G.R. No. 149453.
May 28, 2002] Dela Cruz claimed that she was with delos Reyes from the time the eleven (11)
PEOPLE OF THE PHILIPPINES, et al., vs. PANFILO M. LACSON.
RESOLUTION
Before us is a petition for review on certiorari seeking to reverse and set
aside the Decision[1] of the Court of Appeals dated August 24, 2001 in CA-G.R.
SP No. 65034.[2] The said Decision of the appellate court granted respondent
Lacsons Second Amended Petition for Prohibition with application for the
issuance of a Temporary Restraining Order, (1) assailing the Order issued by
Judge Herminia Pasamba of the Regional Trial Court (RTC) of Manila, Branch
40, that allowed the continuation of the re-investigation of Criminal Cases Nos.
Q-99-81679 to Q-99-81689 or the Kuratong Baleleng cases; and (2) praying for
the dismissal of Criminal Cases Nos. Q-01-101102 to Q-01-101112 entitled
People of the Philippines v. Panfilo Lacson, et al. pending before Branch 81 of
the RTC of Quezon City.
The following appear in the records of this case:
(1) On May 18, 1995, then PNP Director-General Recaredo Sarmiento II
announced, in a press conference, the killing of eleven (11) members of
the Kuratong Baleleng Gang (KBG) in a shootout with police elements near the
fly-over along Commonwealth Avenue, Quezon City at about 4:00 A.M. that
day.[3]
(2) On May 22, 1995, morning papers carried the news that SPO2
Eduardo delos Reyes had claimed that the killing of the eleven (11) gang
members was a rub-out or summary execution and not a shootout. [4]
(3) In an affidavit he executed the following day, delos Reyes stated,
among others, that he was part of a composite police team called the Anti-Bank
Robbery and Intelligence Task Force Group (ABRITFG) composed of elements
of the National Capital Region Command (NCRC) and headed by Chief
Superintendent Jewel Canson; Traffic Management Command, headed by
Senior Superintendent Francisco Subia, Jr.; Presidential Anti-Crime
Commission (PACC), headed by Chief Superintendent Panfilo M. Lacson;
Central Police District Command, headed by Chief Superintendent Ricardo de
Leon; and Criminal Investigation Command (CIC), headed by Chief
Superintendent Romeo Acop. Delos Reyes claimed that the police team
arrested the eleven (11) gang members in early morning of May 18, 1995at the
gangs safe house in Superville Subdivision, Paraaque; that after their arrest,
the gang members were made to board two vans, their hands tied behind their
backs, and brought initially to Camp Crame where a decision to summarily
execute them was made, and later to Commonwealth Avenue where they were
shot to death by elements of ABRITFG.[5]
(4) On May 26, 1995, SPO2 Corazon dela Cruz, another CIC investigator,
executed an affidavit corroborating the material allegations of delos Reyes.
KBG members were arrested up to the time they were killed in Commonwealth
Avenue.[6]
(5) On May 31, 1995, Armando Capili, a reporter of Remate, executed an
affidavit stating that he was present when the KBG members were arrested in
Superville Subdivision.[7]
(6) On June 1, 1995, Chief Superintendent Job A. Mayo, PNP Director for
Investigation, filed murder charges with the Office of the Ombudsman against
ninety-seven (97) officers and personnel of ABRITFG. The next-of-kin of the
slain KBG members also filed murder charges against the same officers and
personnel.[8]
(7) Ombudsman Aniano Desierto then created a panel of investigators to
conduct a preliminary investigation of the murder charges. The panel was
headed by Deputy Ombudsman for Military Affairs Bienvenido Blancaflor. On
October 20, 1995, the panel issued a resolution recommending the dismissal of
the charges for lack of probable cause.
(8) Ombudsman Desierto referred the resolution for review by a panel
composed of Over-all Deputy Ombudsman Francisco Villa as head, and
Special Prosecutor Leonardo Tamayo and Assistant Ombudsman Abelardo
Aportadera as members. On November 20, 1995, the review panel reversed
the Blancaflor resolution and found probable cause for the prosecution of
multiple murder charges against twenty-six (26) officers and personnel of
ABRITFG.[9]
(9) On November 2, 1995, the Ombudsman filed before
the Sandiganbayan eleven (11) Informations for MURDER, docketed as
Criminal Cases Nos. 23047 to 23057, against respondent Panfilo M. Lacson
and twenty-five (25) other accused. All twenty-six (26) of them were charged as
principals.[10] The following appear to be the victims: Meleubren Sorronda in
Crim. Case No. 23047; Welbor Elcamel in Crim. Case No. 23048; Carlito Alap-
ap in Crim. Case No. 23049; Jevy Redillas in Crim. Case No. 23050; Ray
Abalora in Crim. Case No. 23051; Joel Amora in Crim. Case No. 23052; Alex
Neri in Crim. Case No. 23053; Rolando Siplon in Crim. Case No. 23054;
Manuel Montero in Crim. Case No. 23055; Sherwin Abalora in Crim. Case No.
23056; and Pacifico Montero in Crim. Case No. 23057.
(10) Upon motion of the respondent, the criminal cases were remanded to
the Ombudsman for reinvestigation. On March 1, 1996, Amended Informations
were filed against the same twenty-six (26) suspects but the participation of
respondent Lacson was downgraded from principal to accessory. Arraignment
then followed and respondent entered a plea of not guilty. [11]
 (11) With the downgrading of charges against him, respondent Lacson
questioned the jurisdiction of the Sandiganbayan to hear the criminal cases as
none of the principal accused in the Amended Informations was a government
official with a Salary Grade (SG) 27 or higher, citing Section 2 of R. A. No. 7975
then prevailing. Accordingly, the Sandiganbayan ordered the cases transferred
to the Regional Trial Court.[12]
(12) The Office of the Special Prosecutor filed a motion for reconsideration
of the transfer. Pending resolution of the motion, R. A. No. 8249 took effect on
February 23, 1997, amending R. A. No. 7975. In particular, the amendatory law
deleted the word principal in Section 2 of R. A. No. 7975, thereby expanding
the jurisdiction of the Sandiganbayan to include all cases where at least one of
the accused, whether principal, accomplice or accessory, is a government
official of Salary Grade (SG) 27 or higher. The amendment is made applicable
to all cases pending in any court in which trial has not yet begun as of the date
of its approval.[13]
(13) In Lacson v. Executive Secretary, [14] respondent Lacson challenged
the constitutionality of the amendment and contended that
the Sandiganbayan had no jurisdiction over the criminal cases. This Court,
while dismissing the constitutional challenge, nonetheless ordered the transfer
of the criminal cases to the Regional Trial Court on the ground that the
Amended Informations for murder failed to indicate that the offenses charged
therein were committed in relation to, or in discharge of, the official functions of
the respondent, as required by R. A. No. 8249.
(14) Criminal Cases Nos. 23047 to 23057 were raffled off to Branch 81 of
the Regional Trial Court of Quezon City, then presided by Judge, now
Associate Justice of the Court of Appeals, Wenceslao Agnir, Jr., and re-
docketed as Criminal Cases Nos. Q-99-81679 to Q-99-81689.
(15) Before the accused could be arraigned, prosecution witnesses
Eduardo de los Reyes, Corazon de la Cruz, Armando Capili and Jane Gomez
recanted their affidavits which implicated respondent Lacson in the murder of
the KBG members.
On the other hand, private complainants Myrna Abalora, [15] Leonora
Amora,[16] Nenita Alap-ap,[17] Imelda Montero,[18] Margarita Redillas,[19] Carmelita
Elcamel[20] and Rolando Siplon[21] also executed their respective affidavits of
desistance declaring that they were no longer interested to prosecute these
cases.[22]
(16) Due to these developments, the twenty-six (26) accused, including
respondent Lacson, filed five separate but identical motions to (1) make a
judicial determination of the existence of probable cause for the issuance of
warrants of arrest; (2) hold in abeyance the issuance of the warrants, and (3)
dismiss the cases should the trial court find lack of probable cause.
(17) The records of the case before us are not clear whether the private
offended parties were notified of the hearing on March 22, 1999 [23] held by
Judge Agnir to resolve the motions filed by respondent Lacson and the other
accused.
(18) During the said hearing, the private offended parties who desisted do
not appear to have been presented on the witness stand. In their stead, Atty.
Godwin Valdez testified that he assisted them in preparing their affidavits of
desistance and that he signed said affidavits as witness. On the other hand,
Atty. Aurora Bautista of the Philippine Lawyers League presented the affidavits
of recantation of prosecution witnesses Eduardo de los Reyes, Armando Capili
and Jane Gomez. Only prosecution witness Corazon de la Cruz testified to
affirm her affidavit.[24]
(19) On March 29, 1999, Judge Agnir issued a Resolution [25] dismissing
Criminal Cases Nos. Q-99-81679 to Q-99-81689, as follows:
As already seen, the documents attached to the Informations in support thereof
have been rendered meaningless, if not absurd, with the recantation of the
principal prosecution witnesses and the desistance of the private complainants.
There is no more evidence to show that a crime has been committed and that
the accused are probably guilty thereof. Following the doctrine above-cited,
there is no more reason to hold the accused for trial and further expose them to
an open and public accusation. It is time to write finis to these cases and lay to
rest the ghost of the incident of May 18, 1995 so that all those involved--- the
accused, the prosecution witnesses and the private complainants alike--- may
get on with their lives.
The Court is not unmindful of the admonition in the recent case of People vs.
Court of Appeals (G.R. No. 126005, January 21, 1999) where the Supreme
Court said that the general rule is that if the Information is valid on its face and
there is no showing of manifest error, grave abuse of discretion or prejudice on
the part of the public prosecutor, courts should not dismiss it for want of
evidence, because evidentiary matters should be presented and heard during
the trial, and that the ruling in Allado vs. Diokno is an exception to the general
rule and may be invoked only if similar circumstances are clearly shown to
exist.
This Court holds that the circumstances in the case at bench clearly make an
exception to the general rule.
WHEREFORE, in view of the foregoing, the Court finds no probable cause for
the issuance of the warrants of arrest against the accused or to hold them for
trial. Accordingly, the Informations in the above-numbered cases are hereby
ordered dismissed.
SO ORDERED.[26]
(20) On March 27, 2001, PNP Director Leandro R. Mendoza indorsed to
the Department of Justice the new affidavits of P/Insp. Ysmael S. Yu and P/S
Insp. Abelardo Ramos regarding the Kuratong Baleleng incident for preliminary
investigation. On the strength of this indorsement, Secretary of Justice
Hernando B. Perez formed a panel to investigate the matter. On April 17, 2001,
the respondent was subpoenaed to attend the investigation of Criminal Cases
Nos. Q-99-81679 to Q-99-81689.[27]
(21) On May 28, 2001, respondent Lacson, et al., invoking, among others,
their constitutional right against double jeopardy, filed a petition for prohibition
with application for temporary restraining order and/or writ of preliminary
injunction with the Regional Trial Court of Manila, primarily to enjoin the State
prosecutors from conducting the preliminary investigation. The petition was
docketed as Civil Case No. 01-100933 and raffled to Branch 40, presided by
Judge Herminia V. Pasamba.[28]
(22) The plea for temporary restraining order was denied by Judge
Pasamba in an Order[29] dated June 5, 2001, viz:
After a study, this Court submits that the dismissal of Criminal Cases Nos. Q-
99-81679 to Q-99-81689 is not one on the merits and without any recorded
arraignment and entered plea on the part of the herein petitioners. The
dismissal was a direct consequence of the finding of the Quezon City RTC that
no probable cause exists for the issuance of warrants of arrest against
petitioners herein and to hold them for trial. The arraignment had with
the Sandiganbayan does not put the case in a different perspective since
the Sandiganbayan was adjudged to be without any jurisdiction to try the
cases. It is the People of the Philippines who is the complainant in the
Kuratong Baleleng case and remains to be the complainant in the present
investigation initiated thru a letter of PNP Chief Mendoza dated March 27, 2001
(Exhibit B) together with the sworn statements of witnesses Ramos and Yu
(Exhibits 2 and 3 - supportive of the refiling of the case (Exhibit 9).
xxx xxx xxx
Above considered, this Court finds petitioners have not preliminarily
established that they have a right to be preserved pending hearing on the
injunctive relief.
WHEREFORE, the prayer for temporary restraining order is hereby DENIED.
SO ORDERED.[30]
(23) On June 6, 2001, eleven (11) Informations for murder involving the
killing of the same members of the Kuratong Baleleng gang were filed before
the Regional Trial Court of Quezon City and were docketed as Criminal Cases
Nos. 01-101102 to 01-101112. The new Informations charged as principals
thirty-four (34) people, including respondent Lacson and his twenty-five
(25) other co-accused in Criminal Cases Nos. Q-99-81679 to Q-99-81689. The
criminal cases were assigned to Judge Ma. Theresa L. Yadao.
(24) On the same day, respondent Lacson filed before the Court of
Appeals a petition for certiorari[31] against Judge Pasamba, the Secretary of
Justice, the PNP Chief, State Prosecutors Ong and Zacarias, 2nd Assistant
City Prosecutor Jamolin, and the People of the Philippines. The said petition
was amended to implead as additional party-respondents State Prosecutor
Claro Arellano and the RTC, Quezon City, Branch 81 in which the Informations
in Criminal Cases Nos. 01-101102 to 01-101112 were filed. [32]
(25) The Second Amended Petition[33] dated June 14, 2001 and admitted
by the Court of Appeals on June 26, 2001, alleged:
The reliefs of certiorari, prohibition and injunction against the questioned Order
(Annex A) and the new Informations in Criminal Cases Nos. 01-101102 to 01-
101112 pending before respondent Yadao (Annex B) are founded upon the
grave abuse of discretion by respondent Judge Pasamba of her discretion in its
issuance, the illegality of the proceedings of the respondent State Prosecutors
as they cannot revive complaints which had been dismissed over two (2) years
from the date the dismissal order was issued, and the invalidity of the new
Informations for Murder filed against petitioners and others, all in defiance of
law and jurisprudence as shown by the following:
(a) Respondent judge had ruled on the merits of the main prohibition action a
quo rendering the same moot and academic by concluding that the dismissal of
Criminal Cases Nos. Q-99-81679-Q-99-81689 by the QC RTC was not final
and executory, hence [i] the complaints therein can be reinvestigated, and [ii]
petitioners arraignment while the case had not yet been remanded to the QC
RTC and while the Sandiganbayan had valid jurisdiction thereover [Criminal
Cases No. 23047-2048] was void, notwithstanding that the only issue in the
TRO application was the existence or lack of a valid complaint as defined in S1
and S3, Rule 110.
(b) Respondent Judge ruled that respondent State Prosecutors could proceed
to re-investigate and thereafter file new Informations on June 6, 2001 covering
those offenses subject of Criminal Cases Nos. Q-99-81679-Q-99-81689 on the
basis of affidavits filed after said cases were dismissed on March 29, 1999,
despite the fact that under Section 8, Rule 117, cases similar to those filed
against the petitioner and others (where the penalty imposable is imprisonment
of six (6) years or more) cannot be revived after two (2) years from the date the
dismissal order was issued.
(c) Respondent Judge held that the petitioner had not shown a right to be
preserved despite evidence showing the short cuts taken by respondent State
prosecutors in re-investigating a dismissed case, in not complying with Rules in
respect of its re-opening, and in insisting that a valid complaint was filed in
clear violation of the Rules and case law thereon, and despite the fact that the
petitioner had shown that an inextendible deadline of June 5, 2001 was given
him to file his counter-affidavit without which his indictment for a non-bailable
offense is assured because of DOJ Secretary Hernando Perezs political
schemes.[34]
(26) In the meantime, on June 8, 2001, respondent Lacson also filed with
the RTC-QC Branch 81 (presided by Judge Ma. Theresa Yadao), a Motion for
Judicial Determination of Probable Cause and in the absence thereof, to
dismiss the cases outright. Respondent Lacson, however, filed a Manifestation
and Motion dated June 13, 2001 seeking the suspension of the proceedings
before the trial court.[35]
(27) The Court of Appeals issued a temporary restraining order enjoining
Judge Yadao from issuing a warrant of arrest or conducting any proceeding or
hearing in Criminal Cases Nos. 01-101102 to 01-101112. [36]
(28) On August 24, 2001, the Court of Appeals (Special Third Division),
rendered the now assailed Decision. It characterized the termination of
Criminal Cases Nos. Q-99-81679 to Q-99-81689 as provisional dismissal, and
considered Criminal Cases Nos. 01-101102 to 01-101112 as mere revivals of
the same. Applying Section 8, Rule 117 of the 2000 Revised Rules of Criminal
Procedure, it dismissed the criminal cases against the respondent, viz:
In sum, this Court is of the considered view that the subject dismissal of [the]
criminal cases was provisional in nature and that the cases presently sought to
be prosecuted by the respondents are mere revival or re-opening of the
dismissed cases. The present controversy, being one involving provisional
dismissal and revival of criminal cases, falls within the purview of the
prescriptive period provided under Section 8, Rule 117 of the 2000 Revised
Rules of Criminal Procedure. The second paragraph of the said provision is
couched in clear, simple and categorical words. It mandates that for offenses
punishable by imprisonment of more than six (6) years, as the subject criminal
cases, their provisional dismissal shall become permanent two (2) years after
the issuance of the order without the case having been revived. It should be
noted that the revival of the subject criminal cases, even if reckoned from the
DOJs issuance of subpoenas to petitioner, was commenced only on April 19,
2001, that is, more than two (2) years after the issuance, on March 29, 1999, of
RTC-Quezon Citys Resolution, provisionally dismissing the criminal cases now
sought to be revived. Applying the clear and categorical mandate of Section 8,
Rule 117, supra, such efforts to revive the criminal cases are now definitely
barred by the two-year prescriptive period provided therein.
xxx xxx xxx
WHEREFORE, the petition is GRANTED. As prayed for, the Temporary
Restraining Order earlier issued against the conduct of further proceedings in
Criminal Cases Nos. 01-101102 to 01-101112, including the issuance of
warrants of arrest against the petitioner, PANFILO M. LACSON, is hereby
made PERMANENT. Accordingly, with respect to said accused, the
proceedings conducted by respondent State Prosecutors in respect of the said
criminal cases are declared NULL AND VOID and the corresponding
Informations, docketed as Criminal Cases Nos. 01-101102 to 01-101112,
entitled People of the Philippines vs. Panfilo M. Lacson, et al. and filed before
respondent Judge Maria Theresa L. Yadao of Branch 81 of the Regional Trial
Court of Quezon City, are hereby ordered DISMISSED.
SO ORDERED.[37]
The issue is whether Section 8, Rule 117 bars the filing of the eleven (11)
informations against the respondent Lacson involving the killing of some
members of the Kuratong Baleleng gang. This rule which took effect on
December 1, 2000 provides:
SEC. 8. Provisional dismissal.- A case shall not be provisionally dismissed
except with the express consent of the accused and with notice to the offended
party.
The provisional dismissal of offenses punishable by imprisonment not
exceeding six (6) years or a fine of any amount, or both, shall become
permanent one (1) year after issuance of the order without the case having
been revived. With respect to offenses punishable by imprisonment of more
than six (6) years, their provisional dismissal shall become permanent two (2)
years after issuance of the order without the case having been revived.
Like any other favorable procedural rule, this new rule can be given
retroactive effect. However, this Court cannot rule on this jugular issue due to
the lack of sufficient factual bases. Thus, there is need of proof of the following
facts, viz: (1) whether the provisional dismissal of the cases had the express
consent of the accused; (2) whether it was ordered by the court after notice to
the offended party, (3) whether the 2-year period to revive has already lapsed,
and (4) whether there is any justification for the filing of the cases beyond the
2-year period.
 There is no uncertainty with respect to the fact that the provisional
dismissal of the cases against respondent Lacson bears his express consent. It
was respondent Lacson himself who moved to dismiss the subject cases for
lack of probable cause before then Judge Agnir, hence, it is beyond argument
that their dismissal bears his express consent.
The records of the case, however, do not reveal with equal clarity and
conclusiveness whether notices to the offended parties were given before the
cases against the respondent Lacson were dismissed by then Judge Agnir. It
appears from the resolution of then Judge Agnir that the relatives of the victims
who desisted did not appear during the hearing to affirm their affidavits. Their
affidavits of desistance were only presented by Atty. Godwin Valdez who
testified that he assisted the private complainants in preparing their affidavits
and he signed them as a witness. It also appears that only seven (7) persons
submitted their affidavits of desistance, namely:
a. Myrna Abalora, mother of the victims Sherwin Abalora and Rey
Abalora
b. Carmelita Elcamel, wife of Wilbur Elcamel;
c. Leonora Amora, mother of victim Joel Amora;
d. Nenita Alap-ap, wife of victim Carlito Alap-ap;
e. Imelda Montero, wife of victim Manuel Montero;
f. Margarita Redillas, mother of victim Hilario Jevy Redillas; and
g. Rolando Siplon.
From the records of the case before us, it cannot be determined whether
there were affidavits of desistance executed by the relatives of the three (3)
[38]
other victims, namely: Meleubren Soronda, Pacifico Montero, Jr., and Alex
Neri. The same records do not show whether they were notified of the hearing
or had knowledge thereof. To be sure, it is not fair to expect the element of
notice to be litigated before then Judge Agnir for Section 8, Rule 117 was yet
inexistent at that time.
The fact of notice to the offended parties was not raised either in the
petition for prohibition with application for temporary restraining order or writ of
preliminary injunction filed by respondent Lacson in the RTC of Manila,
presided by Judge Pasamba, to enjoin the prosecutors from reinvestigating the
said cases against him. The only question raised in said petition is whether the
reinvestigation will violate the right of respondent Lacson against double
jeopardy. Thus, the issue of whether or not the reinvestigation is barred by
Section 8, Rule 117 was not tackled by the litigants.
Nor was the fact of notice to the offended parties the subject of proof after
the eleven (11) informations for murder against respondent Lacson and
company were revived in the RTC of Quezon City presided by Judge Yadao.
There was hardly any proceeding conducted in the case for respondent Lacson
immediately filed a petition for certiorari in the appellate court challenging,
among others, the authority of Judge Yadao to entertain the revived
informations for multiple murder against him.
This is not to be wondered at. The applicability of Section 8, Rule 117 was
never considered in the trial court. It was in the Court of Appeals where
respondent Lacson raised for the first time the argument that Section 8, Rule
117 bars the revival of the multiple murder cases against him. But even then,
the appellate court did not require the parties to elucidate the crucial issue of
whether notices were given to the offended parties before Judge Agnir ordered
the dismissal of the cases against respondent Lacson and company. To be
sure, there is a statement in the Decision of the appellate court to the effect
that records show that the prosecution and the private offended parties were
notified of the hearing x x x.[39] It is doubtful whether this finding is supported by
the records of the case. It appears to be contrary to Judge Agnirs finding that
only seven (7) of the complainants submitted affidavits of desistance.
Indeed, the records of this case are inconclusive on the factual issue of
whether the multiple murder cases against respondent Lacson are being
revived within or beyond the 2-year bar. The reckoning date of the 2-year bar
has to be first determined - - - whether it is from the date of the Order of then
Judge Agnir dismissing the cases or from the dates the Order were received by
the various offended parties or from the date of the effectivity of the new rule.
If the cases were revived only after the 2-year bar, the State must be
given the opportunity to justify its failure to comply with said timeline. The new
rule fixes a timeline to penalize the State for its inexcusable delay in
prosecuting cases already filed in courts. It can therefore present compelling
reasons to justify the revival of cases beyond the 2-year bar.
In light of the lack of or the conflicting evidence on the various
requirements to determine the applicability of Section 8, Rule 117, this Court is
not in a position to rule whether or not the re-filing of the cases for multiple
murder against respondent Lacson should be enjoined. Fundamental fairness
requires that both the prosecution and the respondent Lacson should be
afforded the opportunity to be heard and to adduce evidence on the presence
or absence of the predicate facts upon which the application of the new rule
depends. They involve disputed facts and arguable questions of law. The
reception of evidence on these various issues cannot be done in this Court but
before the trial court.
IN VIEW OF THE FOREGOING, the case at bar is remanded to the RTC -
Quezon City, Branch 81 so that the State prosecutors and the respondent
Lacson can adduce evidence and be heard on whether the requirements of
Section 8, Rule 117 have been complied with on the basis of the evidence of
which the trial court should make a ruling on whether the Informations in
Criminal Cases Nos. 01-101102 to 01-101112 should be dismissed or not.
Pending the ruling, the trial court is restrained from issuing any warrant of G.R. No. 167571 November 25, 2008
arrest against the respondent Lacson. Melo and Carpio, JJ., take no part.
LUIS PANAGUITON, JR., petitioner
SO ORDERED. vs.
DEPARTMENT OF JUSTICE, RAMON C. TONGSON and RODRIGO G.
CAWILI, respondents.

DECISION

TINGA, J.:

This is a Petition for Review1 of the resolutions of the Court of Appeals dated
29 October 2004 and 21 March 2005 in CA G.R. SP No. 87119, which
dismissed Luis Panaguiton, Jr.'s (petitioner's) petition for certiorari and his
subsequent motion for reconsideration.2

The facts, as culled from the records, follow.

In 1992, Rodrigo Cawili (Cawili) borrowed various sums of money amounting

to P1,979,459.00 from petitioner. On 8 January 1993, Cawili and his business
associate, Ramon C. Tongson (Tongson), jointly issued in favor of petitioner
three (3) checks in payment of the said loans. Significantly, all three (3) checks
bore the signatures of both Cawili and Tongson. Upon presentment for
payment on 18 March 1993, the checks were dishonored, either for
insufficiency of funds or by the closure of the account. Petitioner made formal
demands to pay the amounts of the checks upon Cawili on 23 May 1995 and
upon Tongson on 26 June 1995, but to no avail.3

On 24 August 1995, petitioner filed a complaint against Cawili and Tongson 4 for
violating Batas Pambansa Bilang 22 (B.P. Blg. 22)5 before the Quezon City
Prosecutor's Office. During the preliminary investigation, only Tongson
appeared and filed his counter-affidavit.6 Tongson claimed that he had been
unjustly included as party-respondent in the case since petitioner had lent
money to Cawili in the latter's personal capacity. Moreover, like petitioner, he
had lent various sums to Cawili and in appreciation of his services, he was

offered to be an officer of Roma Oil Corporation. He averred that he was not

Cawili's business associate; in fact, he himself had filed several criminal cases
against Cawili for violation of B.P. Blg. 22. Tongson denied that he had issued
the bounced checks and pointed out that his signatures on the said checks had
been falsified.

To counter these allegations, petitioner presented several documents showing

Tongson's signatures, which were purportedly the same as the those appearing
on the checks.7 He also showed a copy of an affidavit of adverse claim wherein
Tongson himself had claimed to be Cawili's business associate. 8
In a resolution dated 6 December 1995,9 City Prosecutor III Eliodoro V. Lara
found probable cause only against Cawili and dismissed the charges against
Tongson. Petitioner filed a partial appeal before the Department of Justice
(DOJ) even while the case against Cawili was filed before the proper court. In a
letter-resolution dated 11 July 1997,10 after finding that it was possible for
Tongson to co-sign the bounced checks and that he had deliberately altered his
signature in the pleadings submitted during the preliminary investigation, Chief
State Prosecutor Jovencito R. Zuño directed the City Prosecutor of Quezon
City to conduct a reinvestigation of the case against Tongson and to refer the
questioned signatures to the National Bureau of Investigation (NBI).
Tongson moved for the reconsideration of the resolution, but his motion was
denied for lack of merit.
On 15 March 1999, Assistant City Prosecutor Ma. Lelibet S. Sampaga (ACP
Sampaga) dismissed the complaint against Tongson without referring the
matter to the NBI per the Chief State Prosecutor's resolution. In her
resolution,11 ACP Sampaga held that the case had already prescribed pursuant
to Act No. 3326, as amended,12 which provides that violations penalized by B.P.
Blg. 22 shall prescribe after four (4) years. In this case, the four (4)-year period
started on the date the checks were dishonored, or on 20 January 1993 and 18
March 1993. The filing of the complaint before the Quezon City Prosecutor on
24 August 1995 did not interrupt the running of the prescriptive period, as the
law contemplates judicial, and not administrative proceedings. Thus,
considering that from 1993 to 1998, more than four (4) years had already
elapsed and no information had as yet been filed against Tongson, the alleged
violation of B.P. Blg. 22 imputed to him had already prescribed. 13 Moreover,
ACP Sampaga stated that the order of the Chief State Prosecutor to refer the
matter to the NBI could no longer be sanctioned under Section 3, Rule 112 of
the Rules of Criminal Procedure because the initiative should come from
petitioner himself and not the investigating prosecutor. 14 Finally, ACP Sampaga
found that Tongson had no dealings with petitioner. 15
Petitioner appealed to the DOJ. But the DOJ, through Undersecretary Manuel
A.J. Teehankee, dismissed the same, stating that the offense had already
prescribed pursuant to Act No. 3326.16 Petitioner filed a motion for
reconsideration of the DOJ resolution. On 3 April 2003, 17 the DOJ, this time
through then Undersecretary Ma. Merceditas N. Gutierrez, ruled in his favor
and declared that the offense had not prescribed and that the filing of the
complaint with the prosecutor's office interrupted the running of the prescriptive
period citing Ingco v. Sandiganbayan.18 Thus, the Office of the City Prosecutor
of Quezon City was directed to file three (3) separate informations against
Tongson for violation of B.P. Blg. 22.19 On 8 July 2003, the City Prosecutor's
Office filed an information20 charging petitioner with three (3) counts of violation
of B.P. Blg. 22.21
However, in a resolution dated 9 August 2004,22 the DOJ, presumably acting on
a motion for reconsideration filed by Tongson, ruled that the subject offense
had already prescribed and ordered "the withdrawal of the three (3)
informations for violation of B.P. Blg. 22" against Tongson. In justifying its
sudden turnabout, the DOJ explained that Act No. 3326 applies to violations of
special acts that do not provide for a prescriptive period for the offenses
thereunder. Since B.P. Blg. 22, as a special act, does not provide for the
prescription of the offense it defines and punishes, Act No. 3326 applies to it,
and not Art. 90 of the Revised Penal Code which governs the prescription of
offenses penalized thereunder.23 The DOJ also cited the case of Zaldivia v.
Reyes, Jr.,24 wherein the Supreme Court ruled that the proceedings referred to
in Act No. 3326, as amended, are judicial proceedings, and not the one before
the prosecutor's office.
Petitioner thus filed a petition for certiorari25 before the Court of Appeals
assailing the 9 August 2004 resolution of the DOJ. The petition was dismissed
by the Court of Appeals in view of petitioner's failure to attach a proper
verification and certification of non-forum
shopping. The Court of Appeals also noted that the 3 April 2003 resolution of
the DOJ attached to the petition is a mere photocopy. 26 Petitioner moved for the
reconsideration of the appellate court's resolution, attaching to said motion an
amended Verification/Certification of Non-Forum Shopping. 27 Still, the Court of
Appeals denied petitioner's motion, stating that subsequent compliance with
the formal requirements would not per se warrant a reconsideration of its
resolution. Besides, the Court of Appeals added, the petition is patently without
merit and the questions raised therein are too unsubstantial to require
consideration.28
In the instant petition, petitioner claims that the Court of Appeals committed
grave error in dismissing his petition on technical grounds and in ruling that the
petition before it was patently without merit and the questions are too
unsubstantial to require consideration.
The DOJ, in its comment,29 states that the Court of Appeals did not err in
dismissing the petition for non-compliance with the Rules of Court. It also
reiterates that the filing of a complaint with the Office of the City Prosecutor of
Quezon City does not interrupt the running of the prescriptive period for
violation of B.P. Blg. 22. It argues that under B.P. Blg. 22, a special law which
does not provide for its own prescriptive period, offenses prescribe in four (4)
years in accordance with Act No. 3326.
Cawili and Tongson submitted their comment, arguing that the Court of Appeals
did not err in dismissing the petition for certiorari. They claim that the offense of
violation of B.P. Blg. 22 has already prescribed per Act No. 3326. In addition,
they claim that the long delay, attributable to petitioner and the State, violated
their constitutional right to speedy disposition of cases. 30
The petition is meritorious.
First on the technical issues.
Petitioner submits that the verification attached to his petition before the Court
of Appeals substantially complies with the rules, the verification being intended
simply to secure an assurance that the allegations in the pleading are true and
correct and not a product of the imagination or a matter of speculation. He
points out that this Court has held in a number of cases that a deficiency in the
verification can be excused or dispensed with, the defect being neither
jurisdictional nor always fatal. 31
Indeed, the verification is merely a formal requirement intended to secure an
assurance that matters which are alleged are true and correct–the court may
simply order the correction of unverified pleadings or act on them and waive
strict compliance with the rules in order that the ends of justice may be
served,32 as in the instant case. In the case at bar, we find that by attaching the
pertinent verification to his motion for reconsideration, petitioner sufficiently
complied with the verification requirement.
Petitioner also submits that the Court of Appeals erred in dismissing the
petition on the ground that there was failure to attach a certified true copy or
duplicate original of the 3 April 2003 resolution of the DOJ. We agree. A plain
reading of the petition before the
Court of Appeals shows that it seeks the annulment of the DOJ resolution
dated 9 August 2004,33 a certified true copy of which was attached as Annex
"A."34 Obviously, the Court of Appeals committed a grievous mistake.
Now, on the substantive aspects.
Petitioner assails the DOJ's reliance on Zaldivia v. Reyes,35 a case involving
the violation of a municipal ordinance, in declaring that the prescriptive period
is tolled only upon filing of the information in court. According to petitioner, what
is applicable in this case is Ingco v. Sandiganbayan,36 wherein this Court ruled
that the filing of the complaint with the fiscal's office for preliminary investigation
suspends the running of the prescriptive period. Petitioner also notes that the
Ingco case similarly involved the violation of a special law, Republic Act (R.A.)
No. 3019, otherwise known as the Anti-Graft and Corrupt Practices Act,
petitioner notes.37 He argues that sustaining the DOJ's and the Court of
Appeals' pronouncements would result in grave injustice to him since the
delays in the present case were clearly beyond his control. 38
There is no question that Act No. 3326, appropriately entitled An Act to
Establish Prescription for Violations of Special Acts and Municipal Ordinances
and to Provide When Prescription Shall Begin, is the law applicable to offenses
under special laws which do not provide their own prescriptive periods. The
pertinent provisions read:
Section 1. Violations penalized by special acts shall, unless otherwise
provided in such acts, prescribe in accordance with the following rules:
(a) x x x; (b) after four years for those punished by imprisonment for
more than one month, but less than two years; (c) x x x
Sec. 2. Prescription shall begin to run from the day of the commission
of the violation of the law, and if the same be not known at the time,
from the discovery thereof and the institution of judicial proceedings for
its investigation and punishment.
The prescription shall be interrupted when proceedings are instituted
against the guilty person, and shall begin to run again if the
proceedings are dismissed for reasons not constituting jeopardy.
We agree that Act. No. 3326 applies to offenses under B.P. Blg. 22. An
offense under B.P. Blg. 22 merits the penalty of imprisonment of not
less than thirty (30) days but not more than one year or by a fine,
hence, under Act No. 3326, a violation of B.P. Blg. 22 prescribes in four
(4) years from the commission of the offense or, if the same be not
known at the time, from the discovery thereof. Nevertheless, we cannot
uphold the position that only the filing of a case in court can toll the
running of the prescriptive period.
It must be pointed out that when Act No. 3326 was passed on 4 December
1926, preliminary investigation of criminal offenses was conducted by justices
of the peace, thus, the phraseology in the law, "institution of judicial
proceedings for its investigation and punishment," 39 and the prevailing rule at
the time was that once a complaint is filed with the justice of the peace for
preliminary investigation, the prescription of the offense is halted. 40
The historical perspective on the application of Act No. 3326 is
illuminating.41 Act No. 3226 was approved on 4 December 1926 at a time when
the function of conducting the preliminary investigation of criminal offenses was
vested in the justices of the peace. Thus, the prevailing rule at the time, as
shown in the cases of U.S. v. Lazada42 and People v. Joson,43 is that the
prescription of the offense is tolled once a complaint is filed with the justice of
the peace for preliminary investigation inasmuch as the filing of the complaint
signifies the
institution of the criminal proceedings against the accused. 44 These cases were
followed by our declaration in People v. Parao and Parao45 that the first step
taken in the investigation or examination of offenses partakes the nature of a
judicial proceeding which suspends the prescription of the
offense.46 Subsequently, in People v. Olarte,47 we held that the filing of the
complaint in the Municipal Court, even if it be merely for purposes of
preliminary examination or investigation, should, and does, interrupt the period
of prescription of the criminal responsibility, even if the court where the
complaint or information is filed cannot try the case on the merits. In addition,
even if the court where the complaint or information is filed may only proceed
to investigate the case, its actuations already represent the initial step of the
proceedings against the offender, 48and hence, the prescriptive period should be
interrupted.
In Ingco v. Sandiganbayan49 and Sanrio Company Limited v. Lim,50 which
involved violations of the Anti-Graft and Corrupt Practices Act (R.A. No. 3019)
and the Intellectual Property Code (R.A. No. 8293), which are both special
laws, the Court ruled that the
prescriptive period is interrupted by the institution of proceedings for
preliminary investigation against the accused. In the more recent case of
Securities and Exchange Commission v. Interport Resources Corporation, et
al.,51 the Court ruled that the nature and purpose of the investigation conducted
by the Securities and Exchange Commission on violations of the Revised
Securities Act,52 another special law, is equivalent to the preliminary
investigation conducted by the DOJ in criminal cases, and thus effectively
interrupts the prescriptive period.
The following disquisition in the Interport Resources case53 is instructive, thus:
While it may be observed that the term "judicial proceedings" in Sec. 2
of Act No. 3326 appears before "investigation and punishment" in the
old law, with the subsequent change in set-up whereby the
investigation of the charge for purposes of prosecution has become the
exclusive function of the executive branch, the term "proceedings"
should now be understood either executive or judicial in character:
executive when it involves the investigation phase and judicial when it
refers to the trial and judgment stage. With this clarification, any kind of
investigative proceeding instituted against the guilty person which may
ultimately lead to his prosecution should be sufficient to toll
prescription.54
Indeed, to rule otherwise would deprive the injured party the right to obtain
vindication on account of delays that are not under his control. 55 A clear
example would be this case, wherein petitioner filed his complaint-affidavit on
24 August 1995, well within the four (4)-year prescriptive period. He likewise
timely filed his appeals and his motions for reconsideration on the dismissal of
the charges against
Tongson. He went through the proper channels, within the prescribed periods.
However, from the time petitioner filed his complaint-affidavit with the Office of
the City Prosecutor (24 August 1995) up to the time the DOJ issued the
assailed resolution, an aggregate period of nine (9) years had elapsed. Clearly,
the delay was beyond petitioner's control. After all, he had already initiated the
active prosecution of the case as early as 24 August 1995, only to suffer
setbacks because of the DOJ's flip-flopping resolutions and its misapplication
of Act No. 3326. Aggrieved parties, especially those who do not sleep on their
rights and actively pursue their causes, should not be allowed to suffer
unnecessarily further simply because of circumstances beyond their control,
like the accused's delaying tactics or the delay and inefficiency of the
investigating agencies.
We rule and so hold that the offense has not yet prescribed. Petitioner 's filing
of his complaint-affidavit before the Office of the City Prosecutor on 24 August
1995 signified the commencement of the proceedings for the prosecution of the
accused and thus effectively interrupted the prescriptive period for the offenses
they had been charged under B.P. Blg. 22. Moreover, since there is a definite
finding of probable cause, with the debunking of the claim of prescription there
is no longer any impediment to the filing of the information against petitioner.
WHEREFORE, the petition is GRANTED. The resolutions of the Court of
Appeals dated 29 October 2004 and 21 March 2005 are REVERSED and SET
ASIDE. The resolution of the Department of Justice dated 9 August 2004 is
also ANNULLED and SET ASIDE. The Department of Justice is ORDERED to
REFILE the information against the petitioner.
No costs.
SO ORDERED.
 PEOPLE OF THE PHILIPPINES, G.R. No. 168918 On 19 July 1991, an Amended Information was filed before the Sandiganbayan
Petitioner, charging respondents Dumlao and Lao, Aber P. Canlas, Jacobo C. Clave,
Present: Roman A. Cruz, Jr. and Fabian C. Ver with violation of Section 3(g) of Republic
PUNO, C.J.,* Act No. 3019, as amended, otherwise known as the Anti-Graft and Corrupt
QUISUMBING, J.,** Practices Act. The case was docketed as Criminal Case No. 16699. The
CARPIO,*** accusatory portion of the information reads:
- versus - CHICO-NAZARIO, and
Acting Chairperson, That on or about May 10, 1982, or for sometime prior or
PERALTA, JJ. subsequent thereto, in Manila, Philippines, and within the jurisdiction of
this Honorable Court, the accused Hermenegildo C. Dumlao, Aber
Promulgated: Canlas, Jacobo C. Clave, Roman A. Cruz, Jr., and Fabian C. Ver,
HERMENEGILDO DUMLAO y being then the members of the Board of Trustees of the Government
CASTILIANO and EMILIO LAO y March 2, 2009 Service Insurance System (GSIS) which is a government corporation
GONZALES, and therefore all public officers, conspiring and confederating together
Respondents. and mutually helping one another, while in the performance of their
official functions, did then and there willfully, unlawfully and criminally
x- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - x enter into contract of lease-purchase with Emilio G. Lao, a private
person whereby the GSIS agreed to sell to said Emilio G. Lao, a GSIS
DECISION acquired property consisting of three parcels of land with an area of
821 square meters together with a 5-storey building situated at 1203 A.
CHICO-NAZARIO, J.: Mabini St., Ermita, Manila, known as the Government Counsel Centre
for the sum of P2,000,000.00 with a down payment of P200,000.00
On appeal is the Resolution [1] of the Sandiganbayan in Criminal Case No. with the balance payable in fifteen years at 12% interest per annum
16699 dated 14 July 2005 which granted the Motion to Dismiss/Quash of compounded yearly, with a yearly amortization of P264,278.37
respondent Hermenegildo C. Dumlao and dismissed the case against him. The including principal and interest granting Emilio G. Lao the right to sub-
Sandiganbayan likewise ordered the case against respondent Emilio G. Lao lease the ground floor for his own account during the period of lease,
archived. The dispositive portion of the resolution reads: from which he collected yearly rentals in excess of the yearly
amortization which contract is manifestly and grossly disadvantageous
WHEREFORE, finding the Motion to Dismiss/Quash filed by to the government.[3]
accused Hermenegildo C. Dumlao to be meritorious this case as
against him is hereby ordered DISMISSED. When arraigned on 9 November 2004, respondent Dumlao, with the assistance
of counsel de parte, pleaded not guilty to the offense charged. [4] As agreed
The cash bond posted by him is hereby cancelled and accused upon by the prosecution and respondent Dumlao, a Joint Stipulation of Facts
Dumlao is allowed to withdraw the same from the Cashiers Office of and Admission of Exhibits was submitted to the court on 10 January 2005.[5] On
this Court. the basis thereof, the court issued on 19 January 2005 the following Pre-Trial
Order:
The hold departure order issued by this Court against herein
accused Dumlao is lifted and set aside. PRE-TRIAL ORDER

The Commissioner of the Bureau of Immigration and
Deportation is ordered to cancel the name of accused Hermenegildo
C. Dumlao from the Bureaus Hold Departure List.
This case as against Emilio Lao who is still at large is ordered
archived.[2]
The Prosecution and Accused Hermenegildo C. Dumlao, as
assisted by counsel, submitted their JOINT STIPULATION OF
FACTS AND ADMISSION OF EXHIBITS dated December 21,
2004, quoted hereunder:
I. STIPULATION OF FACTS
The Prosecution and Accused Dumlao jointly stipulate on the 9. That there are only seven (7) members of the Board of
following: Trustees of the GSIS present during the board meeting held
1. That at the time material to this case, the on April 23, 1982;
following were members of the Board of Trustees of the
Government Service Insurance System (GSIS): 10. Exhibit A and 1 entitled Agreement was signed by Luis A.
a. Hermenegildo C. Dumlao Javellana, for and in behalf of the GSIS, Felipe S. Aldaa, for
b. Aber P. Canlas and [in] behalf of the Republic of the Philippines thru
c. Jacobo C. Clave Government Corporate Counsel, and Emilio Gonzales Lao, as
d. Roman A. Cruz buyer.
e. Fabian C. Ver
f. Leonilo M. Ocampo and II. DOCUMENTARY EVIDENCE
g. Benjamin C. Morales;
The Prosecution and Accused Dumlao admitted the
2. That Emilio Gonzales Lao is a private person; authenticity and due execution of the following documentary
evidence:
3. That GSIS was the owner of a property consisting of three
(3) parcels of land with an area of 821 square meters, together
with a 5-storey building situated as 1203 A. Mabini Street, EXHIBITS DESCRIPTIO
Ermita, Manila known as the Government Counsel Centre; N
A (also Exhibit 1 for The Agreement executed
4. That on June 22, 1978, the GSIS entered into a Lease- accused Dumlao by and among the GSIS,
Purchase Agreement with the Republic of the Philippines the Republic of
through the Office of the Government Corporate Counsel the Philippines, through
(OGCC) involving the property described under paragraph 3 OGCC and accused
above, for a consideration of P1.5 million payable in equal Emilio Gonzales Lao
yearly amortizations for a period of fifteen (15) years with zero on May 10, 1982,
interest. The period should commence after the GSIS shall consisting of 11 pages;
have renovated the building according to the specification of B (also Exhibit 2 for The pertinent portion,
the OGCC; accused Dumlao) including the signature
page, of Minutes of
5. That in accordance with the June 22, 1978 Lease-Purchase Meeting No. 14 of the
Agreement, the 5-storey building was renovated. Thereafter, GSIS Board of Trustees
the OGCC occupied the same; held on April 23, 1982,
specifically containing
6. That Ferdinand E. Marcos was, at all-times material hereto, item no. 326 regarding
the President of the Republic of the Philippines; the approval of the
proposed Agreement by
7. That then President was at all times material hereto, and among the GSIS, the
legislating through the issuance of Presidential Decrees, Republic of
Executive Orders and the like; the Philippines through
the OGCC and accused
8. That among the three Members of the Board who signed the Emilio Gonzales Lao,
Minutes only accused Dumlao was charged in this case; consisting of 5 pages.

III. RESERVATION
 The Prosecution and Accused Dumlao reserve the right to
mark and offer in evidence the documents mentioned in their
respective Pre-Trial Briefs, as well as to present the witnesses
listed therein.
IV. ISSUE
Whether or not accused Dumlao is liable for violation of
Section 3(g), RA 3019.
WHEREFORE, with the submission by the parties of their Joint
Stipulation of Facts, the pre-trial is deemed terminated. Let the
above-mentioned joint stipulation as recited in this pre-trial
order bind the parties, limit the trial to matters not disposed of,
and control the course of the proceedings in this case unless
modified by the Court to prevent manifest injustice. [6]
On 21 February 2005, respondent Dumlao filed a Motion to Dismiss/Quash on
the ground that the facts charged do not constitute an offense. [7] He stated that
the prosecutions main thrust against him was the alleged approval by the
Government Service Insurance System (GSIS) Board of Trustees -- of which
he was a member -- of the Lease-Purchase Agreement entered into by and
among the GSIS, the Office of the Government Corporate Counsel (OGCC)
and respondent Lao. He argued that the allegedly approved Board Resolution
was not in fact approved by the GSIS Board of Trustees, contrary to the
allegations in the information. Since the signatures of Fabian Ver, Roman Cruz,
Aber Canlas and Jacobo Clave did not appear in the minutes of the meeting
held on 23 April 1982, he said it was safe to conclude that these people did not
participate in the alleged approval of the Lease-Purchase Agreement. This
being the case, he maintained that there was no quorum of the board to
approve the supposed resolution authorizing the sale of the GSIS
property. There being no approval by the majority of the Board of Trustees,
there can be no resolution approving the Lease-Purchase Agreement. The
unapproved resolution, he added, proved his innocence. He further contended
that the person to be charged should be Atty. Luis Javellana, who sold the
subject property to respondent Lao without the proper authority. He likewise
wondered why he alone was charged without including the other two
signatories in the minutes of the meeting held on 23 April 1982.
On 14 July 2005, the Sandiganbayan issued the assailed resolution. It ruled:
The Court finds the motion meritorious. The minutes of the
meeting held on April 23, 1982 of the Board of Trustees of
GSIS shows that the Board failed to approve the Lease-
Purchase Agreement in question. As stipulated upon by both
parties out of the seven (7) members of GSIS Board of
Trustees only three (3) members signed the minutes, the
others did not. In order to validly pass a resolution at least a
majority of four (4) members of the Board of Trustees must
sign and approve the same.
No amount of evidence can change the fact that Resolution
dated April 23, 1982 was not validly passed by the Board of
Trustees of GSIS since it was only signed by three (3)
members of the Board. Thus, it never had the force and effect
of a valid resolution and did not in effect approve the Lease
and Purchase Agreement subject matter hereof. Therefore, the
prosecution has no cause of action against herein movant-
accused Hermenegildo C. Dumlao.[8]
On 2 September 2005, the People of the Philippines, represented by the Office
of the Ombudsman, thru the Office of the Special Prosecutor, filed a petition
for certiorari[9]under Rule 45 of the Rules of Court seeking the reversal and
setting aside of the Sandiganbayan Resolution dismissing the case against
respondent Dumlao. Petitioner raises the following issues:
I) WHETHER OR NOT THE COURT A QUO ACTED IN
ACCORDANCE WITH LAW AND JURISPRUDENCE WHEN
IT RESOLVED TO DISMISS CRIMINAL CASE NO. 16699 AS
AGAINST RESPONDENT DUMLAO AFTER THE PRE-TRIAL
AND BEFORE THE PETITIONER COULD PRESENT ITS
WITNESSES AND FORMALLY OFFER ITS EXHIBITS.
II) WHETHER OR NOT THE SIGNATURES OF THE
MAJORITY OF THE GSIS BOARD OF TRUSTEES ARE
NECESSARY ON THE MINUTES OF MEETING NO. 14
DATED 23 APRIL 1982 TO GIVE FORCE AND EFFECT TO
RESOLUTION NO. 326 APPROVING THE PROPOSED
AGREEMENT BY AND AMONG THE GSIS, THE OGCC AND
RESPONDENT EMILIO LAO.
III) WHETHER OR NOT THE VALIDITY OF THE CONTRACT
IS AN ESSENTIAL ELEMENT OF VIOLATION OF SECTION
3(G), RA 3019.
IV) WHETHER OR NOT THE COURT A QUO ACTED IN
ACCORDANCE WITH LAW AND JURISPRUDENCE WHEN
IT RESOLVED TO ARCHIVE THE CASE AGAINST
RESPONDENT LAO.
On the other hand, respondent Dumlao proffers the following grounds to
support the dismissal of the case against him:
 1. TO GIVE DUE COURSE TO THE OMBUDSMANS
PETITION IS TO PLACE DUMLAO IN DOUBLE JEOPARDY,
IN VIOLATION OF HIS CONSTITUTIONAL RIGHTS;
2. THE SANDIGANBAYAN COULD NOT BE SAID TO HAVE
GRAVELY ABUSED ITS DISCRETION AMOUNTING TO
LACK OF JURISDICTION BECAUSE IT MERELY
FOLLOWED THE RULE ON PRE-TRIAL AND DECIDED THE
CASE ON THE BASIS OF THE FACTS STIPULATED IN THE
PRE-TRIAL;
3. THE FACTS AS AGREE (SIC) BY THE PROSECUTION
AND RESPONDENT DUMLAO IN THEIR PRE-TRIAL
STIPULATION AND AS APPROVED BY THE
SANDIGANBAYAN SHOWED THAT HE DID NOT COMMIT
ANY CRIME; AND
4. CONTINUALLY PROSECUTING DUMLAO, TO THE
EXCLUSION OF OTHER GSIS TRUSTEES, UNDER THE
CIRCUMSTANCES OBTAINING, CONSTITUTES UNFAIR
DISCRIMINATION AND VIOLATION OF HIS
CONSTITUTIONAL RIGHT TO EQUAL PROTECTION OF
THE LAW.[10]
Petitioner argues it was denied its right to due process when the court a
quo dismissed the case against respondent Dumlao after pre-trial and before it
could present its witnesses and formally offer its exhibits. The court a
quo deprived it of the opportunity to prove its case that the Resolution dated 23
April 1982 was passed by the GSIS Board of Trustees and that the Lease-
Purchase Agreement was grossly and manifestly disadvantageous to the
government.
Respondent Dumlao was charged, he being one of the members of the GSIS
Board of Trustees who allegedly approved the lease-purchase of the subject
GSIS properties consisting of three parcels of land with an area of 821 square
meters, together with a five-storey building, in favor of respondent Lao, which
lease-purchase agreement was deemed by the Office of the Ombudsman to be
grossly disadvantageous to the government.
A review of the Motion to Dismiss/Quash filed by respondent Dumlao reveals
that the ground he invoked was that the facts charged do not constitute an
offense. He contends that the alleged approved Board Resolution was not
approved by the GSIS Board of Trustees, contrary to the allegation in the
information. Since the signatures of four out of the seven members of the
board did not appear in the minutes of the meeting held on 23 April 1982, there
was no quorum present or no majority that approved the supposed
resolution. This being the case, he asserts that there was no resolution
adopted by the GSIS Board of Trustees approving the sale of the subject
properties to respondent Lao.
The Sandiganbayan, basing its resolution on the Pre-trial Stipulation entered
into by the prosecution and respondent Dumlao, dismissed the case against
the latter, since it found that the GSIS Board of Trustees failed to approve or
validly pass the Lease-Purchase Agreement, because only three out of the
seven members of the Board signed the minutes of the meeting held on 23
April 1982. It explained that, no amount of evidence can change the fact that
the Resolution dated April 23, 1982 was not validly passed by the Board of
Trustees of GSIS since it was only signed by three members of the
Board. Thus, it never had the force and effect of a valid resolution and did not
in effect approve the Lease and Purchase Agreement subject matter
hereof. Therefore, the prosecution has no cause of action against herein
movant-accused Hermenegildo C. Dumlao.
The ground raised by respondent Dumlao in his Motion to Quash/Dismiss is
that the facts charged do not constitute an offense. The fundamental test in
determining the sufficiency of the material averments of an information is
whether the facts alleged therein, which are hypothetically admitted, would
establish the essentials elements of the crime defined by
law. Evidence aliunde, or matters extrinsic of the Information, are not be
considered.[11]
The elements of the crime under Section 3(g) of Republic Act No. 3019 are as
follows: (1) that the accused is a public officer; (2) that he entered into a
contract or transaction on behalf of the government; and (3) that such contract
or transaction is grossly and manifestly disadvantageous to the government. [12]
After examining the information, we find that the facts alleged therein, if
hypothetically admitted, will prove all the elements of Section 3(g) as against
respondent Dumlao.
It can be gathered from the resolution of the Sandiganbayan that it did consider
the ground invoked by Dumlao (that the facts charged do not constitute an
offense); otherwise, it could have denied respondent Dumlaos motion. From
the reasoning given by the Sandiganbayan, it is clear that it dismissed the case
because of insufficiency of evidence.
Insufficiency of evidence is not one of the grounds of a Motion to Quash. The
grounds, as enumerated in Section 3, Rule 117 of the Revised Rules of
Criminal Procedure, are as follows:
(a) That the facts charged do not constitute an offense;
(b) That the court trying the case has no jurisdiction over the
offense charged;
 (c) That the court trying the case has no jurisdiction over the
person of the accused;
(d) That the officer who filed the information had no authority to
do so;
(e) That it does not conform substantially to the prescribed
form;
(f) That more than one offense is charged except when a
single punishment for various offenses is prescribed by law;
(g) That the criminal action or liability has been extinguished;
(h) That it contains averments which, if true, would constitute a
legal excuse or justification; and
(i) That the accused has been previously convicted or
acquitted of the offense charged, or the case against him was
dismissed or otherwise terminated without his express
consent.
Insufficiency of evidence is a ground for dismissal of an action only after the
prosecution rests its case. Section 23, Rule 119 of the Revised Rules of
Criminal Procedure provides:
Sec. 23. Demurrer to evidence. After the prosecution rests its
case, the court may dismiss the action on the ground of
insufficiency of evidence (1) on its own initiative after giving the
prosecution the opportunity to be heard or (2) upon demurrer
to evidence filed by the accused with or without leave of court.
In the case under consideration, the Sandiganbayan dismissed the case
against respondent for insufficiency of evidence, even without giving the
prosecution the opportunity to present its evidence. In so doing, it violated the
prosecutions right to due process. It deprived the prosecution of its opportunity
to prosecute its case and to prove the accuseds culpability.
It was therefore erroneous for the Sandiganbayan to dismiss the case under
the premises. Not only did it not consider the ground invoked by respondent
Dumlao; it even dismissed the case on a ground not raised by him, and not at
the appropriate time. The dismissal was thus without basis and untimely.
On the second issue raised by petitioner, it maintains that the Sandiganbayan
erred in equating, or confusing, the minutes of the meeting of 23 April
1982 with Resolution No. 326, which allegedly approved the lease-purchase
agreement on the GSIS properties, entered into with respondent Lao. It argues
that the Sandiganbayan incorrectly ruled that the Resolution dated 23 April
1982 regarding the lease-purchase of the GSIS properties was not approved,
because only three out of the seven members of the GSIS Board of Trustees
signed the minutes of the meeting of 23 April 1982.
We agree with petitioner that the Sandiganbayan erred in equating the minutes
of the meeting with the supposed resolution of the GSIS Board of Trustees. A
resolution is distinct and different from the minutes of the meeting. A
board resolution is a formal action by a corporate board of directors or other
corporate body authorizing a particular act, transaction, or appointment. [13] It is
ordinarily special and limited in its operation, applying usually to some single
specific act or affair of the corporation; or to some specific person, situation or
occasion.[14] On the other hand, minutes are a brief statement not only of what
transpired at a meeting, usually of stockholders/members or directors/trustees,
but also at a meeting of an executive committee. The minutes are usually kept
in a book specially designed for that purpose, but they may also be kept in the
form of memoranda or in any other manner in which they can be identified as
minutes of a meeting.[15]
The Sandiganbayan concluded that since only three members out of seven
signed the minutes of the meeting of 23 April 1982, the resolution approving
the Lease-Purchase Agreement was not passed by the GSIS Board of
Trustees. Such conclusion is erroneous. The non-signing by the majority of the
members of the GSIS Board of Trustees of the said minutes does not
necessarily mean that the supposed resolution was not approved by the
board. The signing of the minutes by all the members of the board is not
required.There is no provision in the Corporation Code of the Philippines[16] that
requires that the minutes of the meeting should be signed by all the members
of the board.
The proper custodian of the books, minutes and official records of a corporation
is usually the corporate secretary. Being the custodian of corporate records, the
corporate secretary has the duty to record and prepare the minutes of the
meeting. The signature of the corporate secretary gives the minutes of the
meeting probative value and credibility. [17] In this case, Antonio Eduardo B.
Nachura,[18] Deputy Corporate Secretary, recorded, prepared and certified the
correctness of the minutes of the meeting of 23 April 1982; and the same was
confirmed by Leonilo M. Ocampo, Chairman of the GSIS Board of
Trustees. Said minutes contained the statement that the board approved the
sale of the properties, subject matter of this case, to respondent Lao.
The minutes of the meeting of 23 April 1982 were prepared by the Deputy
Corporate Secretary of the GSIS Board of Trustees. Having been made by a
public officer, the minutes carry the presumption of regularity in the
performance of his functions and duties. Moreover, the entries contained in the
minutes are prima facie evidence of what actually took place during the
meeting, pursuant to Section 44, Rule 130 of the Revised Rule on Evidence.
[19]
This being the case, the Sandiganbayan erred in dismissing the case,
because there was evidence, at that time, when it dismissed the case against
respondent Dumlao. The dismissal by the lower court of the case against
respondent Dumlao was indeed premature. It should have given the

prosecution the opportunity to fully present its case and to establish reasonable
doubt on the alleged approval by the GSIS Board of Trustees of the lease-
purchase of the GSIS properties.
Petitioner likewise faults the Sandiganbayan for archiving the case against
respondent Lao, arguing that since he had already been arraigned, it should
have ordered the prosecution to adduce evidence against him.
We agree. However, said issue has already been mooted by the death of
respondent Lao.[20] The death of an accused prior to final judgment terminates
his criminal as well as civil liability based solely thereon. [21] Accordingly, the
case against respondent Lao was dismissed.[22]
In support of the dismissal of the case against him, respondent Dumlao
contends that to give due course to the Ombudsmans petition would place him
in double jeopardy, in violation of his constitutional rights. Respondent Dumlao
asserts that all the elements of double jeopardy are present in the case at
bar. Citing Heirs of Tito Rillorta v. Firme,[23] he added: [A]ssuming arguendo that
the Sandiganbayan committed an error, whatever error may have been
committed by the Sandiganbayan was merely an error of judgment and not of
jurisdiction. It did not affect the intrinsic validity of the decision. This is the kind
of error that can no longer be rectified on appeal by the prosecution, no matter
how obvious the error may be.
To raise the defense of double jeopardy, three requisites must be present: (1) a
first jeopardy must have attached prior to the second; (2) the first jeopardy
must have been validly terminated; and (3) the second jeopardy must be for
the same offense as that in the first.[24] The first jeopardy attaches attaches
only (1) upon a valid indictment; (2) before a competent court; (3) after
arraignment; (4) when a valid plea has been entered; and (5) when the
defendant was convicted or acquitted, or the case was dismissed or otherwise
terminated without the express consent of the accused. [25]
We do not agree. In the instant case, double jeopardy has not yet set in. The
first jeopardy has not yet attached. There is no question that four of the five
elements of legal jeopardy are present. However, we find the last element valid
conviction, acquittal, dismissal or termination of the case wanting. As
previously discussed, the Sandignabayan violated the prosecutions right to due
process. The prosecution was deprived of its opportunity to prosecute its case
and to prove the accuseds culpability. The dismissal was made in a capricious
and whimsical manner. The trial court dismissed the case on a ground not
invoked by the respondent. The Sandiganbayan dismissed the case for
insufficiency of evidence, while the ground invoked by the respondent was
that the facts charged did not constitute an offense. The dismissal was clearly
premature, because any dismissal based on insufficiency of evidence may only
be made after the prosecution rests its case and not at any time before then.
[26]
A purely capricious dismissal of an information deprives the State of a fair
opportunity to prosecute and convict. It denies the prosecution a day in court. It
is void and cannot be the basis of double jeopardy. [27]
The cardinal precept is that where there is a violation of basic constitutional
rights, courts are ousted of their jurisdiction. Where the denial of the
fundamental right to due process is apparent, a decision in disregard of the
right is void for lack of jurisdiction. [28] In the instant case, there was no error of
judgment but a denial of due process resulting in loss of
jurisdiction. Respondent Dumlao would not be placed in double
jeopardy because, from the very beginning, the Sandiganbayan had acted
without jurisdiction. Precisely, any ruling issued without jurisdiction is, in legal
contemplation, necessarily null and void and does not exist. [29] Otherwise put,
the dismissal of the case below was invalid for lack of a fundamental
prerequisite, that is, due process. In rendering the judgment of dismissal, the
trial court acted without or in excess of jurisdiction, for a judgment which is void
for lack of due process is equivalent to excess or lack of jurisdiction. [30] This
being the case, the prosecution is allowed to appeal because it was not given
its day in court.
As heretofore explained, the Sandiganbayan gravely abused its discretion
amounting to lack of jurisdiction when it dismissed the case against respondent
Dumlao based only on the stipulations made by the parties during pre-trial. The
erroneous equation of the number of members who signed the minutes of the
meeting with the number of members who approved the alleged resolution
necessarily led to the Sandiganbayans faulty conclusion that there was no
evidence showing that the GSIS Board of Trustees approved the alleged
Lease-Purchase Agreement. As we have said, the minutes issued by the
Depute Corporate Secretary were enough, at that time, to set the case for trial
and to allow the prosecution to prove its case and to present all its witnesses
and evidence.
Respondent Dumlao claims that the GSIS has not been prejudiced because it
still owns the properties subject matter of this case. This Court cannot rule on
this claim, the same being a factual issue and a defense he is raising. The
appreciation of this claim is not proper in this forum and is better left to the trial
court, since the Supreme Court is not a trier of facts. [31]
Respondent Dumlao maintains he was charged with conspiring with the other
GSIS Board Members in approving the Lease-Purchase Agreement. However,
of the seven members, two died, two were acquitted and the other two were
not charged. He was left alone. He argues that since a conspiracy requires two
or more persons agreeing to commit a crime, he can no longer be charged
because he was left alone to face a charge of conspiracy.
His assumption that he can no longer be charged because he was left alone --
since the co-conspirators have either died, have been acquitted or were not
charged -- is wrong. A conspiracy is in its nature a joint offense. One person
cannot conspire alone. The crime depends upon the joint act or intent of two or
more person. Yet, it does not follow that one person cannot be convicted of
conspiracy. As long as the acquittal or death of a co-conspirator does not
remove the basis of a charge of conspiracy, one defendant may be found guilty
of the offense.[32] In the case at bar, the absence or presence of conspiracy is
again factual in nature and involves evidentiary matters. The same is better left
ventilated before the trial court during trial, where the parties can adduce
evidence to prove or disprove its presence.
Lastly, respondent Dumlao submits that his prosecution, to the exclusion of
others, constitutes unfair discrimination and violates his constitutional right to
equal protection of the law. He says that the dismissal of the case against his
co-accused Canlas and Clave were not appealed by the prosecution; and the
two government officials who signed the Lease-Purchase Agreement, and the
two other members (Ocampo and Morales) of the GSIS Board of Trustees who
signed the minutes were not charged.
We are not convinced that respondent Dumlao was unfairly discriminated
against and his constitutional right to equal protection violated. It must be
remembered that the manner in which the prosecution of the case is handled is
within the sound discretion of the prosecutor, and the non-inclusion of other
guilty persons is irrelevant to the case against the accused. [33] We find that
there was no clear and intentional discrimination in charging respondent
Dumlao. A discriminatory purpose is never presumed.[34] It must be
remembered that it was not solely respondent who was charged, but also five
of the seven board members. If, indeed, there were discrimination, respondent
Dumlao alone could have been charged. But this was not the case. Further, the
fact that the dismissal of the case against his co-accused Canlas and Clave
was not appealed is not sufficient to cry discrimination. This is likewise true for
the non-inclusion of the two government officials who signed the Lease-
Purchase Agreement and the other two board members. Mere speculation,
unsupported by convincing evidence, cannot establish discrimination on the
part of the prosecution and the denial to respondent of the equal protection of
the laws.
In Santos v. People,[35] citing People v. Dela Piedra,[36] the Court explained:
The prosecution of one guilty person while others equally
guilty are not prosecuted, however, is not, by itself, a denial of the
equal protection of the laws. Where the official action purports to be in
conformity to the statutory classification, an erroneous or mistaken
performance of the statutory duty, although a violation of the statute,
is not without more a denial of the equal protection of the laws. The
unlawful administration by officers of a statute fair on its face, resulting
in its unequal application to those who are entitled to be treated alike,
is not a denial of equal protection unless there is shown to be present
in it an element of intentional or purposeful discrimination. This may
appear on the face of the action taken with respect to a particular
class or person, or it may only be shown by extrinsic evidence
showing a discriminatory design over another not to be inferred from
the action itself. But a discriminatory purpose is not presumed,
there must be a showing of clear and intentional
discrimination. Appellant has failed to show that, in charging
appellant in court, that there was a clear and intentional discrimination
on the part of the prosecuting officials.
The discretion of who to prosecute depends on the
prosecutions sound assessment whether the evidence before it can
justify a reasonable belief that a person has committed an
offense.The presumption is that the prosecuting officers regularly
performed their duties, and this presumption can be overcome
only by proof to the contrary, not by mere speculation. Indeed,
appellant has not presented any evidence to overcome this
presumption. The mere allegation that appellant, a Cebuana, was
charged with the commission of a crime, while a Zamboanguea, the
guilty party in appellants eyes, was not, is insufficient to support a
conclusion that the prosecution officers denied appellant equal
protection of the laws.
There is also common sense practicality in sustaining
appellants prosecution.
While all persons accused of crime are to be treated on a
basis of equality before the law, it does not follow that they are to
be protected in the commission of crime. It would be
unconscionable, for instance, to excuse a defendant guilty of murder
because others have murdered with impunity. The remedy for
unequal enforcement of the law in such instances does not lie in
the exoneration of the guilty at the expense of society x x x.
Protection of the law will be extended to all persons equally in the
pursuit of their lawful occupations, but no person has the right to
demand protection of the law in the commission of a crime.
Likewise, [i]f the failure of prosecutors to enforce the criminal
laws as to some persons should be converted into a defense for
others charged with crime, the result would be that the trial of the
district attorney for nonfeasance would become an issue in the trial of
many persons charged with heinous crimes and the enforcement of
law would suffer a complete breakdown. (Emphases ours.)
WHEREFORE, premises considered, the instant petition is GRANTED. The HILARIO P. SORIANO, G.R. No. 162336
resolution of the Sandiganbayan in Criminal Case No. 16699 dated 14 July Petitioner,
2005 granting the Motion to Dismiss/Quash of respondent Hermenegildo C.
Dumlao, is hereby REVERSED and SET ASIDE. The Sandiganbayan is - versus - Present:
forthwith DIRECTED to set the case for the reception of evidence for the
prosecution. PEOPLE OF CARPIO, J., Chairperson,
THE PHILIPPINES,
As to respondent Emilio G. Lao, on account of his demise, the case against BANGKO SENTRAL NG CORONA,*
him is DISMISSED. PILIPINAS (BSP), PHILIPPINE BRION,
DEPOSIT INSURANCE DEL CASTILLO, and
SO ORDERED. CORPORATION (PDIC), PEREZ, JJ.
PUBLIC
PROSECUTOR ANTONIO C.
BUAN, and STATE
PROSECUTOR ALBERTO R. Promulgated:
FONACIER,
Respondents. [1] February 1, 2010
x---------------------------------------------x

DECISION

DEL CASTILLO, J.:

A bank officer violates the DOSRI[2] law when he acquires bank funds for his personal
benefit, even if such acquisition was facilitated by a fraudulent loan
application. Directors, officers, stockholders, and their related interests cannot be
allowed to interpose the fraudulent nature of the loan as a defense to escape culpability
for their circumvention of Section 83 of Republic Act (RA) No. 337.[3]

Before us is a Petition for Review on Certiorari[4] under Rule 45 of the Rules of Court,
assailing the September 26, 2003 Decision[5] and the February 5, 2004 Resolution[6] of
the Court of Appeals (CA) in CA-G.R. SP No. 67657. The challenged Decision
disposed as follows:

WHEREFORE, premises considered, the instant petition for

certiorari is hereby DENIED.[7]

Factual Antecedents

Sometime in 2000, the Office of Special Investigation (OSI) of the Bangko Sentral ng
Pilipinas (BSP), through its officers,[8] transmitted a letter[9] dated March 27, 2000 to
Jovencito Zuo, Chief State Prosecutor of the Department of Justice (DOJ). The letter
attached as annexes five affidavits,[10] which would allegedly serve as bases for filing
criminal charges for Estafa thru Falsification of Commercial Documents, in relation to
Presidential Decree (PD) No. 1689,[11] and for Violation of Section 83 of RA 337, as
amended by PD 1795,[12] against, inter alia, petitioner herein Hilario P. Soriano. These
five affidavits, along with other documents, stated that spouses Enrico and Amalia
Carlos appeared to have an outstanding loan of P8 million with the Rural Bank of San
Miguel (Bulacan), Inc. (RBSM), but had never applied for nor received such loan; that it
was petitioner, who was then president of RBSM, who had ordered, facilitated, and
received the proceeds of the loan; and that the P8 million loan had never been
authorized by RBSM's Board of Directors and no report thereof had ever been
submitted to the Department of Rural Banks, Supervision and Examination Sector of
the BSP. The letter of the OSI, which was not subscribed under oath, ended with a
request that a preliminary investigation be conducted and the corresponding criminal
charges be filed against petitioner at his last known address.
Acting on the letter-request and its annexes, State Prosecutor Albert R. Fonacier
proceeded with the preliminary investigation. He issued a subpoena with the witnesses
affidavits and supporting documents attached, and required petitioner to file his
counter-affidavit. In due course, the investigating officer issued a Resolution finding
probable cause and correspondingly filed two separate informations against petitioner
before the Regional Trial Court (RTC) of Malolos, Bulacan.[13]
The first Information,[14] dated November 14, 2000 and docketed as Criminal Case No.
237-M-2001, was for estafa through falsification of commercial documents, under
Article 315, paragraph 1(b), of the Revised Penal Code (RPC), in relation to Article 172
of the RPC and PD 1689. It basically alleged that petitioner and his co-accused, in
abuse of the confidence reposed in them as RBSM officers, caused the falsification of
a number of loan documents, making it appear that one Enrico Carlos filled up the
same, and thereby succeeded in securing a loan and converting the loan proceeds for
their personal gain and benefit.[15] The information reads:
That in or about the month of April, 1997, and thereafter, in San
Miguel, Bulacan, and within the jurisdiction of this Honorable Court, the said
accused HILARIO P. SORIANO and ROSALINDA ILAGAN, as principals
by direct participation, with unfaithfulness or abuse of confidence and taking
advantage of their position as President of the Rural Bank of San Miguel
(Bulacan), Inc. and Branch Manager of the Rural Bank of San Miguel San
Miguel Branch [sic], a duly organized banking institution under Philippine
Laws, conspiring, confederating and mutually helping one another, did then
and there, willfully and feloniously falsify loan documents consisting of
undated loan application/information sheet, credit proposal dated April 14,
1997, credit proposal dated April 22, 1997, credit investigation report dated
April 15, 1997, promissory note dated April 23, 1997, disclosure statement on
loan/credit transaction dated April 23, 1997, and other related documents, by
making it appear that one Enrico Carlos filled up the application/information
sheet and filed the aforementioned loan documents when in truth and in fact
Enrico Carlos did not participate in the execution of said loan documents and
that by virtue of said falsification and with deceit and intent to cause damage,
the accused succeeded in securing a loan in the amount of eight million
pesos (PhP8,000,000.00) from the Rural Bank of San Miguel San Ildefonso
branch in the name of Enrico Carlos which amount of PhP8 million
representing the loan proceeds the accused thereafter converted the same
amount to their own personal gain and benefit, to the damage and prejudice
of the Rural Bank of San Miguel San Ildefonso branch, its creditors, the
Bangko Sentral ng Pilipinas, and the Philippine Deposit Insurance
Corporation.
CONTRARY TO LAW.[16]
The other Information[17] dated November 10, 2000 and docketed as Criminal Case
No. 238-M-2001, was for violation of Section 83 of RA 337, as amended by PD
1795. The said provision refers to the prohibition against the so-called DOSRI loans.
The information alleged that, in his capacity as President of RBSM, petitioner indirectly
secured an P8 million loan with RBSM, for his personal use and benefit, without the
written consent and approval of the bank's Board of Directors, without entering the said
transaction in the bank's records, and without transmitting a copy of the transaction to
the supervising department of the bank. His ruse was facilitated by placing the loan in
the name of an unsuspecting RBSM depositor, one Enrico Carlos. [18] The information
reads:
That in or about the month of April, 1997, and thereafter, and within
the jurisdiction of this Honorable Court, the said accused, in his capacity as
President of the Rural Bank of San Miguel (Bulacan), Inc., did then and there,
willfully and feloniously indirectly borrow or secure a loan with the Rural Bank
of San Miguel San Ildefonso branch, a domestic rural banking institution
created, organized and existing under Philippine laws, amounting to eight
million pesos (PhP8,000,000.00), knowing fully well that the same has been
done by him without the written consent and approval of the majority of the
board of directors of the said bank, and which consent and approval the said
accused deliberately failed to obtain and enter the same upon the records of
said banking institution and to transmit a copy thereof to the supervising
department of the said bank, as required by the General Banking Act, by
using the name of one depositor Enrico Carlos of San Miguel, Bulacan, the
latter having no knowledge of the said loan, and one in possession of the said
amount of eight million pesos (PhP8,000,000.00), accused converted the
same to his own personal use and benefit, in flagrant violation of the said law.
CONTRARY TO LAW.[19]
Both cases were raffled to Branch 79 of the RTC of Malolos,
Bulacan.[20]
On June 8, 2001, petitioner moved to quash [21] these informations on two grounds: that
the court had no jurisdiction over the offense charged, and that the facts charged do
not constitute an offense.
On the first ground, petitioner argued that the letter transmitted by the BSP to the DOJ
constituted the complaint and hence was defective for failure to comply with the
mandatory requirements of Section 3(a), Rule 112 of the Rules of Court, such as the
statement of address of petitioner and oath and subscription. [22] Moreover, petitioner
argued that the officers of OSI, who were the signatories to the letter-complaint, were
not authorized by the BSP Governor, much less by the Monetary Board, to file the
complaint. According to petitioner, this alleged fatal oversight violated Section 18, pars.
(c) and (d) of the New Central Bank Act (RA 7653).
On the second ground, petitioner contended that the commission of estafa under
paragraph 1(b) of Article 315 of the RPC is inherently incompatible with the violation of
DOSRI law (as set out in Section 83[23] of RA 337, as amended by PD 1795),[24] hence
a person cannot be charged for both offenses. He argued that a violation of DOSRI
law requires the offender to obtain a loan from his bank, without complying with
procedural, reportorial, or ceiling requirements. On the other hand, estafa under par.
1(b), Article 315 of the RPC requires the offender to misappropriate or convert
something that he holds in trust, or on commission, or for administration, or
under any other obligation involving the duty to return the same.[25]
Essentially, the petitioner theorized that the characterization of possession is different in
the two offenses. If petitioner acquired the loan as DOSRI, he owned the loaned
money and therefore, cannot misappropriate or convert it as contemplated in the
offense of estafa. Conversely, if petitioner committed estafa, then he merely held the
money in trust for someone else and therefore, did not acquire a loan in violation of
DOSRI rules.
Ruling of the Regional Trial Court
In an Order[26] dated August 8, 2001, the trial court denied petitioner's Motion to Quash
for lack of merit. The lower court agreed with the prosecution that the assailed OSI
letter was not the complaint-affidavit itself; thus, it need not comply with the
requirements under the Rules of Court. The trial court held that the affidavits, which
were attached to the OSI letter, comprised the complaint-affidavit in the case. Since
these affidavits were duly subscribed and sworn to before a notary public, there was
adequate compliance with the Rules. The trial court further held that the two offenses
were separate and distinct violations, hence the prosecution of one did not pose a bar
to the other.[27]
Petitioners Motion for Reconsideration was likewise denied in an Order
dated September 5, 2001.[28]
Aggrieved, petitioner filed a Petition for Certiorari[29] with the CA, reiterating his
arguments before the trial court.
Ruling of the Court of Appeals
The CA denied the petition on both issues presented by petitioner.
On the first issue, the CA determined that the BSP letter, which petitioner characterized
to be a fatally infirm complaint, was not actually a complaint, but a transmittal or cover
letter only. This transmittal letter merely contained a summary of the affidavits which
were attached to it. It did not contain any averment of personal knowledge of the
events and transactions that constitute the elements of the offenses charged. Being a
mere transmittal letter, it need not comply with the requirements of Section 3(a) of Rule
112 of the Rules of Court.[30]
The CA further determined that the five affidavits attached to the transmittal letter
should be considered as the complaint-affidavits that charged petitioner with violation of
Section 83 of RA 337 and for Estafa thru Falsification of Commercial
Documents. These complaint-affidavits complied with the mandatory requirements set
out in the Rules of Court they were subscribed and sworn to before a notary public and
subsequently certified by State Prosecutor Fonacier, who personally examined the
affiants and was convinced that the affiants fully understood their sworn statements.[31]
Anent the second ground, the CA found no merit in petitioner's argument that the
violation of the DOSRI law and the commission of estafa thru falsification of
commercial documents are inherently inconsistent with each other. It explained that the
test in considering a motion to quash on the ground that the facts charged do not
constitute an offense, is whether the facts alleged, when hypothetically admitted,
constitute the elements of the offense charged. The appellate court held that this test
was sufficiently met because the allegations in the assailed informations, when
hypothetically admitted, clearly constitute the elements of Estafa thru Falsification of
Commercial Documents and Violation of DOSRI law.[32]
Petitioners Motion for Reconsideration[33] was likewise denied for lack of merit. Hence,
this petition.
Issues
Restated, petitioner raises the following issues[34] for our consideration:
I
Whether the complaint complied with the mandatory requirements
provided under Section 3(a), Rule 112 of the Rules of Court and
Section 18, paragraphs (c) and (d) of RA 7653.
II
Whether a loan transaction within the ambit of the DOSRI law
(violation of Section 83 of RA 337, as amended) could also be the
subject of Estafa under Article 315 (1) (b) of the Revised Penal Code.
III
 Is a petition for certiorari under Rule 65 the proper remedy against an
Order denying a Motion to Quash?
IV
Whether petitioner is entitled to a writ of injunction.
Our Ruling
The petition lacks merit.
First Issue:
Whether the complaint complied with the mandatory requirements provided
under Section 3(a), Rule 112 of the Rules of Court and Section 18, paragraphs
(c) and (d) of
Republic Act No. 7653
Petitioner moved to withdraw the first
issue from the instant petition
On March 5, 2007, the Court noted [35] petitioner's Manifestation and Motion for Partial
Withdrawal of the Petition[36] dated February 7, 2007. In the said motion, petitioner
informed the Court of the promulgation of a Decision entitled Soriano v. Hon.
Casanova,[37] which also involved petitioner and similar BSP letters to the
DOJ. According to petitioner, the said Decision allegedly ruled squarely on the nature
of the BSP letters and the validity of the sworn affidavits attached thereto. For this
reason, petitioner moved for the partial withdrawal of the instant petition insofar as it
involved the issue of whether or not a court can legally acquire jurisdiction over a
complaint which failed to comply with the mandatory requirements provided under
Section 3(a), Rule 112 of the Rules of Court and Section 18, paragraphs (c) and (d) of
RA 7653.[38]
Given that the case had already been submitted for resolution of the Court when
petitioner filed his latest motion, and that all respondents had presented their positions
and arguments on the first issue, the Court deems it proper to rule on the same.
In Soriano v. Hon. Casanova, the Court held that the affidavits
attached to the BSP transmittal letter complied with the
mandatory requirements under the Rules of Court.
To be sure, the BSP letters involved in Soriano v. Hon. Casanova[39] are not the same
as the BSP letter involved in the instant case. However, the BSP letters in Soriano v.
Hon. Casanova and the BSP letter subject of this case are similar in the sense that
they are all signed by the OSI officers of the BSP, they were not sworn to by the said
officers, they all contained summaries of their attached affidavits, and they all
requested the conduct of a preliminary investigation and the filing of corresponding
criminal charges against petitioner Soriano. Thus, the principle of stare decisis dictates
that the ruling in Soriano v. Hon. Casanova be applied in the instant case once a
question of law has been examined and decided, it should be deemed settled and
closed to further argument.[40]
We held in Soriano v. Hon. Casanova, after a close scrutiny of the letters transmitted
by the BSP to the DOJ, that these were not intended to be the complaint, as
envisioned under the Rules. They did not contain averments of personal knowledge of
the events and transactions constitutive of any offense. The letters merely transmitted
for preliminary investigation the affidavits of people who had personal knowledge of the
acts of petitioner. We ruled that these affidavits, not the letters transmitting them,
initiated the preliminary investigation. Since these affidavits were subscribed under
oath by the witnesses who executed them before a notary public, then there was
substantial compliance with Section 3(a), Rule 112 of the Rules of Court.
Anent the contention that there was no authority from the BSP Governor or the
Monetary Board to file a criminal case against Soriano, we held that the requirements
of Section 18, paragraphs (c) and (d) of RA 7653 did not apply because the BSP did
not institute the complaint but merely transmitted the affidavits of the complainants to
the DOJ.
We further held that since the offenses for which Soriano was charged were public
crimes, authority holds that it can be initiated by any competent person with personal
knowledge of the acts committed by the offender. Thus, the witnesses who executed
the affidavits clearly fell within the purview of any competent person who may institute
the complaint for a public crime.
The ruling in Soriano v. Hon. Casanova has been adopted and elaborated upon in the
recent case of Santos-Concio v. Department of Justice.[41] Instead of a transmittal letter
from the BSP, the Court in Santos-Concio was faced with an NBI-NCR Report,
likewise with affidavits of witnesses as attachments. Ruling on the validity of the
witnesses sworn affidavits as bases for a preliminary investigation, we held:
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 ones 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, 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, 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 x (Emphasis and italics 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 Monserate 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.[42]
Following the foregoing rulings in Soriano v. Hon. Casanova and Santos-Concio v.
Department of Justice, we hold that the BSP letter, taken together with the affidavits
attached thereto, comply with the requirements provided under Section 3(a), Rule 112
of the Rules of Court and Section 18, paragraphs (c) and (d) of RA 7653.
Second Issue:
Whether a loan transaction within the ambit of the DOSRI law
(violation of Section 83 of RA 337, as amended) could be the
subject of Estafa under Article 315 (1) (b) of the Revised Penal
Code
The second issue was raised by petitioner in the context of his Motion to Quash
Information on the ground that the facts charged do not constitute an offense. [43] It is
settled that in considering a motion to quash on such ground, the test is whether the
facts alleged, if hypothetically admitted, would establish the essential elements of the
offense charged as defined by law.The trial court may not consider a situation contrary
to that set forth in the criminal complaint or information. Facts that constitute the
defense of the petitioner[s] against the charge under the information must be proved by
[him] during trial. Such facts or circumstances do not constitute proper grounds for a
motion to quash the information on the ground that the material averments do not
constitute the offense. [44]
We have examined the two informations against petitioner and we find that they
contain allegations which, if hypothetically admitted, would establish the essential
elements of the crime of DOSRI violation and estafa thru falsification of commercial
documents.
In Criminal Case No. 238-M-2001 for violation of DOSRI rules, the information alleged
that petitioner Soriano was the president of RBSM; that he was able to indirectly obtain
a loan from RBSM by putting the loan in the name of depositor Enrico Carlos; and that
he did this without complying with the requisite board approval, reportorial, and ceiling
requirements.
In Criminal Case No. 237-M-2001 for estafa thru falsification of commercial
documents, the information alleged that petitioner, by taking advantage of his position
as president of RBSM, falsified various loan documents to make it appear that an
Enrico Carlos secured a loan of P8 million from RBSM; that petitioner succeeded in
obtaining the loan proceeds; that he later converted the loan proceeds to his own
personal gain and benefit; and that his action caused damage and prejudice to RBSM,
its creditors, the BSP, and the PDIC.
Significantly, this is not the first occasion that we adjudge the sufficiency of similarly
worded informations. In Soriano v. People,[45] involving the same petitioner in this case
(but different transactions), we also reviewed the sufficiency of informations for DOSRI
violation and estafa thru falsification of commercial documents, which were almost
identical, mutatis mutandis, with the subject informations herein. We held in Soriano v.
People that there is no basis for the quashal of the informations as they contain
material allegations charging Soriano with violation of DOSRI rules and estafa thru
falsification of commercial documents.
Petitioner raises the theory that he could not possibly be held liable for estafa in
concurrence with the charge for DOSRI violation. According to him, the DOSRI charge
presupposes that he acquired a loan, which would make the loan proceeds
his own money and which he could neither possibly misappropriate nor convert to the
prejudice of another, as required by the statutory definition of estafa. [46] On the other
hand, if petitioner did not acquire any loan, there can be no DOSRI violation to speak
of. Thus, petitioner posits that the two offenses cannot co-exist. This theory does not
persuade us.
Petitioners theory is based on the false premises that the loan was extended to him by
the bank in his own name, and that he became the owner of the loan proceeds. Both
premises are wrong.
The bank money (amounting to P8 million) which came to the possession of petitioner
was money held in trust or administration by him for the bank, in his fiduciary capacity
as the President of said bank.[47] It is not accurate to say that petitioner became the
owner of the P8 million because it was the proceeds of a loan. That would have been
correct if the bank knowingly extended the loan to petitioner himself. But that is not the
case here. According to the information for estafa, the loan was supposed to be for
another person, a certain Enrico Carlos; petitioner, through falsification, made it appear
that said Enrico Carlos applied for the loan when in fact he (Enrico Carlos) did
not. Through such fraudulent device, petitioner obtained the loan proceeds and
converted the same. Under these circumstances, it cannot be said that petitioner
became the legal owner of the P8 million. Thus, petitioner remained the banks
fiduciary with respect to that money, which makes it capable of misappropriation or
conversion in his hands.
The next question is whether there can also be, at the same time, a charge for DOSRI
violation in such a situation wherein the accused bank officer did not secure a loan in
his own name, but was alleged to have used the name of another person in order to
indirectly secure a loan from the bank. We answer this in the affirmative. Section 83 of
RA 337 reads:
Section 83. No director or officer of any banking institution
shall, either directly or indirectly, for himself or as the representative
or agent of others, borrow any of the deposits of funds of such
bank, nor shall he become a guarantor, indorser, or surety for loans
from such bank to others, or in any manner be an obligor for moneys
borrowed from the bank or loaned by it, except with the written
approval of the majority of the directors of the bank, excluding the
director concerned. Any such approval shall be entered upon the
records of the corporation and a copy of such entry shall be
transmitted forthwith to the Superintendent of Banks. The office of
any director or officer of a bank who violates the provisions of this
section shall immediately become vacant and the director or officer
shall be punished by imprisonment of not less than one year nor
more than ten years and by a fine of not less than one thousand nor
more than ten thousand pesos. x x x
The prohibition in Section 83 is broad enough to cover various modes of borrowing.[48]
It covers loans by a bank director or officer (like herein petitioner) which are made
either: (1) directly, (2) indirectly, (3) for himself, (4) or as the representative or agent of
others. It applies even if the director or officer is a mere guarantor, indorser or surety for
someone else's loan or is in any manner an obligor for money borrowed from the bank
or loaned by it. The covered transactions are prohibited unless the approval,
reportorial and ceiling requirements under Section 83 are complied with. The
prohibition is intended to protect the public, especially the depositors, [49] from the
overborrowing of bank funds by bank officers, directors, stockholders and related
interests, as such overborrowing may lead to bank failures.[50] It has been said that
banking institutions are not created for the benefit of the directors [or officers]. While
directors have great powers as directors, they have no special privileges as individuals.
They cannot use the assets of the bank for their own benefit except as permitted by
law. Stringent restrictions are placed about them so that when acting both for the bank
and for one of themselves at the same time, they must keep within certain prescribed
lines regarded by the legislature as essential to safety in the banking business.[51]
A direct borrowing is obviously one that is made in the name of the DOSRI himself or
where the DOSRI is a named party, while an indirect borrowing includes one that is
made by a third party, but the DOSRI has a stake in the transaction.[52] The latter type
indirect borrowing applies here. The information in Criminal Case 238-M-2001 alleges
that petitioner in his capacity as President of Rural Bank of San Miguel San Ildefonso
branch x x x indirectly borrow[ed] or secure[d] a loan with [RBSM] x x x knowing fully
well that the same has been done by him without the written consent and approval of
the majority of the board of directors x x x, and which consent and approval the said
accused deliberately failed to obtain and enter the same upon the records of said
banking institution and to transmit a copy thereof to the supervising department of the
said bank x x x by using the name of one depositor Enrico Carlos x x x, the latter
having no knowledge of the said loan, and once in possession of the said amount of
eight million pesos (P8 million), [petitioner] converted the same to his own personal
use and benefit.[53]
The foregoing information describes the manner of securing the loan as indirect;
names petitioner as the benefactor of the indirect loan; and states that the
requirements of the law were not complied with. It contains all the required
elements[54] for a violation of Section 83, even if petitioner did not secure the loan in his
own name.
The broad interpretation of the prohibition in Section 83 is justified by the fact that it
even expressly covers loans to third parties where the third parties are aware of the
transaction (such as principals represented by the DOSRI), and where the DOSRIs
interest does not appear to be beneficial but even burdensome (such as in cases when
the DOSRI acts as a mere guarantor or surety). If the law finds it necessary to protect
the bank and the banking system in such situations, it will surely be illogical for it to
exclude a case like this where the DOSRI acted for his own benefit, using the name of
an unsuspecting person. A contrary interpretation will effectively allow a DOSRI to use
dummies to circumvent the requirements of the law.
In sum, the informations filed against petitioner do not negate each other.
Third Issue:
Is a Rule 65 petition for certiorari the proper remedy against an Order denying a
Motion to Quash?
This issue may be speedily resolved by adopting our ruling in Soriano v. People,
[55]
where we held:
In fine, the Court has consistently held that a special civil action
for certiorari is not the proper remedy to assail the denial of a motion to quash
an information. The proper procedure in such a case is for the accused to enter
a plea, go to trial without prejudice on his part to present the special defenses
he had invoked in his motion to quash and if after trial on the merits, an
adverse decision is rendered, to appeal therefrom in the manner authorized by
law. Thus, petitioners should not have forthwith filed a special civil action
for certiorari with the CA and instead, they should have gone to trial and
reiterated the special defenses contained in their motion to quash. There are
no special or exceptional circumstances in the present case that would justify
immediate resort to a filing of a petition for certiorari. Clearly, the CA did not
commit any reversible error, much less, grave abuse of discretion in dismissing
the petition.[56]
The requisites to justify an injunctive relief are: (1) the right of the complainant is clear
and unmistakable; (2) the invasion of the right sought to be protected is material and
substantial; and (3) there is an urgent and paramount necessity for the writ to prevent
serious damage. A clear legal right means one clearly founded in or granted by law or
is enforceable as a matter of law. Absent any clear and unquestioned legal right, the
issuance of an injunctive writ would constitute grave abuse of discretion.[57] Caution and
prudence must, at all times, attend the issuance of an injunctive writ because it
effectively disposes of the main case without trial and/or due process.[58] In Olalia v.
Hizon,[59] the Court held as follows:
It has been consistently held that there is no power the exercise
of which is more delicate, which requires greater caution, deliberation and
sound discretion, or more dangerous in a doubtful case, than the
issuance of an injunction. It is the strong arm of equity that should never
be extended unless to cases of great injury, where courts of law cannot
afford an adequate or commensurate remedy in damages.
Every court should remember that an injunction is a limitation
upon the freedom of action of the [complainant] and should not be
granted lightly or precipitately. It should be granted only when the court is
fully satisfied that the law permits it and the emergency demands it.
Given this Court's findings in the earlier issues of the instant case, we find no
compelling reason to grant the injunctive relief sought by petitioner.
WHEREFORE, the petition is DENIED. The assailed September 26, 2003 Decision
as well as the February 5, 2004 Resolution of the Court of Appeals in CA-G.R. SP No.
67657 are AFFIRMED. Costs against petitioner.
SO ORDERED.

Fourth Issue:

Whether petitioner is entitled to a writ of injunction

 JOSEPH C. CEREZO, G.R. No. In deference to the prosecutors last resolution, the RTC ordered the criminal
Petitioner, 185230 case dismissed in its Order dated March 17, 2004, viz.:
Present:
CARPIO, J., Settled is the rule that the determination of the persons to be
Chairperson, prosecuted rests primarily with the Public Prosecutor who is
- versus - NACHURA, vested with quasi-judicial discretion in the discharge of this
PERALTA, function. Being vested with such power, he can reconsider his
ABAD, and own resolution if he finds that there is reasonable ground to do
PEOPLE OF THE PHILIPPINES, MENDOZA, JJ so. x x x.
JULIET YANEZA, PABLO ABUNDA, . More so, the Court cannot interfere with the Public Prosecutors
JR., and VICENTE AFULUGENCIA, discretion to determine probable cause or the propriety of
Respondents. Promulgated: pursuing or not a criminal case when the case is not yet filed in
June 1, 2011 Court, as a general rule. However, if the same criminal case
has been filed in Court already, the Public Prosecutor can still
x------------------------------------------------------------------------------------x interfere with it subject to the approval of the Court. In the case
DECISION of Republic vs. Sunga, et al., the Supreme Court held that
while it has been settled in the case of Crespo vs. Mogul that
NACHURA, J.: the trial court is the sole judge on whether a criminal case
should be dismissed after the complaint or information has
This petition for review on certiorari under Rule 45 of the Rules of Court seeks been filed in court, nonetheless any motion of the offended
to annul the July 11, 2008 Decision [1] and the November 4, 2008 Resolution [2] of party for the dismissal of the criminal case, even if without
the Court of Appeals (CA) in CA-G.R. SP No. 99088, which reversed and set objection of the accused, should first be referred to the
aside the October 24, 2006[3] and the February 26, 2007[4] Orders of the prosecuting fiscal and only after hearing should the court
Regional Trial Court (RTC) of Quezon City, Branch 92. exercise its exclusive authority to dismiss or continue with the
The RTC Orders revived Criminal Case No. Q-03-115490, entitled People of prosecution of the case. The Court, therefore, after hearing
the Philippines v. Juliet Yaneza, Pablo Abunda, Jr., Oscar Mapalo and Vicente and conferring with the fiscal, can dismiss the case if
Afulugencia, after the same was dismissed in an earlier Order. convinced that there is [no] reason to continue with the
prosecution [of] the same. As in this case, the Court finds merit
[in] the motion of the Public Prosecutor.[11]

The Facts
On September 12, 2002, petitioner Joseph Cerezo filed a complaint for libel
against respondents Juliet Yaneza, Pablo Abunda, Jr., and Vicente Afulugencia
(respondents), as well as Oscar Mapalo (Mapalo).[5]
Finding probable cause to indict respondents, [6] the Quezon City Prosecutors
Office (OP-QC) filed the corresponding Information against them on February
18, 2003 before the RTC.[7]
Respondents thereafter filed a Motion for Reconsideration and/or Motion to Re-
evaluate Prosecutions Evidence before the OP-QC.[8]
In its resolution dated November 20, 2003, the OP-QC reversed its earlier
finding and recommended the withdrawal of the Information. [9] Consequently, a
Motion to Dismiss and Withdraw Information was filed before the RTC on
December 3, 2003. During the intervening period, specifically on November 24,
2003, respondents were arraigned. All of them entered a not guilty plea. [10]
Aggrieved, petitioner moved for reconsideration of the said Order, arguing that
the November 20, 2003 OP-QC resolution has not yet attained finality,
considering that the same was the subject of a Petition for Review filed before
the Department of Justice (DOJ).[12] The RTC deferred action on the said
motion to await the resolution of the DOJ.[13]
On June 26, 2006, the Secretary of Justice promulgated his resolution
reversing and setting aside the OP-QCs November 20, 2003 resolution, and
directing the latter to refile the earlier Information for libel. [14]
On October 24, 2006, the RTC issued its first assailed Order granting
petitioners motion for reconsideration, conformably with the resolution of the
DOJ Secretary, thus:
Considering the findings of the Department of Justice reversing the
resolution of the City Prosecutor, the Court gives favorable action to the
 Motion for Reconsideration. In the same manner as discussed in arriving
at its assailed order dated 17 March 2004, the Court gives more leeway
to the Public Prosecutor in determining whether it has to continue or stop
prosecuting a case. While the City Prosecutor has previously decided not
to pursue further the case, the Secretary of Justice, however, through its
resolution on the Petition for Review did not agree with him.
The Court disagrees with the argument raised by the accused that
double jeopardy sets in to the picture. The order of dismissal as well as
the withdrawal of the Information was not yet final because of the timely
filing of the Motion for Reconsideration. The Court[,] therefore, can still
set aside its order. Moreover, there is no refiling of the case nor the filing
of a new one. The case filed remains the same and the order of
dismissal was merely vacated because the Court finds the Motion for
Reconsideration meritorious.
WHEREFORE, finding the Motion for Reconsideration meritorious, the
Order dated 17 March 2004 is hereby RECONSIDERED and SET
ASIDE.
Let the arraignment of accused Oscar Mapalo and pre-trial [of] the other
accused be set on 06 December 2006 at 8:30 in the morning.
SO ORDERED.[15]
Respondents moved for reconsideration, but the motion was denied in the
RTCs second assailed Order dated February 26, 2007.[16]
Relentless, respondents elevated their predicament to the CA through a
Petition for Certiorari under Rule 65 of the Rules of Court, arguing in the main
that the RTC Orders violated their constitutional right against double jeopardy.
Ruling of the CA
The appellate court found the RTC to have gravely abused its discretion in
ordering the reinstatement of the case. The CA annulled the impugned RTC
Orders, ruling that all the elements of double jeopardy exist. There was a valid
Information sufficient in form and substance filed before a court of competent
jurisdiction to which respondents had pleaded, and that the termination of the
case was not expressly consented to by respondents; hence, the same could
not be revived or refiled without transgressing respondents right against double
jeopardy.
The CA further found that the DOJ Secretary improperly took cognizance of the
Petition for Review because DOJ Department Order No. 223 mandates that no
appeal shall be entertained if the accused has already been arraigned or, if the
arraignment took place during the pendency of the appeal, the same shall be
dismissed.[17]
Petitioner interposed the instant appeal when his motion for reconsideration of
the CA Decision was denied.[18]
The Issues
Petitioner ascribes the following errors to the CA:
a. The Honorable Court of Appeals erred in finding that there
was Double Jeopardy, specifically on the alleged
existence of the requisites to constitute Double Jeopardy;
b. The Honorable Court of Appeals failed to consider the fact
that there was NO refiling of the case nor the filing of a
new one in arriving [at] its conclusion that Double
Jeopardy sets in to the picture;
c. The Honorable Court of Appeals erred in finding that there
was 1.) a valid termination of the case on the basis of the
Order of the Trial Court dated 17 March 2004, and
allegedly 2.) without the express consent of the
respondents.[19]
The assigned errors will be subsumed into this issue:
Whether there was a valid termination of the case so as to usher in the
impregnable wall of double jeopardy.
Our Ruling
The petition is impressed with merit.
Well-entrenched is the rule that once a case is filed with the court, any
disposition of it rests on the sound discretion of the court. In thus resolving a
motion to dismiss a case or to withdraw an Information, the trial court should
not rely solely and merely on the findings of the public prosecutor or the
Secretary of Justice.[20] It is the courts bounden duty to assess independently
the merits of the motion, and this assessment must be embodied in a written
order disposing of the motion. [21] While the recommendation of the prosecutor
or the ruling of the Secretary of Justice is persuasive, it is not binding on
courts.
In this case, it is obvious from the March 17, 2004 Order of the RTC,
dismissing the criminal case, that the RTC judge failed to make his own
determination of whether or not there was a prima facie case to hold
respondents for trial. He failed to make an independent evaluation or
assessment of the merits of the case. The RTC judge blindly relied on the
manifestation and recommendation of the prosecutor when he should have
been more circumspect and judicious in resolving the Motion to Dismiss and
Withdraw Information especially so when the prosecution appeared to be
uncertain, undecided, and irresolute on whether to indict respondents.
The same holds true with respect to the October 24, 2006 Order, which
reinstated the case. The RTC judge failed to make a separate evaluation and
merely awaited the resolution of the DOJ Secretary. This is evident from the
general tenor of the Order and highlighted in the following portion thereof:
As discussed during the hearing of the Motion for
Reconsideration, the Court will resolve it depending on the
outcome of the Petition for Review. Considering the findings of
the Department of Justice reversing the resolution of the City
Prosecutor, the Court gives favorable action to the Motion for
Reconsideration.[22]
By relying solely on the manifestation of the public prosecutor and the
resolution of the DOJ Secretary, the trial court abdicated its judicial power and
refused to perform a positive duty enjoined by law. The said Orders were thus
stained with grave abuse of discretion and violated the complainants right to
due process. They were void, had no legal standing, and produced no effect
whatsoever.
This Court must therefore remand the case to the RTC, so that the latter can
rule on the merits of the case to determine if a prima facie case exists and
consequently resolve the Motion to Dismiss and Withdraw Information anew.
It is beyond cavil that double jeopardy did not set in. Double jeopardy exists
when the following requisites are present: (1) a first jeopardy attached prior to
the second; (2) the first jeopardy has been validly terminated; and (3) a second
jeopardy is for the same offense as in the first. A first jeopardy attaches only (a)
after a valid indictment; (b) before a competent court; (c) after arraignment; (d)
when a valid plea has been entered; and (e) when the accused has been
acquitted or convicted, or the case dismissed or otherwise terminated
without his express consent.[24]
Since we have held that the March 17, 2004 Order granting the motion to
dismiss was committed with grave abuse of discretion, then respondents were
not acquitted nor was there a valid and legal dismissal or termination of the
case. Ergo, the fifth requisite which requires the conviction and acquittal of the
accused, or the dismissal of the case without the approval of the accused, was
not met. Thus, double jeopardy has not set in.
WHEREFORE, the petition is hereby GIVEN DUE COURSE, and the assailed
July 11, 2008 Decision and the November 4, 2008 Resolution of the Court of
Appeals in CA-G.R. SP No. 99088, and the October 24, 2006 and the February
26, 2007 Orders of the Regional Trial Court of Quezon City, Branch 92, are
hereby ANNULLED and SET ASIDE. The case is REMANDED to the Quezon
City RTC, Branch 92, for evaluation on whether probable cause exists to hold
respondents for trial.
No costs.SO ORDERED.
G.R. No. 183994 June 30, 2014
WILLIAM CO a.k.a. XU QUING HE, Petitioner,
vs.
NEW PROSPERITY PLASTIC PRODUCTS, represented by ELIZABETH
UY,1 Respondent.
DECISION
PERALTA, J.:
Assailed in this petition for review on certiorari under Rule 45 of the 1997
Revised Rules on Civil Procedure (Rules) are the April 30, 2008 2 and August 1,
20083 Resolutions of the Court of Appeals (CA) in CA-G.R. SP No. 102975,
which dismissed the petition and denied the motion for reconsideration,
respectively. In effect, the CA affirmed the January 28, 2008 Decision 4 of the
Regional Trial Court (RTC) Branch 121 of Caloocan City, which annulled and
set aside the Orders dated September 4, 2006 5 and November 16, 20066 of the
Metropolitan Trial Court (MeTC), Branch 50 of Caloocan City, permanently
dismissing Criminal Case Nos. 206655-59, 206661-77 and 209634.
The facts are simple and undisputed:
Respondent New Prosperity Plastic Products, represented by Elizabeth Uy
(Uy), is the private complainant in Criminal Case Nos. 206655-59, 206661-77
and 209634 for Violation of Batas Pambansa (B.P.) Bilang 22 filed against
petitioner William Co (Co), which were raffled to the MeTC Branch. 49 of
Caloocan City. In the absence of Uy and the private counsel, the cases were
provisionally dismissed on June 9, 2003 in open court pursuant to Section 8,
Rule 117 of the Revised Rules of Criminal Procedure (Rules). 7 Uy received a
copy of the June9, 2003 Order on July 2, 2003, while her counsel-of-record
received a copy a day after. 8 On July 2, 2004, Uy, through counsel, filed a
Motion to Revive the Criminal Cases.9 Hon. Belen B. Ortiz, then Presiding
Judge of the MeTC Branch 49, granted the motion on October 14, 2004 and
denied Co’s motion for reconsideration. 10 When Co moved for recusation,
Judge Ortiz inhibited herself from handling the criminal cases per Order dated
January 10, 2005.11The cases were, thereafter, raffled to the MeTC Branch 50
of Caloocan City. On March 17, 2005, Co filed a petition for certiorari and
prohibition with prayer for the issuance of a temporary restraining order
(TRO)/writ of preliminary injunction (WPI) before the RTC of Caloocan City
challenging the revival of the criminal cases. 12 It was, however, dismissed for
lack of merit on May 23, 2005. 13 Co’s motion for reconsideration was,
subsequently, denied on December 16, 2005. 14 Co then filed a petition for
review on certiorari under Rule 45 before the Supreme Court, which was
docketed as G.R. No. 171096. 15 We dismissed the petition per Resolution
dated February 13, 2006.16There being no motion for reconsideration filed, the
dismissal became final and executory on March 20, 2006. 17
Before the MeTC Branch 50 where Criminal Case Nos. 206655-59, 206661-77
and 209634 were re-raffled after the inhibition of Judge Ortiz, Co filed a "Motion
for Permanent Dismissal" on July 13, 2006. 18 Uy opposed the motion,
contending that the motion raised the same issues already resolved with finality
by this Court in G.R. No. 171096. 19In spite of this, Judge Esteban V. Gonzaga
issued an Order dated September 4, 2006 granting Co’s motion. 20 When the
court subsequently denied Uy’s motion for reconsideration on November 16,
2006,21 Uy filed a petition for certiorari before the RTC of Caloocan City. On
January 28, 2008, Hon. Judge Adoracion G. Angeles of the RTC Branch 121
acted favorably on the petition, annulling and setting aside the Orders dated
September 4, 2006 and November 16, 2006 and directing the MeTC Branch 50
to proceed with the trial of the criminal cases. 22 Co then filed a petition for
certiorari before the CA, which, as aforesaid, dismissed the petition and denied
his motion for reconsideration. Hence, this present petition with prayer for
TRO/WPI.
According to Co, the following issues need to be resolved in this petition:
1. WHETHER OR NOT THE DISMISSAL OF THE CRIMINAL CASES
AGAINST PETITIONER ONTHE GROUND OF DENIAL OF HIS
RIGHT TO SPEEDY TRIAL CONSTITUTES FINAL DISMISSAL OF
THESE CASES;
2. WHETHER OR NOT THE METC ACTED WITH JURISDICTION IN
REVIVING THE CRIMINAL CASES AGAINST PETITIONER WHICH
WERE DISMISSED ON THE GROUND OF DENIAL OF HIS RIGHT
TO SPEEDY TRIAL; and
3. ASSUMING POR GRATIA ARGUMENTITHE CASES WERE ONLY
PROVISIONALLY DISMISSED:
a. WHETHER THE ONE-YEAR TIMEBAR OF THEIR
REVIVAL IS COMPUTED FROM ISSUANCE OF THE ORDER
OF PROVISIONAL DISMISSAL;
b. WHETHER THE ACTUAL NUMBER OF DAYS IN A YEAR
IS THE BASIS FOR COMPUTING THE ONE-YEAR TIME
BAR;
c. WHETHER THE PROVISIONALLY DISMISSED CASES
AGAINST PETITIONER ARE REVIVED IPSO FACTO BY THE
FILING OF MOTION TO REVIVE THESE CASES.23
Co argues that the June 9, 2003 Order provisionally dismissing Criminal Case
Nos. 206655-59, 206661-77 and 209634 should be considered as a final
dismissal on the ground that his right to speedy trial was denied. He reasons
out that from his arraignment on March 4, 2002 until the initial trial on June 9,
2003, there was already a "vexatious, capricious and oppressive" delay, which
is in violation of Section 6 of Republic Act 8493 (Speedy Trial Act of 1998) 24 and
Section 2, Paragraph 2, Rule 119 of the Revised Rules of Criminal
Procedure25 mandating that the entire trial period should not exceed 180 days
from the first day of trial. As the dismissal is deemed final, Co contends that the
MeTC lost its jurisdiction over the cases and cannot reacquire jurisdiction over
the same based on a mere motion because its revival would already put him in
double jeopardy.
Assuming that the criminal cases were only provisionally dismissed, Co further
posits that such dismissal became permanent one year after the issuance of
the June 9, 2003 Order, not after notice to the offended party. He also insists
that both the filing of the motion to revive and the trial court’s issuance of the
order granting the revival must be within the one-year period. Lastly, even
assuming that the one-year period to revive the criminal cases started on July
2, 2003 when Uy received the June 9, 2003 Order, Co asserts that the motion
was filed one day late since year 2004 was a leap year.
The petition is unmeritorious.
At the outset, it must be noted that the issues raised in this petition were also
the meat of the controversy in Co’s previous petition in G.R. No. 171096, which
We dismissed per Resolution dated February 13, 2006. Such dismissal
became final and executory on March 20, 2006. While the first petition was
dismissed mainly due to procedural infirmities, this Court nonetheless stated
therein that "[i]n any event, the petition lacks sufficient showing that respondent
court had committed any reversible error in the questioned judgment to warrant
the exercise by this Court of its discretionary appellate jurisdiction in this case."
Hence, upon the finality of Our February 13, 2006 Resolution in G.R. No.
171096, the same already constitutes as res judicata between the parties. On
this ground alone, this petition should have been dismissed outright.
Even if We are to squarely resolve the issues repeatedly raised in the present
petition, Co’s arguments are nonetheless untenable on the grounds as follows:
First, Co’s charge that his right to a speedy trial was violated is baseless.
Obviously, he failed to show any evidence that the alleged "vexatious,
capricious and oppressive" delay in the trial was attended with malice or that
the same was made without good cause or justifiable motive on the part of the
prosecution. This Court has emphasized that "‘speedy trial’ is a relative term
and necessarily a flexible concept." 26 In determining whether the accused's
right to speedy trial was violated, the delay should be considered in view of the
entirety of the proceedings. 27 The factors to balance are the following: (a)
duration of the delay; (b) reason therefor; (c) assertion of the right or failure to
assert it; and (d) prejudice caused by such delay. 28 Surely, mere mathematical
reckoning of the time involved would not suffice as the realities of everyday life
must be regarded in judicial proceedings which, after all, do not exist in a
vacuum, and that particular regard must be given to the facts and
circumstances peculiar to each case.29 "While the Court recognizes the
accused's right to speedy trial and adheres to a policy of speedy administration
of justice, we cannot deprive the State of a reasonable opportunity to fairly
prosecute criminals. Unjustified postponements which prolong the trial for an
unreasonable length of time are what offend the right of the accused to speedy
trial."30
Second, Co is burdened to establish the essential requisites of the first
paragraph of Section 8, Rule 117 of the Rules, which are conditions sine qua
non to the application of the time-bar in the second paragraph thereof, to wit:
(1) the prosecution with the express conformity of the accused or the accused
moves for a provisional (sin perjuicio) dismissal of the case; or both the
prosecution and the accused move for a provisional dismissal of the case; (2)
the offended party is notified of the motion for a provisional dismissal of the
case; (3) the court issues an order granting the motion and dismissing the case
provisionally; and (4) the public prosecutor is served with a copy of the order of
provisional dismissal of the case.31 In this case, it is apparent from the records
that there is no notice of any motion for the provisional dismissal of Criminal
Cases Nos. 206655-59, 206661-77 and 209634 or of the hearing thereon
which was served on the private complainant at least three days before said
hearing as mandated by Section 4, Rule 15 of the Rules. 32 The fact is that it
was only in open court that Co moved for provisional dismissal "considering
that, as per records, complainant had not shown any interest to pursue her
complaint."33 The importance of a prior notice to the offended party of a motion
for provisional dismissal is aptly explained in People v. Lacson: 34
x x x It must be borne in mind that in crimes involving private interests, the new
rule requires that the offended party or parties or the heirs of the victims must
be given adequate a priori notice of any motion for the provisional dismissal of
the criminal case. Such notice may be served on the offended party or the heirs
of the victim through the private prosecutor, if there is one, or through the
public prosecutor who in turn must relay the notice to the offended party or the
heirs of the victim to enable them to confer with him before the hearing or
appear in court during the hearing. The proof of such service must be shown
during the hearing on the motion, otherwise, the requirement of the new rule
will become illusory. Such notice will enable the offended party or the heirs of
the victim the opportunity to seasonably and effectively comment on or object
to the motion on valid grounds, including: (a) the collusion between the
prosecution and the accused for the provisional dismissal of a criminal case
thereby depriving the State of its right to due process; (b) attempts to make
witnesses unavailable; or (c) the provisional dismissal of the case with the
consequent release of the accused from detention would enable him to
threaten and kill the offended party or the other prosecution witnesses or flee
from Philippine jurisdiction, provide opportunity for the destruction or loss of the
prosecution’s physical and other evidence and prejudice the rights of the
offended party to recover on the civil liability of the accused by his concealment
or furtive disposition of his property or the consequent lifting of the writ of
preliminary attachment against his property.35
Third, there is evident want of jurisprudential support on Co’s supposition that
the dismissal of the cases became permanent one year after the issuance of
the June 9, 2003 Order and not after notice to the offended party. When the
Rules states that the provisional dismissal shall become permanent one year
after the issuance of the order temporarily dismissing the case, it should not be
literally interpreted as such. Of course, there is a vital need to satisfy the basic
requirements of due process; thus, said in one case:
Although the second paragraph of the new rule states that the order of
dismissal shall become permanent one year after the issuance thereof without
the case having been revived, the provision should be construed to mean that
the order of dismissal shall become permanent one year after service of the
order of dismissal on the public prosecutor who has control of the prosecution
without the criminal case having been revived. The public prosecutor cannot be
expected to comply with the timeline unless he is served with a copy of the
order of dismissal.36
We hasten to add though that if the offended party is represented by a private
counsel the better rule is that the reckoning period should commence to run
from the time such private counsel was actually notified of the order of
provisional dismissal. When a party is represented by a counsel, notices of all
kinds emanating from the court should be sent to the latter at his/her given
address.37 Section 2, Rule 13 of the Rules analogously provides that if any
party has appeared by counsel, service upon the former shall be made upon
the latter.38
Fourth, the contention that both the filing of the motion to revive the case and
the court order reviving it must be made prior to the expiration of the one-year
period is unsustainable. Such interpretation is not found in the Rules.
Moreover, to permit otherwise would definitely put the offended party at the
mercy of the trial court, which may wittingly or unwittingly not comply. Judicial
notice must be taken of the fact that most, if not all, of our trial court judges
have to deal with clogged dockets in addition to their administrative duties and
functions. Hence, they could not be expected to act at all times on all pending
decisions, incidents, and related matters within the prescribed period of time. It
is likewise possible that some of them, motivated by ill-will or malice, may
simply exercise their whims and caprices in not issuing the order of revival on
time.
Fifth, the fact that year 2004 was a leap year is inconsequential to determine
the timeliness of Uy’s motion to revive the criminal cases. What is material
instead is Co’s categorical admission that Uy is represented by a private
counsel who only received a copy of the June 9, 2003 Order on July 3, 2003.
Therefore, the motion was not belatedly filed on July 2, 2004. Since the period
for filing a motion to revive is reckoned from the private counsel's receipt of the
order of provisional dismissal, it necessarily follows that the reckoning period
for the permanent dismissal is likewise the private counsel's date of receipt of
the order of provisional dismissal.
And Sixth, granting for the sake of argument that this Court should take into
account 2004 as a leap year and that the one-year period to revive the case
should be reckoned from the date of receipt of the order of provisional
dismissal by Uy, We still hold that the motion to revive the criminal cases
against Co was timely filed. A year is equivalent to 365 days regardless of
whether it is a regular year or a leap year. 39 Equally so, under the
Administrative Code of 1987, a yearis composed of 12 calendar months. The
number of days is irrelevant. This was our ruling in Commissioner of Internal
Revenue v. Primetown Property Group, Inc., 40 which was subsequently
reiterated in Commissioner of Internal Revenue v. Aichi Forging Company of
Asia, Inc.,41 thus:
x x x [In] 1987, EO 292 or the Administrative Code of 1987 was enacted.
Section 31, Chapter VIII, Book I thereof provides:
Sec. 31.Legal Periods.- "Year" shall be understood to be twelve calendar
months; "month" of thirty days, unless it refers to a specific calendar month in
which case it shall be computed according to the number of days the specific
month contains; "day", to a day of twenty-four hours and; "night" from sunrise
to sunset. (emphasis supplied)
A calendar month is "a month designated in the calendar without regard to the
number of days it may contain." It is the "period of time running from the
beginning of a certain numbered day up to, but not including, the
corresponding numbered day of the next month, and if there is not a sufficient
number of days in the next month, then up to and including the last day of that
month." To illustrate, one calendar month from December 31, 2007 will be from
January 1, 2008 to January 31, 2008; one calendar month from January 31,
2008 will be from February 1, 2008 until February 29, 2008. 42
Applying Section 31, Chapter VIII, Book I of the Administrative Code of 1987 to
this case, the one-year period reckoned from the time Uy received the order of
dismissal on July2, 2003 consisted of 24 calendar months, computed as
follows:
1st calendar month July 3, 2003 to August 2, 2003
2nd calendar month August 3, 2003 to September 2, 2003
3rd calendar month September 3, 2003 to October 2, 2003
4th calendar month October 3, 2003 to November 2, 2003
5th calendar month November 3, 2003 to December 2, 2003
6th calendar month December 3, 2003 to January 2, 2004
7th calendar month January 3, 2004 to February 2, 2004
8th calendar month February 3, 2004 to March 2, 2004
9th calendar month March 3, 2004 to April 2, 2004
10th calendar month April 3, 2004 to May 2, 2004
11th calendar month May 3, 2004 to June 2, 2004
12th calendar month June 3, 2004 to July 2, 2004
In the end, We find it hard to disregard the thought that the instant petition was
filed as a dilatory tactic to prosecute Criminal Case Nos. 206655-59, 206661-
77 and 209634. As correctly pointed out by Uy since the time when the "Motion
for Permanent Dismissal" was filed, the issues raised herein were already
resolved with finality by this Court in G.R. No. 171096. Verily, Co, acting
through the guidance and advice of his counsel, Atty. Oscar C. Maglaque,
adopted a worthless and vexatious legal maneuver for no purpose other than
to delay the trial court proceedings. It appears that Atty. Maglaque’s conduct
contravened the Code of Professional Responsibility which enjoins lawyers to
observe the rules of procedure and not to misuse them to defeat the ends of
justice (Rule 10.03, Canon 10) as well as not to unduly delay a case or misuse
court processes (Rule 12.04, Canon 12). The Lawyer’s Oath also upholds in
particular:
x x x I will not wittingly or willingly promote or sue any groundless, false or
unlawful suit, nor give aid nor consent to the same; I will delay no man for
money or malice, and will conduct myself as a lawyer according to the best of
my knowledge and discretion with all good fidelity as well to the courts as to my
clients x x x.1âwphi1
This Court has repeatedly impressed upon counsels that the need for the
prompt termination of litigation is essential to an effective and efficient
administration of justice. In Spouses Aguilar v. Manila Banking
Corporation,43 We said:
The Court reminds petitioners' counsel of the duty of lawyers who, as officers
of the court, must see to it that the orderly administration of justice must not be
unduly impeded. It is the duty of a counsel to advise his client, ordinarily a
layman on the intricacies and vagaries of the law, on the merit or lack of merit
of his case. If he finds that his client's cause is defenseless, then it is his
bounden duty to advise the latter to acquiesce and submit, rather than traverse
the incontrovertible. A lawyer must resist the whims and caprices of his client,
and temper his client's propensity to litigate. A lawyer’s oath to uphold the
cause of justice is superior to his duty to his client; its primacy is indisputable. 44
WHEREFORE, premises considered, the Petition is DENIED. The April 30,
2008 and August 1, 2008 Resolutions of the Court of Appeals, respectively, in
CA-G.R. SP No. 102975, which affirmed the January 28, 2008 Decision of the
Regional Trial Court, Branch 121 of Caloocan City, annulling and setting aside
the Orders dated September 4, 2006 and November 16, 2006 of the
Metropolitan Trial Court, Branch 50 of Caloocan City that permanently G.R. No. 197546 March 23, 2015
dismissed Criminal Case Nos. 206655-59, 206661-77 and 209634, are hereby
AFFIRMED. Costs of suit to be paid by the petitioner. PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee,
The Commission on Bar Discipline-Integrated Bar of the Philippines is vs.
DIRECTED to investigate Atty. Oscar C. Maglaque for his acts that appear to BAYANI DE LEON, ANTONIO DE LEON, DANILO DE LEON and YOYONG
have violated the Lawyer's Oath, the Code of Professional Responsibility, and DE LEON, Accused-Appellants.
the Rule on Forum Shopping. SO ORDERED.
DECISION

PEREZ, J.:

For review is the conviction for the crime of Murder of accused-appellants

BAYANI DE LEON (Bayani), ANTONIO DE LEON (Antonio), DANILO DE
LEON (Danilo), and YOYONG DE LEON (Yoyong) by the Regional Trial Court
(RTC),1 in Criminal Case No. Q-02-113990, which Decision2 was affirmed with
modifications by the Court of Appeals.

The accused-appellants were charged with Robbery with Homicide under an

Information which reads:

That on or about the 2nd day of March, 2002, in Quezon City, Philippines, the
above-named accused, conspiring together, confederating with and mutually
helping one another, with intent to gain, by means of violence and/or
intimidation against [sic] person, did then and there wilfully, unlawfully and
feloniously rob one EMILIO A. PRASMO, in the following manner, to wit: on the
date and place aforementioned, while victim/deceased Emilio A. Prasmo was
walking along A. Bonifacio Street, Barangay Sta. Lucia, Novaliches, this City,
together with his wife and daughter in-law, accused pursuant to their
conspiracy armed with sumpak, samurai, lead pipe and .38 cal. revolver rob
EMILIO A. PRASMO and took and carried away ₱7,000.00, Philippine
currency, and by reason or on the occasion thereof, with evident premeditation,
abuse of superior strength and treachery, accused with intent to kill[,] attack,
assault and employ personal violence upon EMILIOA. PRASMO by then and
there shooting and hacking the victim with the use of said weapons, thereby
inflicting upon him serious and grave wounds which were the direct and
immediate cause of his untimely death, to the damage and prejudice of the
heirs of said Emilio A. Prasmo.3

When arraigned, all the accused-appellants entered a plea of not guilty except
accused Antonio. Thus, the RTC ordered a reverse trial in so far as Antonio is
concerned.

Evidence of the Prosecution

The prosecution presented Erlinda A. Prasmo (Erlinda), wife of the victim,

Emilio Prasmo (Emilio), who testified that on 2 March 2002, while they were
walking along Sta. Lucia Street, Novaliches, on their way to RP Market, the
accused-appellants, who are siblings, blocked their way. Accused-appellant
Danilo, armed with a "sumpak", suddenly hit Emilio with a "bakal" while
accused-appellant Antonio, who was armed with a "samurai", hacked Emilio in
the forehead and struck him with a lead pipe at the right back portion of his
legs and middle back portion of his torso. Accused-appellant Danilo then took
Emilio’s money in the amount of ₱7,000.00 and thereafter aimed the "sumpak"
at the lower portion of Emilio’s chest and fired the same, causing Emilio to
slump on the ground. Accused-appellant Yoyong also hit Emilio with a lead pipe
at the back of the neck and middle portion of his back.
As accused-appellants attacked and mauled Emilio, Erlinda, seeing her
husband sprawled motionless on the ground, shouted for help, but nobody
dared to help because accused-appellant Bayani, armed with a gun, was
shouting "walang lalapit". The accused-appellants immediately left and Emilio
was brought to the FEU Fairview Hospital, where Emilio died.
Gina Prasmo, Emilio’s daughter, testified that at the time of the incident, she
was at their house when she was informed of the news. She immediately went
to the hospital where she learned that her father was already dead.
The testimony of Dr. Editha Martinez, a medico-legal officer of the Medico-
Legal Division, Philippine National Police Crime Laboratory, Camp Crame,
Quezon City, was dispensed with because she was not the one who performed
the autopsy on the cadaver of Emilio, but nevertheless, she identified such
documents as Medico-Legal Report, Autopsy Report, Sketch of the head
showing contusion, anatomical sketch showing the gunshot wound on the right
portion of the chest, and the anatomical sketch of Emilio.
Evidence of the Defense
Carmelita de Leon (Carmelita), sister of the accused-appellants, testified that
on the evening of 1 March 2002, she was at her house when her brothers,
accused-appellants Danilo and Antonio, arrived. Upon observing that the heads
of Antonio and Danilo were bleeding, she was informed that Emilio and his son,
Edgardo Prasmo (Edgardo), attacked and mauled them, which caused their
injuries. They reported the incident to a "tanod" in the barangay hall, Julio
Batingaw, who told them to return in the afternoon so they could have a
meeting with Emilio and Edgardo. When they returned, Emilio and Edgardo did
not appear.
In the evening, at around 7 o’clock, fifteen (15) men carrying firearms, who
included Jerry and Edgar, sons of Emilio, stormed her house looking for
accused-appellants and threatened to kill her if she will not disclose their
whereabouts. To support her testimony, the defense offered in evidence the
medical certificates for the injuries sustained by accused-appellants Antonio
and Danilo dated 1 March 2002 and the entry in the barangay blotter book
dated 2 March 2002,about the mauling of accused-appellants Antonio and
Danilo.
The accused-appellants gave their testimonies that follow:
Jose de Leon, also known as Yoyong, was at the house of his brother-in-law,
Willie Bandong, in Bagong Barrio, Caloocan City to discuss the schedule of the
"pabasa". He stayed there between 8:00 to 9:00 o’clock in the evening. Danilo,
at that time, was with his mother in Pugad Lawin in Quezon City, to accompany
his mother in doing her work as a "manghihilot". They left Pugad Lawin
between 8:00 to 9:00 o’clock in the evening and went home. Bayani, a police
civilian agent, at the night of the crime, was at the Police Station No. 5 in
Fairview, Quezon City, talking to a police officer.
Antonio, in the morning of 2 March 2002, went to the barangayhall with his
mother, Carmelita, and accused-appellant Danilo, to file a complaint against
Emilio and Emilio’s son, Edgardo, due to the mauling incident the previous
evening. In the barangayhall, they were told to return in the afternoon so they
could have a meeting with Emilio and Edgardo. They returned as told. Emilio
and Edgardo did not.
On the way home, accused-appellant Antonio met Emilio, Erlinda, and Gina,
Emilio’s daughter, walking along A. Bonifacio Street. Emilio, upon seeing
Antonio, immediately opened his jacket and tried to pull "something" out.
Antonio then instantlytried to grab that "something" from Emilio. While
grappling for the possession of that "something", which turned out to be a
"sumpak", it fired.
Bernaly Aguilar, while on her way to the market in Sta. Lucia, witnessed a fight
involving accused-appellant Antonio and another man, who were grappling for
the possession over a "bakal". After walking a few meters away from the
incident, she heard a shot.
The Ruling of the Regional Trial Court
According to the accused-appellants, Erlinda is not a credible witness and that
her testimony is barren of probative value for having grave and irreconcilable
inconsistencies, as opposed to accused-appellant Antonio’s testimony which
supposedly established the presence of all the essential requisites of self-
defense. Accused-appellants referred to the inconsistency between Erlinda’s
court testimony and her Sinumpaang Salaysay. In her Sinumpaang Salaysay,
she identified accused-appellant Antonio as the one who fired the "sumpak" at
the lower chest of Emilio and took Erlinda’s money. However, during her direct
examination, she testified that it was accused-appellant Danilo who shot Emilio
with a "sumpak" and thereafter, took his wallet.
Accused-appellants further argued that Erlinda could not have mistaken Danilo
for Antonio, because she knew them both as they reside six (6) houses away
from the house of the Prasmos and that accused-appellant Antonio has a
distinctive feature — having a cleft palate or is "ngongo".
The RTC rejected accused-appellants’ contentions. According to the RTC,
Erlinda’s narration of the incident is clear and convincing. While her testimony
has some inconsistencies, they refer only to collateral and minor matters,
which do not detract from the probative value of her testimony.
The trial court found established the circumstances of abuse of superior
strength and treachery, abuse of strength absorbed by the aggravating
circumstance of treachery:4
These requisites are obviously present in this case considering that the
evidence shows that after Danilo suddenly fired at Emilio’s lower portion of the
chest accused Antonio and Yoyong ganged up on Emilio, with Antonio hitting
him with a lead pipe on the right back portion of his legs and in the middle back
torso and hacking him with a samurai, and accused Yoyong hitting also (sic)
him with a lead pipe on the right back leg and middle portion of his back. Said
action of the four (4) accused rendered it difficult for the victim to defend
himself.5
However, citing People v. Nimo,6 the RTC ruled that because robbery was not
duly established, it cannot convict accused-appellants for robbery with
homicide. It relied on the principle that in order to sustain a conviction for
robbery with homicide, robbery must be proven as conclusively as the killing
itself.7 Thus, as opposed to the Information which charged the accused-
appellants of the crime of Robbery with Homicide, the RTC found accused-
appellants guilty beyond reasonable doubt of the crime of Murder by
conspiracy. The dispositive portion of the RTC Decision reads:
WHEREFORE, the Court finds accused BAYANI DE LEON, ANTONIO DE
LEON, DANILO DE LEON and YOYONG DE LEON guilty beyond reasonable
doubt of the crime of MURDER defined and penalized under Article 248 of the
Revised Penal Code as amended and are hereby sentenced to suffer the
penalty of RECLUSION PERPETUA with all the accessory penalties provided
by law and to jointly and severally indemnify the heirs of the late EMILIO
PRASMO the amounts of ₱50,000.00 as indemnity for his death and
₱50,000.00 as moral damages.8
The Ruling of the Court of Appeals
The Court of Appeals affirmed the conviction of the accused-appellants.
Contrary to the accused-appellants’ contention that the trial court committed a
reversible error when it gave credence to Erlinda’s testimony, the Court of
Appeals considered Erlinda’s recollection of the events as direct, positive and
convincing manner, unshaken by a tedious and grueling cross-examination. 9
With regard to the crime charged, the Court of Appeals agreed that the
accused-appellants are guilty of the crime of Murder instead of Robbery with
Homicide. As borne by the records, the only intent of the accused-appellants
was to kill Emilio. The "accused-appellants had an axe to grind against Emilio x
x x. The means used by the accused-appellants as well as the nature and
number of wounds - debilitating, fatal and multiple – inflicted by appellants on
the deceased manifestly revealed their design to kill him. The robbery
committed by appellant Danilo [was on] the spur of the moment or [was] a
mere afterthought."10
Also, the Court of Appeals found accused-appellant Danilo guilty of Robbery for
unlawfully divesting Emilio of ₱7,000.00, which it considered as an action
independent of and outside the original design to murder Emilio. The
dispositive portion of the Court of Appeals Decision reads: WHEREFORE, the
appealed Decision dated May 25, 2007 of the Regional Trial Court of Quezon
City, Branch 81 is hereby AFFIRMED in toto with the added MODIFICATION
that accused-appellant Danilo de Leon is also found guilty beyond reasonable
doubt of the crime of Robbery defined under Article 293 and penalized under
Article 294 (5) of the Revised Penal Code, and is sentenced to suffer the
indeterminate penalty of two (2) years and seven (7) months of prision
correccional, as minimum, to eight (8) years and ten (10) days of prision mayor,
as maximum. He is ordered to return to the heirs of Emilio Prasmo the cash of
₱7,000.00, representing the amount he took from said victim. 11
Now, before the Court on automatic review, accused-appellants contend, by
way of assignment of errors, that the appellate court gravely erred when:
1. it gave full credence to the inconsistent testimony of the alleged
eyewitness Erlinda Prasmo; and
2. it disregarded the self-defense interposed by Antonio De Leon and
the denial and alibi interposed by Bayani, Danilo, and Yoyong, all
surnamed De Leon.12
Our Ruling
The accused-appellants’ attempt to discredit Erlinda’s testimony must fail.
Inconsistencies between the declaration of the affiant in her sworn statements
and those in open court do not necessarily discredit the witness; 13 it is not fatal
to the prosecution’s cause. In fact, contrary to the defense’s claim,
discrepancies erase suspicion that the witness was rehearsed or that the
testimony was fabricated. As correctly held by the Court of Appeals, despite
minor inconsistencies, Erlinda’s narration revealed each and every detail of the
incident, which gave no impression whatsoever that her testimony is a mere
fabrication. As we already enunciated in previous rulings, "[i]t is a matter of
judicial experience that affidavits or statements taken ex parte are generally
incomplete and inaccurate. Thus, by nature, they are inferior to testimony given
in court, and whenever there is inconsistency between the affidavit and the
testimony of a witness in court, the testimony commands greater weight." 14
Before us is a reversed trial. As one of the accused-appellants, Antonio,
pleaded self-defense, he admitted authorship of the crime. At this juncture, the
burden of proof is upon the accused-appellants to prove with clear and
convincing evidence the elements of self-defense: (1) unlawful aggression on
the part of the victim; (2) reasonable necessity of the means employed to
prevent or repel the attack; and (3) lack of sufficient provocation on the part of
the person defending himself,15 which the defense failed to discharge.
Unlawful Aggression
Unlawful aggression refers to an assault to attack, or threat in an imminent and
immediate manner, which places the defendant’s life in actual peril. Mere
threatening or intimidating attitude will not suffice. There must be actual
physical force or actual use of weapon.16
Applying the aforesaid legal precept, Emilio’s act of pulling "something" out
from his jacket while he was three (3) to four (4) meters away from accused-
appellant Antonio cannot amount to unlawful aggression. Neither can the act of
pulling "something" out amount to physical force or actual use of weapon, or
even threat or intimidating attitude. Even if accused-appellant Antonio’s
account of the incident is truthful, that Emilio had motive to kill accused-
appellant Antonio, giving accused-appellant reasonable grounds to believe that
his life and limb was in danger, and that the "something" was indeed a
"sumpak", it can hardly be recognized as unlawful aggression to justify self-
defense.17 There is no showing that accused-appellant Antonio’s life was in
peril by the act of pulling "something" out. As correctly observed by the Court of
Appeals, "it must be noted that appellant never said that Emilio aimed or
pointed the "sumpak" at him or at least made an attempt to shoot him". 18 The
threat on accused-appellant Antonio’s life is more imagined than real. As we
already held in a catena of cases, the act of pulling "something" out cannot
constitute unlawful aggression.19
Accused-appellant Antonio cannot allege that it was Emilio who instigated the
incident; that Emilio’s fate was brought about by his own actuations. There is
no sufficient provocation, nay, provocation at all in the act of pulling
"something" out.
Contrary to accused-appellant Antonio’s contention that he acted in self-
defense, the Medico-Legal Report No. M-685-02 dated 12 March 2002 proved
otherwise. As borne by the records, Emilio sustained numerous wounds,
including the fatal gunshot wound in the chest, which belie accused-appellants’
defense that Antonio was alone at the scene of the crime and acted in self-
defense. The Medico-Legal Report No. M-685-02 dated 12 March 2002
revealed that the victim sustained the following multiple injuries:
HEAD AND NECK:
1. Lacerated wound, right parietal region, measuring 4 x 3 cm, 7 cm
from the mid-sagittal line.
2. Contusion, right mandibular region, measuring 11 x 2 cm, 7 cm from
the anterior midline.
3. Contusion, nasal region, measuring 3 x 2.5 cm, along the anterior
midline.
4. Hematoma, left parietal region, measuring 5 x 4 cm, 8 cm from the
anterior midline.
5. Contusion, left cheek, measuring 11 x 3 cm, 8 cm from the anterior
midline.
6. Contusion, left lateral neck region, measuring 6 x 3 cm, 4 cm from
the anterior midline.
7. Lacerated wound, occipital region, measuring 5 x 1.8 cm, bisected
by the anterior midline.
8. There is a scalp hematoma at the right parieto-occipital region.
9. There are subdural, sub arachnoid hemorrhages at the right
celebrum.
10. The right parietal bone is fractured.
TRUNK AND ABDOMEN:
1. Gunshot wound, right chest, measuring 2.6 cm x 2.3 cm, 4 cm from
the anterior midline, 112 cm from the right heel, directed
posteriorwards, downwards, and slightly lateralwards, fracturing the 6th
and 7th ribs, lacerating the lower lobe of the right lung, diaphragm,
right lobe of the liver with the deformed plastic wad embedded, right
kidney with 2 lead pellets found embedded and the aorta with 3 pellets
embedded thereat and 2 lead pellets found at the right thoracic cavity.
2. Contusion, right shoulder region, measuring 12 x 3 cm, 8 cm from
the posterior midline.
3. Abrasion, right shoulder region, measuring 3.5 x 2 cm, 12 cm from
the posterior midline.
4. Contusion, left shoulder region, measuring 4 x 2 cm, 6 cm from the
posterior midline.
EXTREMITIES:
1. Contusion, left elbow, measuring 8 x 2 cm, 5 cm medial to its
posterior midline.
2. Abrasion, dorsal aspect of the left hand, measuring 0.6 x 0.3 cm, 3
cm medial to its posterior midline.20
As we already held, the nature and location of wounds are considered
important indicators which disprove a plea of self-defense. 21 A perusal of the
evidence would depict the presence of a deliberate onslaught against Emilio.
The means used by accused-appellants as shown by the nature, location and
number of wounds sustained by Emilio are so much more than sufficient to
repel or prevent any alleged attack of Emilio against accused-appellant
Antonio. Evidently, the accused-appellants’ intent to kill was clearly established
by the nature and number of wounds sustained by Emilio. The wounds
sustained by Emilio indubitably reveal that the assault was no longer an act of
self-defense but a homicidal aggression on the part of accused-
appellants.22 Double Jeopardy
The RTC did not find the accused guilty of the crime of robbery with homicide
as charged in the Information, but found all the accused guilty of the crime of
murder. According to the RTC, contrary to the charge of robbery with homicide,
the accused is guilty of the crime of murder because the prosecution failed to
establish the crime of robbery. The RTC, citing People v. Nimo, 23 ratiocinated
that in order to sustain a conviction for robbery with homicide, robbery must be
proven as conclusively as the killing itself.
On the other hand, the Court of Appeals affirmed with modifications the ruling
of the RTC and found all of the accused guilty of the crime of murder. However,
contrary to the findings of the RTC with regard to the crime of robbery, the
Court of Appeals reversed the ruling of the RTC and found accused Danilo
guilty of the separate crime of robbery. We find that the appellate court erred
for violating the constitutional right of Danilo against double jeopardy as
enshrined in Section 21, Article III of the 1987 Constitution, to wit:
As the first jeopardy already attached, the appellate court is precluded from
ruling on the innocence or guilt of Danilo of the crime of robbery. To once again
rule on the innocence or guilt of the accused of the same crime transgresses
the Constitutional prohibition not to put any person "twice x x x in jeopardy of
punishment for the same offense."26As it stands, the acquittal on the crime of
robbery based on lack of sufficient evidence is immediately final and cannot be
appealed on the ground of double jeopardy. 27 A judgment of acquittal is final
and unappealable. In fact, the Court cannot, even an appeal based on an
alleged misappreciation of evidence, review the verdict of acquittal of the trial
court28 due to the constitutional proscription, the purpose of which is to afford
the defendant, who has been acquitted, final repose and safeguard from
government oppression through the abuse of criminal processes. 29 The crime
of robbery was not proven during the trial. As we discussed, the acquittal of the
accused-appellant, including Danilo, is not reversible.
WHEREFORE, the Decision of the Court of Appeals is hereby AFFIRMED with
MODIFICATIONS. Accused-Appellants BAYANI DE LEON, ANTONIO DE
LEON, DANILO DE LEON and YOYONG DE LEON are hereby declared guilty
beyond reasonable doubt of the crime
of Murder and are sentenced to suffer the penalty of reclusion perpetua. The
accused-appellants are ordered to pay Emilio Prasmo's heirs the following
amounts: ₱75,000.00 as civil indemnity for Emilio Prasmo's death, ₱75,000.00
as moral damages, and ₱30,000.00 as exemplary damages.

Section 21. No person shall be twice put in jeopardy of punishment for the All monetary awards shall earn interest at the rate of 6% per annum from the
same offense.1âwphi1 If an act is punished by a law and an ordinance, date of finality until fully paid.
conviction or acquittal under either shall constitute a bar to another prosecution
for the same act.24 SO ORDERED.

Double jeopardy attaches if the following elements are present: (1) a valid
complaint or information; (2) a court of competent jurisdiction; (3) the defendant
had pleaded to the charge; and (4) the defendant was acquitted, or convicted
or the case against him was dismissed or otherwise terminated without his
express consent.25

In case at bar, it is undisputed the presence of all the elements of double

jeopardy: (1) a valid Information for robbery with homicide was filed; (2) the
Information was filed in the court of competent jurisdiction; (3) the accused
pleaded not guilty to the charge; and (4) the RTC acquitted Danilo for the crime
of robbery for lack of sufficient evidence, which amounted to an acquittal from
which no appeal can be had. Indeed the conviction for murder was premised
on the fact that robbery was not proven. The RTC Decision which found
accused guilty of the crime of murder and not of robbery with homicide on the
ground of insufficiency of evidence is a judgment of acquittal as to the crime of
robbery alone.