Karen Nayona. The prosecution’s version of the incident is succinctly summarized by the Office of the Solicitor General in its Appellee’s Brief,[3] to wit:

On September 15, 1995 , around eleven o’clock in the morning, Antonio Palomar Bataga, Jr. was outside the billiard hall along Aglipay Street near the public terminal and market of Kabacan, Poblacion, Kabacan, Cotabato. Around 15 meters away, he saw appellant Rene Rosas standing beside the post near a store across the street. Palomar knew appellant long before, as they were both into gambling. Thereafter, the victim, Nestor Estacio, arrived alone on board his motorcycle. He stopped in front of the Salcedo Newsstand to buy a newspaper without switching off his motorcycle’s engine. Before he could drive off, a Weena bus, which was leaving the Bus Terminal about that time, blocked his way. Then, appellant, who was coming from the left side behind the victim,

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shot the latter with a pistol at close range. After the victim fell on the ground, more gunshots were heard, which gunshots were fired at him to make sure that he was dead. After the shooting, appellant jumped into a motorcycle and escaped. Meanwhile, around that same time and fifteen (15) meters away, in a carinderia located at the Bus Terminal in Poblacion, Kabacan, Cotabato, several gunshots were heard. Wilfredo Bataga, who was the owner of the said carinderia and also the commanding officer of the 39th Infantry Batallion assigned in Kabacan, Cotabato, immediately proceeded to where the gunshots came from. He saw appellant about to run and a dead body being carried by four persons into a tricycle. Wilfredo upon seeing that appellant was armed with a 45-caliber pistol, ran after the latter but lost him in the crowd. On October 27, 1995 , Wilfredo was handed with a cartographic sketch of the suspect made by the National Bureau of Investigation. He indorsed the cartographic sketch to the police of the Poblacion and reported the incident. On August 5, 1998 , around 5:30 in the afternoon, appellant was spotted a meter away in front of Wilfredo’s house. Wilfredo upon seeing appellant took out his copy of the cartographic sketch and confronted appellant that it was his picture. Appellant answered “Siguro ako nga.” Appellant was then immediately arrested. The post-mortem examination conducted by Dr. Crisostomo Necessario, Municipal Health Officer of Kabacan, Cotabato revealed that the victim sustained multiple gunshot wounds in the lumbar region (lower back area), a gunshot wound in the epigastric area (upper mid-portion of the abdomen near the chest) and the mid-left portion of the hypogastric area (left abdomen). Thereafter, Dr. Necessario issued a Medical Report attributing the victim’s death to hypovolemic shock caused by gunshot wounds.

On the other hand, accused-appellant’s version is hinged mainly on denial and alibi. He testified that in the morning of September 15, 1995, he was at his boarding house located along USM Avenue, Kabacan, Cotabato. The following day, he went home to Mintal Relocation in Davao City and came back to Kabacan, Cotabato on August 5, 1998. On that day, while accused-appellant was in a public market, a certain Dodong Rivera approached and informed him that he should talk to Mayor Wilfredo Bataga because a group of men was out to kill him. So, accused-appellant proceeded to the house of Mayor Bataga who showed him a cartographic sketch. When accused-appellant was asked if it was him on the sketch, he replied, “Siguro, ako nga.” He was then taken to the Kabacan Police Station where he was detained. Karen Nayona, accused-appellant’s girlfriend, merely corroborated his testimony that he was in the boarding house at USM Avenue, Kabacan, Cotabato in the morning of September 15, 1995. Then, at around 11 o’clock in the morning, they met and went to a fastfood restaurant located along USM Avenue. There, she told accused-appellant that she was two months pregnant with his baby. In a decision[4] dated February 1, 2001, the trial court rendered its decision convicting accused-appellant of the crime of murder, the dispositive portion of which reads:

WHEREFORE, in view of all the foregoing and finding the accused Rene Rosas alias Boy Rosal guilty beyond reasonable doubt of the crime of murder qualified by treachery, judgment is hereby rendered sentencing the accused with penalty of Reclusion Perpetua and to pay the heirs of Nestor Estacio the sum of P50,000.00 for his death, P40,000.00 for funeral and burial expenses and P50,000.00 for moral damages. SO ORDERED. Pursuant to Section 3(c) of Rule 122 of the Revised Rules of Criminal Procedure,[5] accused-appellant appealed his conviction to the Supreme Court via a notice of appeal.[6]

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

On September 22, 2004, conformably with our pronouncement in People v. Mateo[8] which modified the provisions of the Rules of Court insofar as they provide for direct appeals from the RTC to this Court in cases where the penalty imposed by the trial court is death, reclusion perpetua or life imprisonment, this Court resolved to refer the case to the Court of Appeals, whereat it was docketed as CA-G.R. CR-HC No. 00301, for appropriate action and disposition.[9]

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

WHEREFORE, the assailed decision is hereby AFFIRMED, with modification that the award for actual damages is DELETED for reasons already discussed; in lieu thereof, an award of temperate damages in the amount of Twenty Five Thousand (P25,000.00) Pesos is hereby GRANTED. SO ORDERED.

From the Court of Appeals, the case was then elevated to this Court upon filing by accused-appellant of a notice of appeal on January 2, 2007.[10] In its Resolution[11] of July 23, 2007, the Court resolved to require both parties to submit their respective supplemental briefs, if they so desire. The parties, however, opted not to file supplemental briefs and manifested that they were merely adopting their briefs filed before the appellate court. In this appeal, accused-appellant assigns the following errors:

I THE LOWER COURT ERRED IN CONVICTING THE ACCUSED-APPELLANT OF MURDER WHEN THE LATTER’S GUILT WAS NOT PROVEN BEYOND REASONABLE DOUBT. II

THE LOWER COURT ERRED IN CONVICTING THE ACCUSED-APPELLANT WITH MURDER WHEN THE QUALIFYING CIRCUMSTANCE OF TREACHERY WAS NOT ALLEGED WITH SPECIFICITY IN THE INFROMATION PURSUANT

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TO SECTION 8, RULE 110 OF THE REVISED RULES ON CRIMINAL PROCEDURE.[12]

Accused-appellant insists that the prosecution failed to prove his guilt beyond reasonable doubt. He assails the credibility of the prosecution witnesses whose testimonies he pictured as inconsistent and fabricated. He also avers that the prosecution failed to establish his identity as the perpetrator of the crime as nobody actually saw him shoot the victim. After a careful consideration of the evidence of this case, we find no reason to reverse the decision of the Court of Appeals which affirmed the RTC decision in Criminal Case No. 98-105. Accused-appellant cites an inconsistency in the testimonies of prosecution witnesses Wilfredo Bataga and Antonio Palomar Bataga, Jr. While Wilfredo testified that he saw accused-appellant about to run from the crime scene after the shooting, Antonio, on the other hand, testified that accused-appellant jumped into a motorcycle and escaped after the incident. According to accused-appellant, their contradicting testimonies should not be accorded any weight and credence. To our mind, the alleged inconsistency in the testimonies of the aforesaid prosecution witnesses is not sufficient to adversely affect the credibility of the prosecution witnesses. It merely pertains to accused-appellant’s mode of escape, which cannot overcome the categorical and positive identification of accused-appellant by both witnesses as the person who shot the victim. It is perfectly natural for different witnesses testifying on the occurrence of a crime to give varying details as there may be some details which one witness may notice while the other may not observe or remember. In fact, jurisprudence even warns against a perfect dovetailing of narration by different witnesses as it could mean that their testimonies were fabricated and rehearsed.[13] In the instant case, while prosecution witnesses Antonio and Wilfredo differ in their narration of minor details, they identified without equivocation the accused-appellant as the perpetrator of the crime. Antonio declared on the witness stand: PROS. DIZON, JR.:

Q. By the way, do you know the accused in this case?A. Yes, sir.Q. Do you know Rene Rosas?

A Yes, sir.Q. Do you know the other name of Rene Rosas?A. Yes, sir.

Q. Tell the Court what is the other name or the alias of Rene Rosas?A. Boy Rosal, sir.Q. Now, prior to 1995 have you known Rene Rosas?A. Yes, sir.Q. For how long did you know Rene Rosas prior to 1995?A. Long time ago, sir.Q. How come you know him?A. Because of our gambling activities.Q. By the way, do you gamble?A. Yes, sir.Q. Now, how about the victim here, Mr. Estacio, do you know him?A. Yes, sir.Q. How come you know him?A. Because he was an employee of the Municipal Hall, sir.Q. You said you were outside the Billiard Hall at 11:00 o’clock in the morning, now while you were there on September 15, 1995, was there any unusual incident that happened?A. Yes, there was, sir.Q. Tell the Court, what was that unusual incident that happened?A. The killing of Nestor Estacio, sir.Q. Now, did you see the killing of Nestor Estacio?A. Yes, sir.Q. Now, you said you saw the killing of Nestor Estacio, what was the weapon used in the killing of Mr. Estacio?A. Pistol, sir.Q. How long was that?A. Just a short pistol, sir.Q. Now, you said that Nestor Estacio was killed, did you see who killed Nestor Estacio?ATTY. BALAGOT: Your Honor please, leading, Your Honor.PROS. DIZON, JR.: He testified already, Your Honor please, that he saw.COURT: Yes, he may answer.

A. Yes, sir.Q. Please name him.

A. Rene Rosas, sir.[14] Antonio Bataga, Jr. could not have made a mistake with respect to accused-appellant’s identity considering that he knew accused-appellant long before he witnessed the shooting incident in 1995. Antonio who was in the vicinity of the crime scene would thus be able to unmistakably recognize accused-appellant when the incident happened at around 11 o’clock in the morning. Antonio’s testimony corroborated that of Wilfredo Bataga, thus:

PROS. DIZON, JR.:

Q. Why were you there, was there any incident of happening that occurred?

A. When I heard several gunbursts, I immediately proceeded to the scene of the crime and I saw the suspect including the lying victim Nestor Estacio which was brought along by four (4) persons in loading a tricycle in going to a hospital, sir. xxx xxx xxx

Q. Now, you said you saw Rene Rosas, what was he doing when you saw him?

A. When I saw him, he was already running together with innocent civilians towards the market, sir.Q. Now, you said you also saw the dead body of a person, what is the name of that person who you said is dead?A. Nestor Estacio, sir.Q. Now, what did you do upon seeing the dead body?A. He was carried upon by four persons inside the tricycle for immediate medication, sir.Q. Now, you said you saw the accused Rene Rosas, what did you do when you saw him?A. I chased him, sir. I was not able to arrest him due to the thickness of the civilians running together with him, sir.

xxx xxx xxx ATTY. BALAGOT:

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Q. You said that on September 15, 1995, at around 11:00 o’clock you were at your carinderia, is that right?A. Yes, sir.Q. Now, your carinderia was located that time at the old bus terminal building, is that right?A. Yes, sir.Q. And you said while you were there you heard gunshots?A. Yes, sir.Q. And you went to the site from where the gunshots were heard?A. Yes, sir.Q. How far was your carinderia from the site where you heard those gunshots?A. That was more or less 15 meters, sir.

Q Fifteen (15) if you will pass through the terminal going to that site?A In the middle of the terminal, sir.

Q Now, at that time, Mr. Witness , is it not right that you passed through Jacinto Street particularly at the back of the old terminal building?A I intended to conduct a hamper; a block in front of Ku Kuan so that I could arrest the suspect and I personally found out and identified the running person to be Rene Rosas @ Boy Rosas running together with scampered civilians, sir.B But you passed through Jacinto Street, Mr. Witness, is it right?A Yes, sir, and I saw him personally.Q And if you will pass through Jacinto Street, first the walking distance would be around 15 meters, is that right?A I saw him personally this way but I crossed the block, sir.Q Now, because at that juncture while you were walking through that Street, you met this Rene Rosas, is that right?A I was not able to see him but when I arrived at the scene of the crime I saw him personally and I chased him but could

not arrest him due to the thickness of the civilians running together with him.Q Now, you claimed that you saw Rene Rosas the accused personally, he was running at the time when you saw him, is that right?A About to run when I reached the scene of the crime, sir.Q Also there were other persons who were about to run at that time, is that right?A Yes, sir, when I reached the scene to chase him he ran already.Q That you choose Rene Rosas because that time he was the bodyguard of Mr. Karutin, is that right?A I was able to identify him when the cartographic sketch of the suspect coming from the NBI expert and Dr. Sevilla was given to me, sir.Q Mr. Witness, on September 15, 1995, why did you chase Rene Rosas?A Because I saw in his arm a pistol caliber 45, sir.[15]

Clearly, Wilfredo positively identified appellant as the person running away from the crime scene towards the public market after shooting the victim. Just like Antonio, Wilfredo could also not have been mistaken as to accused-appellant’s identity considering that he was just 15 meters away from the crime scene and the crime was committed in broad daylight. Verily, the testimonies of Wilfredo and Antonio on material details are coherent, unequivocal and consistent with each other. Antonio, who was standing just a few meters away, saw accused-appellant shoot the victim from behind, then board a motorcycle. On the other hand, Wilfredo saw accused-appellant immediately after the shooting fleeing from the scene of the crime carrying a 45-caliber pistol. Clearly, both witnesses personally saw accused-appellant at the scene of the crime at the time it was committed. Contrary to accused-appellant’s assertion, the declarations and testimonies of Antonio and Wilfredo established beyond reasonable doubt his identity as the author of the crime. The trial court gave full faith and credence to the testimonies of Wilfredo and Antonio. The time-tested doctrine is that a trial court’s assessment of the credibility of a witness is entitled to great weight, and is even conclusive and binding on this Court. The reason is obvious.

The trial court has the unique opportunity to observe at firsthand the witnesses, particularly their demeanor, conduct and attitude in the course of the trial.[16] Accused-appellant has not shown any evidence of improper motive on the part of Wilfredo and Antonio that would have driven them to falsely testify against him. Where there is nothing to indicate that the witnesses for the prosecution were actuated by improper motive, their positive and categorical declarations on the witness stand under the solemnity of an oath deserve full faith and credence.[17] There being no fact or circumstance of weight and substance that would otherwise warrant a different conclusion, the trial court’s evaluation of the credibility of the prosecution witnesses must be sustained. Accused-appellant relies on his alibi that he was in his boarding house located along USM Avenue, Kabacan, Cotabato the whole morning of September 15, 1995. For alibi to prosper, however, the accused must establish by clear and convincing evidence (a) his presence at another place at the time of the perpetration of the offense and (b) the physical impossibility of his presence at the scene of the crime.[18] Where there is even the least chance for the accused to be present at the crime scene, the defense of alibi will not hold water.[19] Here, the evidence shows that USM Avenue, Kabacan, Cotabato where accused-appellant allegedly was on September 15, 1995 is only 1.5 kilometers away from the public market and terminal in Poblacion, Kabacan, Cotabato where the crime was committed.[20] According to the trial court, this distance between the crime scene and the whereabouts of accused-appellant can easily be negotiated by foot within 10 to 15 minutes.[21] In short, accused-appellant failed to establish by clear and convincing evidence the physical impossibility of his presence at the scene of the crime on the date and time of its commission. Moreover, the defense of alibi crumbles in the face of the positive identification of accused-appellant by the aforesaid prosecution witnesses as the perpetrator of the crime.[22] In his last-ditch effort to relieve him of liability for the crime charged, accused-appellant argues that he cannot be convicted of murder because the Information failed to state that treachery was a qualifying circumstance. Accused-appellant’s argument deserves scant consideration. The recent case of People v. Sayaboc[23] reiterated the pronouncement in People v. Aquino[24] that even after the recent amendments to the Rules of Criminal Procedure, qualifying circumstances need not be

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preceded by descriptive words such as “qualifying” or “qualified by” to properly qualify an offense. Section 8 of the Rules of Criminal Procedure[25] does not require the use of such words to refer to the circumstances which raise the category of an offense. It is not the use of the words “qualifying” or “qualified by” that raises a crime to a higher category, but the specific allegation of an attendant circumstance which adds the essential element raising the crime to a higher category. It is sufficient that the qualifying circumstances be specified in the Information to apprise the accused of the charges against him to enable him to prepare fully for his defense, thus precluding surprises during trial. The Information in this case sufficiently alleged the qualifying circumstance of treachery, thus:

“xxx, accused armed with a gun, with intent to kill, did then and there, willfully, unlawfully, feloniously, and with treachery, attack, assault and shot Nestor Esatcio, xxx.” (Emphasis ours)

Not only was treachery sufficiently alleged, it was likewise proven beyond reasonable doubt by the evidence on record. It is a well-entrenched rule that treachery is present when the offender commits any of the crimes against persons, employing means, methods or forms in the execution thereof which tend directly and specially to insure its execution, without risk to himself arising from the defense which the offended party might make. The essence of treachery is that the attack is deliberate and without warning, done in a swift and unexpected attack, affording the hapless, unarmed and unsuspecting victim no chance to resist or escape.[26] In the instant case, Nestor Estacio was attacked from behind and assaulted without warning and provocation. Even when the already wounded Nestor fell on the ground, accused-appellant mercilessly fired several more shots at him. He obviously wanted to ensure the execution of the killing, without risk to himself, and deprive Nestor of any opportunity to retaliate or defend himself. The fact that accused-appellant brought a gun with him indicated that he made a deliberate and conscious adoption of the means to kill Nestor. Further, the autopsy conducted by Dr. Necessario revealed multiple gunshot wounds at the lower back area of the lumbar region of Nestor. This autopsy indubitably indicates that the shots were fired from behind on the unsuspecting victim. Clearly then, treachery or alevosia has been sufficiently established. We, thus, sustain the conviction of Rene Rosas for the crime of murder as well as the penalty imposed upon him. Under Article 248 of

the Revised Penal Code, the penalty for the crime of murder is reclusion perpetua to death. Accused-appellant was correctly sentenced to suffer reclusion perpetua, the lower of the two indivisible penalties, since there was no other aggravating circumstance attending the commission of the crime.[27] We now come to the award of damages. Conformably with existing jurisprudence, the heirs of Rene Rosas are entitled to civil indemnity in the amount of P50,000.00, which is mandatory and is granted to the heirs of the victim without need of proof other than the commission of the crime.[28] Likewise, moral damages in the amount of P50,000.00 shall be awarded in favor of the heirs of the victim. Moral damages are awarded despite the absence of proof of mental and emotional suffering of the victim’s heirs. As borne out by human nature and experience, a violent death invariably and necessarily brings about emotional pain and anguish on the part of the victim’s family.[29] Accused-appellant is also liable to pay exemplary damages in the sum of P25,000.00 in view of the presence of the qualifying aggravating circumstance of treachery.[30] With respect to actual damages, the victim’s widow, Arceli Estacio, testified that she spent a total of P40,000.00 as burial and funeral expenses but she failed to present receipts to substantiate her claim. In People v. Abrazaldo,[31] we laid down the doctrine that where the amount of actual damages for funeral expenses cannot be determined because of the absence of receipts to prove them, temperate damages may be awarded in the amount of P25,000.00. Thus, in lieu of actual damages, temperate damages in the amount of P25,000.00 must be awarded to the heirs of Rene Rosas because although the exact amount was not proved with certainty, it was reasonable to expect that they incurred expenses for the coffin and burial of the victim. WHEREFORE, the decision dated November 29, 2006 of the Court of Appeals in CA-G.R. CR-HC No. 00301 is hereby AFFIRMED. Accused-appellant Rene Rosas is found GUILTY beyond reasonable doubt of the crime of Murder and sentenced to suffer the penalty of reclusion perpetua. He is hereby ordered to indemnify the heirs of Nestor Estacio the following: (a) P50,000.00 as civil indemnity; (b) P50,000.00 as moral damages, (c) P25,000.00 as exemplary damages; and (d) P25,000.00 as temperate damages.

SO ORDERED.

Criminal Procedure: An absolution from a criminal charge is not a bar to an administrative prosecution or vice versa

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

Austria-Martinez, J.

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

Antecedent Facts:On Jan. 29, 2001, an information for violation of R.A. No. 3019 was filed against petitioner. Petitioner filed a Motion for Reconsideration alleging that the Office of the Ombudsman disregarded certain factual matters which could negate the finding of probable cause.Public respondent issued a Resolution denying petitioner's Motion for Reinvestigation. It held that petitioner's contentions are all evidentiary in nature and may be properly considered only in a full-blown trial.

Petitioner filed a Motion for Reconsideration. Shortly thereafter, he filed Supplemental Motion for reconsideration asserting that the complainants were guilty of forum shopping, due to the earlier dismissal of the administrative case against him.

Public respondent issued a Resolution denying the motion for Reconsideration.Petitioner files a Motion for Leave to File a Second Motion for Reconsideration. Again, he cited as his ground the alleged forum shopping of the private complainants.On April 29, 2002, public respondent issued a Resolution denying the Motion for Leave to File a second Motion for Reconsideration. It held that there was no forum shopping since the administrative and criminal cases are two different actions, so neither resolution on the same would have the effect of res judicata on the other. The public respondent dismissed the second motion for reconsideration as pro forma and

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prohibited motion.

Petitioner then filed a Petition for Certiorari with this Court, docketed as G.R. No. 153592, which assailed the Resolution of public respondent dated April 29, 2002 as having been issued with grave abuse of discretion amounting to lack of jurisdiction. On July 1, 2002, the Court dismissed the petition for having been filed out of time and for failure to pay the required docket fees.On May 19, 2003, before he can be arraigned, petitioner filed yet another motion with public respondent, this time a Motion for Re-determination of Probable Cause, invoking the ruling of the Office of the President (OP), dated February 29, 2000, which absolved petitioner of the administrative liability. The OP reviewed theadministrative case filed against petitioner with the Presidential Commission Against Graft and Corruption (PCAGC) and held petitioner acted in good faith and within the scope of his authority.On July 2, 2003, the Sandiganbayan issued herein assailed resolution denying the Motion for Re-determination of Probable cause.

Ruling:(1) The established rule is that an absolution from a criminal charge is not a bar to an administrative prosecution, or vice versa. The dismissal of an administrative case does not necessarily bar the filing of the criminal prosecution for the same or similar acts which were the subject of the administrative complaint.

(2) The independent nature of a criminal prosecution dictates that the Sandiganbayan must determine petitioner's criminal liability without its hands being tied with what transpired in the administrative case.- The Court finds no cogent reason to depart from these rules.

Petitioner argues that the criminal case against him requires a higher quantum of proof for conviction - that is proof beyond reasonable doubt - that the administrative case, which needs only substantial evidence. He claims that from this circumstance, it follows that the dismissal of the administrative case should carry with it the dismissal of the criminal case. This argument has however been addressed in jurisprudence. In Valencia v. Sandiganbayan, the Administrative case against the accused was dismissed by the Ombudsman on a finding that the contract of loan entered into in pursuance of the police power of the accused as local chief executive, and that the accused had been re-elected to office. The Ombudsman however, still found probable cause to criminally charge the accused in court. When the accused filed a petition with the Supreme Court to dismiss the criminal case before the Sandiganbayan, the Court denied the petition.

To sustain petitioner's arguments will be to require the Sandiganbayan and the Ombudsman to merely adopt the results of administrative investigations which would not only diminish the powers and duties of these constitutional offices but, also violate the independent nature of criminal and administrative cases against public officials. This will also amount to untold delays in criminal proceedings before the Sandiganbayan and Ombudsman, as every criminal trial and investigations will be made to await the results of pendingadministrative investigations, Such is not the intent of the framers of the Constitution and the laws governing public officers. Petitioner cites Larin vs. Executive Secretary to support his arguments. That case however, is not on all fours with the present case.In Larin, the accused was first convicted by the Sandiganbayan for violation of the National Internal Revenue Code and Sec. 3 (e) of Republic Act 3019. On the basis of this conviction to the Supreme Court, however, he was acquitted upon a finding that the acts he had committed were neither illegal nor irregular. When the accused sought a similar dismissal of the administrative case, the Supreme Court sustained him and ruled that since the same acts for which he was administratively charged had been found neither illegal nor irregular,his acquittal in the criminal case should entail the dismissal of the administrative case.

The present case differs from Larin because here, the administrative case was filed independently of the criminal case. The administrative case was not filed on the basis of a criminal conviction, as in fact, the administrative case was dismissed without regard for the results of the criminal case. This is in contrast with Larin, where the administrative case was dismissed only after its basis, the criminal conviction was overturned on appeal.

We cannot reverse Larin by ruling that petitioner's discharge from the administrative action should result in the dismissal of the criminal case. The argument cannot be sustained without violating settled principles. The rule is that administrative liability is separate and distinct from penal and ciliv liabilities. In Larin, no less than theSupreme Court acquitted the accused of charges of wrongdoing; in the case at bar, no court of justice has yet declared petitioner not guilty of committing illegal or irregular acts.

The independent nature of the criminal prosecution dictates that the Sandiganbayan must determine petitioner's criminal liability without its hands being tied by what transpired in the administrative case.The court is duty-bound to exercise its independent judgement. It is not ousted of its jurisdiction by the ruling in the administrative proceeding. It is axiomatic that when the court obtains jurisdiction over the case, it continues to retain it until the case is terminated.

Under the Rules of Court, petitioner's absolution from administrative liability is not even one of the grounds for Motion to Quash.

3.) Moreover, petitioner lacked the right to file the instant petition as he already raised the issue of his discharge from administrative liability in his supplemental motion for recommendation SB Reso dated7/13/01.