7Fukuzume V People DECISION

AUSTRIA-MARTINEZ, J.:

Before us is a petition for review on certiorari under Rule 45 of the Rules of Court assailing the Decision[1] of the Court of Appeals (CA) dated March 13, 2000 in CA-G.R. CR No. 21888, which affirmed with modification the judgment of the Regional Trial Court (RTC) of Makati, Branch 146 dated October 21, 1996 in Criminal Case No. 95-083, finding herein accused-appellant guilty beyond reasonable doubt of the crime of estafa, sentencing him to suffer the penalty of imprisonment for twenty (20) years and to pay private complainant the sum of P424,000.00; and the CA Resolution dated June 16, 2000 denying petitioners motion for reconsideration.[2]

The facts of the case are as follows:

Private complainant Javier Ng Yu (Yu) is a businessman engaged in buying and selling aluminum scrap wires.[3] Sometime in July 1991, Yu, accompanied by a friend, Mr. Jovate,[4] who was the vice-president of Manila Electric Company, went to the house of herein accused-

appellant Yusuke Fukuzume (Fukuzume) in Paraaque.[5] Jovate introduced Fukuzume to Yu telling the latter that Fukuzume is from Furukawa Electric Corporation (Furukawa) and that he has at his disposal aluminum scrap wires.[6] Fukuzume confirmed this information and told Yu that the scrap wires belong to Furukawa but they are under the care of National Power Corporation (NAPOCOR).[7] Believing Fukuzumes representation to be true, Yu agreed to buy the aluminum scrap wires from Fukuzume.[8] The initial agreed purchase price was P200,000.00.[9] Yu gave Fukuzume sums of money on various dates which eventually totaled P290,000.00, broken down as follows: P50,000.00, given on July 12, 1991; P20,000.00, given on July 22, 1991; P50,000.00, given on October 14, 1991; and, P170,000.00, given on October 18, 1991.[10] Fukuzume admitted that he received the same from Yu and that he still owes him the amount of P290,000.00.[11] To support his claim that the aluminum scrap wires being sold are indeed owned by Furukawa, that these scrap wires are with NAPOCOR, and that Furukawas authorized representatives are allowed to withdraw and dispose of said scrap wires, Fukuzume gave Yu two certifications dated December 17, 1991 and December 27, 1991 purportedly issued by NAPOCOR and signed by its legal counsel by the name of R. Y. Rodriguez.[12] At the time that Fukuzume gave Yu the second certification, he asked money from the latter telling him that it shall be given as gifts to some of the people in NAPOCOR. Yu gave Fukuzume money and, in exchange, the latter issued two checks, one for P100,000.00 and the other for P34,000.00.[13] However, when Yu deposited the checks, they were dishonored on the ground that the account from which the checks should have been drawn is already closed.[14] Subsequently, Yu called up Fukuzume to inform him that the checks bounced.[15] Fukuzume instead told him not to worry because in one or two weeks he will give Yu the necessary authorization to enable him to retrieve the aluminum scrap wires from NAPOCOR.[16] On January 17, 1992, Fukuzume gave Yu a letter of even date, signed by the Director of the Overseas Operation and Power Transmission Project Divisions of Furukawa, authorizing Fukuzume to dispose of excess aluminum conductor materials which are stored in their depots in Tanay and Bulacan.[17] Thereafter, Fukuzume agreed to accompany Yu when the latter is going to take the aluminum scrap wires from the NAPOCOR compound.[18] When Yu arrived at the NAPOCOR compound on the scheduled date, Fukuzume was nowhere to be found.[19]

Hence, Yu proceeded to show the documents of authorization to NAPOCOR personnel. However, the people from NAPOCOR did not honor the authorization letter issued by Furukawa dated January 17, 1992.[20] NAPOCOR also refused to acknowledge the certifications dated December 17, 1991 and December 27, 1991 claiming that these are spurious as the person who signed these documents is no longer connected with NAPOCOR as of December 1991.[21] Unable to get the aluminum scrap wires from the NAPOCOR compound, Yu talked to Fukuzume and asked from the latter the refund of the money he paid him.[22] Fukuzume promised to return Yus money.[23] When Fukuzume failed to comply with his undertaking, Yu sent him a demand letter asking for the refund of P424,000.00 plus loss of profits.[24] Subsequently, Yu filed a complaint with the National Bureau of Investigation (NBI).[25]

In an Information, dated November 4, 1994, filed with the RTC of Makati, Fukuzume was charged with estafa committed as follows:

That sometime in the month of July, 1991 up to September 17, 1992, in the Municipality of Makati, Metro Manila, Philippines, a place within the jurisdiction of this Honorable Court, the above-named accused, with intent to prejudice and defraud Javier Yu y Ng, did then and there willfully, unlawfully and feloniously make false representation and fraudulent manifestation that he is the duly authorized representative of Furukawa Electric Co. Ltd., in the Philippines, and was authorized to sell excess aluminum conductor materials not being used by Napocor and Furukawa, the accused knowing full well that those representations were false and were only made to induce and convince said Javier Yu y Ng to buy said materials, who believing said representations to be true, gave and delivered the total amount of P424,000.00 but the accused once in possession of the money, far from complying with his obligation to deliver said aluminum conductor materials to herein complainant, with intent of gain, unfaithfulness and abuse of confidence, applied and used for his own personal

use and benefit the said amount and despite repeated demands failed and refused and still fails and refuses to account for, to the damage and prejudice of Javier Yu y Ng in the aforementioned amount of P424,000.00. CONTRARY TO LAW.[26]

Upon being arraigned on February 28, 1995, Fukuzume pleaded not guilty.[27] Trial ensued.

In its Decision dated October 21, 1996, the trial court found Fukuzume guilty as charged. The dispositive portion of the RTC decision reads:

WHEREFORE, all the foregoing premises considered, the Court hereby finds the accused GUILTY beyond reasonable doubt of the crime of estafa and hereby orders him to suffer the maximum penalty of imprisonment for twenty (20) years. With respect to his civil liability, accused is hereby ordered to pay complainant the amount of P424,000.00 plus legal interest from the date of demand until fully paid. SO ORDERED.[28]

Aggrieved by the trial courts decision, Fukuzume filed an appeal with the CA.

On March 13, 2000, the CA promulgated its decision affirming the findings and conclusions of the trial court but modifying the penalty imposed, thus:

although the trial court correctly imposed the maximum penalty of imprisonment for twenty (20) years, it failed to determine the minimum penalty for the offense committed (prision correccional in its maximum period to prision mayor in its minimum period but imposed in the maximum period), hence, the penalty is modified to six (6) years and one (1) day of prision mayor in its minimum period, as the minimum, to not more than twenty (20) years of reclusion temporal in its maximum period, as maximum.[29] Accordingly, the dispositive portion of the CA Decision reads:

WHEREFORE, the judgment appealed from, except for the aforementioned modification in the prison term of appellant, is hereby AFFIRMED. SO ORDERED.[30]

Hence, herein petition filed by Fukuzume based on the following grounds:

THE DECISION OF THE HONORABLE COURT OF APPEALS THAT THE TRIAL COURT OF MAKATI HAS JURISDICTION IS NOT IN ACCORD WITH LAW OR WITH THE APPLICABLE DECISIONS OF THE SUPREME COURT.

THE HONORABLE COURT OF APPEALS HAD DECIDED A QUESTION OF SUBSTANCE IN A WAY NOT IN ACCORD WITH LAW OR WITH THE APPLICABLE DECISIONS OF THE SUPREME COURT WHEN IT CONCLUDED THAT THE ALLEGED FALSE PRETENSE WAS EXECUTED PRIOR TO OR SIMULTANEOUS WITH THE ALLEGED COMMISSION OF THE FRAUD. THE HONORABLE COURT OF APPEALS HAD DECIDED A QUESTION OF SUBSTANCE IN A WAY NOT IN ACCORD WITH LAW OR WITH THE APPLICABLE DECISIONS OF THE SUPREME COURT BY FAILING TO CONSIDER THAT THE ORIGINAL TRANSACTION BETWEEN THE PETITIONER AND PRIVATE COMPLAINANT HAD BEEN NOVATED AND CONVERTED INTO A MERE DEBTOR-CREDITOR RELATIONSHIP, THEREBY EXTINGUISHING THE INCIPIENT CRIMINAL LIABILITY THEREOF, IF ANY.[31]

We agree with Fukuzumes contention that the CA erred in ruling that the RTC of Makati has jurisdiction over the offense charged. The CA ruled:

The trial court of Makati has jurisdiction. Subject to existing laws, in all criminal prosecutions, the action shall be instituted and tried in the court of the municipality or territory wherein the offense was committed or any one of the essential ingredients thereof took place (Rule 110, Sec. 15, Rules of Court). Although the false representation and verbal contract of sale of the aluminum scrap wires took place at appellants residence in Paraaque, appellant and private complainant nevertheless admitted that the initial payment of P50,000.00 for said transaction was made at the Hotel Intercontinental in Makati City (Record, pp. 15, 68). Hence, an element of the crime that the offended party was induced to part with his money because of the false pretense occurred within the jurisdiction of the lower court giving it jurisdiction over the instant case.

The CA ruled on the basis of the sworn statement of Yu filed with the NBI on April 19, 1994[32] and the affidavit of Fukuzume which was subscribed on July 20, 1994.[33]

With respect to the sworn statement of Yu, which was presented in evidence by the prosecution, it is clear that he alleged therein that on July 12, 1991, he gave Fukuzume the amount of P50,000.00 at the Intercontinental Hotel in Makati. However, we agree with Fukuzumes contention that Yu testified during his direct examination that on July 12, 1991 he gave the amount of P50,000.00 to Fukuzume in the latters house. It is not disputed that Fukuzumes house is located in Paraaque. Yu testified thus:

Q A Q A Q A

Mr. Witness, you testified the last time that you know the accused in this case, Mr. Yusuke Fukuzume? Yes, sir. Now, would you enlighten us under what circumstance you came to know the accused? I know the accused Mr. Yusuke Fukuzume through Mr. Hubati. And why or how did Mr. Hubati come to know the accused, if you know? Mr. Hubati came to my place dealing with the aluminum scrap wires.

ATTY. N. SERING

Your Honor, may I move to strike out the answer. It is not responsive to the question. COURT

Please wait until the answer is completed. Q A Now, you met this Mr. Hubati. How? He came to me offering me aluminum scrap wires.

FISCAL E. HIRANG

Q A

When was that, Mr. Witness? That was in 1991, sir.

COURT

When?

FISCAL E. HIRANG

Your Honor please, may the witness be allowed to consult his memorandum. A Q July 12, 1991, sir. And what transpired during that time you met Mr. Hubati?

We went to the house of Mr. Fukuzume and game (sic) him some amount of money. Now, would you tell the Court the reason why you parted to the accused in this case the amount of money? In payment of the aluminum scrap wires and we have documents to that effect. Now, please tell us what really was that transaction that took place at the house of Mr. Fukuzume on that particular date? Our agreement with Mr. Hubati and with Mr. Fukuzume is that, I am going to give money in payment of the aluminum scrap wires coming from Furukawa Eletric Company. How much is the amount of money which you agreed to give to the accused? Our first agreement was for P200,000. Where is that aluminum scrap located? The electric aluminum scrap wires was or were under the care of the National Power Corporation but according to Mr. Fukuzume it belongs to Furukawa Electric Company. In short, Mr. Witness, on July 12, 1991, you only gave to the accused the amount of P50,000?

A Q A

ATTY. N. SERING

Objection, Your Honor.

FISCAL E. HIRANG

The complainant testified he gave P50,000. I am asking how much the complainant gave to the accused on that particular date. A Q A On July 12, I gave him P50,000 on that date. Not P200,000? No, sir.[34]

ISSUE: Settled is the rule that whenever there is inconsistency between the affidavit and the testimony of a witness in court, the testimony commands greater weight considering that affidavits taken ex parte are inferior to testimony given in court, the former being almost invariably incomplete and oftentimes inaccurate.[35]

More importantly, we find nothing in the direct or cross-examination of Yu to establish that he gave any money to Fukuzume or transacted business with him with respect to the subject aluminum scrap wires inside or within the premises of the Intercontinental Hotel in Makati, or anywhere in Makati for that matter. Venue in criminal cases is an essential element of jurisdiction.[36] Citing Uy vs. Court of Appeals,[37] we held in the fairly recent case of Macasaet vs. People[38] that:

It is a fundamental rule that for jurisdiction to be acquired by courts in criminal cases the offense should have been committed or any one of its essential ingredients took place within the territorial jurisdiction of the court. Territorial jurisdiction in criminal cases is the territory where the court has

jurisdiction to take cognizance or to try the offense allegedly committed therein by the accused. Thus, it cannot take jurisdiction over a person charged with an offense allegedly committed outside of that limited territory. Furthermore, the jurisdiction of a court over the criminal case is determined by the allegations in the complaint or information. And once it is so shown, the court may validly take cognizance of the case. However, if the evidence adduced during the trial show that the offense was committed somewhere else, the court should dismiss the action for want of jurisdiction.[39] (Emphasis supplied)

Where life or liberty is affected by its proceedings, the court must keep strictly within the limits of the law authorizing it to take jurisdiction and to try the case and to render judgment.[40]

In the present case, the criminal information against Fukuzume was filed with and tried by the RTC of Makati. He was charged with estafa as defined under Article 315, paragraph 2(a) of the Revised Penal Code, the elements of which are as follows:

1. That there must be a false pretense, fraudulent act or fraudulent means. 2. That such false pretense, fraudulent act or fraudulent means must be made or executed prior to or simultaneously with the commission of the fraud. 3. That the offended party must have relied on the false pretense, fraudulent act, or fraudulent means, that is, he was induced to part with his money or property because of the false pretense, fraudulent act, or fraudulent means.

4. That as a result thereof, the offended party suffered damage.[41]

The crime was alleged in the Information as having been committed in Makati. However, aside from the sworn statement executed by Yu on April 19, 1994, the prosecution presented no other evidence, testimonial or documentary, to corroborate Yus sworn statement or to prove that any of the above-enumerated elements of the offense charged was committed in Makati. Indeed, the prosecution failed to establish that any of the subsequent payments made by Yu in the amounts of P50,000.00 on July 12, 1991, P20,000.00 on July 22, 1991, P50,000.00 on October 14, 1991 and P170,000.00 on October 18, 1991 was given in Makati. Neither was there proof to show that the certifications purporting to prove that NAPOCOR has in its custody the subject aluminum scrap wires and that Fukuzume is authorized by Furukawa to sell the same were given by Fukuzume to Yu in Makati. On the contrary, the testimony of Yu established that all the elements of the offense charged had been committed in Paraaque, to wit: that on July 12, 1991, Yu went to the house of Fukuzume in Paraaque; that with the intention of selling the subject aluminum scrap wires, the latter pretended that he is a representative of Furukawa who is authorized to sell the said scrap wires; that based on the false pretense of Fukuzume, Yu agreed to buy the subject aluminum scrap wires; that Yu paid Fukuzume the initial amount of P50,000.00; that as a result, Yu suffered damage. Stated differently, the crime of estafa, as defined and penalized under Article 315, paragraph 2(a) of the Revised Penal Code, was consummated when Yu and Fukuzume met at the latters house in Paraaque and, by falsely pretending to sell aluminum scrap wires, Fukuzume was able to induce Yu to part with his money.

The Office of the Solicitor General argues that Fukuzume himself alleged in his affidavit dated July 20, 1994 that in an unspecified date, he received P50,000.00 from Yu at the Intercontinental Hotel in Makati. However, we cannot rely on this affidavit for the reason that it forms part of the records of the preliminary investigation and, therefore, may not be considered evidence. It is settled that the record of the preliminary investigation, whether conducted by a judge or a prosecutor, shall not form part of the record of the case in the RTC.[42] In People vs. Crispin,[43] this Court held that the fact that the affidavit formed part of the record of the preliminary investigation does not justify its being treated as evidence because the record of the preliminary investigation does not form part of the record of the case in the RTC. Such record must be introduced as evidence during trial, and the trial court is not compelled to take judicial notice of the same.[44] Since neither prosecution nor defense presented in evidence Fukuzumes affidavit, the same may not be considered part of the records, much less evidence.

From the foregoing, it is evident that the prosecution failed to prove that Fukuzume committed the crime of estafa in Makati or that any of the essential ingredients of the offense took place in the said city. Hence, the judgment of the trial court convicting Fukuzume of the crime of estafa

should be set aside for want of jurisdiction, without prejudice, however, to the filing of appropriate charges with the court of competent jurisdiction.

It is noted that it was only in his petition with the CA that Fukuzume raised the issue of the trial courts jurisdiction over the offense charged. Nonetheless, the rule is settled that an objection based on the ground that the court lacks jurisdiction over the offense charged may be raised or considered motu propio by the court at any stage of the proceedings or on appeal.[45] Moreover, jurisdiction over the subject matter in a criminal case cannot be conferred upon the court by the accused, by express waiver or otherwise, since such jurisdiction is conferred by the sovereign authority which organized the court, and is given only by law in the manner and form prescribed by law.[46] While an exception to this rule was recognized by this Court beginning with the landmark case of Tijam vs. Sibonghanoy,[47] wherein the defense of lack of jurisdiction by the court which rendered the questioned ruling was considered to be barred by laches, we find that the factual circumstances involved in said case, a civil case, which justified the departure from the general rule are not present in the instant criminal case.

Thus, having found that the RTC of Makati did not have jurisdiction to try the case against Fukuzume, we find it unnecessary to consider the other issues raised in the present petition.

WHEREFORE, the instant petition is GRANTED. The assailed decision and resolution of the Court of Appeals in CA-G.R. CR No. 21888 are SET ASIDE on ground of lack of jurisdiction on the part of the Regional Trial Court of Makati, Branch 146. Criminal Case No. 95-083 is DISMISSED without prejudice.

SO ORDERED. Foz jr V people DECISION

PERALTA, J.:

Before the court is a petition for review on certiorari under Rule 45 of the Rules of Court assailing the Decision1[1] of the Court of Appeals (CA), Cebu City, dated November 24, 2004 in CA-G.R. CR No. 22522, which affirmed the Decision of the Regional Trial Court (RTC), Branch 23, Iloilo City, dated December 4, 1997 in Criminal Case No. 44527 finding petitioners guilty beyond reasonable doubt of the crime of libel. Also assailed is the CA Resolution2[2] dated April 8, 2005 denying petitioners' motion for reconsideration.

In an Information3[3] dated October 17, 1994 filed before the RTC of Iloilo City, petitioners Vicente Foz, Jr. and Danny G. Fajardo were charged with the crime of libel committed as follows:

That on or about the 5th day of July, 1994 in the City of Iloilo, Philippines and within the jurisdiction of this court, both the accused as columnist and Editor-Publisher, respectively, of Panay News, a daily publication with a considerable circulation in the City of Iloilo and throughout the region, did then and there willfully, unlawfully and feloniously with malicious intent of impeaching the virtue, honesty, integrity and reputation of Dr. Edgar Portigo, a physician and medical practitioner in Iloilo City, and with the malicious intent of injuring and exposing said Dr. Edgar Portigo to public hatred, contempt and ridicule, write and publish in the regular issue of said daily publication on July 5, 1994, a certain article entitled MEET DR. PORTIGO, COMPANY PHYSICIAN, quoted verbatim hereunder, to wit:

MEET DR. PORTIGO, COMPANY PHYSICIAN

PHYSICIAN (sic) are duly sworn to help to do all their best to promote the health of their patients. Especially if they are employed by a company to serve its employees.

However, the opposite appears to be happening in the Local San Miguel Corporation office, SMC employees are fuming mad about their company physician, Dr. Portigo, because the latter is not doing well in his sworn obligation in looking after the health problems of employees, reports reaching Aim.. Fire say.

One patient, Lita Payunan, wife of employee Wilfredo Payunan, and residing in Burgos, Lapaz, Iloilo City, has a sad tale to say about Dr. Portigo. Her story began September 19 last year when she felt ill and had to go to Dr. Portigo for consultation. The doctor put her under observation, taking seven months to conclude that she had rectum myoma and must undergo an operation.

Subsequently, the family sought the services of a Dr. Celis and a Dr. de los Reyes at Doctor's Hospital. Incidentally, where Dr. Portigo also maintains a clinic. Dr. Portigo got angry, sources said, after knowing that the family chose a surgeon (Dr. Celis) on their own without his nod as he had one to recommend.

Lita was operated by Dr. de los Reyes last March and was released from the hospital two weeks after. Later, however, she again complained of difficulty in urinating and defecating[. On] June 24, she was readmitted to the hospital.

The second operation, done by Dr. Portigo's recommendee, was devastating to the family and the patient herself who woke to find out her anus and vagina closed and a hole with a catheter punched on her right side.

This was followed by a bad news that she had cancer.

Dr. Portigo recommended another operation, this time to bore another hole on the left side of Lita. But a Dr. Rivera to whom he made the referral frankly turned it down because it would only be a waste of money since the disease was already on the terminal state.

The company and the family spent some P150,000.00 to pay for the wrong diagnosis of the company physician.

My sympathy for Lita and her family. May the good Lord, Healer of all healers, be on your side, May the Healer of all healers likewise touch the conscience of physicians to remind them that their profession is no license for self-enrichment at the expense of the poor. But, sad to say, Lita passed away, July 2, 1994.

Lita is not alone. Society is replete with similar experience where physicians treat their patients for profits. Where physicians prefer to act like agents of multinational corporations prescribing expensive drugs seen if there are equivalent drugs sold at the counter for much lower price. Yes, Lita, we also have hospitals, owned by a so-called charitable religious institutions and so-called civic groups, too greedy for profits. Instead of promoting baby-and mother-friendly practices which are cheaper and more effective, they still prefer the expensive yet unhealthy practices.

The (sic) shun breast feeding and promote infant milk formula although mother's milk is many times cheaper and more nutrious (sic) than the brands they peddle. These hospitals separate newly born from their moms for days, conditioning the former to milk formula while at the same time stunting the mother's mammalia from manufacturing milk. Kadiri to death!

My deepest sympathy to the bereaved family of Mrs. Lita Payunan who died July 2, 1994, Her body lies at the Payunan residence located at 236-G Burgos St., Lapaz, Iloilo City. May you rest in peace, Inday Lita.

wherein said Dr. Portigo was portrayed as wanting in high sense of professional integrity, trust and responsibility expected of him as a physician, which imputation and insinuation as both accused knew were entirely false and malicious and without foundation in fact and therefore highly libelous, offensive and derogatory to the good name, character and reputation of the said Dr. Edgar Portigo.

CONTRARY TO LAW.4[4]

Upon being arraigned5[5] on March 1, 1995, petitioners, assisted by counsel de parte, pleaded not guilty to the crime charged in the Information. Trial thereafter ensued. On December 4, 1997, the RTC rendered its Decision6[6] finding petitioners guilty as charged. The dispositive portion of the Decision reads:

WHEREFORE, in the light of the facts obtaining and the jurisprudence aforecited, JUDGMENT is hereby rendered finding both accused Danny Fajardo and Vicente Foz, Jr. GUILTY BEYOND REASONABLE DOUBT for the crime of Libel defined in Article 353 and punishable under Article 355 of the Revised Penal Code, hereby sentencing aforenamed accused to suffer an indeterminate

penalty of imprisonment of Three (3) Months and Eleven (11) Days of Arresto Mayor, as Minimum, to One (1) Year, Eight (8) Months and Twenty-One (21) Days of Prision Correccional, as Maximum, and to pay a fine of P1,000.00 each.7[7]

Petitioners' motion for reconsideration was denied in an Order8[8] dated February 20, 1998.

Dissatisfied, petitioners filed an appeal with the CA.

On November 24, 2004, the CA rendered its assailed Decision which affirmed in toto the RTC decision.

Petitioners filed a motion for reconsideration, which the CA denied in a Resolution dated April 8, 2005. Hence, herein petition filed by petitioners based on the following grounds:

I. THE COURT OF APPEALS ERRED IN FINDING THE SUBJECT ARTICLE LIBELOUS WITHIN THE MEANING AND INTENDMENT OF ARTICLE 353 OF THE REVISED PENAL CODE.

II. THE COURT OF APPEALS ERRED IN FINDING THE EXISTENCE OF MALICE IN THIS CASE AND IN NOT FINDING THAT THE SUBJECT ARTICLE IS CONSTITUTIONALLY PROTECTED AS PRIVILEGED COMMUNICATIONS.

III. THE COURT OF APPEALS ERRED IN AFFIRMING THE CONVICTION OF PETITIONER FAJARDO WHO HAPPENS TO BE MERELY PUBLISHER OF PANAY NEWS AND COULD NOT POSSIBLY SHARE ALL THE OPINIONS OF THE NEWSPAPER'S OPINION COLUMNISTS.9[9]

Petitioners argue that the CA erred in finding that the element of defamatory imputation was satisfied when petitioner Foz, as columnist, portrayed Dr. Portigo as an incompetent doctor and an opportunist who enriched himself at the expense of the poor. Petitioners pose the question of whether a newspaper opinion columnist, who sympathizes with a patient and her family and expresses the family's outrage in print, commits libel when the columnist criticizes the doctor's competence or lack of it, and such criticism turns out to be lacking in basis if not entirely false. Petitioners claim that the article was written in good faith in the belief that it would serve the public good. They contend that the CA erred in finding the existence of malice in the publication of the article; that no malice in law or actual malice was proven by the prosecution; and that the article was printed pursuant to the bounden duty of the press to report matters of public interest. Petitioners further contend that the subject article was an opinion column, which was the columnists exclusive views; and that petitioner

Fajardo, as the editor and publisher of Panay News, did not have to share those views and should not be held responsible for the crime of libel. The Solicitor General filed his Comment, alleging that only errors of law are reviewable by this Court in a petition for review on certiorari under Rule 45; that petitioners are raising a factual issue, i.e., whether or not the element of malice required in every indictment for libel was established by the prosecution, which would require the weighing anew of the evidence already passed upon by the CA and the RTC; and that factual findings of the CA, affirming those of the RTC, are accorded finality, unless there appears on records some facts or circumstance of weight which the court may have overlooked, misunderstood or misappreciated, and which, if properly considered, may alter the result of the case a situation that is not, however, obtaining in this case. In their Reply, petitioners claim that the first two issues presented in their petition do not require the evaluation of evidence submitted in court; that malice, as an element of libel, has always been discussed whenever raised as an issue via a petition for review on certiorari. Petitioners raise for the first time the issue that the information charging them with libel did not contain allegations sufficient to vest jurisdiction in the RTC of Iloilo City. The Court finds that the threshold issue for resolution is whether or not the RTC of Iloilo City, Branch 23, had jurisdiction over the offense of libel as charged in the Information dated October 17, 1994.

The Court notes that petitioners raised for the first time the issue of the RTC's jurisdiction over the offense charged only in their Reply filed before this Court and finds that petitioners are not precluded from doing so.

In Fukuzume v. People,10[10] the Court ruled:

It is noted that it was only in his petition with the CA that Fukuzume raised the issue of the trial courts jurisdiction over the offense charged. Nonetheless, the rule is settled that an objection based on the ground that the court lacks jurisdiction over the offense charged may be raised or considered motu proprio by the court at any stage of the proceedings or on appeal. Moreover, jurisdiction over the subject matter in a criminal case cannot be conferred upon the court by the accused, by express waiver or otherwise, since such jurisdiction is conferred by the sovereign authority which organized the court, and is given only by law in the manner and form prescribed by law. While an exception to this rule was recognized by this Court beginning with the landmark case of Tijam vs. Sibonghanoy, wherein the defense of lack of jurisdiction by the court which rendered the questioned ruling was considered to be barred by laches, we find that the factual circumstances involved in said case, a civil case, which justified the departure from the general rule are not present in the instant criminal case.11[11]

The Court finds merit in the petition. Venue in criminal cases is an essential element of jurisdiction. The Court held in Macasaet v. People12[12] that: It is a fundamental rule that for jurisdiction to be acquired by courts in criminal cases the offense should have been committed or any one of its essential ingredients took place within the territorial jurisdiction of the court. Territorial jurisdiction in criminal cases is the territory where the court has jurisdiction to take cognizance or to try the offense allegedly committed therein by the accused. Thus, it cannot take jurisdiction over a person charged with an offense allegedly committed outside of that limited territory. Furthermore, the

jurisdiction of a court over the criminal case is determined by the allegations in the complaint or information. And once it is so shown, the court may validly take cognizance of the case. However, if the evidence adduced during the trial show that the offense was committed somewhere else, the court should dismiss the action for want of jurisdiction. (Emphasis supplied.)13[13]

Article 360 of the Revised Penal Code, as amended by Republic Act No. 4363, provides the specific rules as to the venue in cases of written defamation, to wit: Article 360. Persons responsible.Any person who shall publish, exhibit or cause the publication or exhibition of any defamation in writing or by similar means, shall be responsible for the same. The author or editor of a book or pamphlet, or the editor or business manager of a daily newspaper, magazine or serial publication, shall be responsible for the defamations contained therein to the same extent as if he were the author thereof. The criminal action and civil action for damages in cases of written defamations, as provided for in this chapter shall be filed simultaneously or separately with the court of first instance of the province or city where the libelous article is printed and first published or where any of the offended parties actually resides at the time of the commission of the offense: Provided, however, That where one of the offended parties is a public officer whose office is in the City of Manila at the time of the commission of the offense, the action shall be filed in the Court of First Instance of the City of Manila or of the city or province where the libelous article is printed and first published, and in case such public officer does not hold office in the City of Manila, the action shall be filed in the Court of First Instance of the province or city where he held office at the time of the commission of the offense or where the libelous article is printed and first published and in case one of the offended parties is a private individual, the action shall be filed in the Court of First Instance of the province or city where he actually resides at the time of the commission of the offense or where the libelous matter is printed and first published x x x. (Emphasis supplied.)

In Agbayani v. Sayo,14[14] the rules on venue in Article 360 were restated as follows:

1. Whether the offended party is a public official or a private person, the criminal action may be filed in the Court of First Instance of the province or city where the libelous article is printed and first published. 2. If the offended party is a private individual, the criminal action may also be filed in the Court of First Instance of the province where he actually resided at the time of the commission of the offense. 3. If the offended party is a public officer whose office is in Manila at the time of the commission of the offense, the action may be filed in the Court of First Instance of Manila. 4. If the offended party is a public officer holding office outside of Manila, the action may be filed in the Court of First Instance of the province or city where he held office at the time of the commission of the offense.15[15]

Applying the foregoing law to this case, since Dr. Portigo is a private individual at the time of the publication of the alleged libelous article, the venue of the libel case may be in the province or city where the libelous article was printed and first published, or in the province where Dr. Portigo actually resided at the time of the commission of the offense.

The relevant portion of the Information for libel filed in this case which for convenience the Court quotes again, to wit:

That on or about the 5th day of July, 1994 in the City of Iloilo, Philippines and within the jurisdiction of this court, both the accused as columnists and Editor-Publisher, respectively, of Panay News, a daily publication with a considerable circulation in the City of Iloilo and throughout the region, did then and there willfully, unlawfully and feloniously with malicious intent of impeaching the virtue, honesty, integrity and reputation of Dr. Edgar Portigo, a physician and medical practitioner in Iloilo City, and with the malicious intent of injuring and exposing said Dr. Edgar Portigo to public hatred, contempt and ridicule, write and publish in the regular issue of said daily publication on July 5, 1994, a certain article entitled MEET DR. PORTIGO, COMPANY PHYSICIAN....

The allegations in the Information that Panay News, a daily publication with a considerable circulation in the City of Iloilo and throughout the region only showed that Iloilo was the place where Panay News was in considerable circulation but did not establish that the said publication was printed and first published in Iloilo City. In Chavez v. Court of Appeals,16[16] which involved a libel case filed by a private individual with the RTC of Manila, a portion of the Information of which reads:

That on or about March 1995, in the City of Manila, Philippines, the said accused [Baskinas and Manapat] conspiring and confederating with others whose true names, real identities and present whereabouts are still unknown and helping one another, with malicious intent of impeaching the honesty, virtue, character and reputation of one FRANCISCO I. CHAVEZ, former Solicitor General of the Philippines, and with the evident purpose of injuring and exposing him to public ridicule, hatred and contempt, did then and there willfully, unlawfully and maliciously cause to be published in Smart File, a

magazine of general circulation in Manila, and in their respective capacity as Editor-in-Chief and Author-Reporter, ....17[17]

the Court ruled that the Information did not sufficiently vest jurisdiction in the RTC of Manila to hear the libel charge in consonance with Article 360. The Court made the following disquisition:

x x x Still, a perusal of the Information in this case reveals that the word published is utilized in the precise context of noting that the defendants cause[d] to be published in 'Smart File', a magazine of general circulation in Manila. The Information states that the libelous articles were published in Smart File, and not that they were published in Manila. The place Manila is in turn employed to situate where Smart File was in general circulation, and not where the libel was published or first printed. The fact that Smart File was in general circulation in Manila does not necessarily establish that it was published and first printed in Manila, in the same way that while leading national dailies such as the Philippine Daily Inquirer or the Philippine Star are in general circulation in Cebu, it does not mean that these newspapers are published and first printed in Cebu. Indeed, if we hold that the Information at hand sufficiently vests jurisdiction in Manila courts since the publication is in general circulation in Manila, there would be no impediment to the filing of the libel action in other locations where Smart File is in general circulation. Using the example of the Inquirer or the Star, the granting of this petition would allow a resident of Aparri to file a criminal case for libel against a reporter or editor in Jolo, simply because these newspapers are in general circulation in Jolo. Such a consequence is precisely what Rep. Act No. 4363 sought to avoid.18[18]

In Agustin v. Pamintuan,19[19] which also involved a libel case filed by a private individual, the Acting General Manager of the Baguio Country Club, with the RTC of Baguio City where the Information therein alleged that the libelous article was published in the Philippine Daily Inquirer, a newspaper of general circulation in the City of Baguio and the entire Philippines, the Court did not consider the Information sufficient to show that Baguio City was the venue of the printing and first publication of the alleged libelous article. Article 360 of the Revised Penal Code as amended provides that a private individual may also file the libel case in the RTC of the province where he actually resided at the time of the commission of the offense. The Information filed against petitioners failed to allege the residence of Dr. Portigo. While the Information alleges that Dr. Edgar Portigo is a physician and medical practitioner in Iloilo City, such allegation did not clearly and positively indicate that he was actually residing in Iloilo City at the time of the commission of the offense. It is possible that Dr. Portigo was actually residing in another place.

Again, in Agustin v. Pamintuan,20[20] where the Information for libel alleged that the offended party was the Acting General Manager of the Baguio Country Club and of good standing and reputation in the community, the Court did not find such allegation sufficient to establish that the offended party was actually residing in Baguio City. The Court explained its ruling in this wise: The residence of a person is his personal, actual or physical habitation or his actual residence or place of abode provided he resides therein with continuity and consistency; no particular length of time of residence is required. However, the residence must be more than temporary. The term residence

involves the idea of something beyond a transient stay in the place; and to be a resident, one must abide in a place where he had a house therein. To create a residence in a particular place, two fundamental elements are essential: The actual bodily presence in the place, combined with a freely exercised intention of remaining there permanently or for an indefinite time. While it is possible that as the Acting General Manager of the Baguio Country Club, the petitioner may have been actually residing in Baguio City, the Informations did not state that he was actually residing therein when the alleged crimes were committed. It is entirely possible that the private complainant may have been actually residing in another place. One who transacts business in a place and spends considerable time thereat does not render such person a resident therein. Where one may have or own a business does not of itself constitute residence within the meaning of the statute. Pursuit of business in a place is not conclusive of residence there for purposes of venue.21[21]

Settled is the rule that jurisdiction of a court over a criminal case is determined by the allegations of the complaint or information, and the offense must have been committed or any one of its essential ingredients took place within the territorial jurisdiction of the court.22[22] Considering that the Information failed to allege the venue requirements for a libel case under Article 360, the Court finds that the RTC of Iloilo City had no jurisdiction to hear this case. Thus, its decision convicting petitioners of the crime of libel should be set aside for want of jurisdiction without prejudice to its filing with the court of competent jurisdiction. WHEREFORE, the petition is GRANTED. The Decision dated November 24, 2004 and the Resolution dated April 8, 2005 of the Court of Appeals in CA-G.R. CR No. 22522 are SET ASIDE

on the ground of lack of jurisdiction on the part of the Regional Trial Court, Branch 23, Iloilo City. Criminal Case No. 44527 is DISMISSED without prejudice.

SO ORDERED. SY TIONG SHIOU, JUANITA TAN DECISION TINGA, J.: These consolidated petitions involving the same parties. although related, dwell on different issues. G.R. No. 174168. This is a petition for review1 assailing the decision and resolution of the Court of Appeals dated 31 May 2006 and 8 August 2006, respectively, in CA-G.R. SP No. 91416.2 On 30 May 2003, four criminal complaints were filed by Sy Chim and Felicidad Chan Sy (Spouses Sy) against Sy Tiong Shiou, Juanita Tan Sy, Jolie Ross Tan, Romer Tan, Charlie Tan and Jessie James Tan (Sy Tiong Shiou, et al.) before the City Prosecutors Office of Manila. The cases were later consolidated. Two of the complaints, I.S. Nos. 03E-15285 and 03E-15286,3 were for alleged violation of Section 74 in relation to Section 144 of the Corporation Code. In these complaints, the Spouses Sy averred that they are stockholders and directors of Sy Siy Ho & Sons, Inc. (the corporation) who asked Sy Tiong Shiou, et al., officers of the corporation, to allow them to inspect the books and records of the business on three occasions to no avail. In a letter 4 dated 21 May 2003, Sy Tiong Shiou, et al. denied the request, citing civil and intra-corporate cases pending in court.5 In the two other complaints, I.S. No. 03E-15287 and 03E-15288,6 Sy Tiong Shiou was charged with falsification under Article 172, in relation to Article 171 of the Revised Penal Code (RPC), and perjury under Article 183 of the RPC. According to the Spouses Sy, Sy Tiong Shiou executed under oath the 2003 General Information Sheet (GIS) wherein he falsely stated that the shareholdings of the Spouses Sy had decreased despite the fact that they had not executed any conveyance of their shares.7 Sy Tiong Shiou, et al. argued before the prosecutor that the issues involved in the civil case for accounting and damages pending before the RTC of Manila were intimately related to the two criminal complaints filed by the Spouses Sy against them, and thus constituted a prejudicial question that should require the suspension of the criminal complaints. They also argued that

the Spouses Sys request for inspection was premature as the latters concern may be properly addressed once an answer is filed in the civil case. Sy Tiong Shiou, on the other hand, denied the accusations against him, alleging that before the 2003 GIS was submitted to the Securities and Exchange Commission (SEC), the same was shown to respondents, who at that time were the President/Chairman of the Board and Assistant Treasurer of the corporation, and that they did not object to the entries in the GIS. Sy Tiong Shiou also argued that the issues raised in the pending civil case for accounting presented a prejudicial question that necessitated the suspension of criminal proceedings. On 29 December 2003, the investigating prosecutor issued a resolution recommending the suspension of the criminal complaints for violation of the Corporation Code and the dismissal of the criminal complaints for falsification and perjury against Sy Tiong Shiou.8 The reviewing prosecutor approved the resolution. The Spouses Sy moved for the reconsideration of the resolution, but their motion was denied on 14 June 2004.9 The Spouses Sy thereupon filed a petition for review with the Department of Justice (DOJ), which the latter denied in a resolution issued on 02 September 2004.10 Their subsequent motion for reconsideration was likewise denied in the resolution of 20 July 2005.11 The Spouses Sy elevated the DOJs resolutions to the Court of Appeals through a petition for certiorari, imputing grave abuse of discretion on the part of the DOJ. The appellate court granted the petition12 and directed the City Prosecutors Office to file the appropriate informations against Sy Tiong Shiou, et al. for violation of Section 74, in relation to Section 144 of the Corporation Code and of Articles 172 and 183 of the RPC. The appellate court ruled that the civil case for accounting and damages cannot be deemed prejudicial to the maintenance or prosecution of a criminal action for violation of Section 74 in relation to Section 144 of the Corporation Code since a finding in the civil case that respondents mishandled or misappropriated the funds would not be determinative of their guilt or innocence in the criminal complaint. In the same manner, the criminal complaints for falsification and/or perjury should not have been dismissed on the ground of prejudicial question because the accounting case is unrelated and not necessarily determinative of the success or failure of the falsification or perjury charges. Furthermore, the Court of Appeals held that there was probable cause that Sy Tiong Shiou had committed falsification and that the City of Manila where the 2003 GIS was executed is the proper venue for the institution of the perjury charges. Sy Tiong Shiou, et al. sought reconsideration of the Court of Appeals decision but their motion was denied. 13 On 2 April 2008, the Court ordered the consolidation of G.R. No. 179438 with G.R. No. 174168.14 Sy Tiong Shiou, et al. argue that findings of the DOJ in affirming, modifying or reversing the recommendations of the public prosecutor cannot be the subject of certiorari or review of the Court of Appeals because the DOJ is not a quasi-judicial body within the purview of Section 1, Rule 65 of the Rules of Court. Petitioners rely on the separate opinion of former Chief Justice Andres R. Narvasa in Roberts, Jr. v. Court of Appeals,15 wherein he wrote that this Court should not be called upon to determine the existence of probable cause, as there is no provision of law

authorizing an aggrieved party to petition for such a determination.16 In any event, they argue, assuming without admitting that the findings of the DOJ may be subject to judicial review under Section 1, Rule 65 of the Rules of Court, the DOJ has not committed any grave abuse of discretion in affirming the findings of the City Prosecutor of Manila. They claim that the Spouses Sys request for inspection was not made in good faith and that their motives were tainted with the intention to harass and to intimidate Sy Tiong Shiou, et al. from pursuing the criminal and civil cases pending before the prosecutors office and the Regional Trial Court (RTC) of Manila, Branch 46. Thus, to accede to the Spouses Sys request would pose serious threats to the existence of the corporation.17 Sy Tiong Shiou, et al. aver that the RTC had already denied the motion for production and inspection and instead ordered petitioners to make the corporate records available to the appointed independent auditor. Hence, the DOJ did not commit any grave abuse of discretion in affirming the recommendation of the City Prosecutor of Manila. 18 They further argue that adherence to the Court of Appeals ruling that the accounting case is unrelated to, and not necessarily determinative of the success of, the criminal complaint for falsification and/or perjury would unnecessarily indict petitioner Sy Tiong Shiou for the said offenses he may not have committed but only because of an outcome unfavorable to him in the civil action.19 Indeed, a preliminary proceeding is not a quasi-judicial function and that the DOJ is not a quasijudicial agency exercising a quasi-judicial function when it reviews the findings of a public prosecutor regarding the presence of probable cause.20 Moreover, it is settled that the preliminary investigation proper, i.e., the determination of whether there is reasonable ground to believe that the accused is guilty of the offense charged and should be subjected to the expense, rigors and embarrassment of trial, is the function of the prosecution. 21 This Court has adopted a policy of non-interference in the conduct of preliminary investigations and leaves to the investigating prosecutor sufficient latitude of discretion in the determination of what constitutes sufficient evidence as will establish probable cause for the filing of information against the supposed offender.22 As in every rule, however, there are settled exceptions. Hence, the principle of noninterference does not apply when there is grave abuse of discretion which would authorize the aggrieved person to file a petition for certiorari and prohibition under Rule 65, 1997 Rules of Civil Procedure.23 As correctly found by the Court of Appeals, the DOJ gravely abused its discretion when it suspended the hearing of the charges for violation of the Corporation Code on the ground of prejudicial question and when it dismissed the criminal complaints. A prejudicial question comes into play generally in a situation where a civil action and a criminal action are both pending and there exists in the former an issue which must be preemptively resolved before the criminal action may proceed since howsoever the issue raised in the civil action is resolved would be determinative juris et de jure of the guilt or innocence of the accused in the criminal case. The reason behind the principle of prejudicial question is to avoid two conflicting decisions. It has two essential elements: (a) the civil action involves an issue

similar or intimately related to the issue raised in the criminal action; and (b) the resolution of such issue determines whether or not the criminal action may proceed.24 The civil action and the criminal cases do not involve any prejudicial question. The civil action for accounting and damages, Civil Case No. 03-106456 pending before the RTC Manila, Branch 46, seeks the issuance of an order compelling the Spouses Sy to render a full, complete and true accounting of all the amounts, proceeds and fund paid to, received and earned by the corporation since 1993 and to restitute it such amounts, proceeds and funds which the Spouses Sy have misappropriated. The criminal cases, on the other hand, charge that the Spouses Sy were illegally prevented from getting inside company premises and from inspecting company records, and that Sy Tiong Shiou falsified the entries in the GIS, specifically the Spouses Sys shares in the corporation. Surely, the civil case presents no prejudicial question to the criminal cases since a finding that the Spouses Sy mishandled the funds will have no effect on the determination of guilt in the complaint for violation of Section 74 in relation to Section 144 of the Corporation Code; the civil case concerns the validity of Sy Tiong Shious refusal to allow inspection of the records, while in the falsification and perjury cases, what is material is the veracity of the entries made by Sy Tiong Shiou in the sworn GIS. Anent the issue of probable cause, the Court also finds that there is enough probable cause to warrant the institution of the criminal cases. The term probable cause does not mean actual and positive cause nor does it import absolute certainty. It is merely based on opinion and reasonable belief. Thus a finding of probable cause does not require an inquiry into whether there is sufficient evidence to procure a conviction. It is enough that it is believed that the act or omission complained of constitutes the offense charged. Precisely, there is a trial for the reception of evidence of the prosecution in support of the charge.25 In order that probable cause to file a criminal case may be arrived at, or in order to engender the well-founded belief that a crime has been committed, the elements of the crime charged should be present. This is based on the principle that every crime is defined by its elements, without which there should beat the mostno criminal offense.26 Section 74 of the Corporation Code reads in part: xxx The records of all business transactions of the corporation and the minutes of any meeting shall be open to inspection by any director, trustee, stockholder or member of the corporation at reasonable hours on business days and he may demand, in writing, for a copy of excerpts from said records or minutes, at his expense.

Any officer or agent of the corporation who shall refuse to allow any director, trustee, stockholder or member of the corporation to examine and copy excerpts from its records or minutes, in accordance with the provisions of this Code, shall be liable to such director, trustee, stockholder or member for damages, and in addition, shall be guilty of an offense which shall be punishable under Section 144 of this Code: Provided, That if such refusal is made pursuant to a resolution or order of the Board of Directors or Trustees, the liability under this section for such action shall be imposed upon the directors or trustees who voted for such refusal: and Provided, further, That it shall be a defense to any action under this section that the person demanding to examine and copy excerpts from the corporation's records and minutes has improperly used any information secured through any prior examination of the records or minutes of such corporation or of any other corporation, or was not acting in good faith or for a legitimate purpose in making his demand. Meanwhile, Section 144 of the same Code provides: Sec. 144. Violations of the Code.Violations of any of the provisions of this Code or its amendments not otherwise specifically penalized therein shall be punished by a fine of not less than one thousand (P1,000.00) pesos but not more than ten thousand (P10,000.00) pesos or by imprisonment for not less than thirty (30) days but not more than five (5) years, or both, in the discretion of the court. If the violation is committed by a corporation, the same may, after notice and hearing, be dissolved in appropriate proceedings before the Securities and Exchange Commission: Provided, That such dissolution shall not preclude the institution of appropriate action against the director, trustee or officer of the corporation responsible for said violation: Provided, further, That nothing in this section shall be construed to repeal the other causes for dissolution of a corporation provided in this Code. In the recent case of Ang-Abaya, et al. v. Ang, et al.,27 the Court had the occasion to enumerate the requisites before the penal provision under Section 144 of the Corporation Code may be applied in a case of violation of a stockholder or members right to inspect the corporate books/records as provided for under Section 74 of the Corporation Code. The elements of the offense, as laid down in the case, are: First. A director, trustee, stockholder or member has made a prior demand in writing for a copy of excerpts from the corporations records or minutes; Second. Any officer or agent of the concerned corporation shall refuse to allow the said director, trustee, stockholder or member of the corporation to examine and copy said excerpts; Third. If such refusal is made pursuant to a resolution or order of the board of directors or trustees, the liability under this section for such action shall be imposed upon the directors or trustees who voted for such refusal; and, Fourth. Where the officer or agent of the corporation sets up the defense that the person demanding to examine and copy excerpts from the corporations records and minutes has

improperly used any information secured through any prior examination of the records or minutes of such corporation or of any other corporation, or was not acting in good faith or for a legitimate purpose in making his demand, the contrary must be shown or proved. 28 Thus, in a criminal complaint for violation of Section 74 of the Corporation Code, the defense of improper use or motive is in the nature of a justifying circumstance that would exonerate those who raise and are able to prove the same. Accordingly, where the corporation denies inspection on the ground of improper motive or purpose, the burden of proof is taken from the shareholder and placed on the corporation.29 However, where no such improper motive or purpose is alleged, and even though so alleged, it is not proved by the corporation, then there is no valid reason to deny the requested inspection. In the instant case, however, the Court finds that the denial of inspection was predicated on the pending civil case against the Spouses Sy. This is evident from the 21 May 2003 letter of Sy Tiong Shiou, et al.s counsel30 to the Spouses Sy,31 which reads: Gentlemen: We write in behalf of our clients, SY SIY HO, INC. ( Guan Yiac Hardware); SY TIONG SHIOU, JUANITA TAN SY; JOLIE ROSS TAN; CHARLIE TAN; ROMER TAN; and JESSE JAMES TAN, relative to your letter dated 16 May 2003. Please be informed that a case for Accounting and Damages had already been filed against your clients, Sy Chim and Felicidad Chan Sy before the Regional Trial Court of Manila, Branch 46, denominated as Civil Case No. 03-106456. We fully understand your desire for our clients to respond to your demands, however, under the prevailing circumstance this would not be advisable. The concerns that you raised in your letter can later on be addressed after your clients shall have filed their responsive pleading in the abovesaid case. We trust that this response will at the moment be enough.32 Even in their Joint Counter-Affidavit dated 23 September 2003,33 Sy Tiong Shiou, et al. did not make any allegation that "the person demanding to examine and copy excerpts from the corporations records and minutes has improperly used any information secured through any prior examination of the records or minutes of such corporation or of any other corporation, or was not acting in good faith or for a legitimate purpose in making his demand." Instead, they merely reiterated the pendency of the civil case. There being no allegation of improper motive, and it being undisputed that Sy Tiong Shiou, et al. denied Sy Chim and Felicidad Chan Sys request for inspection, the Court rules and so holds that the DOJ erred in dismissing the criminal charge for violation of Section 74 in relation to Section 144 of the Corporation Code. Now on the existence of probable cause for the falsification and/or perjury charges.

The Spouses Sy charge Sy Tiong Shiou with the offense of falsification of public documents under Article 171, paragraph 4; and/or perjury under Article 183 of the Revised Penal Code (RPC). The elements of falsification of public documents through an untruthful narration of facts are: (a) the offender makes in a document untruthful statements in a narration of facts; (b) the offender has a legal obligation to disclose the truth of the facts narrated;34 (c) the facts narrated by the offender are absolutely false; and (d) the perversion of truth in the narration of facts was made with the wrongful intent to injure a third person.35 On the other hand, the elements of perjury are: (a) that the accused made a statement under oath or executed an affidavit upon a material matter; (b) that the statement or affidavit was made before a competent officer, authorized to receive and administer oath; (c) that in that statement or affidavit, the accused made a willful and deliberate assertion of a falsehood; and, (d) that the sworn statement or affidavit containing the falsity is required by law or made for a legal purpose. A General Information Sheet (GIS) is required to be filed within thirty (30) days following the date of the annual or a special meeting, and must be certified and sworn to by the corporate secretary, or by the president, or any duly authorized officer of the corporation. 36 From the records, the 2003 GIS submitted to the SEC on 8 April 2003 was executed under oath by Sy Tiong Shiou in Manila, in his capacity as Vice President and General Manager. 37 By executing the document under oath, he, in effect, attested to the veracity38 of its contents. The Spouses Sy claim that the entries in the GIS pertaining to them do not reflect the true number of shares that they own in the company. They attached to their complaint the 2002 GIS of the company, also executed by Sy Tiong Shiou, and compared the entries therein vis-a-vis the ones in the 2003 GIS. The Spouses Sy noted the marked decrease in their shareholdings, averring that at no time after the execution of the 2002 GIS, up to the time of the filing of their criminal complaints did they execute or authorize the execution of any document or deed transferring, conveying or disposing their shares or any portion thereof; and thus there is absolutely no basis for the figures reflected in the 2003 GIS.39 The Spouses Sy claim that the false statements were made by Sy Tiong Shiou with the wrongful intent of injuring them. All the elements of both offenses are sufficiently averred in the complaint-affidavits. The Court agrees with the Court of Appeals holding, citing the case of Fabia v. Court of Appeals, that the doctrine of primary jurisdiction no longer precludes the simultaneous filing of the criminal case with the corporate/civil case.40 Moreover, the Court finds that the City of Manila is the proper venue for the perjury charges, the GIS having been subscribed and sworn to in the said place. Under Section 10(a), Rule 110 of the Revised Rules of Court, the criminal action shall be instituted and tried in the court of the municipality or territory where the offense was committed or where any of its essential ingredients occurred.41 In Villanueva v. Secretary of Justice,42 the Court held that the felony is consummated when the false statement is made. 43 Thus in this case, it was alleged that the perjury was committed when Sy Tiong Shiou subscribed and sworn to the GIS in the City of Manila, thus, following Section 10(a), Rule 110 of the Revised Rules of Court, the City of Manila is the proper venue for the offense. G. R. No. 179438.

This petition assails the decision44 and resolution45 of the Court of Appeals dated 26 May 2004 and 29 August 2007, respectively, in CA-G.R. SP No. 81897. On 3 February 2003, Juanita Tan, corporate treasurer of Sy Siy Ho & Sons, Inc. (the corporation), a family corporation doing business under the name and style Guan Yiac Hardware, submitted a letter46 to the corporations Board of Directors (Board) stating that the control, supervision and administration of all corporate funds were exercised by Sy Chim and Felicidad Chan Sy (Spouses Sy), corporate president and assistant treasurer, respectively. In the same letter, Juanita Tan disclosed that Felicidad Chan Sy did not make cash deposits to any of the corporations banks from 1 November 2001 to 31 January 2003, thus the total bank remittances for the past years were less than reflected in the corporate financial statements, accounting books and records. Finally, Juanita Tan sought to be free from any responsibility over all corporate funds. The Board granted Juanita Tans request and authorized the employment of an external auditor to render a complete audit of all the corporate accounting books and records.47 Consequently, the Board hired the accounting firm Banaria, Banaria & Company. In its Report48 dated 5 April 2003, the accounting firm attributed to the Spouses Sy P67,117,230.30 as unaccounted receipts and disbursements from 1994 to 2002.49 A demand letter50 was subsequently served on the Spouses Sy on 15 April 2003. On the same date, the children of the Spouses Sy allegedly stole from the corporation cash, postdated checks and other important documents. After the incident, the Spouses Sy allegedly transferred residence and ceased reporting to the corporation. Thereupon, the corporation filed a criminal complaint for robbery against the Spouses Sy before the City Prosecutors Office of Manila. 51 A search warrant was subsequently issued by the Regional Trial Court.52 On 26 April 2003, Sy Tiong Shiou, corporate Vice President and General Manager, called a special meeting to be held on 6 May 2003 to fill up the positions vacated by the Spouses Sy. Sy Tiong Shiou was subsequently elected as the new president and his wife, Juanita Tan, the new Vice President.53 Despite these developments, Sy Chim still caused the issuance of a Notice of Stockholders meeting dated 11 June 2003 in his capacity as the alleged corporate president. 54 Meanwhile, on 1 July 2003, the corporation, through Romer S. Tan, filed its Amended Complaint for Accounting and Damages55 against the Spouses Sy before the RTC Manila, praying for a complete and true accounting of all the amounts paid to, received and earned by the company since 1993 and for the restitution of the said amount.56 The complaint also prayed for a temporary restraining order (TRO) and or preliminary injunction to restrain Sy Chim from calling a stockholders meeting on the ground of lack of authority. By way of Answer,57 the Spouses Sy averred that Sy Chim was a mere figurehead and Felicidad Chan Sy merely performed clerical functions, as it was Sy Tiong Shiou and his spouse, Juanita Tan, who have been authorized by the corporations by-laws to supervise, control and

administer corporate funds, and as such were the ones responsible for the unaccounted funds. They assailed the meetings called by Sy Tiong Shiou on the grounds that the same were held without notice to them and without their participation, in violation of the by-laws. The Spouses Sy also pursued their counter-claim for moral and exemplary damages and attorneys fees. On 9 September 2003, the Spouses Sy filed their Motion for Leave to File Third-Party Complaint,58 praying that their attached Third Party Complaint59 be allowed and admitted against Sy Tiong Shiou and his spouse. In the said third-party complaint, the Spouses Sy accused Sy Tiong Shiou and Juanita Tan as directly liable for the corporations claim for misappropriating corporate funds. On 8 October 2003, the trial court granted the motion for leave to file the third-party complaint, and forthwith directed the issuance of summons against Sy Tiong Shiou and Juanita Tan.60 On 16 January 2004, their counsel allegedly discovered that Sy Tiong Shiou and Juanita Tan were not furnished with the copies of several pleadings, as well as a court order, which resulted in their having been declared in default for failure to file their answer to the thirdparty complaint; thus, they opted not to file a motion for reconsideration anymore and instead filed a petition for certiorari before the Court of Appeals. In its Decision dated 26 May 2004, the Court of Appeals granted the petition of Sy Tiong Shiou and Juanita Tan.61 The appellate court declared that a third-party complaint is not allowed under the Interim Rules of Procedure Governing Intra-Corporate Controversies Under R.A. No. 8799 (Interim Rules), it not being included in the exclusive enumeration of allowed pleadings under Section 2, Rule 2 thereof. Moreover, even if such a pleading were allowed, the admission of the third-party complaint against Sy Tiong Shiou and Juanita Tan still would have no basis from the facts or the law and jurisprudence.62 The Court of Appeals also ruled that the respondent judge committed a manifest error amounting to lack of jurisdiction in admitting the third-party complaint and in summarily declaring Sy Tiong Shiou and Juanita Tan in default for failure to file their answer within the purported reglementary period. The Court of Appeals set aside the trial courts 8 October 2003 Order admitting the third-party complaint, as well as the 19 December 2003 Order, declaring Sy Tiong Shiou and Juanita Tan in default for failure to file their answer. The trial court was further ordered to dismiss the third-party complaint without prejudice to any action that the corporation may separately file against Sy Tiong Shiou and Juanita Tan.63 The Spouses Sy filed a motion for reconsideration, but their motion was denied on 29 August 2007.64 Sy Chim and Felicidad Chan Sy argue before this Court that a third-party complaint is not excluded or prohibited by the Interim Rules, and that the Court of Appeals erred in ruling that their third- party complaint is not actionable because their action is not in respect of the corporations claims. They add that the disallowance of the third-party complaint will result in multiplicity of suits.

The third-party complaint should be allowed. The conflicting provisions of the Interim Rules of Procedure for Inter-Corporate Controversies read: Rule 1, Sec. 8. Prohibited pleadings.The following pleadings are prohibited: (1) Motion to dismiss; (2) Motion for a bill of particulars; (3) Motion for new trial, or for reconsideration of judgment or order, or for re-opening of trial; (4) Motion for extension of time to file pleadings, affidavits or any other paper, except those filed due to clearly compelling reasons. Such motion must be verified and under oath; and (5) Motion for postponement and other motions of similar intent, except those filed due to clearly compelling reasons. Such motion must be verified and under oath. Rule 2, Sec.2. Pleadings allowed.The only pleadings allowed to be filed under these Rules are the complaint, answer, compulsory counterclaims or cross-claims pleaded in the answer, and the answer to the counterclaims or cross-claims.65 There is a conflict, for while a third-party complaint is not included in the allowed pleadings, neither is it among the prohibited ones. Nevertheless, this conflict may be resolved by following the well-entrenched rule in statutory construction, that every part of the statute must be interpreted with reference to the context, i.e., that every part of the statute must be considered together with the other parts, and kept subservient to the general intent of the whole enactment.66 Statutes, including rules, should be construed in the light of the object to be achieved and the evil or mischief to be suppressed and they should be given such construction as will advance the object, suppress the mischief and secure the benefits intended. A statute should therefore be read with reference to its leading idea, and its general purpose and intention should be gathered from the whole act, and this predominant purpose will prevail over the literal import of particular terms or clauses, if plainly apparent, operating as a limitation upon some and as a reason for expanding the signification of others, so that the interpretation may accord with the spirit of the entire act, and so that the policy and object of the statute as a whole may be made effectual and operative to the widest possible extent.67 Otherwise stated, the spirit, rather than the letter of a law determines its construction; hence, a statute, as in the rules in this case, must be read according to its spirit and intent. 68 This spirit and intent can be gleaned from Sec. 3, Rule 1 of the Interim Rules, which reads:

Sec. 3. Construction.These Rules shall be liberally construed in order to promote their objective of securing a just, summary, speedy and inexpensive determination of every action or proceeding.69 Now, a third-party complaint is a claim that a defending party may, with leave of court, file against a person not a party to the action, called the third-party defendant, for contribution, indemnity, subrogation or any other relief, in respect of his opponents claim. It is actually a complaint independent of, and separate and distinct from the plaintiffs complaint. In fact, were it not for Rule 6, Section 11 of the Rules of Court, such third-party complaint would have to be filed independently and separately from the original complaint by the defendant against the third-party defendant. Jurisprudence is consistent in declaring that the purpose of a thirdparty complaint is to avoid circuitry of action and unnecessary proliferation of law suits and of disposing expeditiously in one litigation all the matters arising from one particular set of facts. 70 It thus appears that the summary nature of the proceedings governed by the Interim Rules, and the allowance of the filing of third-party complaints is premised on one objectivethe expeditious disposition of cases. Moreover, following the rule of liberal interpretation found in the Interim Rules, and taking into consideration the suppletory application of the Rules of Court under Rule 1, Sec. 271 of the Interim Rules, the Court finds that a third-party complaint is not, and should not be prohibited in controversies governed by the Interim Rules. The logic and justness of this conclusion are rendered beyond question when it is considered that Sy Tiong Shiou and Juanita Tan are not complete strangers to the litigation as in fact they are the moving spirit behind the filing of the principal complaint for accounting and damages against the Spouses Sy.1avvphi1 The Court also rules that the third-party complaint of the Spouses Sy should be admitted. A prerequisite to the exercise of such right is that some substantive basis for a third-party claim be found to exist, whether the basis be one of indemnity, subrogation, contribution or other substantive right. The bringing of a third-party defendant is proper if he would be liable to the plaintiff or to the defendant or both for all or part of the plaintiffs claim against the original defendant, although the third-party defendants liability arises out of another transaction. The defendant may implead another as third-party defendant: (a) on an allegation of liability of the latter to the defendant for contribution, indemnity, subrogation or any other relief; (b) on the ground of direct liability of the third-party defendant to the plaintiff; or (c) the liability of the third-party defendant to both the plaintiff and the defendant.72 In determining the sufficiency of the third-party complaint, the allegations in the original complaint and the third-party complaint must be examined. A third-party complaint must allege

facts which prima facie show that the defendant is entitled to contribution, indemnity, subrogation or other relief from the third-party defendant.73 The complaint alleges that the Spouses Sy, as officers of the corporation, have acted illegally in raiding its corporate funds, hence they are duty bound to render a full, complete and true accounting of all the amounts, proceeds and funds paid to, received and earned by the corporation since 1993 and to restitute to the corporation all such amounts, proceeds, and funds which they took and misappropriated for their own use and benefit, to the damage and prejudice of the plaintiff and its stockholders.74 On the other hand, in the third-party complaint, the Spouses Sy claim that it is Sy Tiong Shiou and Juanita Tan who had full and complete control of the day-to day operations and complete control and custody of the funds of the corporation, and hence they are the ones liable for any shortfall or unaccounted difference of the corporations cash account. Thus, Sy Tiong Shiou and Juanita Tan should render a full, complete and true accounting of all the amounts, proceeds, funds paid to, received and earned by the corporation since 1993, including the amount attributed to the Spouses Sy in the complaint for accounting and damages. In their prayer, the Spouses Sy moved that Sy Tiong Shiou and Juanita Tan be declared as directly and solely liable in respect of the corporations claim for accounting and damages, and that in the event that they, the Spouses Sy, are adjudged liable to the corporation, Sy Tiong Shiou and Juanita Tan be ordered to pay all amounts necessary to discharge their liability to the corporation by way of indemnity or reimbursement. The allegations in the third-party complaint impute direct liability on the part of Sy Tiong Shiou and Juanita Tan to the corporation for the very same claims which the corporation interposed against the Spouses Sy. It is clear therefore that the Spouses Sys third-party complaint is in respect of the plaintiff corporations claims,75 and thus the allowance of the third-party complaint is warranted. WHEREFORE, these cases are resolved as follows: G.R. No. 174168 The petition for review is DENIED. The Decision and Resolution of the Court of Appeals dated 31 May 2006 and 8 August 2006, respectively, in CA-G.R. SP No. 91416 are AFFIRMED. Costs against the petitioners. G.R. No. 179438 The petition is GRANTED. The decision and resolution of the Court of Appeals dated 26 May 2004 and 29 August 2007, respectively, in CA-G.R. SP No. 81897 are SET ASIDE and the Orders of the Regional Trial Court of Manila Branch 46 dated 8 October 2003 and 19 December 2003 are REINSTATED.

SO ORDERED. G.R. No. 162336 : February 1, 2010 HILARIO P. SORIANO, Petitioner, vs. PEOPLE OF THE PHILIPPINES, BANGKO SENTRAL NG PILIPINAS (BSP), PHILIPPINE DEPOSIT INSURANCE CORPORATION (PDIC), PUBLIC PROSECUTOR ANTONIO C.BUAN, and STATE PROSECUTOR ALBERTO R. FONACIER, Respondents. DECISION DEL CASTILLO, J.: A bank officer violates the DOSRI2cralaw 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. 337.3cralaw Before us is a Petition for Review on Certiorari 4cralaw under Rule 45 of the Rules of Court, assailing the September 26, 2003 Decision5cralaw and the February 5, 2004 Resolution6cralaw 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.7cralaw Factual Antecedents Sometime in 2000, the Office of Special Investigation (OSI) of the Bangko Sentral ng Pilipinas (BSP), through its officers,8cralaw transmitted a letter9cralaw dated March 27, 2000 to Jovencito Zuo, Chief State Prosecutor of the Department of Justice (DOJ) . The letter attached as annexes five affidavits,10cralaw which would allegedly serve as bases for filing criminal charges for Estafa thru Falsification of Commercial Documents, in relation to Presidential Decree (PD) No. 1689,11cralaw and for Violation of Section 83 of RA 337, as amended by PD 1795,12cralaw 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.13cralaw The first Information,14cralaw 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.15cralaw 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.16cralaw The other Information17cralaw 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.18cralaw 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.19cralaw Both cases were raffled to Branch 79 of the RTC of Malolos, Bulacan.20cralaw On June 8, 2001, petitioner moved to quash21cralaw 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.22cralaw 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 8323cralaw of RA 337, as amended by PD 1795),24cralaw hence a person cannot be charged for both offenses. He argued that a violation of DOSRI law requires the offender to obtain a loanfrom 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.25cralaw 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 Order26cralaw 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.27cralaw Petitioner's Motion for Reconsideration was likewise denied in an Order dated September 5, 2001.28cralaw Aggrieved, petitioner filed a Petition for Certiorari 29cralaw 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.30cralaw 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.31cralaw

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.32cralaw Petitioner's Motion for Reconsideration33cralaw was likewise denied for lack of merit. Hence, this petition. Issues Restated, petitioner raises the following issues34cralaw 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 noted35cralaw petitioner's Manifestation and Motion for Partial Withdrawal of the Petition36cralaw dated February 7, 2007. In the said motion, petitioner informed the Court of the promulgation of a Decision entitled Soriano v. Hon. Casanova, 37 cralaw 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".38cralaw 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 39cralaw 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.40cralaw 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.41cralaw 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 one's personal knowledge may not cover the entire gamut of details material to the alleged offense. The private offended party or relative of the deceased may not even have witnessed the fatality, 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 initiatethe 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 anycompetent 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.42cralaw 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.43cralaw 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". 44cralaw 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,45cralaw 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.46cralaw 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. Petitioner's 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.47cralaw 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 bank's 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 loanor 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".51cralaw 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.52cralaw 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 ".53cralaw

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 elements54cralaw 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 DOSRI's 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, 55cralaw 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.56cralaw Fourth Issue: Whether petitioner is entitled to a writ of injunction 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.57cralaw 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.58cralaw In Olalia v. Hizon, 59cralaw 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. G.R. Nos. 59568-76 January 11, 1990 PETER NIERRAS, petitioner, vs. HON. AUXENCIO C. DACUYCUY and HON. ANTONIO S. LOPEZ, in their capacity as Presiding Judge, Branch IV, Court of First Instance of Leyte, Palo, Leyte, and City Fiscal of Tacloban City, Leyte, respectively, respondents. Victor C. Veloso for petitioner.

PARAS, J.: Before Us is a petition for certiorari with preliminary injunction for the annulment of the resolution dated September 17, 1981 of the respondent Judge Auxencio C. Dacuycuy in nine (9) criminal cases, entitled "People of the Philippines v. Peter Nierras" docketed as Criminal Cases Nos. 4379, 4380, 4381, 4382, 4383, 4384, 4385, 4386 and 4387, for estafa under Article 315 (2d) of the Revised Penal Code which denied petitioner's motion to quash. Said motion to quash was filed by petitioner on the ground of double jeopardy as these offenses were already

included in Criminal Cases Nos. 3790, 3791, 3792, 3793, 4085, 4122, 4123, 4124, and 4125, entitled "People of the Philippines v. Peter Nierras," for violation of the Bouncing Checks Law or Batas Pambansa Blg. 22, pending before the lower court. In both sets of criminal cases, petitioner entered a plea of not guilty upon arraignment before the lower court. However, immediately after his plea of not guilty in these estafa cases, petitioner moved in open court to be allowed to withdraw his plea of not guilty upon his filing of a motion to quash, which was denied by respondent Judge ruling as follows: The motion to quash should be and is hereby denied. Accused Peter Nierras allegedly issued the checks in favor of complainant Pilipinas Shell Petroleum Corporation in payment of oil products which the latter delivered to him simultaneously with the issuance of the checks. xxx xxx xxx . . . The crime of estafa committed by means of bouncing checks is not committed by mere issuance of a check. Under Art. 315, par. 2 (d) of the Revised Penal Code, as amended by Republic Act 4885, the following are the elements of estafa: (1) the postdating or issuance of a check in payment of an obligation contracted at the time the check was issued; (2) lack of or insufficiency of funds to cover the check; and (3) damage to the payee thereof (People v. Sabio, 86 SCRA 568). Under Batas Pambansa Bilang 22 (1979) the mere issuance of a check without sufficient funds issued in payment of a simultaneous obligation and the check was dishonored upon presentation for that estafa is committed under the Revised Penal Code. At the same time, the drawer will also be liable under Batas Pambansa Bilang 22 for offense of issuing a check without sufficient funds (pp. 12, Resolution On Motion To Quash dated September 17, 1981; Annex "MM", Petition). (p. 100, Rollo) The issue now submitted for Our consideration is whether the filing of the nine (9) other informations for estafa against petitioner under the Revised Penal Code after he had earlier been charged with violation of Batas Pambansa Blg. 22 for issuing the same bouncing checks will put him in jeopardy of being convicted twice for the same offenses. In other words, can petitioner be held liable for the nine criminal cases for violation of Batas Pambansa Blg. 22, and separately also be held liable for the crime of estafa under Article 315 (2-d) of the Revised Penal Code for the issuance of the same bouncing checks? It appears that petitioner, a customer of Pilipinas Shell Petroleum Corporation, purchased oil products from it. Simultaneous with the delivery of the products, he issued nine (9) checks in payment thereof. Upon presentation to the Philippine National Bank at Naval, Leyte, said checks were dishonored for the reason that his account was already closed. Thereafter, Pilipinas Shell Petroleum Corporation repeatedly demanded of petitioner either to deposit funds for his checks or pay for the oil products he had purchased but he failed and refused to do either.

Petitioner argues that he would be placed in double jeopardy as all the elements of estafa under Article 315 (2-d) of the Revised Penal Code are also present in that crime punishable under Batas Pambansa Bilang 22 namely (1) "the postdating or issuance of a check in payment of an obligation contracted at the time the check was issued; (2) lack or insufficiency of funds to cover the check and (3) damage to the payee thereof." Petitioner's contentions are devoid of merit. Petitioner is charged with two (2) distinct and separate offenses, first under Section 1 of Batas Pambansa Bilang 22 approved on April 3, 1979 which provides that: Any person who makes or draws and issues any check to apply on account or for value, knowing at the time of issue that he does not have sufficient funds in or credit with the drawee bank for the payment of such check in full upon its presentment, which check is subsequently dishonored by the drawee bank for insufficiency of funds or credit or would have been dishonored for the same reason had not the drawer, without any valid reason ordered the bank to stop payment, shall be punished by imprisonment of not less than thirty days but not more than one (1) year or by a fine of not less than but not more than double the amount of the check which fine shall in no case exceed TWO HUNDRED THOUSAND PESOS or both such fine and imprisonment at the discretion of the court. and, second, under Article 315, (2-d) of the Revised Penal Code which states as follows: Art. 315. Swindling (estafa). Any person who shall defraud another by any of the means mentioned herein below . . . xxx xxx xxx 2. By means of any of the following false pretenses or fraudulent acts, executed prior to or simultaneously with the commission of the fraud; xxx xxx xxx (d) By postdating a check or issuing a check in payment of an obligation when the offender had no funds in the bank, or his funds deposited therein were not sufficient to cover the amount of the check. What petitioner failed to mention in his argument is the fact that deceit and damage are essential elements in Article 315 (2-d) Revised Penal Code, but are not required in Batas Pambansa Bilang 22. Under the latter law, mere issuance of a check that is dishonored gives rise to the presumption of knowledge on the part of the drawer that he issued the same without sufficient funds and hence punishable (People v. Veridiano, 132 SCRA 523) which is not

so under the Penal Code. Other differences between the two also include the following: (1) a drawer of a dishonored check may be convicted under Batas Pambansa Bilang 22 even if he had issued the same for a pre-existing obligation, while under Article 315 (2-d) of the Revised Penal Code such circumstance negates criminal liability; (2) specific and different penalties are imposed in each of the two offenses; (3) estafa is essentially a crime against property, while violation of Batas Pambansa Bilang 22 is principally a crime against public interest as it does injury to the entire banking system; (4) violations of Article 315 of the Revised Penal Code are mala in se, while those of Batas Pambansa Bilang 22 are mala prohibita. These differences are better understood by presenting the pertinent discussions on the passage of Batas Pambansa Bilang 22 between the author of the bill, former Solicitor General and Member of the Batasang Pambansa, the Honorable Estelito P. Mendoza, presented in the memorandum for the government as follows: MR. MENDOZA. If there is evidence demonstrating that the act committed does not only violate this proposed Act but also the Revised Penal Code, there will be further prosecution under the Revised Penal Code. That is why it is proposed in this Act that there be a single uniform penalty for all violations in this Act. However the court is given the discretion whether to impose imprisonment or fine or both or also in whatever severity the court may consider appropriate under the circumstances. xxx xxx xxx MR. VELOSO, F. The other way around, it is not so. So precisely, if I file a case for estafa against a particular person for issuance of a bouncing check, then necessarily I can also be prosecuted under this proposed bill. On the other hand, if a person is prosecuted under the proposed bill, it does not necessarily follow that he can be prosecuted for estafa. MR. MENDOZA. This is simply because that in a certain set of circumstances, the offense under this Act is the only offense committed while under a different set of circumstances, not only the offense described in this Act is committed but also estafa. So that, for example, if a check with sufficient funds is issued in payment of a pre-existing obligation and the position of the Government should turn out to be correct that there is no estafa, then the drawer of the check would only be liable under this Act but not under the Revised Penal Code. But if he issues a check in payment, or contemporaneously with incurring, of an obligation, then he will be liable not only for estafa but also for violation for this Act. There is a difference between the two cases. In that

situation where the check was issued in payment of a pre-existing obligation, the issuance of the check does not cause damage to the payee and so it is but appropriate that he should not be held for estafa but only for violating this Act. But if he issued a check to induce another, to part with a valuable consideration and the check bounces, then he does inflict an injury to the payee of the check apart from violating this law. In that case, it should be but fair that he be subject to prosecution not only for estafa but also for violating this law. MR. VELOSO, F. Yes, I agree with the Solicitor General on that point but my worry is with respect to situations where there is prosecution first to estafa. MR. MENDOZA. Well, if there is estafa . . . MR. VELOSO, F. Estafa committed by the issuance of a bouncing check, in which case it will be mandatory on the part of the prosecuting official to also file a case for violation of this offense under the proposed bill. MR. MENDOZA. Yes, that is correct. In such a situation because if the offender did not only cause injury on account of the issuance of the check but did issue a bouncing check penalized under this Act, then he will be liable for prosecution under both laws. I would admit that perhaps in such situation, the penalty may be somewhat severe. As a matter of fact, in other jurisdictions, the issuance of bouncing checks is penalized with substantially lower penalty. However, because of the situation in the Philippines, the situation being now relatively grave that practically everybody is complaining about bouncing checks, may be it is necessary at least initially, at this point in time for us to impose a rather severe penalty and even allow liability not only under this Act but also for estafa. Then perhaps, after the necessary discipline has been inculcated in our people and that the incidence of the offense has been reduced, we may then decide to amend the law and reduce the penalty. But at this time, shall we say the evil is of such magnitude that only a dramatic and expeditious effort to prosecute persons who issue bouncing checks may be necessary to curb quickly this evil. (explanations given by Solicitor General ESTELITO P. MENDOZA at the Batasan Pambansa during his sponsorship speech of BP 22 which he authored, pages 10371038, Record of the Batasan, Plenary Session No. 70, Dec. 4,

1978). (Emphasis supplied). (pp. 115-117, Rollo or pp. 9-11, Memorandum for respondents). Furthermore, Section 5 of Batas Pambansa Bilang 22 provides that: Prosecution under this Act shall be without prejudice to any liability for violation of any provision of the Revised Penal Code. While the filing of the two sets of Information under the provisions of Batas Pambansa Bilang 22 and under the provisions of the Revised Penal Code, as amended, on estafa, may refer to identical acts committed by petitioner, the prosecution thereof cannot be limited to one offense, because a single criminal act may give rise to a multiplicity of offenses and where there is variance or differences between the elements of an offense in one law and another law as in the case at bar there will be no double jeopardy because what the rule on double jeopardy prohibits refers to identity of elements in the two (2) offenses. Otherwise stated prosecution for the same act is not prohibited. What is forbidden is prosecution for the same offense. Hence, the mere filing of the two (2) sets of information does not itself give rise to double jeopardy (People v. Miraflores, 115 SCRA 570). In the instant petition, certiorari is not the proper remedy. We have held in Acharon v. Purisima, et al. (13 SCRA 309) that "when a motion to quash a criminal case is denied, remedy is not certiorari but to go to court without prejudice to reiterating special defenses invoked in the motion, and if after trial on the merits, an adverse decision is rendered, to appeal therefrom in the manner authorized by law," invoking the rule laid down in People v. Magdaluyo (1 SCRA 990). If the petitioner cannot appeal at this state of the proceeding, it is because there is still a necessity for the trial on the merits wherein the parties may present proofs in support of their contentions and not because the remedy of appeal is unavailing. WHEREFORE, premises considered, the petition for certiorari is hereby DISMISSED for lack of merit. SO ORDERED. Narvasa, Melencio-Herrera, Gutierrez, Jr., Cruz, Feliciano, Gancayco, Padilla, Bidin, Sarmiento, Cortes, Grio-Aquino, Medialdea and Regalado, JJ., concur. Fernan, C.J., took no part. THIRD DIVISION

JOHN ERIC LONEY,

cralawG.R. No. 152644

STEVEN PAUL REID and PEDRO B. HERNANDEZ, Petitioners, Present:

QUISUMBING, J., Chairperson, CARPIO, cralaw- versus CARPIO MORALES, and TINGA, JJ.

PEOPLE OF THE PHILIPPINES, cralawPromulgated: cralaw Respondent.February 10, 2006

x--------------------------------------------------x

DECISION

CARPIO, J.:

The Case

cralaw This is a petition for review23[1] of the Decision24[2] dated 5 November 2001 and the Resolution dated 14 March 2002 of the Court of Appeals. The5 November 2001 Decision affirmed the ruling of the Regional Trial Court, Boac, Marinduque, Branch 94, in a suit to quash Informations filed against petitioners John Eric Loney, Steven Paul Reid, and Pedro B. Hernandez (petitioners'). The 14 March 2002 Resolution denied petitioners' motion for reconsideration.

The Facts

cralawPetitioners John Eric Loney, Steven Paul Reid, and Pedro B. Hernandez are the President and Chief Executive Officer, Senior Manager, and Resident Manager for Mining Operations, respectively, of Marcopper Mining Corporation (Marcopper'), a corporation engaged in mining in the province of Marinduque.

cralawMarcopper had been storing tailings25[3] from its operations in a pit in Mt.Tapian, Marinduque. At the base of the pit ran a drainage tunnel leading to the Boac and Makalupnit rivers. It appears that Marcopper had placed a concrete plug at the tunnel's end. On 24 March 1994, tailings gushed out of or near the tunnel's end.In a few days, the Mt.Tapian pit had discharged millions of tons of tailings into the Boac and Makalupnit rivers.

cralawIn August 1996, the Department of Justice separately charged petitioners in the Municipal Trial Court of Boac, Marinduque (MTC') with violation of Article 91(B),26[4] subparagraphs 5 and 6 of Presidential Decree No. 1067 or the Water Code of the Philippines (PD 1067'),27[5] Section 828[6] of Presidential Decree No. 984 or the National Pollution Control Decree of 1976 (PD 984'),29[7] Section 10830[8] of Republic Act No. 7942 or the Philippine

Mining Act of 1995 (RA 7942'),31[9] and Article 36532[10] of the Revised Penal Code (RPC') for Reckless Imprudence Resulting in Damage to Property.33[11]chanroblesvirtuallawlibrary cralawPetitioners moved to quash the Informations on the following grounds: (1) the Informations were 'duplicitous' as the Department of Justice charged more than one offense for a single act; (2) petitioners John Eric Loney and Steven Paul Reid were not yet officers of Marcopper when the incident subject of the Informations took place; and (3) the Informations contain allegations which constitute legal excuse or justification.

The Ruling of the MTC

cralawIn its Joint Order of 16 January 1997 (Joint Order'), the MTC34[12] initially deferred ruling on petitioners' motion for lack of 'indubitable ground for the quashing of the

[I]nformations x x x. The MTC scheduled petitioners' arraignment in February 1997. However, on petitioners' motion, the MTC issued a Consolidated Order on 28 April 1997 (Consolidated Order'), granting partial reconsideration to its Joint Order and quashing the Informations for violation of PD 1067 and PD 984. The MTC maintained the Informations for violation of RA 7942 and Article 365 of the RPC. The MTC held: cralaw cralaw[T]he 12 Informations have common allegations of pollutants pointing to 'mine tailings' which were precipitately discharged into the Makulapnit and Boac Rivers due to breach caused on the Tapian drainage/tunnel due to negligence or failure to institute adequate measures to prevent pollution and siltation of the Makulapnit and Boac River systems, the very term and condition required to be undertaken under the Environmental Compliance Certificate issued on April 1, 1990.

cralawThe allegations in the informations point to same set [sic] of evidence required to prove the single fact of pollution constituting violation of the Water Code and the Pollution Law which are the same set of evidence necessary to prove the same single fact of pollution, in proving the elements constituting violation of the conditions of ECC, issued pursuant to the Philippine Mining Act.In both instances, the terms and conditions of the Environmental Compliance Certificate were allegedly violated.In other words, the same set of evidence is required in proving violations of the three (3) special laws.

cralawAfter carefully analyzing and weighing the contending arguments of the parties and after taking into consideration the applicable laws and jurisprudence, the Court is convinced that as far as the three (3) aforesaid laws are concerned, only the Information for [v]iolation of Philippine Mining Act should be maintained.In other words, the Informations for [v]iolation of AntiPollution Law (PD 984) and the Water Code (PD 1067) should be dismissed/quashed because the elements constituting the aforesaid violations

are absorbed by the same elements which constitute violation of the Philippine Mining Act (RA 7942).

cralawTherefore, x x x Criminal Case[]Nos. 96-44, 96-45 and 96-46 for [v]iolation of the Water Code; and Criminal Case[] Nos. 96-47, 96-48 and 96-49 for [v]iolation of the Anti-Pollution Law x x x are hereby DISMISSED or QUASHED and Criminal Case[] Nos. 96-50, 96-51 and 96-52 for [v]iolation of the Philippine Mining Act are hereby retained to be tried on the merits.

cralawThe Information for [v]iolation of Article 365 of the Revised Penal Code should also be maintained and heard in a full blown trial because the common accusation therein is reckless imprudence resulting to [sic]damage to property.It is the damage to property which the law punishes not the negligent act of polluting the water system.The prosecution for the [v]iolation of Philippine Mining Act is not a bar to the prosecution for reckless imprudence resulting to [sic] damage to property.35[13] cralaw

cralawThe MTC re-scheduled petitioners' arraignment on the remaining charges on 28 and 29 May 1997. In the hearing of 28 May 1997, petitioners manifested that they were willing to be arraigned on the charge for violation of Article 365 of the RPC but not on the charge for violation of RA 7942 as they intended to appeal the Consolidated Order in so far as it maintained the Informations for that offense. After making of record petitioners' manifestation, the MTC proceeded with the arraignment and ordered the entry of 'not guilty pleas on the charges for violation of RA 7942 and Article 365 of the RPC.

cralawPetitioners subsequently filed a petition for certiorari with the Regional Trial Court, Boac, Marinduque, assailing that portion of the Consolidated Order maintaining the Informations for violation of RA 7942. Petitioners' petition was raffled to Branch 94.For its part, public respondent filed an ordinary appeal with the same court assailing that portion of the Consolidated Order quashing the Informations for violation of PD 1067 and PD 984. Public respondent's appeal was raffled to Branch 38. On public respondent's motion, Branch 38 ordered public respondent's appeal consolidated with petitioners' petition in Branch 94.

The Ruling of Branch 94

cralawIn its Resolution36[14] of 20 March 1998, Branch 94 granted public respondent's appeal but denied petitioners' petition. Branch 94 set aside the Consolidated Order in so far as it quashed the Informations for violation of PD 1067 and PD 984 and ordered those charges reinstated. Branch 94 affirmed the Consolidated Order in all other respects. Branch 94 held:

After a careful perusal of the laws concerned, this court is of the opinion that there can be no absorption by one offense of the three other offenses, as [the] acts penalized by these laws are separate and distinct from each other.The elements of proving each violation are not the same with each other.Concededly, the single act of dumping mine tailings which resulted in the pollution of the Makulapnit and Boac rivers was the basis for the

information[s] filed against the accused each charging a distinct offense.But it is also a well-established rule in this jurisdiction that ' cralawA single act may offend against two or more entirely distinct and unrelated provisions of law, and if one provision requires proof of an additional fact or element which the other does not, an acquittal or conviction or a dismissal of the information under one does not bar prosecution under the other. x x x.

x x x x cralaw

cralaw[T]he different laws involve cannot absorb one another as the elements of each crime are different from one another.Each of these laws require [sic] proof of an additional fact or element which the other does not although they stemmed from a single act.37[15]chanroblesvirtuallawlibrary

cralawPetitioners filed a petition for certiorari with the Court of Appeals alleging that Branch 94 acted with grave abuse of discretion because (1) the Informations for violation of PD 1067, PD 984, RA 7942 and the Article 365 of the RPC 'proceed from and are based on a single act or incident of polluting the Boac and Makalupnit rivers thru dumping of mine tailings' and (2) the duplicitous nature of the Informations contravenes the ruling in People v. Relova.38[16]Petitioners further contended that since the acts complained of in the charges

for violation of PD 1067, PD 984, and RA 7942 are 'the very same acts complained of in the charge for violation of Article 365 of the RPC, the latter absorbs the former. Hence, petitioners should only be prosecuted for violation of Article 365 of the

RPC.39[17]chanroblesvirtuallawlibrary

The Ruling of the Court of Appeals

cralawIn its Decision of 5 November 2001, the Court of Appeals affirmed Branch 94's ruling. The appellate court held:

The records of the case disclose that petitioners filed a motion to quash the aforementioned Informations for being duplicitous in nature.Section 3 of Rule 117 of the Revised Rules of Court specifically provides the grounds upon which an information may be quashed. x x x

xxxx

[D]uplicity of Informations is not among those included in x x x [Section 3, Rule 117]. cralaw

xxxx

We now go to petitioners' claim that the resolution of the public respondent contravened the doctrine laid down in People vs. Relova for being violative of their right against multiple prosecutions.

In the said case, the Supreme Court found the People's argument with respect to the variances in the mens rea of the two offenses being charged to be correct.The Court, however, decided the case in the context of the second sentence of Article IV (22) of the 1973 Constitution (now under Section 21 of Article III of the 1987 Constitution), rather than the first sentence of the same section. x x x

xxxx

[T]he doctrine laid down in the Relova case does not squarely apply to the case at Bench since the Informations filed against the petitioners are for violation of four separate and distinct laws which are national in character.

xxxx

This Court firmly agrees in the public respondent's understanding that the laws by which the petitioners have been [charged] could not possibly absorb one another as the elements of each crime are different.Each of these laws require [sic] proof of an additional fact or element which the other does not, although they stemmed from a single act. x x x

xxxx

[T]his Court finds that there is not even the slightest indicia of evidence that would give rise to any suspicion that public respondent acted with grave abuse of discretion amounting to excess or lack of jurisdiction in reversing the Municipal Trial Court's quashal of the Informations against the petitioners for violation of P.D. 1067 and P.D. 984.This Court equally finds no error in the trial court's denial of the petitioner's motion to quash R.A. 7942 and Article 365 of the Revised Penal Code.40[18]chanroblesvirtuallawlibrary

cralawPetitioners sought reconsideration but the Court of Appeals denied their motion in its Resolution of 14 March 2002.

cralawPetitioners raise the following alleged errors of the Court of Appeals:

I. THE COURT OF APPEALS COMMITTED A R[E]VERSIBLE ERROR IN MAINTAINING THE CHARGES FOR VIOLATION OF THE PHILIPPINE MINING ACT(R.A. 7942) AND REINSTATING THE CHARGES FOR VIOLATION OF THE WATER CODE (P.D. 1067) AND POLLUTION CONTROL LAW (P.D. 984), CONSIDERING THAT:

A. THE INFORMATIONS FOR VIOLATION OF THE WATER CODE (P.D. 1067), THE POLLUTION CONTROL LAW (P.D. 984), THE PHILIPPINE MINING ACT (R.A. 7942) AND ARTICLE 365 OF THE REVISED PENAL CODE PROCEED FROM AND ARE BASED ON A SINGLE ACT OR INCIDENT OF POLLUTING THE BOAC AND MAKULAPNITRIVERS THRU DUMPING OF MINE TAILINGS.

B. THE PROSECUTION OF PETITIONERS FOR DUPLICITOUS AND MULTIPLE CHARGES CONTRAVENES THE DOCTRINE LAID DOWN IN PEOPLE VS. RELOVA, 148 SCRA 292 [1986] THAT 'AN ACCUSED SHOULD NOT BE HARASSED BY MULTIPLE PROSECUTIONS FOR OFFENSES WHICH THOUGH DIFFERENT FROM ONE ANOTHER ARE NONETHELESS EACH CONSTITUTED BY A COMMON SET OR OVERLAPPING SETS OF TECHNICAL ELEMENTS.

II. THE COURT OF APPEALS COMMITTED A REVERSIBLE ERROR IN RULING THAT THE ELEMENT OF LACK OF NECESSARY OR ADEQUATE PRECAUTION, NEGLIGENCE, RECKLESSNESS AND IMPRUDENCE UNDER ARTICLE 356 [sic] OF THE REVISED PENAL CODE DOES NOT FALL WITHIN THE AMBIT OF ANY OF THE ELEMENTS OF THE PERTINENT PROVISIONS OF THE WATER CODE, POLLUTION CONTROL LAW AND PHILIPPINE MINING ACT CHARGED AGAINST PETITIONERS[.]41[19]

cralaw

The Issues

cralawThe petition raises these issues:

(1) Whether all the charges filed against petitioners except one should be quashed for duplicity of charges and only the charge for Reckless Imprudence Resulting in Damage to Property should stand; and (2) Whether Branch 94's ruling, as affirmed by the Court of Appeals, contravenes People v. Relova.

The Ruling of the Court

cralawThe petition has no merit.

No Duplicity of Charges in the Present Case

cralawDuplicity of charges simply means a single complaint or information charges more than one offense, as Section 13 of Rule 11042[20] of the 1985 Rules of Criminal Procedure clearly states: Duplicity of offense. ' A complaint or information must charge but one offense, except only in those cases in which existing laws prescribe a single punishment for various offenses.

In short, there is duplicity (or multiplicity) of charges when a single Information charges more than one offense.43[21]

Under Section 3(e), Rule 11744[22] of the 1985 Rules of Criminal Procedure, duplicity of offenses in a single information is a ground to quash the Information.The Rules prohibit the filing of such Information to avoid confusing the accused in preparing his defense.45[23]Here, however, the prosecution charged each petitioner with four offenses, with each Information charging only one offense. Thus, petitioners erroneously invoke duplicity of charges as a ground to quash the Informations.On this score alone, the petition deserves outright denial.

The Filing of Several Charges is Proper

cralawPetitioners contend that they should be charged with one offense only ' Reckless Imprudence Resulting in Damage to Property ' because(1) all the charges filed against them 'proceed from and are based on a single act or incident of polluting the Boac and Makalupnit rivers thru dumping of mine tailings' and (2) the charge for violation of Article 365 of the RPC absorbs' the other charges since the element of 'lack of necessary or adequate protection, negligence, recklessness and imprudence is common among them.

The contention has no merit. As early as the start of the last century, this Court had ruled that a single act or incident might offend against two or more entirely distinct and unrelated provisions of law thus justifying the prosecution of the accused for more than one offense.46[24] The only limit to this rule is the Constitutional prohibition that no person shall be twice put in jeopardy of punishment for 'the same offense.47[25] In People v. Doriquez,48[26]we held that two (or more) offenses arising from the same act are not 'the same '

x x xif one provision [of law] requires proof of an additional fact or element which the other does not, x x x. Phrased elsewise, where two different laws (or articles of the same code) define two crimes, prior jeopardy as to one of them is no obstacle to a prosecution of the other, although both offenses arise from the same facts, if each crime involves some important act which is not an essential element of the other.49[27](Emphasis supplied)

cralawHere, double jeopardy is not at issue because not all of its elements are present.50[28] However, for the limited purpose of controverting petitioners' claim that they

should be charged with one offense only, we quote with approval Branch 94's comparative analysis of PD 1067, PD 984, RA 7942, and Article 365 of the RPC showing that in each of these laws on which petitioners were charged, there is one essential element not required of the others, thus: cralaw cralawIn P.D. 1067 (Philippines Water Code), the additional element to be established is the dumping of mine tailings into the Makulapnit River and the entire Boac River System without prior permit from the authorities concerned.The gravamen of the offense here is the absence of the proper permit to dump said mine tailings.This element is not indispensable in the prosecution for violation of PD 984 (Anti-Pollution Law), [RA] 7942 (Philippine Mining Act) and Art. 365 of the Revised Penal Code.One can be validly prosecuted for violating the Water Code even in the absence of actual pollution, or even [if] it has complied with the terms of its Environmental Compliance Certificate, or further, even [if] it did take the necessary precautions to prevent damage to property.

In P.D. 984 (Anti-Pollution Law), the additional fact that must be proved is the existence of actual pollution.The gravamen is the pollution itself.In the absence of any pollution, the accused must be exonerated under this law although there was unauthorized dumping of mine tailings or lack of precaution on its part to prevent damage to property.

In R.A. 7942 (Philippine Mining Act), the additional fact that must be established is the willful violation and gross neglect on the part of the accused to abide by the terms and conditions of the Environmental Compliance Certificate, particularly that the Marcopper should ensure the containment of run-off and silt materials from reaching the Mogpog and Boac Rivers.If there was no violation or neglect, and that the accused satisfactorilyproved [sic] that Marcopper had done everything to ensure containment of the run-off and silt materials, they will not be liable.It does not follow, however, that they cannot be prosecuted under the Water Code, Anti-Pollution Law and the Revised Penal

Code because violation of the Environmental Compliance Certificate is not an essential element of these laws. On the other hand, the additional element that must be established in Art. 365 of the Revised Penal Code is the lack of necessary or adequate precaution, negligence, recklessness and imprudence on the part of the accused to prevent damage to property.This element is not required under the previous laws.Unquestionably, it is different from dumping of mine tailings without permit, or causing pollution to the Boac river system, much more from violation or neglect to abide by the terms of the Environmental Compliance Certificate.Moreover, the offenses punished by special law are mal[a] prohibita in contrast with those punished by the Revised Penal Code which are mala in se.51[29]

cralaw Consequently, the filing of the multiple charges against petitioners, although based on the same incident, is consistent with settled doctrine.

cralawOn petitioners' claim that the charge for violation of Article 365 of the RPC 'absorbs' the charges for violation of PD 1067, PD 984, and RA 7942, suffice it to say that a mala in se felony (such as Reckless Imprudence Resulting in Damage to Property) cannot absorb mala prohibita crimes (such as those violating PD 1067, PD 984, and RA 7942). What makes the former a felony is criminal intent (dolo) or negligence (culpa); what makes the latter crimes are the special laws enacting them.

People v. Relova not in Point

cralawPetitioners reiterate their contention in the Court of Appeals that their prosecution contravenes this Court's ruling in People v. Relova. In particular, petitioners cite the Court's statement in Relova that the law seeks to prevent harassment of the accused by 'multiple prosecutions for offenses which though different from one another are nonetheless each constituted by a common set or overlapping sets of technical elements.

This contention is also without merit.

The issue in Relova is whether the act of the Batangas Acting City Fiscal in charging one Manuel Opulencia (Opulencia') with theft of electric power under the RPC, after the latter had been acquitted of violating a City Ordinance penalizing the unauthorized installation of electrical wiring, violated Opulencia's right against double jeopardy.We held that it did, not because the offenses punished by those two laws were the same but because the act giving rise to the charges was punished by an ordinance and a national statute, thus falling within the proscription against multiple prosecutions for the same act under the second sentence in Section 22, Article IV of the 1973 Constitution, now Section 21, Article III of the 1987 Constitution.We held:

The petitioner concludes that:

The unauthorized installation punished by the ordinance [of BatangasCity] is not the same as theft of electricity [under the Revised Penal Code]; that the second offense is not an attempt to commit the first or a frustration thereof

and that the second offense is not necessarily included in the offense charged in the first information.

The above argument[ ] made by the petitioner [is] of course correct. This is clear both from the express terms of the constitutional provision involved ' which reads as follows:

No person shall be twice put in jeopardy of punishment for the same offense. If an act is punished by a law and an ordinance, conviction or acquittal under either shall constitute a bar to another prosecution for the same act.x x x

and from our case law on this point. The basic difficulty with the petitioner's position is that it must be examined, not under the terms of the first sentence of Article IV (22) of the 1973 Constitution, but rather under the second sentence of the same section. The first sentence of Article IV (22) sets forth the general rule: the constitutional protection against double jeopardy is not available where the second prosecution is for an offense that is different from the offense charged in the first or prior prosecution, although both the first and second offenses may be based upon the same act or set of acts. The second sentence of Article IV (22) embodies an exception to the general proposition: the constitutional protection, against double jeopardy is available although the prior offense charged under an ordinance be different from the offense charged subsequently under a national statute such as the Revised Penal Code, provided that both offenses spring from the same act or set of acts. x x x52[30] (Italicization in the original; boldfacing supplied)

cralawThus, Relova is no authority for petitioners' claim against multiple prosecutions based on a single act not only because the question of double jeopardy is not at issue here, but also because, as the Court of Appeals held, petitioners are being prosecuted for an act or incident punished by four national statutes and not by an ordinance and a national statute. In short, petitioners, if ever, fall under the first sentence ofSection 21, Article III which prohibits multiple prosecution for the same offense,andnot, as in Relova, for offenses arising from the same incident.

cralawWHEREFORE, we DENY the petition. We AFFIRM the Decision dated 5 November 2001 and the Resolution dated 14 March 2002 of the Court ofAppeals.

cralawSO ORDERED. G.R. Nos. 130409-10 - November 27, 2001 PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee, v. JOSUE B. DUMLAO, Accused-Appellant. KAPUNAN, J.: Before this Court on automatic review is the Joint Decision of the Regional Trial Court of Cabanatuan City, Branch 27, dated April 29, 1997, in Criminal Case Nos. 7257-AF and 7258-AF sentencing accused-appellant Josue B. Dumlao to the supreme penalty of death for raping his two nieces. On February 10, 1997, two separate complaints were filed before the Regional Trial Court of Cabanatuan City, charging accused-appellant with rape. The first was filed by Jennifer Dumlao Matutino, assisted by her father Fernando Matutino. The complaint stated: Criminal Case No. 7257-AF

That on or about between the year 1991 and May 1996, at Barangays San Isidro and Sta. Lucia Old, respectively, Municipality of Zaragoza, Province of Nueva Ecija, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, with the use of force and lewd designs, violence and intimidation, did then and there, willfully, unlawfully and feloniously abuse and had sexual intercourse on the person of the undersigned against her will, to the damage and prejudice of herein complainant, a minor. CONTRARY TO LAW. Cabanatuan City, Philippines, December 2, 1996. (Sgd.) JENNIFER D. MATUTINO Complainant1 The second complaint was filed by Jennifer's older sister, Benita Dumlao Matutino, who was also assisted by her father Fernando Matutino. The complaint similarly charged accusedappellant as follows: Criminal Case No. 7258-AF That on or about between the year 1991 and May 1996, at Barangays San Isidro and Sta. Lucia Old, respectively, Municipality of Zaragoza, Province of Nueva Ecija, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, with the use of force and lewd designs, violence and intimidation, did then and there, willfully, unlawfully and feloniously abuse and had sexual intercourse on the person of the undersigned against her will, to the damage and prejudice of herein complainant, a minor. CONTRARY TO LAW. Cabanatuan City, Philippines, December 2, 1996. (Sgd.) BENITA D. MATUTINO Complainant2 Upon arraignment, accused pleaded Not Guilty to both charges. Thereafter, as agreed upon by the parties, the two cases were tried jointly. The prosecution, through its witnesses Dr. Raol Paculan, Benita Dumlao Matutino, Jennifer Dumlao Matutino, Dr. Agripina Reyes and Fernando Matutino established the following facts: The victims, Benita Dumlao Matutino and Jennifer Dumlao Matutino are the daughters of spouses Fernando Matutino and Merlyn Dumlao. Both children were staying in the home of Virginia Baldonado, their maternal grandmother, since their parents became estranged in

1992.3 Baldonado's house is located at Sta. Lucia Old, Zaragoza, Nueva Ecija. They lived in said house with their grandmother, the accused-appellant whom they called "Tito Judy", who was the brother of their mother, "Tito Nonong/Kuya Nonong", "Tatang Sonny" and "Ate Rowena". The house, which had two storeys, had one bedroom on each floor.4 Benita and Jennifer together with their grandmother, Ate Rowena and Kuya Nonong slept in the room located upstairs, while the accused-appellant slept downstairs in the room beside the kitchen.5 Jennifer, one of the victims, testified that sometime in May, 1996, at around 10:00 p.m., she was roused from her sleep by accused-appellant.6 The latter lifted her from the bed where she and her sister Benita were sleeping, covered her mouth, and brought her to the room downstairs.7 She was able to recognize him since the room was illuminated by a gas lamp. 8 Accused-appellant removed her clothes and lay beside her, then went on to kiss her cheeks and embrace her. Jennifer slapped the accused-appellant. He parted her legs, placed himself on top of her, removed his shirt, and inserted his penis into her vagina9 for about ten minutes.10 Jennifer further stated that her grandmother was not in the house when she was raped by accused-appellant that night. Her grandmother was then confined in a hospital in La Paz, Tarlac.11 Only she, her sister Benita and accused-appellant were left the house.12 Jennifer kept quiet about the incident because accused-appellant threatened her with physical harm should she ever report the incident to anyone.13 However, she told her sister Benita about what accused-appellant had done to her two days after the incident, and Benita in turn told Jennifer that she (Benita) was also raped by the accused-appellant.14 The physical examination conducted by Dr. Raol Paculan disclosed that Jennifer had multiple healed lacerations on her hymen at 2, 3, 5, 7 and 9 o'clock positions,15 and that her hymen was no longer intact, indicating that she had lost her virginity.16 At the time she was raped in May, 1996, Jennifer was only eleven (11) years old, having been born on July 12, 1984,17 as indicated in her birth certificate.18 Benita Matutino testified that sometime in May, 1996, at around 1:00 a.m., while she was sleeping in the room located on the second floor of her grandmother's house, she was awakened from her sleep by the accused-appellant, whom she found lying beside her and kissing her.19 Benita recognized accused-appellant since the room where she was sleeping was lighted.20 Accused-appellant later succeeded in undressing her despite her resistance by kicking and pushing him away from her, because he was much stronger than she was. Accusedappellant held her hands tightly, and threatened to kill her and her sister Jennifer if she resisted.21 He then inserted his penis into her vagina.22 Benita recounted that on the day she was raped by accused-appellant, only she, Jennifer and accused-appellant were in the house of her grandmother, because the latter and their other companions in the house were in the hospital.23

Benita did not tell her grandmother about what happened because she was afraid that the accused-appellant would kill her and her sister.24 It was only sometime after the accusedappellant left their grandmother's house in September, 1996 to reside elsewhere that Benita wrote an undated letter to their father informing him that she and Jennifer were raped by accused-appellant in May, 1996, and that he had repeatedly raped them since 1991. 25 Benita sent said letter through her friend Girlie Soliman.26 The letter reads: Tatay, Bago ang lahat binabati ko kayo ng magandang araw. Sana ay lagi kayong nasa mabuting kalagayan na malayo sa anumang sakit lalo na at si Kuyang kaya nga pala ako sumulat ay dahil sa ipagtatapat ko sa inyo pasensiya na kayo kung idinaaan ko pa sa sulat dahil nahihiya ako sa inyong sabihin ito ng harap harapan eto ay dahil sa nangyayaring hindi maganda sa aming dalawa ni Jenny. Matagal na naming gusto itong sabihin at dahil rin natatakot ako na sabihin ito at nagkaroon ako ng lakas ng loob. Ito ay dahil kay Tito Jude na hinahalay niya kami binababoy pinagsasamantalahan ng hayop na yoon huwag ka sanang mabibigla sa sinabi kong ito dahil yaan ay matagal na sa aming ginagawa ni Judy nodon pang buo pa ang ating bahay noong buo pa ang ating pamilya naaawa ako kay Jenny bata pa siya ginanoon na siya debaling ako nalang huwag na siya dahil masyado pa siyang bata tay sana ay wag mo sila Divinang pabayaan dahil ayokong mangyari (ang nangyari) sa kanila ang nangyari sa amin ngayon nagpapasalamat ako at nagawa konang isumbong sa inyo at ngayon nandito ako kanila Merlinda dito ako nakatira marami sa aking umaampon isa lang ang nagustuhan ko kanila Ate Wennie mababait sila. Mayaman hindi ako magiging alila sa kanila dahil kung sa pagluluto paglilinis ay madali lang. humihingi ako sa inyo ng patawad sa ginawa kong paglalayas at pakisabi narin ang nangyari sa akin kina nanay tanda tay mahal ko kayo kaya inilihim ko ito sa inyo dahil ayokong mabahiran ng dungis ang pangalan ng Matutino dahil sa akin. Madalas kong naiisip na kaya siguro sa akin ito ginawa ay dahil galit sila sa ating pamilya wag sana kayong magagalit kung wala ang address namin dito dahil ayoko ng umuwi sa atin sa asiyenda ayoko na tay sawang sawa na ako daig pa namin ni Jenny may asawa tay mahal na mahal kita si Nanay at ang aking mga kapatid. Hanggang dito na lang ang aking sulat Ang iyong anak (Sgd.) Benita Matutino I love you - my Family27 Subsequently, her father fetched Benita in Panganiban, San Antonio, Nueva Ecija where she was staying and verified from her whether what she said in her letter was true. Her father then asked his sister to fetch Jennifer from their grandmother's house.

Thereafter, he brought Jennifer and Benita to the police station in Zaragoza, Nueva Ecija to report the crimes.28 Benita executed a sworn statement before the police, stating that sometime in May, 1996, at around 1:00 a.m., accused-appellant undressed and forcibly inserted his penis into her vagina. She said that the accused-appellant had been raping her since she was nine years old. She also explained that she did not report the said incidents earlier because accused-appellant threatened to kill her if she told anyone regarding the same.29 Benita also testified that on October 2, 1996, her father and a policeman brought her and her sister to the Dr. Paulino J. Garcia Memorial Research and Medical Center for physical examination.30 The physical examination conducted on Benita by Dr. Agripina Reyes revealed that the victim had multiple healed lacerations on her hymen at 3, 4, 5, 6, 8, 9, 11 and 12 o'clock positions.31 Dr. Reyes also stated that Benita's hymen was no longer intact, indicating that she had lost her virginity.32 Benita was only 13 years old when she was raped by accused-appellant in May, 1996.33 Her birth certificate which she presented in court indicates that she was born on August 14, 1982. 34 The victims' father, Fernando Matutino, corroborated his daughters' statements. He told the court that on September 13, 1996, he received a letter from Benita informing him that she and Jennifer had been raped by accused-appellant.35 Thereafter, he looked for his two daughters. When he found Benita, he asked her again whether what she said in her letter was true. She answered him in the affirmative. Subsequently, he brought his daughters to the police station in Zaragoza, Nueva Ecija to report the crimes.36 He executed a statement37 which was used as basis for the filing of the criminal complaints against accused-appellant. The defense presented three witnesses, namely Virginia Baldonado, the accused-appellant himself and Roel Dumlao. Virginia testified that sometime in May 28, 1996, when the alleged rapes were committed, she was confined in a hospital in La Paz, Tarlac where she stayed for three days.38 Benita and Jennifer were left at her house. She said that accused-appellant stayed with her in the hospital on May 29, 1996 and he, together with her children Samuel, Roel and Rowena were with her when she was released therefrom.39 Upon her return, her grandchildren made no report whatsoever about having been raped by the accused-appellant.40 She further stated that accused-appellant seldom slept in her house since he was often out in the fields, located about two kilometers away from her house, pasturing ducks (itik), and that Benita and Jennifer only stayed with her in her house when they had classes.41 Baldonado added that accused-appellant did not sleep in her house from May 1 to 31, 1996, and that Benita and Jennifer stayed in the house of her son Roel while she was confined in the hospital.42 Accused-appellant denied the charges against him43 and claimed that the filing thereof were probably instigated by the victims' father, stating that "maybe because when he [Fernando

Matutino] took another wife he charged us so that his relationship with us may be severed.44 He claimed that since 1990 or 1991, he spent most of his time pasturing ducks. 45 From 1991 to May, 1996, his pasture area was in a field in Sta. Lucia Old, Zaragoza, Nueva Ecija, which, according to him, was a two-hour walk from Baldonado's house.46 His working hours were from 5:00 a.m. to 6:00 p.m. everyday.47 He said that he seldom went home to his mother's house because he would usually sleep in the fields and his food and other needs were brought to him by his brothers.48 Roel Dumlao, a younger brother of the accused-appellant, testified that sometime in 1996, before the school year started, he engaged the services of accused-appellant to pasture some 600 ducks owned by him.49 He said that accused-appellant was at all times attending to the ducks in a pasture area in Sta Lucia Old, Zaragoza, Nueva Ecija, which was located about two kilometers away from Baldonado's house.50 Roel added that the distance between the pasture area and Baldonado's house can be negotiated by walking for less than one hour. 51 He stated further that sometime in May, 1996, his niece Jennifer stayed with him for about a month. Jennifer did not tell him anything about being raped by accused appellant.52 On April 25, 1997, the trial court promulgated its Joint Decision, the dispositive portion of which states: WHEREFORE, premises considered, the Court finds and so holds the accused JOSUE DUMLAO guilty beyond reasonable doubt of the crime of rape in each of the two cases, and sentences him to suffer the penalty of: 1. DEATH in Criminal Case No. 7257-AF, and for him to indemnify the offended party in the amount of P50,000.00 as moral and exemplary damages; 2. DEATH in Criminal Case No. 7258-AF, and for him to indemnify the offended party in the amount of P50,000.00, as moral and exemplary damages; and 3. to pay the costs of this suit. SO ORDERED.53 Accused-appellant contends that the trial court erred in giving credence to the "inherently incredible, inconsistent and contradictory testimonies" of Benita and Jennifer. 54 With respect to Jennifer, accused-appellant points out that it is unbelievable for her not to have screamed upon finding that a man was lying next to her and performing sexual acts on her, and not to have attempted to wake her sister who was sleeping beside her.55 He stresses that it was only during cross examination when Jennifer said that accused-appellant brought her out of the room where she and Benita were sleeping and transferred to the room downstairs.56 He also argues that it could not have been possible for him to have maintained his hand on Jennifer's mouth to keep her from crying out loud while kissing her, embracing her, taking of her clothes and pushing her legs apart.57

Accused-appellant claims that Benita's testimony is likewise incredible, having stated that her sister was beside her when she was allegedly raped by accused-appellant, yet she did not scream or try to rouse Jennifer from her sleep to help her. 58 It is also alleged by him that the testimonies of both complainants were not straightforward, but rehearsed, as evidenced for instance by the fact that they could tell the time during which they were raped even though it was not established that there was a clock in the room or whether any church bells chimed to indicate the time.59 Moreover, it took complainants a long time before they reported the incidents to anyone,60 and they failed to specify the threats supposedly made by him on them.61 Accused-appellant also assails the credibility of the testimony of Fernando Matutino, stating that the latter had a grudge against his wife, accused-appellant's sister, who had earlier left him for another man.62 He argues further that even the medical findings of Dr. Raol Paculan and Dr. Agripina Reyes failed to conclusively prove that the hymenal lacerations found in both Benita and Jennifer were caused by the alleged rapes. Both physicians admitted that hymenal lacerations can be caused by pulling sharp objects, masturbation or scratching.63 In addition, accused-appellant argues that the trial court should have quashed the informations filed against him for being vague as to the time of the commission of the offense, because the informations stated that the rapes were committed "on or about between the year 1991 and May, 1996."64 Accused-appellant also alleges that the trial court demonstrated partiality in favor of the prosecution during the trial, in violation of his constitutional rights. He points out that the trial court judge actively participated in nine out of the ten hearings on the cases, by directly propounding questions to the witnesses.65 The Court is not convinced by accused-appellant's arguments. Article 335 of the Revised Penal Code, which defined the crime of Rape prior to the enactment of Republic Act No. 8353 (the Anti-Rape Law of 1997), states: When and how rape is committed. - Rape is committed by having carnal knowledge of a woman under any of the following circumstances: 1. By using force or intimidation; 2. When the woman is deprived of reason or otherwise unconscious; and 3. When the woman is under twelve years of age or is demented.

The crime of rape shall be punished by reclusion perpetua: xxx - xxx - xxx The death penalty shall also be imposed if the crime of rape is committed with any of the following attendant circumstances. 1. When the victim is under eighteen (18) years of age and the offender is a parent, ascendant, step-parent, guardian, relative by consanguinity or affinity within the third civil degree, or the common-law spouse of the parent of the victim. In reviewing the cases before us, the Court observed the following guidelines which it had earlier formulated for the review of rape cases: (1) an accusation of rape, can be made with facility, it is difficult to prove and even harder for the person accused to disprove; (2) in view of the intrinsic nature of the crime of rape where only two persons are usually involved, the testimony of the complainant must be scrutinized with extreme caution; (3) the evidence for the prosecution stands or falls on its own merits and cannot be allowed to draw strength from the weakness of the defense's evidence. 66 The evidence proves beyond reasonable doubt that accused-appellant raped his niece Jennifer who in May, 1996 was only 11 years old. 67 Jennifer positively identified accused-appellant in open court as the one who raped her sometime in May, 1996, at around 10:00 p.m.: Q: A: Q: A: Q: A: Q: A: Q: A: Jennifer Matutino do you know Jose Dumlao alias "Judy"? Yes, sir. Why do you know him? Because he is the brother of my mother, sir. In other words Josue Dumlao is your uncle? Yes, sir. Is Josue Dumlao, the accused in this case, present in Court? Yes, sir. Can you point to him? Yes, sir.

Q:

Please point to him?

A: Witness stood up and pointed to a man inside the Courtroom and who, when asked of his name answered Josue Dumlao. ATTY. ESTABILLO: May we place on record that complainant in pointing to the accused did not directly face the accused. COURT: In order to satisfy the desire of counsel, will you please stand up and point again to the person of Josue Dumlao? A: That man, sir. (The witness stood up and, directly pointed to the accused Josue Dumlao)68 The trial court observed that she testified as to the details of the rape committed upon Jennifer in no uncertain terms, in direct and unwavering statements. Jennifer's answers to the questions propounded to her during the trial support the lower court's finding: xxx - xxx - xxx FISCAL BELTRAN: Q: When you were awakened in the evening of May 1996 with your Tito Judy beside you, what did you do? A: Q: A: Q: A: Q: A: Q: I pushed him, sir. Why did you push him? Because he was kissing me, sir. On what part of your body was he kissing you? At my cheeks, sir. After kissing you on your cheeks, what did you do? He embraced me, sir. Were you lying down when he embraced you?

A: Q: A: Q: A: Q: A:

Yes, sir. What did you do when he embraced you? I slapped him, sir. By the way, how did you recognize your Tito Judy on that time? Because the house was lighted, sir. What kind of lighting? "Kingky," sir.

COURT: Q: A: Q: A: Q: That evening what else did your Tito Judy to you? He undressed me, sir and placed himself on top of me. What else? When he undressed me, sir, he pulled my legs apart. After he pushed your legs apart what else did he do?

A: He also undressed himself and placed himself on top of me and inserted his private part to my private part. Q: A: Was he able to insert his private part to your private part? Yes, sir.

xxx - xxx - xxx69 Moreover, no improper motive can be imputed to her so as to make a false accusation against her own uncle and companion in her grandmother's house, especially considering that in doing so, she would have to narrate in open court and in full detail the traumatic incident which she experienced.70 The fact that she did not scream when accused-appellant started kissing her does not make her story less credible, contrary to accused's argument. It should be noted that Jennifer was sleeping before she was awakened by her accused-appellant's presence in her bed. The Court agrees with the Solicitor General that "[i]n such a situation not everyone would scream because people react differently to shocking events"71 such as what Jennifer went through. Moreover,

accused- appellant had moral ascendancy over the victim, being the uncle, hence, the natural tendency of the victim is not to scream but to struggle and resist quietly because of shock and confusion.72 The Court likewise agrees with the trial court's finding that Benita Matutino's testimony that she was raped by accused-appellant using force and intimidation sometime in May, 1996 is credible. Benita categorically stated that sometime in May, 1996, while she was sleeping in the room on the second floor of her grandmother's house, she was awakened from her sleep by accused-appellant, who was lying beside her and kissing her;73 that accused-appellant was able to undress her despite the fact that she was kicking and pushing him away from her, because he was much stronger than she was; that accused-appellant held her hands tightly, and threatened to kill her and her sister Jennifer if she resisted him;74 that accused-appellant succeeded in inserting his penis into her vagina.75 The credibility of her testimony was not found to have been diminished by the lapse of some four months before she reported what accused-appellant had done to her and her sister. As held by the trial court, immediately after accused-appellant left the house of her grandmother to reside elsewhere, Benita wrote a letter to her father, telling him that she and Jennifer were raped; she also fled from her grandmother's house to avoid further sexual molestation.76 It has been held that delay in reporting rape incidents in the face of physical violence cannot be taken against the victim, because oftentimes, the rape victim's actions are dictated by fear rather than by reason. 77 The trial court's evaluation of the victims' testimonies in the cases at bar is entitled to the highest respect because it had the opportunity to observe the demeanor of the witnesses on the stand. Furthermore, as previously held by this Court in People vs. Rodegelio Turco, Jr.,78 . . . when the offended parties are young and immature girls from the ages of twelve to sixteen, courts are inclined to lend credence to their version of what transpired, considering not only their relative vulnerability but also the shame and embarrassment to which they would be exposed by court trial if the matter about which they testified were not true. . . . The Court notes that the records of the cases fully support the lower court's findings. The trial court held that the victims' testimonies were corroborated by the respective reports of the physicians who conducted physical examinations on them. The report of Dr. Paculo who examined Jennifer revealed that her hymen was no longer intact, indicating that she had lost her virginity, 79 and that the child had multiple healed hymenal lacerations at 2, 3, 5, 7 and 9 o'clock positions. 80 Likewise, the physical examination report of Dr. Reyes who conducted the examination on Benita stated that she suffered multiple lacerations in her hymen at 3, 4, 5, 6, 8, 9, 11 and 12 o'clock positions, 81 and that her hymen was no longer intact, a sign that she was no longer a virgin.82 No error was committed by the trial court in giving more credence to the testimonies and other evidence presented by the prosecution than the accused-appellant's denial of the charges against him. All that accused-appellant offered in his defense was the alibi that he hardly slept

in Baldonado's house because he spent most of his time pasturing ducks 83 in a field in Sta. Lucia Old, Zaragoza, Nueva Ecija. According to him, it would take about two hours to walk from the pasture field to Baldonado's house and vice-versa.84 Certainly, accused-appellant's alibi cannot prevail over the testimony of the victims and their positive identification of accused-appellant as the person who raped them.85 While this Court affirms the finding of the lower court that the accused-appellant is indeed guilty beyond reasonable doubt of having raped both Benita and Jennifer, it cannot affirm the imposition of the penalty of death in either case because the relationship between accusedappellant to the victims, i.e., that he was their uncle and therefore a relative by consanguinity within the third civil degree, was not alleged in either of the two complaints.86 The relationship between accused-appellant and each of the two victims should have been specifically alleged in the criminal complaints for rape before the trial court imposed the death penalty upon accused-appellant. The reason behind this requirement was explained in People vs. Antonio Ferolino,87 thus: These seven attendant circumstances [mentioned in Art. 335 of the Revised Penal Code as amended by R.A. No. 765988 ], given that they alter the nature of the crime of rape and thus increase the degree of the penalty, are in the nature of qualifying circumstances. Plainly, these attendant circumstances added by R.A. 7659 are not ordinary aggravating circumstances, which merely increase the period of the penalty. These are special qualifying circumstances which must be specifically pleaded or alleged with certainty in the information; otherwise, the death penalty cannot be imposed. Having failed to allege that accused-appellant is the uncle, i.e., relative by consanguinity within the third civil degree of Benita and Jennifer, the penalty imposable for each charge of rape shall be reclusion perpetua. It is also necessary to increase the award of damages as fixed by the trial court. The lower court in its decision ordered the accused-appellant to indemnify each of the victims in the amount of Fifty Thousand Pesos (P50,000.00) only, representing moral and exemplary damages. Under prevailing jurisprudence, however, the award of Fifty Thousand Pesos (P50,000.00) as civil indemnity is mandatory upon the finding of the fact of rape. 89 The Court has previously explained that the indemnity authorized under the law90 as civil liability ex delicto for the offended party is equivalent to actual or compensatory damages in civil law. 91 It is not to be confused with moral damages, which; is awarded when it is shown that the victim suffered physical suffering, mental anguish, fright, serious anxiety, besmirched reputation, wounded feelings, moral shock, social humiliation and similar injury.92 In addition to civil indemnity, moral damages may be awarded to rape victims,93 without need of proof other than the fact of the rape itself.94 The fact that each of the victims suffered mental, physical and psychological trauma as a result of the rape are too obvious to still require the recital thereof at trial.95 Under current rulings, the award of moral damages should be in the amount of Fifty Thousand Pesos (P50,000.00) for each crime.96

Furthermore, where the existence of an aggravating circumstance is proven, as in the cases before us where the circumstances of minority and relationship were established, exemplary damages may be awarded, in accordance with Article 2230 of the Civil Code.97 Thus, an award of exemplary damages in the amount of Twenty-Five Thousand Pesos (P25,000.00) for each count of rape in the cases before us is proper.98 WHEREFORE, the joint decision of the Regional Trial Court of Cabanatuan City, Branch 27 in Criminal Case Nos. 7257-AF and 7258-AF finding accused-appellant JOSUE B. DUMLAO guilty beyond ,reasonable doubt of the crime of rape under Article 335 of the Revised Penal Code, as amended, in each of the two cases is hereby AFFIRMED, with the MODIFICATION that the penalty in each case is reduced to reclusion perpetua. Accused-appellant is likewise sentenced to pay the following amounts: (1) In Criminal Case No. 7257-AF, to pay complainant Jennifer Matutino Fifty Thousand Pesos (P50,000.00) as civil indemnity; Fifty Thousand Pesos (P50,000.00) as moral damages; and Twenty-Five Thousand Pesos (P25,000.00) as exemplary damages; and (2) In Criminal Case No. 7258-AF, to pay complainant Benita Matutino Fifty Thousand Pesos (P50,000.00) as civil indemnity; Fifty Thousand Pesos (P50,000.00) as moral damages; and Twenty-Five Thousand Pesos (P25,000.00) as exemplary damages. SO ORDERED. PEOPLE OF THE PHILIPPINES, Appellee, vs. JOHNNY MALINAO Y NOBE, Appellant. DECISION AUSTRIA-MARTINEZ, J.: On automatic review is the Decision,1 dated October 31, 1996, of the Regional Trial Court of Catbalogan, Samar (Branch 29) convicting appellant Johnny Malinao y Nobe of Illegal Possession of Firearm in its aggravated form under the second paragraph of Section 1 of P.D. No. 1866 (Illegal Possession of Firearm Law) and sentencing him to suffer the supreme penalty of death. The facts are as follows: In an Information dated January 16, 1995, docketed as Criminal Case No. 3998, appellant was charged with Murder, committed as follows:

That on or about the 14th day of November, 1994, at nighttime which was purposely sought, in the Municipality of Catbalogan, Province of Samar, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, armed with a handgun, with deliberate intent to kill, with treachery and evident premeditation, did then and there willfully, unlawfully and feloniously attack, assault and shoot one Nestor Otanguin with the use of said handgun with which the said accused had conveniently provided himself for the purpose, thereby hitting and inflicting upon said Nestor Otanguin gunshot wounds on his body and head, which wounds on his body and head, which directly caused his instantaneous death. CONTRARY TO LAW.2 Upon arraignment on March 3, 1995, appellant pleaded not guilty to the crime charged.3 In an Information dated March 30, 1995, docketed as Criminal Case No. 4039, appellant was charged with Illegal Possession of Firearm and Ammunition (P.D. No. 1866), committed as follows: That on or about the 14th day of November, 1994, in the Municipality of Catbalogan, Province of Samar, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, being then a private person and with deliberate intent to possess, did then and there willfully, unlawfully and feloniously carry, control, possess and have in his possession a Caliber .38 firearm in a public place and outside of his residence without first securing any authority, and/or permit as required by law. CONTRARY TO LAW.4 When arraigned on April 6, 1995, appellant also pleaded not guilty to the crime charged. 5 The two cases were consolidated and joint trial ensued.

Based on the evidence of the prosecution, consisting of the testimonies of minors Rey Abarcar, Allan Federio, Jay-ar Federio, Danelle Ian Malindog; Haide Villamor, Teresita G. Otanguin, Ireneo Ordiano, Jr., Nicandro Canaleja, Dr. Frederick Beda C. Alli, Miguel Gallego and SPO4 Rodrigo Tolentino, the following facts are established: Appellant and victim Nestor Otanguin were neighbors in Barangay 10, Muoz Estate, Catbalogan, Samar. In the afternoon of November 9, 1994, the car in which Nestor, his wife Teresita and his brother-in-law were riding, driven by one Rodante Abarcar who was maneuvering it out of the garage gate of the Otanguin residence, accidentally hit and injured the fighting cock of appellant that was tied near said gate. Teresita immediately told appellant of the incident and promised to talk it over with him later as they were in a hurry to catch up with a plane flight to Tacloban City. Appellant did not say anything and just smiled. Nestor and family left for the airport. At 4:30 in the afternoon of November 14, 1994, appellant, armed with a .38 caliber revolver, was drinking with some friends at a table on a sidewalk near his house at the corner of McKinley Street, a narrow alley. 9-year old Rey Abarcar,6 12-year old Allan Federio, 11-year old Jay-ar Federio and 6-year old Danelle Ian Malindog were playing nearby. At 6:00 in the evening, Nestor was on his way home from work and passed by the place where appellant was drinking with some friends. As Nestor was approaching, appellant fired his gun and invited Nestor to join them and offered him a drink which Nestor accepted. Then Nestor excused himself for home but appellant offered him another drink, which he politely refused. Enraged at the refusal, appellant drew his revolver from his waist and shot Nestor on the chest. When Nestor fell, appellant shot him again at the back of the head, resulting in his immediate death.7 On November 15, 1994, Dr. Frederick Beda C. Alli, Municipal Health Officer, conducted the autopsy on Nestor.From the autopsy report,8 it appears that Nestor died of cardio-respiratory arrest due to gunshot wounds on the head and chest. On the same day, Forensic Analyst Nicandro Canaleja, conducted a paraffin test on the hands of appellant. The test gave a positive result for the presence of gunpowder residue.9 Meanwhile, Ireneo Ordiano, Jr., a ballistics

expert of the National Bureau of Investigation (NBI), conducted a ballistics examination on the two bullets recovered from the body of Nestor. The ballistics report 10 revealed that the bullets were fired from the barrel of a caliber .38 firearm. A certification from the Philippine National Police (PNP) proved that appellant is neither a firearm holder nor a licensee of any firearm of whatever caliber.11 Appellant admits having killed Nestor but claims self-defense. He testified that on the day of the incident, Nestor, armed with a .38 caliber handgun, drew his weapon to fire at appellant but appellant grappled with Nestor for possession of the gun and in the struggle, the gun exploded. He further stated that after he succeeded in wrestling the gun from Nestor, Nestor fought back and held his legs so he fired at Nestor. Thereafter, he left and went to the house of his brother in law. Later, he met Fiscal Wayne Villarin and they went to the Catbalogan Police Station where he surrendered to the police.12 The trial court sustained the evidence presented by the prosecution and found appellants claim of self-defense to be not credible. The trial court likewise found that the prosecution had established that appellant was not a licensee of any firearm. Thus, the trial court held that the crime of murder with the use of an illegally possessed gun was committed by the appellant. In convicting appellant, the trial court, applying People vs. Barros,13 held: In a recent case, People vs. Romeo Barros, GR No. 101107, June 27, 1995, our Supreme Court reversing the trial court which convicted the accused of two offenses of murder and illegal possession of firearm and ammunition under PD 1866 the Supreme Court held that an accused who is charged with having committed murder or homicide with the use of an unlicensed firearm should be liable only for the graver offense of aggravated illegal possession of firearm under the second paragraph of Section 1 of PD 1866 because the situation contemplated therein is from the punitive standpoint, virtually of the nature of the so-called special complex

crimes, which should more appropriately be called composite crimes and only a single penalty is imposed for each of such composite crimes although composed of two or more offenses. 14 Thus, the dispositive portion of the joint decision reads as follows: WHEREFORE, the information for murder against Johnny Malinao in Criminal Case No. 3998 is hereby dismissed and in Criminal Case No. 4039 judgment is hereby rendered finding him guilty beyond reasonable doubt of illegal possession of firearm in its aggravated form under the second paragraph of Sec. 1 of PD 1866 and for this offense he is hereby sentenced to the penalty of death, to indemnify the heirs of the deceased Nestor Otanguin, represented by his wife Teresita G. Otanguin of Catbalogan, Samar, in the amount of Two Hundred Thousand Pesos (P200,000.00), without subsidiary imprisonment in case of insolvency, and to pay the costs. SO ORDERED.15 Hence, the case is before the Court on automatic review under Article 47 of the Revised Penal Code, as amended by Section 22 of Republic Act No. 7659. In his Brief, appellant impugns solely his conviction for illegal possession of firearm. He submits that the trial courts dismissal of the Information for murder operates as an acquittal thereof; hence, he posits that only the conviction for illegal possession of firearms is the subject of herein automatic review. He seeks the retroactive effect of the beneficial provisions of Republic Act No. 8294 which amended P.D. No. 1866 (Illegal Possession of Firearm Law), reducing the penalties provided therein. Prefatorily, it must be stressed that although the appellant himself does not refute the factual findings of the trial court, the Court nonetheless must conduct a thorough examination of the entire records of the case, based on the settled principle that an appeal in a criminal case opens the entire case for review on any question including one not raised by the parties. 16 This rule applies especially to automatic review of death penalty cases before the Supreme Court such as the present. Having received the supreme penalty as imposed by the applicable law, appellant is entitled under that law to have the sentence and all the facts and circumstances upon which

it is founded placed before the Highest Tribunal of the land to the end that its justice and legality may be clearly and conclusively determined.17 Consequently, before the Court resolves appellants submissions, it is imperative that the Court reviews the factual findings and conclusions of the trial court. Appellant admits authorship of the killing and invokes self-defense thereby shifting upon him the burden to prove by clear and convincing evidence, that: (a) the victim unlawfully attacked him; (b) he took the necessary means to repel the attack; and (c) he did not provoke said attack.18 Unfortunately, appellant failed to discharge that burden of evidence since his selfdefense theory remains uncorroborated. An uncorroborated self-defense theory is similar in many respects to bare denial. As such, it must fail as against the positive, categorical and straightforward witness accounts of eyewitnesses Rey Abarcar, Allan Federio, Jay-ar Federio and Danelle Ian Malindog. These prosecution eyewitnesses, minors all, clearly identified the appellant as the aggressor and not the victim Nestor. Without unlawful aggression on the part of the victim, there can be no viable self-defense.19 It is alleged in the Information for Murder that the killing was qualified by treachery and evident premeditation. The trial court did not make a finding as to the existence of any of these qualifying circumstances. It is settled that treachery cannot be presumed but must be proved by clear and convincing evidence as conclusively as the killing itself. To appreciate treachery, two (2) conditions must be present, namely, (a) the employment of means of execution that give the person attacked no opportunity to defend himself or retaliate, and (b) the means of execution were deliberately or consciously adopted.20 In this case, the concurrence of these conditions is firmly anchored on the declarations of the prosecution eyewitnesses Rey Abarcar, Allan Federio, Jay-ar Federio and Danelle Ian Malindog. They witnessed appellant fire his gun and shoot at Nestor on the chest for the latters refusal to drink another glass of liquor and when Nestor fell, they saw appellant

shoot him again at the back of the head. These all too clearly indicate that Nestor could not have foreseen the deadly assault. Nestor was completely unaware of his impending death caused simply by his polite refusal to drink. The means, method, and form of the attack in this case were, therefore, consciously adopted and effectively forestalled Nestor from employing a defense against appellants unexpected attack. On the other hand, the circumstance of evident premeditation did not attend the killing. There was no proof or showing of (a) the time when the offender determined to commit the crime, (b) an act manifestly indicating that the offender had clung to his determination, and (c) a sufficient lapse of time between the determination to commit and the execution thereof, to allow the offender to reflect on the consequences of his act.21 Evident premeditation must be based on external facts which are evident, not merely suspected, which indicate deliberate planning.22 There must be direct evidence showing a plan or preparation to kill, or proof that the accused meditated and reflected upon his decision to kill the victim. 23 No such evidence was presented to prove the presence of this circumstance. With the presence of qualifying circumstance of treachery, which was established as clear as the killing itself, the crime committed is murder. Regarding the charge of illegal possession of firearm, conviction requires the concurrence of two (2) essential requisites: (a) the existence of the firearm, and (b) the fact that the appellant who owned or possessed the firearm does not have a license to possess the same. Both elements were established by the prosecution. In People vs. Orehuela,24 the Court held that the existence of the firearm can be established by testimony, even without the presentation of the said firearm.25 In this case, while the firearm was not presented in evidence, the existence of

the same was sufficiently established by (a) the categorical testimonies of the prosecution eyewitnesses that appellant was in possession of a firearm handgun described as caliber 32, 26 a shortgun,27 and a small gun28 and had used it to kill Nestor, (b) the paraffin test on the hands of appellant tested positive for the presence of gunpowder residue, 29 and (c) the ballistics report revealed that the two bullets taken from the body of Nestor were fired from the barrel of a caliber .38 firearm.30 The prosecution proved the second element by presenting a certification from the PNP to the effect that appellant is neither a firearm holder nor a licensee of any firearm of whatever caliber.31 The guilt of appellant as to the crimes of murder and illegal possession of firearm having been established beyond reasonable doubt, the Court now turns to the claim of appellant that only his conviction for illegal possession of firearm should be the subject of herein automatic review because the trial court had dismissed the Information for murder. Appellants claim is not plausible. The trial court clearly found appellant guilty beyond reasonable doubt of the crime of murder, but merely considered it as aggravating circumstance in the crime of illegal possession of firearm, applying People vs. Barros32 Inevitably, the

contrariety arose when the trial court erroneously ordered the dismissal of the Information for Murder despite having earlier found in the text of his decision that the appellant is guilty of murder beyond reasonable doubt and having considered the crime of Murder as an aggravating circumstance in finding him guilty of illegal possession of firearm in its aggravated form under Sec. 1 of P.D. No. 1866. It is elementary that the dispositive part of the judgment should not be interpreted in a manner contrary to its ratio decidendi.33 The dispositive part should be construed in harmony with the spirit of the decision as revealed in the text of the decision. The crimes of murder and illegal possession of firearm were committed by appellant in 1994. Two separate Informations were filed but the cases were tried jointly as they sprung from the same incident involving the same victim and accused. The prevailing laws at that time are Article 249 of the Revised Penal Code and P.D. No. 1866. At this point, it is imperative for the Court, so as to serve as a guide for the Bench and the Bar, to reproduce the separate opinion of illustrious Mr. Justice Florenz D. Regalado in the Barros case which was mentioned in the ponencia of then Chief Justice Andres R. Narvasa as having been subscribed to by all the then Members of the Court and now being made an integral part of herein decision, viz: The main concern was as to whether or not, whenever a killing is effected with the use of an unlicensed firearm, the malefactor should be punished separately for both offenses, with the unlawful taking of life to be proceeded against under the corresponding provision of the Revised Penal Code and the illegal possession of the firearm under Presidential Decree No. 1866. The case now before the Court presents an opportunity for a reevaluation of the previous rulings on this issue. A little legal archaeology would be in order. Presidential Decree No. 1866 took effect on June 29, 1983, imposing the stringent penalties therein by reason of the upsurge of crimes vitally affecting public order and safety due to the proliferation of illegally possessed and manufactured firearms, ammunition and explosives. The pertinent portion of Section 1 thereof provides for simple possession in the first paragraph and for one of the aggravated forms in the second paragraph, as follows: The penalty of reclusion temporal in its maximum period to reclusion perpetua shall be imposed upon any person who shall unlawfully manufacture, deal in, acquire, dispose (of) or possess any firearm, part of firearm, ammunition or machinery, tool or instrument used or intended to be used in the manufacture of any firearm or ammunition.

If homicide or murder is committed with the use of an unlicensed firearm, the penalty of death shall be imposed. At that time, the penalty for homicide was, as it still is, reclusion temporal in its full extent under Article 249 of the Code. The penalty for murder then was reclusion temporal in its maximum period to death under Article 248, although the death penalty was proscribed for some time by the 1987 Constitution. Thereafter, effective December 31, 1993, the penalty for murder was increased to reclusion perpetua to death when Article 248 of the Code was amended by Section 6 of Republic Act No. 7659. Obviously, then, the single indivisible penalty of death provided by Presidential Decree No. 1866 was designed to impose, as it still imposes, a higher penalty whenever an unlicensed firearm was used as the instrument for the commission of either homicide or murder, and such penalty shall be applied regardless of any mitigating or aggravating circumstances. Under the dispositions heretofore made by the Court involving the crimes of homicide or murder through the use of an illegally possessed firearm, and the same is true with the case at bar, the following queries may be posed: 1.Should the crimes of homicide or murder, which are the end results, be punished separately from and in addition to the liability for illegal possession of the firearm as the instrument or the means employed? 2.On the other hand, should not the principal and sole offense be the aggravated form of illegal possession of a firearm under the second paragraph of Section 1 of Presidential Decree No. 1866, with the homicide or murder being absorbed therein as an integral element of the crime in its aggravated form? 3.If either homicide or murder and illegal possession of firearm are so charged in one and the same information, should they be considered and punished as a single offense of homicide or murder with the use of an unlicensed firearm, or as a case of aggravated illegal possession of firearm resulting in homicide or murder, with the death penalty to be imposed in either case? 4.If homicide or murder is charged in a separate information while aggravated illegal possession of firearm is made the subject of a separate indictment filed simultaneously with or prior or subsequent to the former, but with the respective informations on the killing and the illegal possession mutually alleging facts regarding the other offense as an attendant circumstance, should the accused be held liable for two distinct crimes regardless of whether the cases are jointly tried by the same court or separately by the two courts where the informations were independently filed? On the first question, it is true that from the theoretical concept of the requisite mens rea, the killing as the result of the criminal design arose from a specific criminal intent, that is, the animus interficendi or intent to kill. The illegal possession of the firearm requires a discrete and

specific intent to possess the weapon, which is the animus possidendi, coupled with the physical possession thereof. It would, therefore, appear at first blush that the two offenses having arisen from different criminal intents, this would be, under the philosophical bases for concurso de delitos, a case of material or real plurality under which different crimes have been committed and for each of which a separate criminal liability attaches. The flaw in this approach, however, is that although two crimes have been committed, they are not altogether separate or disconnected from each other both in law and in fact. The illegally-possessed firearm having been the weapon used in the killing, the former was at least the necessary, although not an indispensable, means to commit the other. The situation thus borders closer to the concept of a complex crime proper, technically known as a delito complejo, rather than to the postulate of two separate crimes. It is true that former doctrines were to the effect that there can be no complex crime where one of the component offenses is punished by a special law. The rationale therefore was that in a complex crime, Article 48 of the Code prescribes that the penalty shall be for the gravest offense to be applied in its maximum period. Since, at that time, the penalties for crimes provided in special laws were not divided into periods, it would be impossible to apply Article 48. The ratiocination no longer applies now, specifically with respect to the case at bar, since the penalties in Presidential Decree No. 1866 were all taken from the scale of penalties in the Code. The only possible difficulty in this novatory approach would be on the first kind of complex crime, that is, the delito compuesto since it exists (w)hen a single act constitutes two or more grave or less grave felonies. The use of that particular term for the delicts committed bars the application of that form of complex crime to offenses under Presidential Decree No. 1866, since felonies are offenses provided and defined in the Code. That objection would not, however, apply to a delito complejo since it is sufficient therefor that an offense is a necessary means for committing the other. By these considerations, however, the writer does not mean to imply that a killing through the use of an illegally-possessed firearm is a delito complejo under Article 48 of the Code. As was carefully stated, such an offense merely borders closer to or approximates the concept of a delito complejo, but it thereby emphasizes the thesis that the offenses should not be considered as separate crimes to be individually punished under the principle of material plurality. This premise accordingly brings up the second query as to whether or not the crime should properly be the aggravated illegal possession of an unlicensed firearm through the use of which a homicide or murder is committed. It is submitted that an accused so situated should be liable only for the graver offense of aggravated illegal possession of the firearm punished by death under the second paragraph of Section 1, Presidential Decree No. 1866, and it is on this point that the writer dissents from the holding which would impose a separate penalty for the homicide in addition to that for the illegal possession of the firearm used to commit the former.

If the possession of the unlicensed firearm is the only offense imputable to the accused, the Court has correctly held that to be the simple possession punished with reclusion temporal in its maximum period to reclusion perpetua in the first paragraph of Section 1. Where, complementarily, the unlicensed firearm is used to commit homicide or murder, then either of these felonies will convert the erstwhile simple illegal possession into the graver offense of aggravated illegal possession. In other words, the homicide or murder constitutes the essential element for integrating into existence the capital offense of the aggravated form of illegal possession of a firearm. Legally, therefore, it would be illogical and unjustifiable to use the very same offenses of homicide or murder as integral elements of and to create the said capital offense, and then treat the former all over again as independent offenses to be separately punished further, with penalties immediately following the death penalty to boot. The situation contemplated in the second query is, from the punitive standpoint, virtually of the nature of the so-called special complex crimes, which should more appropriately be called composite crimes, punished in Article 294, Article 297 and Article 335. They are neither of the same legal basis as nor subject to the rules on complex crimes in Article 48, since they do not consist of a single act giving rise to two or more grave or less grave felonies nor do they involve an offense being a necessary means to commit another. However, just like the regular complex crimes and the present case of aggravated illegal possession of firearms, only a single penalty is imposed for each of such composite crimes although composed of two or more offenses. On the other hand, even if two felonies would otherwise have been covered by the conceptual definition of a complex crime under Article 48, but the Code imposes a single definite penalty therefor, it cannot also be punished as a complex crime, much less as separate offenses, but with only the single penalty prescribed by law. Thus, even where a single act results in two less grave felonies of serious physical injuries and serious slander by deed, the offense will not be punished as a delito compuesto under Article 48 but as less serious physical injuries with ignominy under the second paragraph of Article 265. The serious slander by deed is integrated into and produces a graver offense, and the former is no longer separately punished. What is, therefore, sought to be stressed by such alternative illustration, as sell as the discussion on complex and composite crimes, is that when an offense becomes a component of another, the resultant crime being correspondingly punished as thus aggravated by the integration of the other, the former is not to be further separately punished as the majority would want to do with the homicide involved in the case at bar. With the foregoing answers to the second question, the third inquiry is more of a question of classification for purposes of the other provisions of the Code. The theory in Tac-an that the principal offense is the aggravated form of illegal possession of firearm and the killing shall merely be included in the particulars or, better still, as an element of the principal offense, may be conceded. After all, the plurality of crimes here is actually sourced from the very provisions of Presidential Decree No. 1866 which sought to consolidate, codify and integrate the various laws and presidential decrees to harmonize their provisions which must be updated and revised in order to more effectively deter violators of said laws.

This would be akin to the legislative intendment underlying the provisions of the AntiCarnapping Act of 1972, wherein the principal crime to be charged is still carnapping, although the penalty therefore is increased when the owner, driver or occupant of the carnapped vehicle is killed. The same situation, with escalating punitive provisions when attended by a killing, are found in the Anti-Piracy and Anti-Highway Robbery Law of 1974 and the Anti-Cattle Rustling Law of 1974, wherein the principal crimes still are piracy, highway robbery and cattle rustling. Also, in the matter of destructive arson, the principal offense remains as arson although the same becomes a capital offense when, inter alia, death results as a consequence of the commission of any of the acts punished under said article of the Code. In the present case, the academic value of specifying whether it is a case of illegal possession of firearm resulting in homicide or murder, or, conversely, homicide or murder through the illegal possession and use of an unlicensed firearm, would lie in the possible application of the provision on recidivism. Essentially, it would be in the theoretical realm since, taken either way, the penalty for aggravated illegal possession of a firearm is the single indivisible penalty of death, in which case the provision on recidivism would not apply. If, however, the illegal possession is not established but either homicide or murder is proved, then the matter of recidivism may have some significance in the sense that, for purposes thereof, the accused was convicted of a crime against persons and he becomes a recidivist upon conviction of another crime under the same title of the Code. Lastly, on the matter of the offense or offenses to be considered and the penalty to be imposed when the unlawful killing and the illegal possession are charged in separate informations, from what has been said the appropriate course of action would be to consolidate the cases and render a joint decision thereon, imposing a single penalty for aggravated illegal possession of firearm if such possession and the unlawful taking of life shall have been proved, or for only the proven offense which may be either simple illegal possession, homicide or murder per se. The same procedural rule and substantive disposition should be adopted if one information for each offense was drawn up and these informations were individually assigned to different courts or branches of the same court. Indeed, the practice of charging the offense of illegal possession separately from the homicide or murder could be susceptible of abuse since it entails undue concentration of prosecutorial powers and discretion. Prefatorily, the fact that the killing was committed with a firearm will necessarily be known to the police or prosecutorial agencies, the only probable problem being the determination and obtention of evidence to show that the firearm is unlicensed. Now, if a separate information for homicide or murder is filed without alleging therein that the same was committed by means of an unlicensed firearm, the case would not fall under Presidential Decree No. 1866. Even if the use of a firearm is alleged therein, but without alleging the lack of a license therefor as where that fact has not yet been verified, the mere use of a firearm by itself, even if proved in that case, would not affect the accused either since it is not an aggravating or qualifying circumstance.

Conversely, if the information is only for illegal possession, with the prosecution intending to file thereafter the charge for homicide or murder but the same is inexplicably delayed or is not consolidated with the information for illegal possession, then any conviction that may result from the former would only be for simple illegal possession. If, on the other hand, the separate and subsequent prosecution for homicide or murder prospers, the objective of Presidential Decree No. 1866 cannot be achieved since the penalty imposable in that second prosecution will only be for the unlawful killing and further subject to such modifying circumstances as may be proved. In any event, the foregoing contingencies would run counter to the proposition that the real offense committed by the accused, and for which sole offense he should be punished, is the aggravated form of illegal possession of a firearm. Further, it is the writers position that the possible problems projected herein may be minimized or obviated if both offenses involved are charged in only one information or that the trial thereof, if separately charged, be invariably consolidated for joint decision. Conjointly, this is the course necessarily indicated since only a single composite crime is actually involved and it is palpable error to deal therewith and dispose thereof by segregated parts in piecemeal fashion.34 (Emphasis supplied) However, pending review of the trial courts decision, R.A. No. 8294 was enacted on July 6, 1997, amending P.D. No. 1866. Its effect on crimes of illegal possession of firearm and murder or homicide, committed before the enactment of said law and on P.D. No. 1866 is explicitly defined in People vs. Tadeo,35 to wit: Finally, we must reverse and set aside the conviction of the accused in Crim. Case No. 23-499 where he was charged with illegal possession of a firearm used in perpetrating the homicide and attempted homicide, i.e., violation of par. 2, Sec. 1, P.D. 1866, as a result of the decriminalization of violations of P.D. 1866 by R.A. 8294 where the unlicensed firearm is used in carrying out the commission of other crimes Sec. 1.Unlawful Manufacture, Sale, Acquisition, Disposition or Possession of Firearms or Ammunition or Instruments Used or Intended to be Used in the Manufacture of Firearms or Ammunition. The penalty of prision correccional in its maximum period and a fine of not less than Fifteen Thousand Pesos (P15,000.00) shall be imposed upon any person who shall unlawfully manufacture, deal in, acquire, dispose, or possess any low powered firearm, such as rimfire handgun, .380 or .32 and other firearm of similar firepower, part of firearm, ammunition, or machinery, tool or instrument used or intended to be used in the manufacture

of any firearm or ammunition. Provided, that no other crime was committed . . . If homicide or murder is committed with the use of an unlicensed firearm, such use of an unlicensed firearm shall be considered as an aggravating circumstance. The foregoing amendments obviously blur the distinctions between murder and homicide on one hand, and qualified illegal possession of firearms used in murder or homicide on the other. We have declared that the formulation in R.A. 8294, i.e., (I)f homicide or murder is committed with the use of an unlicensed firearm, such use of an unlicensed firearm shall be considered as an aggravating circumstance, signifies a legislative intent to treat as a single offense the illegal possession of firearms and the commission of murder or homicide with the use of an unlicensed firearm. Thus where an accused used an unlicensed firearm in committing homicide or murder, he may no longer be charged with what used to be the two (2) separate offenses of homicide or murder under The Revised Penal Code and qualified illegal possession of firearms used in homicide or murder under P.D. 1866; in other words, where murder or homicide was committed, the penalty for illegal possession of firearms is no longer imposable since it becomes merely a special aggravating circumstance. The use of an unlicensed firearm cannot be considered however as a special aggravating circumstance in Crim. Case No. 23-498 and Crim. Case No. 23-494. For one, it was not alleged as an aggravating circumstance in the Informations for murder and frustrated murder which is necessary under our present Revised Rules of Criminal Procedure. Moreover, even if alleged, the circumstance cannot be retroactively applied to prejudice accused-appellant; it must be stressed that RA 8294 took effect only on 6 July 199436 while the crimes involved herein were committed on 4 November 1993. In any event, as correctly observed by the Solicitor General, there is no evidence proving the illicit character of the .38 cal. Revolver used by appellant in killing Mayolito Cabatu and in trying to kill Florencia Cabatu, as to which requisite of the crime the record is eerily silent.37 (Emphasis supplied) Applied to the present case, appellant may not now be convicted of illegal possession of firearm in its aggravated form by considering the commission of Murder or Homicide as an aggravating circumstance because under R.A. No. 8294, the use of an unlicensed firearm in a murder or homicide case is considered simply as a special aggravating circumstance in the crime of homicide or murder and no longer treated as a separate offense in its aggravated form. It should be noted however that in either case, whether for illegal use of firearm in its aggravated form under P.D. No. 1866 as discussed in the Barros case or whether Murder or Homicide is committed with the use of an unlicensed firearm, the imposable penalty is death.

The use of the unlicensed firearm by appellant in killing Nestor may not be used against appellant as a special aggravating circumstance because there is no allegation in Criminal Case No. 3998 that the crime of Murder was committed with the use of an unlicensed firearm, as mandated by Section 8 of Rule 110 of the Revised Rules of Criminal Procedure; 38 in much the same way as in Criminal Case No. 4039, it is not alleged in the Information that the use of illegal firearm caused murder or homicide. In fine, appellant may be held liable only for murder which is punishable by reclusion perpetua to death under Article 248 of the Revised Penal Code as amended by R.A. No. 7659. Nighttime, while alleged in the information, cannot be appreciated as an aggravating circumstance because there is no evidence that appellant purposely sought nighttime to facilitate the killing or to insure its execution or accomplishment or to evade his arrest.39 But the mitigating circumstance of voluntary surrender should be appreciated in favor of the appellant. First, he had not been actually arrested at the time he surrendered; second, he surrendered to a person in authority; and third, his surrender was voluntary.40 The records reveal that appellant surrendered to a person in authority in the evening of November 14, 1995 after the killing41 of Nestor in the afternoon of the same day. Under Article 24842 of the Revised Penal Code, as amended, the penalty for murder is reclusion perpetua to death. Article 6343 of the same Code states that when the law prescribes a penalty

consisting of two indivisible penalties and the crime is attended by a mitigating circumstance and no aggravating circumstance, the lesser penalty shall be imposed. Thus, for the murder of Nestor, we reduce the penalty of the appellant from death to reclusion perpetua. Regarding the amount of damages, we note that the trial court awarded civil indemnity in the amount of P200,000.00. Under prevailing jurisprudence, the Court has set the amount at P50,000.00.44 In murder, the grant of civil indemnity requires no proof other than the fact of death as a result of the crime and proof of the appellants responsibility therefor.45 However, the award of civil indemnity is separate and distinct from the award of moral damages which is based on a different jural foundation and assessed by the court in the exercise of sound discretion. The prosecution has amply demonstrated by competent evidence that the heirs suffered mental anguish and wounded feelings.46 Thus, the heirs of Nestor are entitled to moral damages pegged at P50,000.00 by controlling case law.47 Actual damages must likewise be awarded. While the widow, Teresita G. Otanguin, submitted a summary of expenses in the total amount of P228,557.00,48 incurred due to the death of her husband, only receipts for funeral services (P18,000.00),49 tomb lot (P25,000.00),50 and tomb

construction (P11,707.00)51 were offered in evidence. Actual damages may only be awarded for expenses duly supported by receipts.52 Courts cannot simply rely on speculation, conjecture or guesswork in determining the fact and amount of damages.53 Hence, only P54,707.00 must be awarded as actual damages. Moreover, the heirs of Nestor are also entitled to damages for the loss of the latters earning capacity. In fixing the indemnity, account is taken of the victims actual income at the time of his death and his probable life expectancy.54 Thus, in People vs. Napalit55 the following formula was adopted by this Court: New earning capacity = 2/3 x (80-age of the victim at the time of this death a reasonable portion of the annual net income which would have been received by the heirs for support.

In the absence of proof of living expenses, the net income is deemed to be 50% of the gross income.56 Nestor was 38 years old at the time of his death.57 Per Certification58 of the Philippine National Bank where Nestor worked as an Investment Specialist, his annual income is P55,380.00. Thus,

by reason of the death of the victim, the heirs should be awarded the amount of P775,320.00 for loss of earning capacity, computed as follows: Net earning capacity = 2/3 x (80-38) x [P55,380.00-1/2 (P27,690.00)] = 2/3 x (42) x P 27, 690.00 = 28 x P 27, 690.00 = P775,320.00

Finally, the Court awards exemplary damages in the amount of P25,000.00, inasmuch as the qualifying circumstance of treachery attended in the killing of Nestor. In People vs. Catubig,59 we emphasized that insofar as the civil aspect of the crime is concerned, exemplary damages in the amount of P25,000.00 is recoverable if there is present an aggravating circumstance, whether qualifying or ordinary, in the commission of the crime.60 WHEREFORE, the Decision dated October 31, 1996 of the Regional Trial Court of Catbalogan, Samar (Branch 29) is MODIFIED. The appellant, Johnny Malinao y Nobe, is found GUILTY beyond reasonable doubt of murder and sentenced to suffer the penalty of reclusion perpetua. The appellant is also ordered to pay the heirs of the victim, Nestor Otanguin, the amounts of Fifty Thousand Pesos (P50,000.00) as civil indemnity; Fifty Thousand Pesos (P50,000.00) as moral damages; Fifty Four Thousand Seven Hundred Seven Pesos (P54,707.00) as actual damages; Seven Hundred Seventy Five Thousand Three Hundred Twenty Pesos (P775,320.00) as loss of earning capacity; and Twenty Five Thousand Pesos (P25,000.00) as exemplary damages. SO ORDERED.

G.R. No. 159186 Present: YNARES-SANTIAGO, J., ESSE Y. YAP, Petitioner, - versus Chairperson, CARPIO,* CORONA,**

HON. MONICO G. CABALES, Presiding Judge, NACHURA, and Regional Trial Court, Branch 35, General Santos City; MUNICIPAL TRIAL COURT, PERALTA, JJ. Branch 1, General Santos City; COURT OF APPEALS, PEOPLE OF THE PHILIPPINES, Promulgated: JOVITA DIMALANTA and MERGYL MIRABUENO, June 5, 2009 Respondents. x--------------------------------------------------x DECISION PERALTA, J.: This is a petition for review on certiorari under Rule 45 of the Rules of Court with prayer for the issuance of a writ of preliminary injunction and/or issuance of status quo order seeking to annul and set aside the Resolution53[1] of the Court of Appeals (CA) dated July 17, 2003 denying

petitioner's motion for reconsideration of the Decision54[2] dated April 30, 2003 in CA-G.R. SP No. 68250.

The facts of the case are as follows:

Petitioner Jesse Y. Yap and his spouse Bessie Yap are engaged in the real estate business through their company Primetown Property Group.

Sometime in 1996, petitioner purchased several real properties from a certain Evelyn Te (Evelyn). In consideration of said purchases, petitioner issued several Bank of the Philippine Islands (BPI) postdated checks to Evelyn. Thereafter, spouses Orlando and Mergyl Mirabueno and spouses Charlie and Jovita Dimalanta, rediscounted the checks from Evelyn. chanroblesvirtuallawlibrary

chanroblesvirtuallawlibrary

In the beginning, the first few checks were honored by the bank, but in the early part of 1997, when the remaining checks were deposited with the drawee bank, they were dishonored for the reason that the Account is Closed. Demands were made by Spouses Mirabueno and Spouses Dimalanta to the petitioner to make good the checks. Despite this, however, the latter failed to pay the amounts represented by the said checks.

On December 8, 1997, Spouses Mirabueno filed a civil action for collection of sum of money, damages and attorney's fee with prayer for the issuance of a writ of preliminary attachment against petitioner before the Regional Trial Court (RTC) of General Santos City, docketed as Civil Case No. 6231.55[3] On December 15, 1997, Spouses Dimalanta followed suit and instituted a similar action, which was docketed as Civil Case No. 6238.56[4] chanroblesvirtuallawlibrary

Subsequently, on various dates, the Office of the City Prosecutor of General Santos City filed several informations for violation of Batas Pambansa Bilang (B.P. Blg.) 22 against the petitioner with the Municipal Trial Court in Cities (MTCC), General Santos City. The criminal complaints were docketed as Criminal Case Nos. 34873, 34874, 34862 to 34869, and Criminal Case No. 35522-I.57[5] chanroblesvirtuallawlibrary

chanroblesvirtuallawlibrary

In the criminal cases, petitioner filed separate motions to suspend proceedings on account of the existence of a prejudicial question and motion to exclude the private prosecutor

from participating in the proceedings.58[6] Petitioner prayed that the proceedings in the criminal cases be suspended until the civil cases pending before the RTC were finally resolved. chanroblesvirtuallawlibrary

The MTCC, in its Orders59[7] dated June 21, 2000 and July 4, 2000, denied the motions for lack of merit. Petitioner filed a Partial Motion for Reconsideration60[8] relative to Criminal Case Nos. 34873, 34874, 34862 to 34869 and a Motion for Reconsideration of the Part of the Order Denying the Motion to Suspend Proceedings on Account of the Existence of a Prejudicial Question relative to Criminal Case No. 35522-I.61[9] The subsequent motions were denied in the Order62[10] dated October 18, 2000. chanroblesvirtuallawlibrary

chanroblesvirtuallawlibrary

Aggrieved, petitioner filed a Petition for Certiorari with a Prayer for the Issuance of a Writ of Preliminary Injunction63[11] before the RTC, docketed as SPL. Civil Case No. 539, imputing grave abuse of discretion on the part of the MTCC Judge. On July 2, 2001, the RTC issued an Order64[12] denying the petition. chanroblesvirtuallawlibrary

Petitioner then filed a Motion for Reconsideration,65[13] which was denied in an Order dated October 18, 2001.66[14] chanroblesvirtuallawlibrary

Thereafter, petitioner filed with the CA a Petition for Certiorari Prohibition and Mandamus with Urgent Prayer for the Issuance of Status Quo Order and Writ of Preliminary Injunction,67[15] docketed as CA-G.R. SP No. 68250.

On April 30, 2003, the CA rendered a Decision68[16] dismissing the petition for lack of merit. The CA opined that Civil Case Nos. 6231 and 6238 did not pose a prejudicial question to the prosecution of the petitioner for violation of B.P. Blg. 22. chanroblesvirtuallawlibrary

The CA ruled: chanroblesvirtuallawlibrary

In the instant case, a careful perusal of Civil Cases Nos. 6231 and 6238 reveals that the issue involved therein is not the validity of the sale as incorrectly pointed out by the petitioner, but it is, whether or not the complainants therein are entitled to collect from the petitioner the sum or the value of the checks which they have rediscounted from Evelyn Te. It behooves this Court to state that the sale and the rediscounting of the checks are two transactions, separate and distinct from each other. It so happened that in the subject civil cases it is not the sale that is in question, but rather the rediscounting of the checks. Therefore, petitioner's contention that the main issue involved in said civil cases is the validity of the sale stands on hollow ground. Furthermore, if it is indeed the validity of the sale that is contested in the subject civil cases, then, We cannot fathom why the petitioner never contested such sale by filing an action for the annulment thereof or at least invoked or prayed in his answer that the sale be declared null and void. Accordingly, even if Civil Cases Nos. 6231 and 6238 are tried and the resolution of the issues therein is had, it cannot be deduced therefrom that the petitioner cannot be held liable anymore for violation of B.P. Blg. 22.69[17] chanroblesvirtuallawlibrary

Petitioner filed a Motion for Reconsideration,70[18] which was denied in the Order71[19] dated July 17, 2003. chanroblesvirtuallawlibrary

Hence, the petition assigning the following errors: chanroblesvirtuallawlibrary

1. THE HONORABLE COURT OF APPEALS ERRED IN RULING THAT THERE IS NO PREJUDICIAL QUESTION IN THE CIVIL CASES (FOR COLLECTION OF SUMS OF MONEY INSTITUTED BY PRIVATE RESPONDENTS OVER CHECKS ISSUED BY THE PETITIONER, CIVIL CASE NOS. 6238 AND 6231) THAT WOULD WARRANT SUSPENSION OF THE CRIMINAL CASES (CASE NO. 35522-1, FOR VIOLATION OF B.P. 22, SUBJECT OF WHICH ARE THE VERY SAME CHECKS).

2. THE HONORABLE COURT OF APPEALS ERRED IN NOT GRANTING THE PRAYER FOR THE ISSUANCE OF A WRIT OF PRELIMINARY INJUNCTION AND/OR STATUS QUO ORDER.72[20]

The main contention of the petitioner is that a prejudicial question, as defined by law and jurisprudence, exists in the present case. It is the petitioner's assertion that Civil Case Nos.

6231 and 6238 for collection of sum of money and damages were filed ahead of the criminal cases for violation of B.P. Blg. 22. He further alleged that, in the pending civil cases, the issue as to whether private respondents are entitled to collect from the petitioner despite the lack of consideration, is an issue that is a logical antecedent to the criminal cases for violation of B.P. Blg. 22. For if the court rules that there is no valid consideration for the check's issuance, as petitioner contends, then it necessarily follows that he could not also be held liable for violation of B.P. Blg. 22. chanroblesvirtuallawlibrary

Petitioner further avers that B.P. Blg. 22 specifically requires, among other elements, that the check should have been issued for account or for value. There must be a valid consideration; otherwise, no violation of the said law could be rightfully pursued. Petitioner said that the reason for the dishonor of the checks was his order to the drawee bank to stop payment and to close his account in order to avoid necessary penalty from the bank. He made this order due to the failure of Evelyn to deliver to him the titles to the purchased properties to him. chanroblesvirtuallawlibrary

On the other hand, the Office of the Solicitor General (OSG) contends that there is no prejudicial question in Civil Case Nos. 6231 and 6238 which would warrant the suspension of the proceedings in the criminal cases for violation of B.P. Blg. 22 against the petitioner. The issue in the civil cases is not the validity of the sale between the petitioner and Evelyn, but whether the complainants therein are entitled to damages arising from the checks. These checks were issued by the petitioner in favor of Evelyn, who, thereafter, negotiated the same checks to private complainants. The checks were subsequently dishonored due to insufficiency of funds. The OSG maintains that the resolution of such issue has absolutely no bearing on the

issue of whether petitioner may be held liable for violation of B.P. Blg. 22.73[21] chanroblesvirtuallawlibrary

The present case hinges on the determination of whether there exists a prejudicial question that necessitates the suspension of the proceedings in the MTCC.

chanroblesvirtuallawlibrary

We find that there is none and, thus, we resolve to deny the petition. chanroblesvirtuallawlibrary

A prejudicial question generally exists in a situation where a civil action and a criminal action are both pending, and there exists in the former an issue that must be preemptively resolved before the latter may proceed, because howsoever the issue raised in the civil action is resolved would be determinative juris et de jure of the guilt or innocence of the accused in the criminal case. The rationale behind the principle of prejudicial question is to avoid two conflicting decisions. It has two essential elements: (i) the civil action involves an issue similar or intimately related to the issue raised in the criminal action; and (ii) the resolution of such issue determines whether or not the criminal action may proceed.74[22]

If both civil and criminal cases have similar issues, or the issue in one is intimately related to the issues raised in the other, then a prejudicial question would likely exist, provided the other element or characteristic is satisfied. It must appear not only that the civil case involves the same facts upon which the criminal prosecution would be based, but also that the resolution of the issues raised in the civil action would be necessarily determinative of the guilt or innocence of the accused. If the resolution of the issue in the civil action will not determine the criminal responsibility of the accused in the criminal action based on the same facts, or if there is no necessity that the civil case be determined first before taking up the criminal case, the civil case does not involve a prejudicial question.75[23] Neither is there a prejudicial question if the civil and the criminal action can, according to law, proceed independently of each other.76[24]

The issue in the criminal cases is whether the petitioner is guilty of violating B.P. Blg. 22, while in the civil case, it is whether the private respondents are entitled to collect from the petitioner the sum or the value of the checks that they have rediscounted from Evelyn.

The resolution of the issue raised in the civil action is not determinative of the guilt or innocence of the accused in the criminal cases against him, and there is no necessity that the civil case be determined first before taking up the criminal cases.

In the aforementioned civil actions, even if petitioner is declared not liable for the payment of the value of the checks and damages, he cannot be adjudged free from criminal liability for

violation of B.P. Blg. 22. The mere issuance of worthless checks with knowledge of the insufficiency of funds to support the checks is in itself an offense.77[25]

In Jose v. Suarez,78[26] the prejudicial question under determination was whether the daily interest rate of 5% was void, such that the checks issued by respondents to cover said interest were likewise void for being contra bonos mores, and thus the cases for B.P. Blg. 22 will no longer prosper. In resolving the issue, We ruled that whether or not the interest rate imposed by petitioners is eventually declared void for being contra bonos mores will not affect the outcome of the BP Blg. 22 cases because what will ultimately be penalized is the mere issuance of bouncing checks. In fact, the primordial question posed before the court hearing the B.P. Blg. 22 cases is whether the law has been breached; that is, if a bouncing check has been issued.

Further, We held in Ricaforte v. Jurado,79[27] that:

The gravamen of the offense punished by B.P. Blg. 22 is the act of making and issuing a worthless check; that is, a check that is dishonored upon its presentation for payment. In Lozano v. Martinez, we have declared that it is not the non-payment of an obligation which the law punishes. The law is not intended or designed to coerce a debtor to pay his debt. The thrust of the law is to prohibit, under pain of penal sanctions, the making and circulation of worthless checks. Because of its deleterious effects on the public interest, the practice is proscribed by the law. The law punishes the act not as an offense against property, but an offense against public order. In People v. Nitafan, we

said that a check issued as an evidence of debt - though not intended to be presented for payment - has the same effect as an ordinary check and would fall within the ambit of B.P. Blg. 22.

xxxx x x x The mere act of issuing a worthless check - whether as a deposit, as a guarantee or even as evidence of pre-existing debt - is malum prohibitum. To determine the reason for which checks are issued, or the terms and conditions for their issuance, will greatly erode the faith the public reposes in the stability and commercial value of checks as currency substitutes, and bring about havoc in trade and in banking communities. So what the law punishes is the issuance of a bouncing check and not the purpose for which it was issued or the terms and conditions relating to its issuance. The mere act of issuing a worthless check is malum prohibitum.80[28]

Moreover, petitioner's reliance on Ras v. Rasul81[29] is misplaced. The case of Ras involves a complaint for nullification of a deed of sale on the ground of an alleged double sale. While the civil case was pending, an information for estafa was filed against Ras (the defendant in the civil case) arising from the same alleged double sale, subject matter of the civil complaint. The Court ruled that there was a prejudicial question considering that the defense in the civil case was based on the very same facts that would be determinative of the guilt or innocence of the accused in the estafa case.

The instant case is different from Ras, inasmuch as the determination of whether the petitioner is liable to pay the private respondents the value of the checks and damages, will not affect the guilt or innocence of the petitioner because the material question in the criminal cases is whether petitioner had issued bad checks, regardless of the purpose or condition of its issuance. Guided by the following legal precepts, it is clear that the determination of the issues involved in Civil Case Nos. 6231 and 6238 for collection of sum of money and damages is irrelevant to the guilt or innocence of the petitioner in the criminal cases for violation of B.P. Blg. 22.

In addition, petitioner's claim of lack of consideration may be raised as a defense during the trial of the criminal cases against him. The validity and merits of a partys defense and accusation, as well as the admissibility and weight of testimonies and evidence brought before the court, are better ventilated during trial proper. Precisely, the reason why a state has courts of law is to ascertain the respective rights of the parties, to examine and to put to test all their respective allegations and evidence through a well designed machinery termed trial. Thus, all the defenses available to the accused should be invoked in the trial of the criminal cases. This court is not the proper forum that should ascertain the facts and decide the case for violation of B.P. Blg. 22 filed against the petitioner. chanroblesvirtuallawlibrary

In fine, the CA committed no reversible error in affirming the decision of the RTC. chanroblesvirtuallawlibrary

WHEREFORE, the petition is DENIED and the Decision dated April 30, 2003 and the Resolution dated July 17, 2003 of the Court of Appeals in CA-G.R. SP No. 68250 are AFFIRMED. chanroblesvirtuallawlibrary

MACA-ANGCOS ALAWIYA y ABDUL, ISAGANI ABDUL y SIACOR, and SARAH LANGCO y ANGLI, Petitioners, vs. COURT OF APPEALS, SECRETARY OF JUSTICE SIMEON A. DATUMANONG, P/C INSP. MICHAEL ANGELO BERNARDO MARTIN, P/INSP. ALLANJING ESTRADA MEDINA, PO3 ARNOLD RAMOS ASIS, PO2 PEDRO SANTOS GUTIERREZ, PO2 IGNACIO DE PAZ, and PO2 ANTONIO SEBASTIAN BERIDA, JR., Respondents. DECISION CARPIO, J.: The Case Before the Court is a petition for review1 assailing the 4 February 2004 Decision2 and 25 June 2004 Resolution3 of the Court of Appeals in CA-G.R. SP No. 76345. The Court of Appeals dismissed the petition for certiorari filed by petitioners Maca-Angcos Alawiya y Abdul, Isagani Abdul y Siacor, and Sarah Langco y Angli. The Facts On 18 September 2001, petitioners executed sworn statements4 before the General Assignment Section of the Western Police District in United Nations Avenue, Manila, charging accused P/C Insp. Michael Angelo Bernardo Martin, P/Insp. Allanjing Estrada Medina, PO3 Arnold Ramos Asis, PO2 Pedro Santos Gutierrez, PO2 Ignacio De Paz and PO2 Antonio Sebastian Berida, Jr., who were all policemen assigned at that time at the Northern Police District, with kidnapping for ransom. The sworn-statements of petitioners commonly alleged that at about 10:00 in the morning of 11 September 2001, while petitioners were cruising on board a vehicle along United Nations Avenue, a blue Toyota Sedan bumped their vehicle from behind; that when they went out of their vehicle to assess the damage, several armed men alighted from the Toyota Sedan, poked guns at, blindfolded, and forced them to ride in the Toyota Sedan; that they were brought to an office where P10,000,000 and two vehicles were demanded from them in exchange for their freedom; that, after haggling, the amount was reduced to P700,000 plus the two vehicles; that the money and vehicles were delivered in the late evening of 11 September 2001; that they were released in the early morning of 12 September 2001 in Quiapo after they handed the Deed of Sale and registration papers of the two vehicles.

After the initial investigation by the Western Police District, the case was reported to the Philippine National Police Intelligence Group in Camp Crame, where a lateral coordination was made with the Philippine National Police-National Capital Regional Police Office Regional Intelligence and Investigation Division (PNP-NCR-RID) for the identification, arrest and filing of appropriate charges against the accused. After its own investigation, the PNP-NCR-RID recommended that accused be charged with violation of Article 267 of the Revised Penal Code, 5 as amended by Republic Act No. 7659. State Prosecutor Emmanuel Y. Velasco (State Prosecutor Velasco), who conducted the preliminary investigation, issued a Resolution6 dated 14 January 2002, recommending that the accused be indicted for the crime of kidnapping for ransom. The Resolution was endorsed for approval by Assistant Chief State Prosecutor Nilo C. Mariano and approved by Chief State Prosecutor Jovencito R. Zuo. On 24 January 2002, State Prosecutor Velasco filed with the Regional Trial Court of Manila, Branch 41,7 an Information for Kidnapping for Ransom against the accused with no bail recommended. The Information, docketed as Criminal Case No. 02198832, reads as follows: That on September 11, 2001 at about 10:00 AM along United Nations Avenue, Manila and within the jurisdiction of this Honorable Court, the above-named Accused, who are all police officers, conspiring, confederating and mutually helping one another and grouping themselves together, did then and there by force and intimidation, and by the use of high-powered firearms, willfully, unlawfully and feloniously take, carry away and deprive MACA-ANGCOS ALAWIYA, ISAGANI ABDUL and ZARAH LANGCO of their liberty against their will for the purpose of extorting ransom as in fact a demand for ransom was made as a condition for their release amounting to TEN MILLION PESOS (PHP10,000,000.00) which amount was later reduced to SEVEN HUNDRED THOUSAND (PHP700,000.00) plus two vehicles consisting of TOYOTA FX and MITSUBISHI ADVENTURE to the damage and prejudice of MACA-ANGCOS ALAWIYA, ISAGANI ABDUL and SARAH LANGCO in said amount and such other amounts as may be awarded to them under the provisions of the Civil Code. CONTRARY TO LAW.8 On 28 January 2002, the trial court, upon motion by the prosecution, issued a Hold Departure Order against the accused.9 On even date, the trial court issued a Warrant of Arrest against all the accused.10 Meanwhile, on 8 February 2002, the accused filed a petition for review of the Resolution of State Prosecutor Velasco with the Office of the Secretary of Justice. On 18 February 2002, the accused moved for the quashal of the Information on the ground that "the officer who filed the Information has no authority do so."11

In an Order12 dated 27 February 2002, the trial court denied the motion to quash on the ground that under the ruling in People v. Mapalao,13 an accused who is at large is not entitled to bail or other relief. The trial court also held that the jurisdiction and power of the Ombudsman under Section 15(1) of Republic Act No. 6770 (RA 6770),14 as well as Administrative Order No. 8 of the Office of the Ombudsman, are not exclusive but shared or concurrent with the regular prosecutors. Thus, the authority of the Department of Justice to investigate, file the information and prosecute the case could no longer be questioned. In a Resolution15 promulgated on 24 September 2002, then Secretary of Justice Hernando B. Perez reversed the ruling of State Prosecutor Velasco and ordered the latter to cause the withdrawal or dismissal of the Information for kidnapping for ransom. The Secretary of Justice ruled that there was no prior approval by the Office of the Ombudsman before the Information for kidnapping was filed with the trial court. He also found that the incident complained of was a bungled buy-bust operation, not kidnapping for ransom. On 11 October 2002, petitioners filed a Motion for Reconsideration, which was denied by then Secretary of Justice Simeon A. Datumanong in a Resolution promulgated on 17 February 2003. 16 Petitioners filed a petition for certiorari with the Court of Appeals, seeking the nullification of the Secretary of Justice's ruling for having been rendered in grave abuse of discretion amounting to lack or excess of jurisdiction. The Court of Appeals rendered a Decision of 4 February 2004 dismissing the petition for certiorari. The Court of Appeals denied the petitioners' motion for reconsideration in a Resolution of 25 June 2004. Hence, this petition. The Ruling of the Court of Appeals The Court of Appeals sustained the finding of the Secretary of Justice that the incident complained of was a bungled buy-bust operation, contrary to the finding of State Prosecutor Velasco, that it was a kidnapping for ransom. The Court of Appeals gave credence to the accused's documentary evidence which supported their claim that the incident was a botched buy-bust operation. The Court of Appeals specifically noted the Sinumpaang Salaysay of Cesar Landayan (Landayan), who was driving a taxi at the time of the incident and was apprehended together with petitioners. The Sinumpaang Salaysay categorically stated that he and petitioners were released from accused's custody at about 12:50 in the afternoon of the same day, 11 September 2001. Thus, Cesar's statement refuted the complaint of petitioners that they were freed only in the morning of 12 September 2001 after a pay-off of P700,000 in casino chips and two vehicles. The Court of Appeals stressed that Landayan's Sinumpaang Salaysay was given on 14 September 2001, prior to petitioners' complaint for kidnapping for ransom which was filed on 18 September 2001

before the Western Police District. Having been executed prior to the filing of the complaint for kidnapping for ransom by petitioners, Cesar's Sinumpaaang Salaysay could not be discredited as a cover-up evidence. The Court of Appeals upheld the Secretary of Justice's ruling that prior approval by the Office of the Ombudsman for the Military was needed for the filing of the Information before the RTC, pursuant to OMB-DOJ Joint Circular No. 95-001.17 The Court of Appeals further sustained the finding that there were sufficient evidence that the offense charged against accused was committed in relation to their office and that the accused were all acting in the discharge of their functions as policemen. The Issues The issues in this case are: 1. Whether the prior approval by the Office of the Ombudsman for the Military is required for the investigation and prosecution of the instant case against the accused; 2. Whether the reversal by the Secretary of Justice of the resolution of State Prosecutor Velasco amounted to an "executive acquittal;" 3. Whether the accused policemen can seek any relief (via a motion to quash the information) from the trial court when they had not been arrested yet; and 4. Whether there was probable cause against the accused for the crime of kidnapping for ransom. The Ruling of this Court On the prior approval by the Ombudsman for the investigation and prosecution of the case against the accused policemen The Office of the Solicitor General (OSG), which is representing the Secretary of Justice, agrees with petitioners that prior approval by the Ombudsman is not required for the investigation and prosecution of the criminal case against the accused policemen. The OSG correctly cites the case of Honasan II v. The Panel of Investigating Prosecutors of the Department of Justice,18 where the Court held that the power of the Ombudsman to investigate offenses involving public officers or employees is not exclusive but is concurrent with other similarly authorized agencies of the government such as the provincial, city and state prosecutors. In view of the foregoing, both the Court of Appeals and the Secretary of Justice clearly erred in ruling that prior approval by the Ombudsman is required for the investigation and prosecution of the criminal case against the accused policemen.

On the reversal by the Secretary of Justice of the resolution of State Prosecutor Velasco Settled is the rule that the Secretary of Justice retains the power to review resolutions of his subordinates even after the information has already been filed in court.19 In Marcelo v. Court of Appeals,20 reiterated in Roberts, Jr. v. Court of Appeals,21 this Court clarified that nothing in Crespo v. Mogul22 forecloses the power or authority of the Secretary of Justice to review resolutions of his subordinates in criminal cases despite an information already having been filed in court.23 The nature of the power of control of the Secretary of Justice over prosecutors was explained in Ledesma v. Court of Appeals24 in this wise: Decisions or resolutions of prosecutors are subject to appeal to the Secretary of justice who, under the Revised Administrative Code, exercises the power of direct control and supervision over said prosecutors; and who may thus affirm, nullify, reverse or modify their rulings. (Emphasis supplied) Contrary to petitioners' contention, the Secretary of Justice's reversal of the Resolution of State Prosecutor Velasco did not amount to "executive acquittal" because the Secretary of Justice was simply exercising his power to review, which included the power to reverse the ruling of the State Prosecutor. However, once a complaint or information is filed in court, any disposition of the case such as its dismissal or its continuation rests on the sound discretion of the court. 25 Trial judges are not bound by the Secretary of Justice's reversal of the prosecutor's resolution finding probable cause. Trial judges are required to make their own assessment of the existence of probable cause, separately and independently of the evaluation by the Secretary of Justice. 26 On the motion to quash the information when the accused had not been arrested yet People v. Mapalao,27 as correctly argued by the OSG, does not squarely apply to the present case. In that case, one of the accused, Rex Magumnang, after arraignment and during the trial, escaped from detention and had not been apprehended since then. Accordingly, as to him the trial in absentia proceeded and thereafter the judgment of conviction was promulgated. The Court held that since the accused remained at large, he should not be afforded the right to appeal from the judgment of conviction unless he voluntarily submits to the jurisdiction of the court or is otherwise arrested. While at large, the accused cannot seek relief from the court as he is deemed to have waived the same and he has no standing in court.28 In Mapalao, the accused escaped while the trial of the case was ongoing, whereas here, the accused have not been served the warrant of arrest and have not been arraigned. Therefore, Mapalao is definitely not on all fours with the present case. Furthermore, there is nothing in the Rules governing a motion to quash29 which requires that the accused should be under the custody of the law prior to the filing of a motion to quash on the ground that the officer filing the information had no authority to do so. Custody of the law

is not required for the adjudication of reliefs other than an application for bail. 30 However, while the accused are not yet under the custody of the law, any question on the jurisdiction over the person of the accused is deemed waived by the accused when he files any pleading seeking an affirmative relief, except in cases when the accused invokes the special jurisdiction of the court by impugning such jurisdiction over his person.31 At any rate, the accused's motion to quash, on the ground of lack of authority of the filing officer, would have never prospered because as discussed earlier, the Ombudsman's power to investigate offenses involving public officers or employees is not exclusive but is concurrent with other similarly authorized agencies of the government. On the existence or non-existence of probable cause Ordinarily, the determination of probable cause is not lodged with this Court. Its duty in an appropriate case is confined to the issue of whether the executive or judicial determination, as the case may be, of probable cause was done without or in excess of jurisdiction or with grave abuse of discretion amounting to want of jurisdiction.32 However, in the following exceptional cases, this Court may ultimately resolve the existence or non-existence of probable cause by examining the records of the preliminary investigation.33 a. To afford adequate protection to the constitutional rights of the accused; b. When necessary for the orderly administration of justice or to avoid oppression or multiplicity of actions; c. When there is a prejudicial question which is sub judice; d. When the acts of the officer are without or in excess of authority; e. Where the prosecution is under an invalid law, ordinance or regulation; f. When double jeopardy is clearly apparent; g. Where the court has no jurisdiction over the offense; h. Where it is a case of persecution rather than prosecution; i. Where the charges are manifestly false and motivated by the lust for vengeance; j. When there is clearly no prima facie case against the accused and a motion to quash on that ground has been denied; [and] k. Preliminary injunction has been issued by the Supreme Court to prevent the threatened unlawful arrest of petitioners.

There is no clear showing that the present case falls under any of the recognized exceptions. Moreover, as stated earlier, once the information is filed with the trial court, any disposition of the information rests on the sound discretion of the court. The trial court is mandated to independently evaluate or assess the existence of probable cause and it may either agree or disagree with the recommendation of the Secretary of Justice. The trial court is not bound to adopt the resolution of the Secretary of Justice.34 Reliance alone on the resolution of the Secretary of Justice amounts to an abdication of the trial court's duty and jurisdiction to determine the existence of probable cause.35 Considering that the Information has already been filed with the trial court, then the trial court, upon filing of the appropriate motion by the prosecutor, should be given the opportunity to perform its duty of evaluating, independently of the Resolution of the Secretary of Justice recommending the withdrawal of the Information against the accused, the merits of the case and assess whether probable cause exists to hold the accused for trial for kidnapping for ransom.36 WHEREFORE, we REMAND this case to the Regional Trial Court, Branch 41, Manila, to independently evaluate or assess the merits of the case to determine whether probable cause exists to hold the accused for trial. SO ORDERED. SECOND DIVISION FEDERICO B. DIAMANTE III, G.R. No. 148602 Petitioner, Present:

PUNO,J.,Chairman, AUSTRIA-MARTINEZ, - versus CALLEJO, SR., TINGA, and CHICO-NAZARIO, JJ. THE PEOPLE OF THE PHILIPPINES,

& THE HON. SANDIGANBAYAN (Second Division), Respondents. Promulgated: August 12, 2004 x--------------------------------------------------x

DECISION

CALLEJO, SR., J.:

This is a petition for review on certiorari under Rule 45 of the Rules of Court filed by petitioner Federico B. Diamante III, of the Order of the Sandiganbayan1 (Second Division) in Criminal Case No. 25980 denying his motion for a reinvestigation of the case, and the Resolution denying his motion for reconsideration of said order and the revival of his motion for reinvestigation.

The Antecedents

On April 25, 2000, the petitioner was charged with violation of Section 3(e) of Republic Act No. 3019, otherwise known as the Anti-Graft and Corrupt Practices Act, in the Information filed with the Sandiganbayan, the accusatory portion thereof reads:

That on or about the 1st day of July, 1998, and for sometime subsequent thereto, at the Municipality of Palo, Province of Leyte, Philippines, and within the jurisdiction of this Honorable Court, above-named accused, a public officer, being the Municipal Mayor of Palo, Leyte, in such capacity and committing the offense in relation to office, with deliberate intent, with manifest partiality and evident bad faith, did then and there willfully, unlawfully and feloniously terminate from public service Ma. Corina Antonnette M. Ilagan, Budgeting Aide of the Municipal Budget Office, Palo, Leyte, without legal basis, and continually refuses to reinstate said Ms. Ilagan to her former position despite the decisions of the Civil Service Commission dated October 8, 1998 and April 14, 1999 contained under Resolution No. 982681 and 990811, thus accused, in the performance of his official functions had caused damage and injury toMa. Corina Antonnette M. Ilagan and detriment to public service.

CONTRARY TO LAW.2

The petitioner posted a surety bond for his provisional liberty in the Regional Trial Court of Tacloban City, Branch 7, on May 2, 2000. He also issued Memorandum No. 0038 reinstating the private complainant, Ma. Corina Antonnette M. Ilagan, to her former position, thus:

You are hereby Ordered for Reinstatement to your former position in this Municipality with all your backwages from date of termination to date of assumption including all benefits therein and privileges due to all employees, this Municipality as per Resolution No. 000443 of the Civil Service Commission dated February 14, 2000.3

On May 22, 2000, the petitioner filed with the Sandiganbayan a Motion for Reinvestigation, on the ground that since the private complainant was reinstated and all her monetary claims were paid, it could no longer be alleged that she suffered undue injury. Hence, undue injury being

absent, and considered one of the essential elements of the crime, he can no longer be charged, prosecuted and convicted of violating Section 3(e) of Republic Act No. 3019. Besides, the petitioner asserts that he acted in good faith when he terminated the employment of the private complainant.

The petitioner set his motion for hearing ten days after the filing thereof on June 2, 2000 at 8:30 a.m. When the case was called for hearing, neither the petitioner nor his counsel appeared. The court denied the motion on the ground that it had not yet acquired jurisdiction over the person of the petitioner, as the surety bond he posted had not yet been transmitted to the court. The petitioner filed, on August 8, 2000, a Motion to Revive Motion for Reinvestigation which was set for hearing on August 11, 2000. The petitioner and his counsel again failed to appear when the case was called for hearing.

On November 14, 2000, the Sandiganbayan issued a Resolution stating that it considered the motion for reinvestigation meritorious, but nevertheless denied the same on the ground that the motion sought to be revived was filed out of time and was set for hearing beyond the tenday period therefor. The petitioner filed a motion for a reconsideration thereon, which was denied by the Sandiganbayan in a Resolution dated June 26, 2001, on the ground that the allegations contained in the motion for reinvestigation are matters of defense which must be properly ventilated in a full-blown trial.

In the petition at bar, the petitioner avers that the Sandiganbayan acted on his motion in a manner not in accord with the law, because despite its declaration that such motion was meritorious, the court, nevertheless, denied the same. Moreover, he acted in good faith and caused no undue injury to the private complainant, considering that he had already reinstated her to her former position, without loss of seniority rights and with full backwages. Hence, there was no longer a need for a full-blown trial.

In its comment on the petition, the Office of the Special Prosecutor (OSP) concedes that the bare fact that the petitioner set his motion for reinvestigation one day beyond the period as provided for in Section 5, Rule 15 of the Rules of Court, did not affect the substantive rights of the People. It asserts, however, that a reinvestigation is inappropriate, considering that the issues alleged by the petitioner in his motion for reinvestigation and the evidence to be presented should be laid before the court and resolved after trial. It posits that undue injury under Section 3(e) of Rep. Act No. 3019 should be construed to be any wrongful act committed by the public officer, and not actual damage within the context and as defined under the New Civil Code. The concept of injury as enunciated by this Court in its ruling in Pecho vs. Sandiganbayan,4 is applicable, and not the ruling of this Court in Llorente vs. Sandiganbayan.5 It avers that the act of reinstating the private complainant to her former position and the

payment of her monetary claims after the filing of the Information cannot obliterate the effects of the crime

which was already committed by the petitioner.The OSP further posits that the law seeks to repress overt acts of public officials and private persons alike which constitute graft or corrupt practices, or which may lead thereto in the exercise of powers vested in them by law. It asserts that the petitioners contention, that he acted in good faith in terminating the employment of the private complainant, is belied by the records. Thus:

Records show that petitioner terminated Ilagan on July 1, 1998. Ilagan appealed her termination to the Civil Service Commission (CSC) on July 7, 1998. On October 8, 1998, the CSC issued Resolution No. 98261 ordering the reinstatement of Ilagan to her former position with payment of back salaries from the period of her illegal separation until actual reinstatement. Ilagan served notice to petitioner of the CSC Resolution on November 5, 1998. On November 19, 1998, petitioner wrote a letter to Ilagan informing her that he has filed a Petition with the CSC. InResolution No. 990811 dated April 14, 1999, the CSC resolved to deny petitioners motion for reconsideration and affirm the reinstatement of Ilagan. On April 29, 1999, Ilagan informed petitioner of her desire to return to work.On the other hand, petitioner informed Ilagan of his intention to appeal the CSC Resolution. Ilagan wrote a letter to the Court of Appeals asking whether petitioner has filed a certiorari case. The Court of Appeals informed Ilagan in a letter dated July 29, 1999 that petitioners petition docketed as CA-G.R. SP No. UDK-2946 entitled Diamante III versus CSC was dismissed on June 29, 1999. Petitioners motion for reconsideration was likewise denied on August 11, 1999. In a letter dated August 23, 1999, Ilagan again informed petitioner of her desire to assume her position but petitioner responded that she still cannot assume her position as he is filing a Petition to Recall her appointment before the CSC. Despite the CSC Resolution ordering the reinstatement of Ilagan and the Court of Appeals dismissal of petitioners petition, petitioner with evident bad faith refused to reinstate Ilagan. Consequently, Ilagan was forced to file a criminal case for violation of Section 3(e) of Republic Act No. 3019 against petitioner before the Office of the Deputy Ombudsman for the Visayas. In a complete turnaround, petitioner in the guise of being magnanimous and In the spirit of Christmas and Reconciliation reinstated Ilagan on May 2, 2000.

Clearly, petitioner knew from the very start that he has no reason to terminate Ilagans permanent appointment. His wrongful act of terminating Ilagan was due to vindictiveness as she was an appointee of then Mayor Sevilla. He cannot be allowed to invoke lack of undue injury to Ilagan as a ground for the dismissal of the case against him. His act of terminating Ilagan was unlawful as it deprived her of her means of livelihood and caused her moral

anxieties and damages considering that up to now she has not yet received the back salaries and benefits due her since July 1, 1998.

Lastly, petitioner cannot be permitted to escape liability by simply reinstating Ilagan after all the hardships he has caused her. As already stated, petitioners only reason for terminating Ilagan was that she was a midnight appointee. Neither did he even afford Ilagan of her basic right to due process when he unceremoniously terminated her on July 1, 1998. Justice must be done to all those similarly situated. No one is above the law. Petitioner must be made to account for the wrongful act he has committed to Ilagan. Verily, probable cause exists to warrant petitioners indictment.6

The petition is denied due course.

First. The assailed resolutions of the Sandiganbayan are interlocutory in nature; hence, the proper remedy of the petitioner is to file a petition for certiorari under Rule 65 of the Rules of Court. A petition for review on certiorari under Rule 45 of the Rules of Court is proper only if the assailed order or resolution is a final one.7

Second. Even if we consider the petition as one for certiorari under Rule 65 of the Rules of Court, we find and so hold that the Sandiganbayan did not commit a grave abuse of its

discretion in denying the petitioners motion for reinvestigation and motion to revive the same. We note that the petitioner and his counsel failed to appear during the hearings set for said motion. The matter of granting or denying a motion for reinvestigation is addressed to the sound discretion of the Sandiganbayan, unless the petitioner is able to establish that a denial of his motion for reinvestigation would thereby deprive him of his substantial rights. Furthermore, the petitioner

failed to establish his claim that the Sandiganbayan committed a grave abuse of its discretion amounting to excess or lack of jurisdiction in denying his motion for reinvestigation.

It is clear from the Comment of the OSP that even if a reinvestigation were granted and the petitioner allowed to present documentary evidence to prove that he had already reinstated the private complainant to her former position without loss of seniority rights and paid all her monetary claims, the OSP would not move for the withdrawal of the Information but would still opt to proceed to trial for the Sandiganbayan to determine whether the private complainant sustained undue injury, as provided for in Section 3(e) of Rep. Act No. 3019.

We agree with the Sandiganbayan that the grounds relied upon by the petitioner in support of his motion for reinvestigation are matters of defense involving factual and profound legal issues which involve, inter alia, the application of the rulings of this Court in Llorente and Pecho and should be resolved by it, namely: a) whether the private complainant suffered undue injury because of the petitioners obstinate refusal to reinstate her before he was charged with violation of Section 3(e) of Rep. Act No. 3019;b) whether the petitioner acted in good faith in terminating the employment of the private complainant; and, c) whether the post facto reinstatement of the private complainant and the payment of her monetary benefits extinguished the petitioners criminal liability for the crime charged. However, it does not necessarily follow that the Sandiganbayan will have to conduct a full-blown

trial since, from the pleadings of the parties, the evidence of the prosecution and the petitioner will principally be documentary in nature. It is, thus, well-nigh possible that even at the pre-trial stage of the proceedings, the issues will be narrowed down and well-defined, so that the Sandiganbayan will be able to resolve the case without need to resort to a full-blown trial.

IN LIGHT OF ALL THE FOREGOING,the petition is DENIED for lack of merit. No costs.

SO ORDERED.

THIRD DIVISION

ENRIQUE V. VIUDEZ II, Petitioner, -versusTHE COURT OF APPEALS and HON. BASILIO R. GABO, JR., in his capacity as Presiding Judge of Branch 11, Regional Trial Court, Malolos, Bulacan, Respondents.

G.R. No. 152889 Present: YNARES-SANTIAGO, J., Chairperson, CARPIO,* CORONA,** NACHURA, and PERALTA, JJ. Promulgated: June 5, 2009

x-----------------------------------------------------------------------------------------x DECISION PERALTA, J.: chanroblesvirtuallawlibrary

This is a petition for review on certiorari under Section 1, Rule 45 of the 1997 Rules of Civil Procedure, with prayer for the issuance of a temporary restraining order and/or writ of preliminary injunction of the Decision82[1] of the Court of Appeals (CA) in CA-G.R. SP No. 67115

dismissing the petition for certiorari filed by herein petitioner against Judge Basilio R. Gabo, Jr., in his capacity as Presiding Judge of Branch 11, Regional Trial Court (RTC) of Malolos, Bulacan. The factual and procedural antecedents are as follows:

Honorato Galvez and his driver were fatally shot on June 9, 2000 in Barangay San Juan, San Ildefonso, Bulacan. On June 26, 2000, a complaint for the alleged murder of the said victims was filed by the 303rd Philippine National Police Criminal Investigation Division (PNP CID) Team with the Office of the Provincial Prosecutor against the following: Cirilo de la Cruz, Guilberto Chico, Edmund Fernando, two persons named Ronald and Gerry, three (3) John Does, and Eulogio Villanueva. Likewise, on July 14, 2000, a complaint for murder against petitioner Enrique Viudez II was filed by Estrella Galvez, widow of Mayor Honorato Galvez, for the killing of the latter and his driver.83[2]

On March 31, 2001, a Resolution was issued by the Investigating State Prosecutor finding probable cause to indict the petitioner and others for the crime of murder. On September 19, 2001, two (2) Informations84[3] for murder were filed with the RTC of Malolos, Bulacan, which then issued warrants of arrest on the same day.85[4] chanroblesvirtuallawlibrary

On September 21, 2001, petitioner filed a Motion to Suspend Proceedings and to Suspend the Implementation of the Warrant of Arrest, Pursuant to Department Circular No. 70 of the Department of Justice (DOJ)86[5] arguing that all the accused in the said criminal cases had filed a timely petition for review with the Secretary of Justice and, pursuant to Section 987[6] of Department Circular No. 70, the implementation of the warrant of arrest against petitioner should be suspended and/or recalled pending resolution of the said petition for review. In an Order88[7] dated September 28, 2001, the RTC denied petitioners Motion stating that, insofar as the implementation of the warrant of arrest against petitioner was concerned, said warrant had already been issued for his apprehension. The court also added that there was no way for it to recall the same in the absence of any compelling reason, and that jurisdiction over his person had not yet been acquired by it; hence, petitioner had no personality to file any pleading in court relative to the case until he was arrested or voluntarily surrendered himself to the court. Thus, petitioner filed a motion for reconsideration of the said Order, but was denied in an Order dated October 10, 2001. Thereafter, petitioner filed with the CA on October 11, 2001, a petition for certiorari with prayer for the issuance of a temporary restraining order (TRO) and/or writ of preliminary injuction89[8] claiming the following:

x x x The Order of September 28, 2001 and the Order of October 10, 2001 denying the Motion for Reconsideration were issued with grave abuse of discretion amounting to lack of jurisdiction. This is because of the following reasons: (a) The fact that the petitioner has not voluntarily surrendered nor arrested is not a legal impediment or obstacle to the suspension of the implementation of the warrant of arrest issued against the petitioner. (b) Precisely, the petitioner has prayed for the suspension of the implementation of the warrant of arrest because if he is arrested or voluntarily surrenders to the Court, the issues on the suspension of the implementation of the warrant of arrest would become moot and academic. It is for this reason that the petitioner has prayed for the suspension of the implementation of the warrant of arrest. The petitioner is merely availing of his rights under the law. There would be a waiver on the part of the petitioner if he surrenders to the lower court. Meantime, he would be deprived of his provisional liberty pending the resolution of his petition for review. The clear intention of Department Circular No. 70 is to suspend all proceedings including the implementation of the warrant of arrest pending resolution by the Secretary of Justice of the petition for review. (c) The authority of the Secretary of Justice to entertain the petition for review even after the filing of the informations is settled. In Solar Team Entertainment, Inc. v. Hon. Rolando How, the High Court ruled, the authority of the Secretary of Justice to review resolutions of his subordinates even after an information has already been filed in court does not present an irreconcilable conflict with the 30-day period prescribed by Section 7 of the Speedy Trial Act. (d) Moreover, the authority of the Secretary of Justice to review resolutions of the Chief State Prosecutor, Provincial or City Prosecutors is recognized by Sec. 4 of Rule 112 of the Revised Rules of Criminal Procedure. (e) Sec. 4, Rule 112 of the Revised Rules of Criminal Procedure expressly recognizes the authority and power of the Department of Justice to prescribe the rules to be followed in cases of a petition for review of a resolution of the Chief State Prosecutor, Provincial or City Prosecutors. The rules provide if upon petition by a proper party under such rules as the Department of Justice may prescribe, clearly recognizing the power of the Secretary of Justice to promulgate rules to be followed in petitions for review of appeals

from resolutions of the Chief State Prosecutor, Provincial or City Prosecutor. (f) Pursuant to the rule-making power of the Secretary of Justice, Department Circular No. 70 was promulgated by the Secretary of Justice providing that the appellant and the trial prosecutor shall see to it that, pending resolution of the appeal, the proceedings in court are held in abeyance. (g) The implementation of the warrant of arrest issued against the petitioner is part of the proceedings in court. Since the circular unequivocally provides that the proceedings in court are held in abeyance pending resolution of the petition for review or appeal, it follows that the lower court committed grave abuse of discretion amounting to lack of jurisdiction when it denied the motion to suspend the implementation of the warrant of arrest. There is even no opposition by the trial prosecutor to the motion to suspend the implementation of the warrant of arrest against the petitioner.90[9] In a Resolution91[10] dated October 16, 2001, the CA found that the verified petition of petitioner sufficiently showed that unless the implementation of the warrants of arrest dated September 19, 2001 in Criminal Case Nos. 2492-M-2001 and 2693-M-2001 were temporarily enjoined before the application for a writ of preliminary injunction could be heard on notice, great or irreparable injury would be visited upon the petitioner, as he could momentarily be arrested and detained upon non-bailable charges. Thus, the CA granted a TRO, commanding respondent RTC Judge Gabo to enjoin the implementation of the said warrants of arrest. Respondents RTC Judge Basilio R. Gabo, Jr., in his capacity as Presiding Judge of the RTC, Branch II of Malolos, Bulacan, and the Office of the Solicitor General (OSG) argued in their Comment (with motion to lift temporary restraining order and opposition to the application for the issuance of a writ of preliminary injunction)92[11] dated November 12, 2001, that the

determination of whether to issue a warrant of arrest after the filing of an information was a function that was exclusively vested in respondent Judge. Respondent Judge, therefore, was in no way obligated to defer the implementation of the service of the warrant of arrest simply because a petition for review was filed by petitioner before the Secretary of Justice to question the filing of the information against the same petitioner. As to their Opposition to the application for issuance of preliminary injunction with motion to lift temporary restraining order, the public respondents contended that the issue proposed by petitioner was the mere suspension of the implementation of the warrant of arrest to await the resolution of the Department of Justice; hence, respondent Judge was under no obligation to suspend the proceedings, because the issuance of the warrant of arrest was his exclusive function. On December 19, 2001, the CA promulgated its Decision93[12] dismissing the petition for certiorari for lack of merit and found no whimsicality or oppressiveness in the exercise of the respondent Judge's discretion in issuing the challenged Orders. The court added that, since the premise of petitioner's conclusion was erroneous for said circular and the cases cited did not make it obligatory for respondent Judge to grant petitioner's motion petitioner's cause was lost. It also stated that nowhere in the Revised Rules of Criminal Procedure, or in any circular of this Court, even in any of its decision was it ever pronounced that when a petition for review of the resolution of the investigating prosecutor -- finding probable cause to indict a respondent -is filed with the Office of the Secretary of Justice, the court which earlier issued warrants of arrest, should suspend their enforcement.

In an Order94[13] dated January 9, 2002, respondent Judge ordered the issuance of an alias warrant of arrest for the apprehension of petitioner by virtue of the expiration of the effectivity of the TRO issued by the CA. Petitioner filed with the CA a Motion for Reconsideration95[14] dated January 3, 2002 of the Decision dated December 19, 2001, which was eventually denied by the same court in its Resolution96[15] dated April 11, 2002, stating, among others, that it found nothing to justify a modification, much less a reversal, of its judgment. The court further stated that the motion for reconsideration had not presented any fresh argument or raised any new matter that would need an extended discussion, and that the points stressed were the same as those already discussed in the petition and other papers of the petitioner which were fully considered in the decision. Hence, the instant petition. Petitioner claimed, among others, that the Decision of the CA was issued with grave abuse of discretion amounting to lack of jurisdiction when it ruled that Department Circular No. 70 of the Department of Justice promulgated on July 3, 2000 was plainly a directive of the Secretary of Justice to the accused and the trial prosecutor to ask the Court to suspend the proceedings thereon during the pendency of the appeal. According to petitioner, the said department circular had the force and effect of law. He cited cases97[16] wherein this Court

ruled that administrative regulations adopted pursuant to law had the force and effect of law. Petitioner also pointed out that the same department circular stated that its promulgation was in line with recent jurisprudence. Anent the prayer for the issuance of a TRO, petitioner argued that unless a TRO was issued enjoining the implementation of the warrant of arrest dated September 19, 2001 and the alias warrant of arrest issued by virtue of the Order of January 9, 2002, he stood to suffer great and irreparable injury, as he would be deprived of his liberty without due process of law. In a Resolution98[17] dated May 6, 2002, this Court resolved to issue the TRO prayed for by petitioner and to direct respondent Judge to cease and desist from implementing the warrant of arrest dated September 19, 2001 against petitioner and the alias warrant of arrest issued pursuant to the Order of January 9, 2002 in Criminal Case Nos. 2492-M-2001 and 2493M-2001, entitled People of the Philippines vs. Enrique V. Viudez II, et al., effective immediately until further orders from the same Court. In its Comment99[18] dated June 13, 2002, the OSG stated that the determination of whether to issue a warrant of arrest after the filing of an information was a function that was exclusively vested in respondent Judge. Respondent Judge, therefore, was in no way obliged to defer the implementation of the service of the warrant simply because a petition for review was filed by petitioner before the Secretary of Justice to question the filing of the information against him. The OSG further argued that the respondent Judge did not need to wait for the completion of the preliminary investigation before issuing a warrant of arrest, for Section 4, Rule 113 of the Rules of Criminal Procedure provides that the head of the office to whom the warrant of arrest has been delivered for execution shall cause the warrant to be executed within ten (10) days from receipt thereof. As an opposition to the application for issuance of

preliminary injunction and as a motion to lift the temporary restraining order, the OSG stated that the petitioner did not challenge the finding of probable cause of respondent Judge in the issuance of the warrant of arrest against him. Petitioner simply wanted a deferment of its implementation by virtue of Section 9 of Department Circular No. 70; hence, according to the OSG, the issuance of the TRO was tantamount to an abatement of the criminal proceedings. Petitioner, in its Opposition100[19] to the motion to lift temporary restraining order dated September 5, 2002 stated that the discussion of the evidence of the prosecution by the OSG was way off the mark, because the only issue to be resolved in the present petition was whether the implementation of the warrant of arrest issued by the RTC should be suspended pending resolution by the Secretary of Justice of the petition for review filed by petitioner. He also reiterated that the lifting of the TRO would cause grave and irreparable injury to his rights because no bail had been recommended for his provisional liberty. On September 19, 2002, petitioner filed a Manifestation101[20] informing this Court that the Secretary of Justice had already sustained his petition for review. A photocopy of the Resolution102[21] of the Secretary of Justice, promulgated on September 13, 2002, was attached to the said manifestation, the dispositive portion of which reads, among others:
[t]he Chief State Prosecutor is directed to move, with leave of court, for the withdrawal of the information for murder (2 counts) against Mayor Enrique V. Viudez II and Eulogio Villanueva immediately. In view of the same resolution, according to petitioner, the motion of the OSG for the lifting of the TRO issued by this Court has no more legal basis and should be denied for lack of merit.

In his Reply103[22] to the Comment of the OSG, dated November 6, 2002, petitioner reiterated that the Secretary of Justice had already issued a resolution on the petition for review that he filed with the said office, and that the State Prosecutor had already filed with the RTC a motion to withdraw the information against him and his co-accused; hence, the instant petition may already be moot and academic because of the said developments. chanroblesvirtuallawlibrary

On December 2, 2002, this Court resolved to give due course to the present petition and required the parties to submit their respective memoranda.104[23] Petitioner eventually filed his Memorandum105[24] dated February 4, 2003, while the OSG filed its Memorandum on March 24, 2003. chanroblesvirtuallawlibrary

Before this Court shall delve into its disquisition on the issue propounded by petitioner, it is worth noting that in his Memorandum106[25] dated February 4, 2003, petitioner reiterated that the Secretary of Justice had already resolved the petition for review and ordered the withdrawal of the informations for murder filed against the same petitioner with the RTC of Malolos, Bulacan, ruling that there was no probable cause for the filing of the said informations. Accordingly, as contained in the same Memorandum, the Office of the State Prosecutor filed a

Motion107[26] to Withdraw the Informations, which the RTC granted on October 23, 2002. 108[27] Furthermore, in a Resolution dated May 6, 2002, this Court already resolved to issue a TRO as prayed for by petitioner. These developments would necessarily render the instant petition moot and academic; however, as implored by petitioner, this Court will render its decision on the merits of the case in the interest of justice. chanroblesvirtuallawlibrary

The basic issue propounded by petitioner is whether a pending resolution of a petition for review filed with the Secretary of Justice concerning a finding of probable cause will suspend the proceedings in the trial court, including the implementation of a warrant of arrest. chanroblesvirtuallawlibrary

Petitioner cites DOJ Department Circular No. 70, specifically paragraph 2 of Section 9 thereof, which provides that the appellant and the trial prosecutor shall see to it that, pending resolution of the appeal, the proceedings in court are held in abeyance. Somehow, petitioner is of the opinion that the suspension of proceedings in court, as provided in the said circular, includes the suspension of the implementation of warrants of arrest issued by the court. chanroblesvirtuallawlibrary

Petitioner's contention is wrong. chanroblesvirtuallawlibrary

It is well to remember that there is a distinction between the preliminary inquiry, which determines probable cause for the issuance of a warrant of arrest; and the preliminary investigation proper, which ascertains whether the offender should be held for trial or be released. The determination of probable cause for purposes of issuing a warrant of arrest is made by the judge. The preliminary investigation proper whether or not there is reasonable ground to believe that the accused is guilty of the offense charged is the function of the investigating prosecutor. 109[28] chanroblesvirtuallawlibrary

As enunciated in Baltazar v. People,110[29] the task of the presiding judge when the Information is filed with the court is first and foremost to determine the existence or non-existence of probable cause for the arrest of the accused. Probable cause is such set of facts and circumstances as would lead a reasonably discreet and prudent man to believe that the offense charged in the Information or any offense included therein has been committed by the person sought to be arrested. In determining probable cause, the average man weighs the facts and circumstances without resorting to the calibrations of the rules of evidence of which he has no technical knowledge. He relies on common sense. A finding of probable cause needs only to rest on evidence showing that, more likely than not, a crime has been committed and that it was committed by the accused. Probable cause demands more than suspicion; it requires less than evidence that would justify conviction. 111[30]

The purpose of the mandate of the judge to first determine probable cause for the arrest of the accused is to insulate from the very start those falsely charged with crimes from the tribulations, expenses and anxiety of a public trial. 112[31]

The function of the judge to issue a warrant of arrest upon the determination of probable cause is exclusive; thus, the consequent implementation of a warrant of arrest cannot be deferred pending the resolution of a petition for review by the Secretary of Justice as to the finding of probable cause, a function that is executive in nature. To defer the implementation of the warrant of arrest would be an encroachment on the exclusive prerogative of the judge. It must be emphasized that petitioner filed with the trial court a motion to suspend proceedings and to suspend the implementation of the warrant of arrest in pursuance of a DOJ circular, and not a motion to quash the warrant of arrest questioning the issuance thereof. Thus, there is no contest as to the validity or regularity of the issuance of the warrant of arrest. Petitioner merely wanted the trial court to defer the implementation of the warrant of arrest pending the resolution by the Secretary of Justice of the petition for review that he filed citing the following directive contained in Section 9 of DOJ Department Circular: chanroblesvirtuallawlibrary

x x x x chanroblesvirtuallawlibrary

The appellant and the trial prosecutor shall see to it that, pending resolution of the appeal, the proceedings in court are held in abeyance. 113[32] chanroblesvirtuallawlibrary

The above provision of the Department Circular is directed specifically at the appellant and the trial prosecutor, giving them latitude in choosing a remedy to ensure that the proceedings in court are held in abeyance. However, nowhere in the said provision does it state that the court must hold the proceedings in abeyance. Therefore, the discretion of the court whether or not to suspend the proceedings or the implementation of the warrant of arrest, upon the motion of the appellant or the trial prosecutor, remains unhindered. This is in consonance with the earlier ruling114[33] of this Court that once a complaint or information is filed in court, any disposition of the case as to its dismissal, or the conviction or acquittal of the accused, rests on the sound discretion of the said court, as it is the best and sole judge of what to do with the case before it. In the instant case, the judge of the trial court merely exercised his judicial discretion when he denied petitioner's motion to suspend the implementation of the warrant of arrest. Consequently, the CA was correct when it found no whimsicality or oppressiveness in the exercise of the trial judge's discretion in issuing the challenged orders.

chanroblesvirtuallawlibrary

Neither does this Court find any applicability of the cases cited by the petitioner to the instant case. chanroblesvirtuallawlibrary

Petitioner has put emphasis on his argument that the suspension of the proceedings in court, including the suspension of the implementation of a warrant of arrest pending a resolution of an appeal by the Secretary of Justice, is in consonance with jurisprudence laid down by this Court in Marcelo v. Court of Appeals, 115[34] Roberts, Jr. v. Court of Appeals, 116[35] Ledesma v. Court of Appeals,117[36] Dimatulac v. Villon,118[37] and Solar Team Entertainment, Inc. v. How.119[38] chanroblesvirtuallawlibrary

A close reading of the factual antecedents in Ledesma, Solar Team Entertainment, Inc., Dimatulac and Marcelo clearly show that a common issue among them is whether the arraignment of an accused may be deferred pending resolution by the Secretary of Justice of a petition for review on the finding of probable cause, to which this Court ruled in the affirmative. Nowhere in the said decisions did it state that the implementation or enforcement of the

warrant of arrest was also deferred or suspended, as herein petitioner prays for. Thus, as ruled in Ledesma:120[39] chanroblesvirtuallawlibrary

Where the secretary of justice exercises his power of review only after an information has been filed, trial courts should defer or suspend arraignment and further proceedings until the appeal is resolved. Such deferment or suspension, however, does not signify that the trial court is ipso facto bound by the resolution of the secretary of justice. Jurisdiction, once acquired by the trial court, is not lost despite a resolution by the secretary of justice to withdraw the information or to dismiss the case. chanroblesvirtuallawlibrary

It was also decided chanroblesvirtuallawlibrary

in

Solar

Team

Entertainment,

Inc.121[40]

that:

Procedurally speaking, after the filing of the information, the court is in complete control of the case and any disposition therein is subject to its sound discretion. The decision to suspend arraignment to await the resolution of an appeal with the Secretary of Justice is an exercise of such discretion. chanroblesvirtuallawlibrary

The ruling in Dimatulac,122[41]as well, reads: chanroblesvirtuallawlibrary

We do not then hesitate to rule that Judge Villon committed grave abuse of discretion in rushing the arraignment of the Yabuts on the assailed information for homicide. Again, the State and the offended parties were deprived of due process. chanroblesvirtuallawlibrary

And in Marcelo,123[42] this Court enunciated that: chanroblesvirtuallawlibrary

Accordingly, we rule that the trial court in a criminal case which takes cognizance of an accused's motion for review of the resolution of the investigating prosecutor or for reinvestigation and defers the arraignment until resolution of the said motion must act on the resolution reversing the investigating prosecutor's finding or on a motion to dismiss based thereon only upon proof that such resolution is already final in that no appeal was taken therefrom to the Department of Justice. chanroblesvirtuallawlibrary

Finally, in Roberts, petitioner claimed that this Court, in the dispositive portion of its decision, clearly directed the deferment of the issuance of the warrant of arrest pending resolution of the petition for review by the Secretary of Justice when it ruled that, in the meantime, respondent Judge Asuncion was directed to cease and desist from further proceeding with Criminal Case No. Q-93-43198 and to defer the issuance of warrants of arrest against the petitioner. According to petitioner, the said dispositive portion is borne out by the finding of this Court that: chanroblesvirtuallawlibrary

x x x [I]t was premature for respondent Judge Asuncion to deny the motions to suspend proceedings and to defer arraignment on the following grounds: chanroblesvirtuallawlibrary

This case is already in this Court for trial. To follow whatever the opinion the Secretary of Justice may have on the matter would undermine the independence and integrity of this Court. This Court is still capable of administering justice. The real and ultimate test of the independence and integrity of his court is not the filing of the aforementioned motions at that stage of the proceedings but the filing of a motion to dismiss or to withdraw the information on a basis of a resolution of the petition for review reversing the Joint Resolution of the investigating prosecutor. Once a motion to dismiss or withdraw the information is filed the trial judge may grant or deny it, not out of

subservience to the Secretary of Justice, but in faithful exercise of judicial prerogative.124[43] chanroblesvirtuallawlibrary

However, the above observation of petitioner is inaccurate, if not erroneous. chanroblesvirtuallawlibrary

What this Court adjudged as premature in Roberts was the respondent judge's denial of the motions to suspend proceedings and to defer arraignment on the ground that the case was already in his court for trial and to follow whatever opinion the Secretary of Justice may have on the matter would undermine the independence and integrity of his court, which was still capable of administering justice. In dispelling the ground relied upon by the respondent judge, this Court ruled that the filing of a motion to dismiss or to withdraw the information, on the basis of a resolution of the petition for review reversing the finding of the investigating prosecutor, was the real and ultimate test of the independence and integrity of his court. Therefore, what was disapproved by this Court was not the denial per se of the motions, but the reasoning behind it. It was from that premise that this Court ordered in the dispositive portion of its decision to defer the issuance of the warrants of arrest. Of more importance still was the fact that, whereas the questioned motions in Roberts were for the suspension of proceedings and deferment of arraignment, the issue in the instant case is the suspension of the implementation of a warrant of arrest, which this Court did not rule upon in the former case. chanroblesvirtuallawlibrary

WHEREFORE, the petition for review on certiorari with prayer for the issuance of a temporary restraining order and/or writ of preliminary injunction dated April 25, 2002 is DENIED -- the petition for review, for lack of merit; and the issuance of TRO and/or preliminary injunction, for being moot and academic. chanroblesvirtuallawlibrary

SO ORDERED. chanroblesvirtuallawlibrary