Republic of the Philippines

SUPREME COURT
Manila
EN BANC
G.R. No. L-53373 June 30, 1987
MARIO FL. CRESPO, petitioner,
vs.
HON. LEODEGARIO L. MOGUL, Presiding Judge, CIRCUIT CRIMINAL COURT OF LUCENA
CITY, 9th Judicial Dist., THE PEOPLE OF THE PHILIPPINES, represented by the SOLICITOR
GENERAL, RICARDO BAUTISTA, ET AL., respondents.

GANCAYCO, J.:
The issue raised in this ease is whether the trial court acting on a motion to dismiss a criminal case
filed by the Provincial Fiscal upon instructions of the Secretary of Justice to whom the case was
elevated for review, may refuse to grant the motion and insist on the arraignment and trial on the
merits.
On April 18, 1977 Assistant Fiscal Proceso K. de Gala with the approval of the Provincial Fiscal filed
an information for estafa against Mario Fl. Crespo in the Circuit Criminal Court of Lucena City which
was docketed as Criminal Case No. CCCIX-52 (Quezon) '77. 1 When the case was set for arraigment the accused
filed a motion to defer arraignment on the ground that there was a pending petition for review filed with the Secretary of Justice of the
resolution of the Office of the Provincial Fiscal for the filing of the information. In an order of August 1, 1977, the presiding judge, His Honor,

A motion for reconsideration of the order was denied in the order of

August 5, 1977 but the arraignment was deferred to August 18, 1977 to afford nine for petitioner to
elevate the matter to the appellate court. 3
Leodegario L. Mogul, denied the motion.

A petition for certiorari and prohibition with prayer for a preliminary writ of injunction was filed by the
accused in the Court of Appeals that was docketed as CA-G.R. SP No. 06978. 4 In an order of August
17, 1977 the Court of Appeals restrained Judge Mogul from proceeding with the arraignment of the
accused until further orders of the Court. 5 In a comment that was filed by the Solicitor General he
recommended that the petition be given due course. 6 On May 15, 1978 a decision was rendered by the
Court of Appeals granting the writ and perpetually restraining the judge from enforcing his threat to
compel the arraignment of the accused in the case until the Department of Justice shall have finally
resolved the petition for review. 7
On March 22, 1978 then Undersecretary of Justice, Hon.Catalino Macaraig, Jr., resolving the petition
for review reversed the resolution of the Office of the Provincial Fiscal and directed the fiscal to move
for immediate dismissal of the information filed against the accused. 8 A motion to dismiss for
insufficiency of evidence was filed by the Provincial Fiscal dated April 10, 1978 with the trial
court, 9 attaching thereto a copy of the letter of Undersecretary Macaraig, Jr. In an order of August 2, 1978
the private prosecutor was given time to file an opposition thereto. 10 On November 24, 1978 the Judge denied the
motion and set the arraigniment stating:

ORDER
For resolution is a motion to dismiss this rase filed by the procuting fiscal premised
on insufficiency of evidence, as suggested by the Undersecretary of Justice, evident
from Annex "A" of the motion wherein, among other things, the Fiscal is urged to
move for dismissal for the reason that the check involved having been issued for the
payment of a pre-existing obligation the Hability of the drawer can only be civil and
not criminal.
The motion's thrust being to induce this Court to resolve the innocence of the
accused on evidence not before it but on that adduced before the Undersecretary of
Justice, a matter that not only disregards the requirements of due process but also
erodes the Court's independence and integrity, the motion is considered as without
merit and therefore hereby DENIED.
WHEREFORE, let the arraignment be, as it is hereby set for December 18, 1978 at
9:00 o'clock in the moming.
SO ORDERED. 11
The accused then filed a petition for certiorari, prohibition and mandamus with petition for the
issuance of preliminary writ of prohibition and/or temporary restraining order in the Court of Appeals
that was docketed as CA-G.R. No. SP-08777. 12 On January 23, 1979 a restraining order was issued by the Court of
Appeals against the threatened act of arraignment of the accused until further orders from the Court. 13 In a decision of October 25, 1979
the Court of Appeals dismissed the petition and lifted the restraining order of January 23, 1979. 14 A motion for reconsideration of said
decision filed by the accused was denied in a resolution of February 19, 1980. 15

Hence this petition for review of said decision was filed by accused whereby petitioner prays that
said decision be reversed and set aside, respondent judge be perpetually enjoined from enforcing
his threat to proceed with the arraignment and trial of petitioner in said criminal case, declaring the
information filed not valid and of no legal force and effect, ordering respondent Judge to dismiss the
said case, and declaring the obligation of petitioner as purely civil. 16
In a resolution of May 19, 1980, the Second Division of this Court without giving due course to the
petition required the respondents to comment to the petition, not to file a motiod to dismiss, within
ten (10) days from notice. In the comment filed by the Solicitor General he recommends that the
petition be given due course, it being meritorious. Private respondent through counsel filed his reply
to the comment and a separate conunent to the petition asking that the petition be dismissed. In the
resolution of February 5, 1981, the Second Division of this Court resolved to transfer this case to the
Court En Banc. In the resolution of February 26, 1981, the Court En Banc resolved to give due
course to the petition.
Petitioner and private respondent filed their respective briefs while the Solicitor General filed a
Manifestation in lieu of brief reiterating that the decision of the respondent Court of Appeals be
reversed and that respondent Judge be ordered to dismiss the information.

It is a cardinal principle that an criminal actions either commenced by complaint or by information

shall be prosecuted under the direction and control of the fiscal. 17 The institution of a criminal action depends
upon the sound discretion of the fiscal. He may or may not file the complaint or information, follow or not fonow that presented by the
offended party, according to whether the evidence in his opinion, is sufficient or not to establish the guilt of the accused beyond reasonable
doubt. 18 The reason for placing the criminal prosecution under the direction and control of the fiscal is to prevent malicious or unfounded

Prosecuting officers under the power vested

in them by law, not only have the authority but also the duty of prosecuting persons who, according to the
evidence received from the complainant, are shown to be guilty of a crime committed within the
jurisdiction of their office. 21 They have equally the legal duty not to prosecute when after an investigation
they become convinced that the evidence adduced is not sufficient to establish a prima facie case. 22
prosecution by private persons. 19 It cannot be controlled by the complainant.

20

It is through the conduct of a preliminary investigation 23 that the fiscal determines the existence of a
puma facie case that would warrant the prosecution of a case. The Courts cannot interfere with the
fiscal's discretion and control of the criminal prosecution. It is not prudent or even permissible for a Court
to compel the fiscal to prosecute a proceeding originally initiated by him on an information, if he finds that
the evidence relied upon by him is insufficient for conviction. 24 Neither has the Court any power to order
the fiscal to prosecute or file an information within a certain period of time, since this would interfere with
the fiscal's discretion and control of criminal prosecutions. 25 Thus, a fiscal who asks for the dismissal of
the case for insufficiency of evidence has authority to do so, and Courts that grant the same commit no
error. 26 The fiscal may re-investigate a case and subsequently move for the dismissal should the reinvestigation show either that the defendant is innocent or that his guilt may not be established beyond
reasonable doubt. 27 In a clash of views between the judge who did not investigate and the fiscal who did,
or between the fiscal and the offended party or the defendant, those of the Fiscal's should normally
prevail. 28 On the other hand, neither an injunction, preliminary or final nor a writ of prohibition may be
issued by the courts to restrain a criminal prosecution 29 except in the extreme case where it is necessary
for the Courts to do so for the orderly administration of justice or to prevent the use of the strong arm of
the law in an op pressive and vindictive manner. 30
However, the action of the fiscal or prosecutor is not without any limitation or control. The same is
subject to the approval of the provincial or city fiscal or the chief state prosecutor as the case maybe
and it maybe elevated for review to the Secretary of Justice who has the power to affirm, modify or
reverse the action or opinion of the fiscal. Consequently the Secretary of Justice may direct that a
motion to dismiss the rase be filed in Court or otherwise, that an information be filed in Court. 31
The filing of a complaint or information in Court initiates a criminal action. The Court thereby acquires
jurisdiction over the case, which is the authority to hear and determine the case. 32 When after the
filing of the complaint or information a warrant for the arrest of the accused is issued by the trial court and
the accused either voluntarily submited himself to the Court or was duly arrested, the Court thereby
acquired jurisdiction over the person of the accused. 33
The preliminary investigation conducted by the fiscal for the purpose of determining whether a prima
facie case exists warranting the prosecution of the accused is terminated upon the filing of the
information in the proper court. In turn, as above stated, the filing of said information sets in motion
the criminal action against the accused in Court. Should the fiscal find it proper to conduct a
reinvestigation of the case, at such stage, the permission of the Court must be secured. After such
reinvestigation the finding and recommendations of the fiscal should be submitted to the Court for
appropriate action. 34 While it is true that the fiscal has the quasi judicial discretion to determine whether
or not a criminal case should be filed in court or not, once the case had already been brought to Court

whatever disposition the fiscal may feel should be proper in the rase thereafter should be addressed for
the consideration of the Court, 35 The only qualification is that the action of the Court must not impair the
substantial rights of the accused. 36 or the right of the People to due process of law. 36a

Whether the accused had been arraigned or not and whether it was due to a reinvestigation by the
fiscal or a review by the Secretary of Justice whereby a motion to dismiss was submitted to the
Court, the Court in the exercise of its discretion may grant the motion or deny it and require that the
trial on the merits proceed for the proper determination of the case.
However, one may ask, if the trial court refuses to grant the motion to dismiss filed by the fiscal upon
the directive of the Secretary of Justice will there not be a vacuum in the prosecution? A state
prosecutor to handle the case cannot possibly be designated by the Secretary of Justice who does
not believe that there is a basis for prosecution nor can the fiscal be expected to handle the
prosecution of the case thereby defying the superior order of the Secretary of Justice.
The answer is simple. The role of the fiscal or prosecutor as We all know is to see that justice is
done and not necessarily to secure the conviction of the person accused before the Courts. Thus, in
spite of his opinion to the contrary, it is the duty of the fiscal to proceed with the presentation of
evidence of the prosecution to the Court to enable the Court to arrive at its own independent
judgment as to whether the accused should be convicted or acquitted. The fiscal should not shirk
from the responsibility of appearing for the People of the Philippines even under such circumstances
much less should he abandon the prosecution of the case leaving it to the hands of a private
prosecutor for then the entire proceedings will be null and void. 37 The least that the fiscal should do is
to continue to appear for the prosecution although he may turn over the presentation of the evidence to
the private prosecutor but still under his direction and control. 38
The rule therefore in this jurisdiction is that once a complaint or information is filed in Court any
disposition of the case as its dismissal or the conviction or acquittal of the accused rests in the
sound discretion of the Court. Although the fiscal retains the direction and control of the prosecution
of criminal cases even while the case is already in Court he cannot impose his opinion on the trial
court. The Court is the best and sole judge on what to do with the case before it. The determination
of the case is within its exclusive jurisdiction and competence. A motion to dismiss the case filed by
the fiscal should be addressed to the Court who has the option to grant or deny the same. It does
not matter if this is done before or after the arraignment of the accused or that the motion was filed
after a reinvestigation or upon instructions of the Secretary of Justice who reviewed the records of
the investigation.
In order therefor to avoid such a situation whereby the opinion of the Secretary of Justice who
reviewed the action of the fiscal may be disregarded by the trial court, the Secretary of Justice
should, as far as practicable, refrain from entertaining a petition for review or appeal from the action
of the fiscal, when the complaint or information has already been filed in Court. The matter should be
left entirely for the determination of the Court.
WHEREFORE, the petition is DISMISSED for lack of merit without pronouncement as to costs.
SO ORDERED.

THIRD DIVISION
AURELIO M. SIERRA, Complainant,
- versus JHOSEP Y. LOPEZ, City Prosecutor of Manila, EUFROCINO SULLA, 1st Assistant City
Prosecutor (ACP), ACP ALEXANDER T. YAP, ACP MARLO CAMPANILLA, and ACP
ARMANDO VELASCO, Respondents.
Adm. Case No. 7549
Promulgated: August 29, 2008

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

DECISION

NACHURA, J.:
The instant controversy arose from a complaint for dereliction of duty and
gross ignorance of the law by Aurelio M. Sierra against City Prosecutor of Manila
Jhosep Y. Lopez, 1st Assistant City Prosecutor (ACP) Eufrocino Sulla, Assistant City
Prosecutors Alexander Yap, Marlo Campanilla and Armando Velasco.

The facts of the case are as follows:

On July 27, 2006 and August 1, 2006, complainant Aurelio M. Sierra filed
several cases before the Office of the City Prosecutor of Manila for
Misrepresentation through Deceit and Syndicated Large Scale Fraud in Land Titling
with Conspiracy, Land Grabbing, Falsification of Public Document and Economic
Sabotage.
These cases were first assigned to ACP Alexander T. Yap. The principal
respondents therein, namely: Alfredo C. Ramos, Presentacion Ramos, George S.K.
Ty, Atty. Emmanuel Leonardo, and a certain Mr. Cayaban, did not appear during the
scheduled hearing. However, Alfredo and Presentacion Ramos appeared in the
morning of that day ahead of the complainant in which they submitted their
respective counter-affidavits, subscribed and sworn to before ACP Yap. The
respondents asked that they be allowed to submit their counter-affidavits ahead of
the scheduled hearing because they had an urgent matter to attend to in the

afternoon. In the case of George S.K. Ty and Mr. Cayaban, their respective counteraffidavits were submitted by their lawyers during the scheduled hearing in the
afternoon, already subscribed and sworn to before a Pasig Prosecutor. Atty.
Leonardo did not submit any counter-affidavit.
Because of ACP Yaps failure to require the presence of respondents in said
cases simultaneously with the complainant, Mr. Sierra asked for the prosecutors
inhibition. The cases were then re-raffled to the respondent ACP Marlo Campanilla
who likewise did not require the presence of the respondents in the preliminary
investigation. Because of this, he too was asked to inhibit from the cases by
complainant.
The cases were then re-raffled to ACP Armando Velasco who also handled the
cases in the same manner as the two other prosecutors before him.
City
Prosecutor Jhosep Y. Lopez and 1st ACP Eufrocino A. Sulla affirmed the correctness of
the manner in which their investigating prosecutors handled the cases.
On April 26, 2007, Sierra filed a complaint with the Supreme Court for
dereliction of duty and gross ignorance of the law against City Prosecutor Lopez,
1st ACP Sulla, ACP Yap, ACP Campanilla, and ACP Velasco.
In his complaint, Sierra raises the following questions of law: (1) whether the
parties must appear together before the investigating prosecutor during preliminary
investigation; (2) whether the counter-affidavits of the respondents should be sworn
to only before the investigating prosecutor; and (3) whether the investigating
prosecutor erred in denying the request of the complainant for clarificatory
questioning.
The Supreme Court Third Division then issued a Resolution dated July 25,
2008 requiring respondents to comment on the complaint.
In compliance with the Honorable Courts order, respondents filed their
Comment dated March 7, 2008 stating that they handled the cases properly and in
accordance with what was provided by law. They also argued that they had not
committed any dereliction of duty and gross ignorance of the law.
We find no merit in the complaint.
Rule 112, particularly Section 3 of the Rules of Court, lays down the
basic procedure in preliminary investigation, as follows:
Sec. 3. Procedure. The preliminary investigation shall be conducted in the
following manner:
(a)
The complaint shall state the address of the respondent and shall
be accompanied by the affidavits of the complainant and his witnesses, as well as
other supporting documents to establish probable cause. They shall be in such

number of copies as there are respondents, plus two (2) copies for the official file.
The affidavits shall be subscribed and sworn to before any prosecutor or
government official authorized to administer oath, or, in their absence or
unavailability, before a notary public, each of whom must certify that he personally
examined the affiants and that he is satisfied that they voluntarily executed and
understood their affidavits.
(b)
Within ten (10) days after the filing of the complaint, the
investigating officer shall either dismiss it if he finds no ground to continue with the
investigation, or issue a subpoena to the respondent attaching to it a copy of the
complaint and its supporting affidavits and documents.
The respondent shall have the right to examine the evidence submitted by
the complainant which he may not have been furnished and to copy them at his
expense. If the evidence is voluminous, the complainant may be required to specify
those which he intends to present against the respondent, and these shall be made
available for examination or copying by the respondent at his expense.
Objects as evidence need not be furnished a party but shall be made
available for examination, copying, or photographing at the expense of the
requesting party.
(c)
Within ten (10) days from receipt of the subpoena with the
complaint and supporting affidavits and documents, the respondent shall submit his
counter-affidavit and that of his witnesses and other supporting documents relied
upon for his defense. The counter-affidavits, shall be subscribed and sworn to and
certified as provided in paragraph (a) of this section, with copies thereof furnished
by him to the complainant. The respondent shall not be allowed to file a motion to
dismiss in lieu of a counter-affidavit.
(d)
If the respondent cannot be subpoenaed, or if subpoenaed, does
not submit counter-affidavits within the ten (10) day period, the investigating officer
shall resolve the complaint based on the evidence presented by the complainant.
(e)
The investigating officer may set a hearing if there are facts and
issues to be clarified from a party or a witness. The parties can be present at the
hearing but without the right to examine or cross-examine. They may, however,
submit to the investigating officer questions which may be asked to the party or
witness concerned.
The hearing shall be held within ten (10) days from submission of the
counter-affidavits and other documents or from the expiration of the period for their
submission. It shall be terminated within five (5) days.

(f)
Within ten (10) days after the investigation, the investigating officer
shall determine whether or not there is sufficient ground to hold the respondent for
trial.

This provision of the Rules does not require a confrontation between the
parties. Preliminary investigation is ordinarily conducted through submission of
affidavits and supporting documents, through the exchange of pleadings.

In Rodis, Sr. v. Sandiganbayan[1] we ruled that - (the New Rules on Criminal

Procedure) do not require as a condition sine qua non to the validity of the
proceedings ( in the preliminary investigation) the presence of the accused for as
long as efforts to reach him were made, and an opportunity to controvert evidence
of the complainant is accorded him. The obvious purpose of the rule is to block
attempts of unscrupulous respondents to thwart the prosecution of offenses by
hiding themselves or by employing dilatory tactics.

Since confrontation between the parties is not imperative, it follows that it is not
necessary that the counter-affidavit of respondent be sworn to before the
investigating prosecutor himself. It can be sworn to before another prosecutor. In
fact, this is specifically provided in paragraph (c) of Sec. 3, which states that the
counter-affidavit shall be subscribed and sworn to and certified as provided in
paragraph (a) of this section x x x; and paragraph (a), provides: the affidavits shall
be subscribed and sworn to before any prosecutor or government official or in their
absence or unavailability, before a notary public x x x.

Lastly, we hold that the investigating prosecutors did not abuse their
discretion when they denied the request of the complainant for the conduct of
clarificatory questioning. Under paragraph (e) of Section 3 above, the conduct of
clarificatory questioning is discretionary upon the prosecutor. Indeed, we already
held in Webb v. De Leon[2] that the decision to call witnesses for clarificatory
questions is addressed to the sound discretion of the investigator, and the
investigator alone.
WHEREFORE, premises considered, the complaint is DENIED for lack of merit.

SO ORDERED.

Republic of the Philippines

Supreme Court
Manila
THIRD DIVISION
G.R. NO. 157472
SSGT. JOSE M. PACOY,

Petitioner,

- versus

HON. AFABLE E. CAJIGAL,

PEOPLE OF THE PHILIPPINES
and OLYMPIO L. ESCUETA,
Respondents.

Promulgated:
September 28, 2007

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

DECISION

AUSTRIA-MARTINEZ, J.:

Before us is a Petition for Certiorari under Rule 65 of the Rules of Court filed by
SSGT. Jose M. Pacoy[1] (petitioner) seeking to annul and set aside the Orders dated
October 25, 2002[2] and December 18, 2002[3] issued by Presiding Judge Afable E.
Cajigal (respondent judge) of the Regional Trial Court (RTC), Branch 68, Camiling,
Tarlac in Criminal Case No. 02-42.
On July 4, 2002, an Information for Homicide was filed in the RTC against
petitioner committed as follows:
That on or about the 18th day of March 2002, in the Municipality of
Mayantoc, Province of Tarlac, Philippines and within the jurisdiction of this Honorable
Court, the said accused with intent to kill, did then and there wilfully, unlawfully and
feloniously shot his commanding officer 2Lt. Frederick Esquita with his armalite rifle

hitting and sustaining upon 2Lt. Frederick Esquita multiple gunshot wounds on his
body which caused his instantaneous death.

With the aggravating circumstance of killing, 2Lt. Frederick Esquita in disregard of

his rank.[4]
On September 12, 2002, upon arraignment, petitioner, duly assisted by
counsel de parte, pleaded not guilty to the charge of Homicide. Respondent Judge
set the pre-trial conference and trial on October 8, 2002.[5]
However, on the same day and after the arraignment, the respondent judge
issued another Order,[6] likewise dated September 12, 2002, directing the trial
prosecutor to correct and amend the Information to Murder in view of the
aggravating circumstance of disregard of rank alleged in the Information which
public respondent registered as having qualified the crime to Murder.
Acting upon such Order, the prosecutor entered his amendment by crossing
out the word Homicide and instead wrote the word Murder in the caption and in
the opening paragraph of the Information. The accusatory portion remained exactly
the same as that of the original Information for Homicide, with the correction of the
spelling of the victims name from Escuita to Escueta.[7]
On October 8, 2002, the date scheduled for pre-trial conference and trial,
petitioner was to be re-arraigned for the crime of Murder. Counsel for petitioner
objected on the ground that the latter would be placed in double jeopardy,
considering that his Homicide case had been terminated without his express
consent, resulting in the dismissal of the case. As petitioner refused to enter his
plea on the amended Information for Murder, the public respondent entered for him
a plea of not guilty.[8]
On October 28, 2002, petitioner filed a Motion to Quash with Motion to
Suspend Proceedings Pending the Resolution of the Instant Motion[9] on the ground
of double jeopardy. Petitioner alleged that in the Information for Homicide, he was
validly indicted and arraigned before a competent court, and the case was
terminated without his express consent; that when the case for Homicide was
terminated without his express consent, the subsequent filing of the Information for
Murder in lieu of Homicide placed him in double jeopardy.
In an Order[10] dated October 25, 2002,[11] the respondent judge denied
the Motion to Quash. He ruled that a claim of former acquittal or conviction does
not constitute double jeopardy and cannot be sustained unless judgment was
rendered acquitting or convicting the defendant in the former prosecution; that
petitioner was never acquitted or convicted of Homicide, since the Information for
Homicide was merely corrected/or amended before trial commenced and did not

terminate the same; that the Information for Homicide was patently insufficient in
substance, so no valid proceedings could be taken thereon; and that with the
allegation of aggravating circumstance of disregard of rank, the crime of
Homicide is qualified to Murder.
Petitioner filed a Motion to Inhibit with attached Motion for Reconsideration. In
his Motion to Inhibit, he alleged that the respondent judge exercised jurisdiction in
an arbitrary, capricious and partial manner in mandating the amendment of the
charge from Homicide to Murder in disregard of the provisions of the law and
existing jurisprudence.
In his Motion for Reconsideration, petitioner reiterated that the case against
him was dismissed or otherwise terminated without his express consent, which
constitutes a ground to quash the information for murder; and that to try him again
for the same offense constitutes double jeopardy. Petitioner stated that contrary to
respondent judge's conclusion that disregard of rank qualifies the killing to Murder,
it is a generic aggravating circumstance which only serves to affect the imposition
of the period of the penalty. Petitioner also argued that the amendment and/or
correction ordered by the respondent judge was substantial; and under Section 14,
Rule 110 of the Revised Rules of Criminal Procedure, this cannot be done, since
petitioner had already been arraigned and he would be placed in double jeopardy.
In his Order dated December 18, 2002,[12] the respondent judge denied the
Motion to Inhibit and granted the Motion for Reconsideration, thus:
WHEREFORE, in view of the foregoing, the Motion to Inhibit is hereby DENIED while
the Motion for Reconsideration is hereby GRANTED.
Unless ordered otherwise by the Highest Court, the presiding judge shall continue
hearing this case. Further, the Order dated October 25, 2002 is reconsidered and
the original information charging the crime of homicide stands.[13]
In granting the Motion for Reconsideration, respondent judge found that a
close scrutiny of Article 248 of the Revised Penal Code shows that disregard of
rank is merely a generic mitigating[14] circumstance which should not elevate the
classification of the crime of homicide to murder.
On April 30, 2003, petitioner filed herein petition for certiorari on the following
grounds:
THE RESPONDENT JUDGE GRAVELY ABUSED HIS DISCRETION AND EXCEEDED HIS
JURISDICTION IN ORDERING THE AMENDMENT OF THE INFORMATION FROM
HOMICIDE TO MURDER.
THE RESPONDENT JUDGE GRAVELY ABUSED HIS DISCRETION AND VIOLATED THE
LAW IN DENYING THE MOTION TO QUASH THE INFORMATION FOR MURDER.

THE RESPONDENT JUDGE GRAVELY ABUSED HIS DISCRETION AND EXCEEDED HIS
JURISDICTION AND VIOLATED THE LAW IN ORDERING THE REINSTATEMENT OF THE
INFORMATION FOR HOMICIDE WHICH WAS ALREADY TERMINATED.[15]

Petitioner alleges that despite having entered his plea of not guilty to the
charge of Homicide, the public respondent ordered the amendment of the
Information from Homicide to Murder because of the presence of the aggravating
circumstance of disregard of rank, which is in violation of Section 14, Rule 110 of
the Revised Rules of Criminal Procedure; that the public respondents ruling that
disregard of rank is a qualifying aggravating circumstance which qualified the
killing of 2Lt. Escueta to murder is erroneous since, under paragraph 3, Article 14 of
the Revised Penal Code, disregard of rank is only a generic aggravating
circumstance which serves to affect the penalty to be imposed upon the accused
and does not qualify the offense into a more serious crime; that even assuming that
disregard of rank is a qualifying aggravating circumstance, such is a substantial
amendment which is not allowed after petitioner has entered his plea.
Petitioner next contends that the respondent judge gravely abused his
discretion when he denied the Motion to Quash the Information for Murder,
considering that the original Information for Homicide filed against him was
terminated without his express consent; thus, prosecuting him for the same offense
would place him in double jeopardy.
Petitioner further argues that although the respondent judge granted his
Motion for Reconsideration, he did not in fact grant the motion, since petitioner's
prayer was for the respondent judge to grant the Motion to Quash the Information
for Murder on the ground of double jeopardy; that his Motion for Reconsideration did
not seek the reinstatement of the Information for Homicide upon the dismissal of
the Information for Murder, as he would again be placed in double jeopardy; thus,
the respondent judge committed grave abuse of discretion in reinstating the
Homicide case.
In his Comment, the Solicitor General argues that the respondent judge's
Order reinstating the Information to Homicide after initially motu proprio ordering its
amendment to Murder renders herein petition moot and academic; that petitioner
failed to establish the fourth element of double jeopardy, i.e., the defendant was
acquitted or convicted, or the case against him was dismissed or otherwise
terminated without his consent; that petitioner confuses amendment with
substitution of Information; that the respondent judge's Order dated September 12,
2002 mandated an amendment of the Information as provided under Section 14,
Rule 110 of the Revised Rules of Criminal Procedure; and that amendments do not
entail dismissal or termination of the previous case.

Private respondent Col. Olimpio Escueta, father of the victim, filed his
Comment alleging that no grave abuse of discretion was committed by the
respondent judge when he denied petitioner's Motion to Quash the Amended
Information, as petitioner was not placed in double jeopardy; that the proceedings
under the first Information for homicide has not yet commenced, and the case was
not dismissed or terminated when the Information was amended.
In his Reply, petitioner reiterates his contention that the amendment of the
charge of Homicide to Murder after his arraignment would place him in double
jeopardy, considering that said amendment was without his express consent; and
that such amendment was tantamount to a termination of the charge of Homicide.
The parties filed their respective Memoranda.
Generally, a direct resort to us in a petition for certiorari is highly improper,
for it violates the established policy of strict observance of the judicial hierarchy of
courts. However, the judicial hierarchy of courts is not an iron-clad rule.[16] A strict
application of the rule of hierarchy of courts is not necessary when the cases
brought before the appellate courts do not involve factual but legal questions.[17]
In the present case, petitioner submits pure questions of law involving the
proper legal interpretation of the provisions on amendment and substitution of
information under the Rules of Court. It also involves the issue of double jeopardy,
one of the fundamental rights of the citizens under the Constitution which protects
the accused not against the peril of second punishment but against being tried for
the same offense. These important legal questions and in order to prevent further
delay in the trial of the case warrant our relaxation of the policy of strict observance
of the judicial hierarchy of courts.
The Courts Ruling
The petition is not meritorious.
We find no merit in petitioner's contention that the respondent judge
committed grave abuse of discretion in amending the Information after petitioner
had already pleaded not guilty to the charge in the Information for Homicide. The
argument of petitioner -Considering the fact that the case for Homicide against him was already
terminated without his express consent, he cannot anymore be charged and
arraigned for Murder which involve the same offense. The petitioner argued that
the termination of the information for Homicide without his express consent is
equivalent to his acquittal. Thus, to charge him again, this time for Murder, is
tantamount to placing the petitioner in Double Jeopardy.
is not plausible. Petitioner confuses the procedure and effects of amendment or
substitution under Section 14, Rule 110 of the Rules of Court, to wit --

SEC. 14. Amendment or substitution. A complaint or information may be

amended, in form or in substance, without leave of court, at any time before the
accused enters his plea. After the plea and during the trial, a formal amendment
may only be made with leave of court and when it can be done without causing
prejudice to the rights of the accused.
xxx
If it appears at any time before judgment that a mistake has been
made in charging the proper offense, the court shall dismiss the original complaint
or information upon the filing of a new one charging the proper offense in
accordance with Rule 119, Section 11, provided the accused would not be placed
thereby in double jeopardy, and may also require the witnesses to give bail for their
appearance at the trial.
with Section 19, Rule 119 of which provides:
SEC. 19. When mistake has been made in charging the proper offense. - When it
becomes manifest at any time before judgment that a mistake has been made in
charging the proper offense and the accused cannot be convicted of the offense
charged or any other offense necessarily included therein, the accused shall not be
discharged if there appears good cause to detain him. In such case, the court shall
commit the accused to answer for the proper offense and dismiss the original case
upon the filing of the proper information.
First, a distinction shall be made between amendment and substitution under
Section 14, Rule 110. For this purpose, Teehankee v. Madayag[19] is instructive, viz:
The first paragraph provides the rules for amendment of the information or
complaint, while the second paragraph refers to the substitution of the information
or complaint.
It may accordingly be posited that both amendment and substitution of the
information may be made before or after the defendant pleads, but they differ in
the following respects:
1. Amendment may involve either formal or substantial changes, while substitution
necessarily involves a substantial change from the original charge;
2. Amendment before plea has been entered can be effected without leave of
court, but substitution of information must be with leave of court as the original
information has to be dismissed;
3. Where the amendment is only as to form, there is no need for another
preliminary investigation and the retaking of the plea of the accused; in
substitution of information, another preliminary investigation is entailed and the
accused has to plead anew to the new information; and

4. An amended information refers to the same offense charged in the original

information or to an offense which necessarily includes or is necessarily included in
the original charge, hence substantial amendments to the information after the plea
has been taken cannot be made over the objection of the accused, for if the original
information would be withdrawn, the accused could invoke double jeopardy. On the
other hand, substitution requires or presupposes that the new information involves
a different offense which does not include or is not necessarily included in the
original charge, hence the accused cannot claim double jeopardy.
In determining, therefore, whether there should be an amendment under the first
paragraph of Section 14, Rule 110, or a substitution of information under the second
paragraph thereof, the rule is that where the second information involves the same
offense, or an offense which necessarily includes or is necessarily included in the
first information, an amendment of the information is sufficient; otherwise, where
the new information charges an offense which is distinct and different from that
initially charged, a substitution is in order.
There is identity between the two offenses when the evidence to support a
conviction for one offense would be sufficient to warrant a conviction for the other,
or when the second offense is exactly the same as the first, or when the second
offense is an attempt to commit or a frustration of, or when it necessarily includes
or is necessarily included in, the offense charged in the first information. In this
connection, an offense may be said to necessarily include another when some of
the essential elements or ingredients of the former, as this is alleged in the
information, constitute the latter. And, vice-versa, an offense may be said to be
necessarily included in another when the essential ingredients of the former
constitute or form a part of those constituting the latter.[20]
In the present case, the change of the offense charged from Homicide to Murder is
merely a formal amendment and not a substantial amendment or a substitution as
defined in Teehankee.
While the amended Information was for Murder, a reading of the Information
shows that the only change made was in the caption of the case; and in the opening
paragraph or preamble of the Information, with the crossing out of word Homicide
and its replacement by the word Murder. There was no change in the recital of
facts constituting the offense charged or in the determination of the jurisdiction of
the court. The averments in the amended Information for Murder are exactly the
same as those already alleged in the original Information for Homicide, as there
was not at all any change in the act imputed to petitioner, i.e., the killing of 2Lt.
Escueta without any qualifying circumstance. Thus, we find that the amendment
made in the caption and preamble from Homicide to Murder as purely formal.
[21]

Section 14, Rule 110 also provides that in allowing formal amendments in
cases in which the accused has already pleaded, it is necessary that the
amendments do not prejudice the rights of the accused. The test of whether the
rights of an accused are prejudiced by the amendment of a complaint or information
is whether a defense under the complaint or information, as it originally stood,
would no longer be available after the amendment is made; and when any evidence
the accused might have would be inapplicable to the complaint or information.[22]
Since the facts alleged in the accusatory portion of the amended Information are
identical with those of the original Information for Homicide, there could not be any
effect on the prosecution's theory of the case; neither would there be any possible
prejudice to the rights or defense of petitioner.
While the respondent judge erroneously thought that disrespect on account
of rank qualified the crime to murder, as the same was only a generic aggravating
circumstance,[23] we do not find that he committed any grave abuse of discretion
in ordering the amendment of the Information after petitioner had already pleaded
not guilty to the charge of Homicide, since the amendment made was only formal
and did not adversely affect any substantial right of petitioner.
Next, we determine whether petitioner was placed in double jeopardy by the
change of the charge from Homicide to Murder; and subsequently, from Murder
back to Homicide. Petitioner's claim that the respondent judge committed grave
abuse of discretion in denying his Motion to Quash the Amended Information for
Murder on the ground of double jeopardy is not meritorious.
Petitioner's Motion to Quash was anchored on Section 3, Rule 117 of the Rules
of Court, which provides:
SEC. 3. Grounds. - The accused may move to quash the complaint or
information on any of the following grounds:
xxxx
(i) That the accused has been previously convicted or acquitted of the offense
charged, or the case against him was dismissed or otherwise terminated without his
express consent.
Section 7 of the same Rule lays down the requisites in order that the
defense of double jeopardy may prosper, to wit:
SEC. 7. Former conviction or acquittal; double jeopardy. When an accused has
been convicted or acquitted, or the case against him dismissed or otherwise
terminated without his express consent by a court of competent jurisdiction, upon a
valid complaint or information or other formal charge sufficient in form and
substance to sustain a conviction and after the accused had pleaded to the charge,
the conviction or acquittal of the accused or the dismissal of the case shall be a bar

to another prosecution for the offense charged, or for any attempt to commit the
same or frustration thereof, or for any offense which necessarily includes or is
necessarily included in the offense charged in the former complaint or information.
Thus, there is double jeopardy when the following requisites are present: (1) a
first jeopardy attached prior to the second; (2) the first jeopardy has been validly
terminated; and (3) a second jeopardy is for the same offense as in the first.[24]
As to the first requisite, the first jeopardy attaches only (a) after a valid
indictment; (b) before a competent court; (c) after arraignment; (d) when a valid
plea has been entered; and (e) when the accused was acquitted or convicted, or the
case was dismissed or otherwise terminated without his express consent.
It is the conviction or acquittal of the accused or the dismissal or termination
of the case that bars further prosecution for the same offense or any attempt to
commit the same or the frustration thereof; or prosecution for any offense which
necessarily includes or is necessarily included in the offense charged in the former
complaint or information.
Petitioner's insistence that the respondent judge dismissed or terminated his
case for homicide without his express consent, which is tantamount to an acquittal,
is misplaced.
Dismissal of the first case contemplated by Section 7 presupposes a definite
or unconditional dismissal which terminates the case.[27] And for the dismissal to
be a bar under the jeopardy clause, it must have the effect of acquittal.
The respondent judge's Order dated September 12, 2002 was for the trial
prosecutor to correct and amend the Information but not to dismiss the same upon
the filing of a new Information charging the proper offense as contemplated under
the last paragraph of Section 14, Rule 110 of the Rules of Court -- which, for
convenience, we quote again -If it appears at anytime before judgment that a mistake has been made in charging
the proper offense, the court shall dismiss the original complaint or information
upon the filing of a new one charging the proper offense in accordance with section
19, Rule 119, provided the accused shall not be placed in double jeopardy. The court
may require the witnesses to give bail for their appearance at the trial.

and Section 19, Rule 119, which provides:

SEC. 19.- When mistake has been made in charging the proper offense When it becomes manifest at any time before judgment that a mistake has been
made in charging the proper offense and the accused cannot be convicted of the
offense charged or any other offense necessarily included therein, the accused shall

not be discharged if there appears good cause to detain him. In such case, the court
shall commit the accused to answer for the proper offense and dismiss the original
case upon the filing of the proper information.
Evidently, the last paragraph of Section 14, Rule 110, applies only when the
offense charged is wholly different from the offense proved, i.e., the accused cannot
be convicted of a crime with which he was not charged in the information even if it
be proven, in which case, there must be a dismissal of the charge and a substitution
of a new information charging the proper offense. Section 14 does not apply to a
second information, which involves the same offense or an offense which
necessarily includes or is necessarily included in the first information. In this
connection, the offense charged necessarily includes the offense proved when some
of the essential elements or ingredients of the former, as alleged in the complaint or
information, constitute the latter. And an offense charged is necessarily included in
the offense proved when the essential ingredients of the former constitute or form
a part of those constituting the latter.[28]
Homicide is necessarily included in the crime of murder; thus, the respondent
judge merely ordered the amendment of the Information and not the dismissal of
the original Information. To repeat, it was the same original information that was
amended by merely crossing out the word Homicide and writing the word
Murder, instead, which showed that there was no dismissal of the homicide case.
Anent the last issue, petitioner contends that respondent judge gravely
abused his discretion in ordering that the original Information for Homicide stands
after realizing that disregard of rank does not qualify the killing to Murder. That
ruling was again a violation of his right against double jeopardy, as he will be
prosecuted anew for a charge of Homicide, which has already been terminated
earlier.
We are not convinced. Respondent judge did not commit any grave abuse of
discretion.
A reading of the Order dated December 18, 2002 showed that the respondent
judge granted petitioner's motion for reconsideration, not on the ground that double
jeopardy exists, but on his realization that disregard of rank is a generic
aggravating circumstance which does not qualify the killing of the victim to murder.
Thus, he rightly corrected himself by reinstating the original Information for
Homicide. The requisite of double jeopardy that the first jeopardy must have
attached prior to the second is not present, considering that petitioner was neither
convicted nor acquitted; nor was the case against him dismissed or otherwise
terminated without his express consent.[29]
WHEREFORE, the petition is DISMISSED, there being no grave abuse of
discretion committed by respondent Judge.

SO ORDERED.

Republic of the Philippines

SUPREME COURT
Manila
EN BANC

G.R. No. 103102 March 6, 1992

CLAUDIO J. TEEHANKEE, JR., petitioner,
vs.
HON. JOB B. MADAYAG and PEOPLE OF THE PHILIPPINES, respondents.

REGALADO, J.:
In this special civil action for certiorari, prohibition and mandamus, petitioner principally seeks: (1) to
nullify the order 1 of respondent judge admitting the amended information for murder filed in Criminal
Case No.
91-4606; (2) to nullify the arraignment and the plea of not guilty entered by order of respondent judge
when petitioner refused to be arraigned on the amended information for lack of preliminary investigation
therefor; (3) to nullify the appointment of a counsel de oficio/PAO lawyer to represent petitioner; (4) to
prohibit respondent judge from "over-speedy and preferential scheduling of the trial of the aforementioned
criminal case;" and (5) to compel respondent judge to order preliminary investigation of the crime charged
in the amended information.
Petitioner was originally charged on July 19, 1991 in an information 2 for the crime of frustrated murder
allegedly committed as follows:
That on or about the 13th day of July 1991, in the Municipality of Makati,
Metro Manila, Philippines, and within the jurisdiction of this Honorable Court,
the above-named accused, while armed with a handgun, with intent to kill,
treachery and evident premeditation, did then and there willfully, unlawfully,
and feloniously attack, assault and shoot one Maureen Navarro Hultman on
the head, thereby inflicting gunshot wounds, which ordinarily would have
caused the death of said Maureen Navarro Hultman, thereby performing all
the acts of execution which would have produced the crime of Murder as a
consequence, but nevertheless did not produce it by reason of cause or
causes independent of her will, that is, due to the timely and able medical
assistance rendered to said Maureen Navarro Hultman which prevented her
death.
After the prosecution had rested its case, petitioner was allowed to file a motion for leave to file a
demurrer to evidence. However, before the said motion could be filed, Maureen Navarro Hultman
died.

Consequently, private prosecutor Rogelio A. Vinluan filed an omnibus motion 3 for leave of court to file
an amended information and to admit said amended information. The amended information, 4 filed on
October 31, 1991, reads:
That on or about the 13th day of July, 1991, in the Municipality of Makati,
Metro Manila, Philippines and within the jurisdiction of this Honorable
Court, the said Claudio Teehankee, Jr. y. Javier, armed with a handgun, with
intent to kill and evident premeditation and by means of treachery, did then
and there willfully, unlawfully and feloniously attack, assault and shoot with
the said handgun Maureen Navarro Hultman who was hit in the head,
thereby inflicting mortal wounds which directly caused the death of said
Maureen Hultman.
Petitioner filed an opposition 5 thereto, as well as a rejoinder 6 to the reply 7 of the prosecution. On
November 13, 1991, the trial court issued the questioned order admitting the amended information.
At the scheduled arraignment on November 26, 1991, petitioner refused to be arraigned on the
amended information for lack of a preliminary investigation thereon. By reason of such refusal,
respondent judge ordered that a plea of "not guilty" be entered for petitioner.
Thereafter, respondent judge ordered the prosecution to present its evidence. When petitioner's
counsel manifested that he would not take part in the proceedings because of the legal issue raised,
the trial court appointed a counsel de oficio to represent herein petitioner.
Petitioner now raises the following issues before us:
(a) Whether or not an amended information involving a substantial
amendment, without preliminary investigation, after the prosecution has
rested on the original information, may legally and validly be admitted;
(b) Whether or not a counsel de oficio may legally and validly be appointed to
represent an accused who is represented by counsel of choice who refuses
to participate in the proceedings because of a perceived denial of due
process and after a plea for appellate remedies within a short period is
denied by the trial court; and
(c) Whether or not a particular criminal case may legally and validly be
rushed and preferentially scheduled for trial over and at the expense and
sacrifice of other, specially older, criminal cases. 8
In our resolution of January 14, 1992, we required the Solicitor General to file a comment to the
basic petition. It appearing from a further review of the record that the operative facts and
determinant issues involved in this case are sufficiently presented in the petition and the annexes
thereto, both in regard to the respective positions of petitioner and respondents, the Court has
decided to dispense with the aforesaid comment to obviate needless delay in fairness to petitioner.
I. Petitioner avers that the additional allegation in the amended information, as herein underscored,
that the accused ". . . did then and there willfully, unlawfully and feloniously attack, assault and
shoot with the said handgun Maureen Navarro Hultman who was hit in the head, thereby inflicting
mortal wounds which directly caused the death of said Maureen Hultman . . ." constitutes a
substantial amendment since it involves a change in the nature of the offense charged, that is, from
frustrated to consummated murder. Petitioner further submits that "(t)here is a need then to establish

that the same mortal wounds, which were initially frustrated (sic) by timely and able medical
assistance, ultimately caused the death of the victim, because it could have been caused by a
supervening act or fact which is not imputable to the offender." 9 From this, he argues that there being
a substantial amendment, the same may no longer be allowed after arraignment and during the trial.
Corollary thereto, petitioner then postulates that since the amended information for murder charges
an entirely different offense, involving as it does a new fact, that is, the fact of death whose cause
has to be established, it is essential that another preliminary investigation on the new charge be
conducted before the new information can be admitted.
We find no merit in the petition. There are sufficient legal and jurisprudential moorings for the orders
of the trial court.
Section 14, Rule 110 of the 1985 Rules on Criminal Procedure provides:
Sec. 14. Amendment. The information or complaint may be amended, in
substance or form, without leave of court, at any time before the accused
pleads; and thereafter and during the trial as to all matters of form, by leave
and at the discretion of the court, when the same can be done without
prejudice to the rights of the accused.
If it appears at any time before judgment that a mistake has been made in
charging the proper offense, the court shall dismiss the original complaint or
information upon the filing of a new one charging the proper offense in
accordance with Rule 119, Section 11, provided the accused would not be
placed thereby in double jeopardy and may also require the witnesses to give
bail for their appearance at the trial.
The first paragraph provides the rules for amendment of the information or complaint, while the
second paragraph refers to the substitution of the information or complaint.
It may accordingly be posited that both amendment and substitution of the information may be made
before or after the defendant pleaded, but they differ in the following respects:
1. Amendment may involve either formal or substantial changes, while substitution necessarily
involves a substantial change from the original charge;
2. Amendment before plea has been entered can be effected without leave of court, but substitution
of information must be with leave of court as the original information has to be dismissed;
3. Where the amendment is only as to form, there is no need for another preliminary investigation
and the retaking of the plea of the accused; in substitution of information, another preliminary
investigation is entailed and the accused has to plead anew to the new information; and
4. An amended information refers to the same offense charged in the original information or to an
offense which necessarily includes or is necessarily included in the original charge, hence
substantial amendments to the information after the plea has been taken cannot be made over the
objection of the accused, for if the original information would be withdrawn, the accused could invoke
double jeopardy. On the other hand, substitution requires or presupposes that the new information
involves a different offense which does not include or is not necessarily included in the original
charge, hence the accused cannot claim double jeopardy.

In determining, therefore, whether there should be an amendment under the first paragraph of
Section 14, Rule 110, or a substitution of information under the second paragraph thereof, the rule is
that where the second information involves the same offense, or an offense which necessarily
includes or is necessarily included in the first information, and amendment of the information is
sufficient; otherwise, where the new information charges an offense which is distinct and different
from that initially charged, a substitution is in order.
There is identity between the two offenses when the evidence to support a conviction for one offense
would be sufficient to warrant a conviction for the other, or when the second offense is exactly the
same as the first, or when the second offense is an attempt to commit or a frustration of, or when it
necessarily includes or is necessarily included in, the offense charged in the first information. In this
connection, an offense may be said to necessarily include another when some of the essential
elements or ingredients of the former, as this is alleged in the information, constitute the latter. And,
vice-versa, an offense may be said to be necessarily included in another when the essential
ingredients of the former constitute or form a part of those constituting the latter. 10
Going now to the case at bar, it is evident that frustrated murder is but a stage in the execution of the
crime of murder, hence the former is necessarily included in the latter. It is indispensable that the
essential element of intent to kill, as well as qualifying circumstances such as treachery or evident
premeditation, be alleged in both an information for frustrated murder and for murder, thereby
meaning and proving that the same material allegations are essential to the sufficiency of the
informations filed for both. This is because, except for the death of the victim, the essential elements
of consummated murder likewise constitute the essential ingredients to convict herein petitioner for
the offense of frustrated murder.
In the present case, therefore, there is an identity of offenses charged in both the original and the
amended information. What is involved here is not a variance in the nature of different offenses
charged, but only a change in the stage of execution of the same offense from frustrated to
consummated murder. This is being the case, we hold that an amendment of the original information
will suffice and, consequent thereto, the filing of the amended information for murder is proper.
Petitioner would insist, however, that the additional allegation on the fact of death of the victim
Maureen Navarro Hultman constitutes a substantial amendment which may no longer be allowed
after a plea has been entered. The proposition is erroneous and untenable.
As earlier indicated, Section 14 of Rule 110 provides that an amendment, either of form or
substance, may be made at any time before the accused enters a plea to the charge and, thereafter,
as to all matters of form with leave of court.
A substantial amendment consists of the recital of facts constituting the offense charged and
determinative of the jurisdiction of the court. All other matters are merely of form. 11 Thus, the following
have been held to be merely formal amendments, viz: (1) new allegations which relate only to the range
of the penalty that the court might impose in the event of conviction; 12 (2) an amendment which does not
charge another offense different or distinct from that charged in the original one; 13 (3) additional
allegations which do not alter the prosecution's theory of the case so as to cause surprise to the accused
and affect the form of defense he has or will assume; and (4) an amendment which does not adversely
affect any substantial right of the accused, such as his right to invoke prescription. 14
We repeat that after arraignment and during the trial, amendments are allowed, but only as to
matters of form andprovided that no prejudice is caused to the rights of the accused. 15 The test of
whether an amendment is only of form and an accused is not prejudiced by such amendment has been
said to be whether or not a defense under the information as it originally stood would be equally available

after the amendment is made, and whether or not any evidence the accused might have would be equally
applicable to the information in the one form as in the other; if the answer is in the affirmative, the
amendment is one of form and not of substance. 16

Now, an objective appraisal of the amended information for murder filed against herein petitioner will
readily show that the nature of the offense originally charged was not actually changed. Instead, an
additional allegation, that is, the supervening fact of the death of the victim was merely supplied to
aid the trial court in determining the proper penalty for the crime. That the accused committed a
felonious act with intent to kill the victim continues to be the prosecution's theory. There is no
question that whatever defense herein petitioner may adduce under the original information for
frustrated murder equally applies to the amended information for murder. Under the circumstances
thus obtaining, it is irremissible that the amended information for murder is, at most, an amendment
as to form which is allowed even during the trial of the case.
It consequently follows that since only a formal amendment was involved and introduced in the
second information, a preliminary investigation is unnecessary and cannot be demanded by the
accused. The filing of the amended information without the requisite preliminary investigation does
not violate petitioner's right to be secured against hasty, malicious and oppressive prosecutions, and
to be protected from an open and public accusation of a crime, as well as from the trouble, expenses
and anxiety of a public trial. The amended information could not conceivably have come as a
surprise to petitioner for the simple and obvious reason that it charges essentially the same offense
as that charged under the original information. Furthermore, as we have heretofore held, if the crime
originally charged is related to the amended charge such that an inquiry into one would elicit
substantially the same facts that an inquiry into the other would reveal, a new preliminary
investigation is not necessary. 17
We find nothing irregular in the appointment by the trial court of a counsel de oficio for herein
petitioner whose counsel of record refused to participate in the proceedings because of an alleged
legal issue. Such issue having been demonstrated herein as baseless, we apprehend his refusal to
participate in the trial as causative of or contributive to the delay in the disposition of the case. And,
finally, for as long as the substantial rights of herein petitioner and other persons charged in court
are not prejudiced, the scheduling of cases should be left to the sound discretion of the trial court.
WHEREFORE, it being clearly apparent that respondent judge did not commit the errors speciously
attributed to him, the extraordinary writs prayed for are hereby DENIED and the instant petition is
DISMISSED for lack of merit.
SO ORDERED.

FIRST DIVISION
[G.R. No. 147703. April 14, 2004]
PHILIPPINE RABBIT BUS LINES, INC., petitioner, vs. PEOPLE OF THE PHILIPPINES,
respondent.
DECISION
PANGANIBAN, J.:
When the accused-employee absconds or jumps bail, the judgment meted out
becomes final and executory. The employer cannot defeat the finality of the
judgment by filing a notice of appeal on its own behalf in the guise of asking for a
review of its subsidiary civil liability. Both the primary civil liability of the accusedemployee and the subsidiary civil liability of the employer are carried in one single
decision that has become final and executory.
The Case
Before this Court is a Petition for Review[1] under Rule 45 of the Rules of Court,
assailing the March 29, 2000[2] and the March 27, 2001[3] Resolutions of the Court
of Appeals (CA) in CA-GR CV No. 59390. Petitioners appeal from the judgment of
the Regional Trial Court (RTC) of San Fernando, La Union in Criminal Case No. 2535
was dismissed in the first Resolution as follows:
WHEREFORE, for all the foregoing, the motion to dismiss is GRANTED and the
appeal is ordered DISMISSED.[4]
The second Resolution denied petitioners Motion for Reconsideration.[5]
The Facts
The facts of the case are summarized by the CA in this wise:
On July 27, 1994, accused [Napoleon Roman y Macadangdang] was found guilty
and convicted of the crime of reckless imprudence resulting to triple homicide,
multiple physical injuries and damage to property and was sentenced to suffer the
penalty of four (4) years, nine (9) months and eleven (11) days to six (6) years, and
to pay damages as follows:
a.
to pay the heirs of JUSTINO TORRES the sum of P50,000.00 as indemnity for
his death, plus the sum of P25,383.00, for funeral expenses, his unearned income
for one year at P2,500.00 a month, P50,000.00 as indemnity for the support of
Renato Torres, and the further sum of P300,000.00 as moral damages;
b.
to the heirs of ESTRELLA VELERO, the sum of P50,000.00 as indemnity for
her death, the sum of P237,323.75 for funeral expenses, her unearned income for

three years at P45,000.00 per annum, and the further sum of P1,000,000.00 as
moral damages and P200,000.00 as attorneys fees[;]

c.
to the heirs of LORNA ANCHETA, the sum of P50,000.00 as indemnity for her
death, the sum of P22,838.00 as funeral expenses, the sum of P20,544.94 as
medical expenses and her loss of income for 30 years at P1,000.00 per month, and
the further sum of P100,000.00 for moral damages;
d.
to MAUREEN BRENNAN, the sum of P229,654.00 as hospital expenses,
doctors fees of P170,000.00 for the orthopedic surgeon, P22,500.00 for the
[n]eurologist, an additional indemnity [of] at least P150,000.00 to cover future
correction of deformity of her limbs, and moral damages in the amount of
P1,000,000.00;
e.
to ROSIE BALAJO, the sum of P3,561.46 as medical expenses, P2,000.00 as
loss of income, and P25,000.00 as moral damages;
f.
to TERESITA TAMONDONG, the sum of P19,800.47 as medical expenses,
P800.00 for loss of income, and P25,000.00 as moral damages;
g.
to JULIANA TABTAB, the amount of P580.81 as medical expenses, P4,600.00
as actual damages and her loss earnings of P1,400.00 as well as moral damages in
the amount of P10,000.00;
h.
to MIGUEL ARQUITOLA, the sum of P12,473.82 as hospital expenses,
P14,530.00 as doctors fees, P1,000.00 for medicines and P50,000.00 as moral
damages;
i.
to CLARITA CABANBAN, the sum of P155.00 for medical expenses, P87.00 for
medicines, P1,710.00 as actual damages and P5,000.00 as moral damages;
j.
to MARIANO CABANBAN, the sum of P1,395.00 for hospital bills, P500.00 for
medicine, P2,100.00 as actual damages, P1,200.00 for loss of income and P5,000.00
as moral damages;
k.
to La Union Electric Company as the registered owner of the Toyota Hi-Ace
Van, the amount of P250,000.00 as actual damages for the cost of the totally
wrecked vehicle; to the owner of the jeepney, the amount of P22,698.38 as actual
damages;
The court further ruled that [petitioner], in the event of the insolvency of accused,
shall be liable for the civil liabilities of the accused. Evidently, the judgment against
accused had become final and executory.
Admittedly, accused had jumped bail and remained at-large. It is worth
mention[ing] that Section 8, Rule 124 of the Rules of Court authorizes the dismissal

of appeal when appellant jumps bail. Counsel for accused, also admittedly hired
and provided by [petitioner], filed a notice of appeal which was denied by the trial
court. We affirmed the denial of the notice of appeal filed in behalf of accused.
Simultaneously, on August 6, 1994, [petitioner] filed its notice of appeal from the
judgment of the trial court. On April 29, 1997, the trial court gave due course to
[petitioners] notice of appeal. On December 8, 1998, [petitioner] filed its brief. On
December 9, 1998, the Office of the Solicitor General received [a] copy of
[petitioners] brief. On January 8, 1999, the OSG moved to be excused from filing
[respondents] brief on the ground that the OSGs authority to represent People is
confined to criminal cases on appeal. The motion was however denied per Our
resolution of May 31, 1999. On March 2, 1999, [respondent]/private prosecutor filed
the instant motion to dismiss.[6] (Citations omitted)
Ruling of the Court of Appeals
The CA ruled that the institution of a criminal case implied the institution also of the
civil action arising from the offense. Thus, once determined in the criminal case
against the accused-employee, the employers subsidiary civil liability as set forth in
Article 103 of the Revised Penal Code becomes conclusive and enforceable.
The appellate court further held that to allow an employer to dispute independently
the civil liability fixed in the criminal case against the accused-employee would be
to amend, nullify or defeat a final judgment. Since the notice of appeal filed by the
accused had already been dismissed by the CA, then the judgment of conviction
and the award of civil liability became final and executory. Included in the civil
liability of the accused was the employers subsidiary liability.
Hence, this Petition.[7]
The Issues
Petitioner states the issues of this case as follows:
A.
Whether or not an employer, who dutifully participated in the defense of
its accused-employee, may appeal the judgment of conviction independently of the
accused.
B.
Whether or not the doctrines of Alvarez v. Court of Appeals (158 SCRA 57)
and Yusay v. Adil (164 SCRA 494) apply to the instant case.[8]
There is really only one issue. Item B above is merely an adjunct to Item A.
The Courts Ruling
The Petition has no merit.
Main Issue:

Propriety of Appeal by the Employer

Pointing out that it had seasonably filed a notice of appeal from the RTC Decision,
petitioner contends that the judgment of conviction against the accused-employee
has not attained finality. The former insists that its appeal stayed the finality,
notwithstanding the fact that the latter had jumped bail. In effect, petitioner argues
that its appeal takes the place of that of the accused-employee.
We are not persuaded.
Appeals in Criminal Cases

Section 1 of Rule 122 of the 2000 Revised Rules of Criminal Procedure states thus:
Any party may appeal from a judgment or final order, unless the accused will be
placed in double jeopardy.
Clearly, both the accused and the prosecution may appeal a criminal case, but the
government may do so only if the accused would not thereby be placed in double
jeopardy.[9] Furthermore, the prosecution cannot appeal on the ground that the
accused should have been given a more severe penalty.[10] On the other hand, the
offended parties may also appeal the judgment with respect to their right to civil
liability. If the accused has the right to appeal the judgment of conviction, the
offended parties should have the same right to appeal as much of the judgment as
is prejudicial to them.[11]
Appeal by the Accused Who Jumps Bail
Well-established in our jurisdiction is the principle that the appellate court may,
upon motion or motu proprio, dismiss an appeal during its pendency if the accused
jumps bail. The second paragraph of Section 8 of Rule 124 of the 2000 Revised
Rules of Criminal Procedure provides:
The Court of Appeals may also, upon motion of the appellee or motu proprio,
dismiss the appeal if the appellant escapes from prison or confinement, jumps bail
or flees to a foreign country during the pendency of the appeal.[12]
This rule is based on the rationale that appellants lose their standing in court when
they abscond. Unless they surrender or submit to the courts jurisdiction, they are
deemed to have waived their right to seek judicial relief.]
Moreover, this doctrine applies not only to the accused who jumps bail during the
appeal, but also to one who does so during the trial. Justice Florenz D. Regalado
succinctly explains the principle in this wise:

x x x. When, as in this case, the accused escaped after his arraignment and during
the trial, but the trial in absentia proceeded resulting in the promulgation of a
judgment against him and his counsel appealed, since he nonetheless remained at
large his appeal must be dismissed by analogy with the aforesaid provision of this
Rule [Rule 124, 8 of the Rules on Criminal Procedure]. x x x[14]
The accused cannot be accorded the right to appeal unless they voluntarily submit
to the jurisdiction of the court or are otherwise arrested within 15 days from notice
of the judgment against them.[15] While at large, they cannot seek relief from the
court, as they are deemed to have waived the appeal.[16]
Finality of a Decision in a Criminal Case
As to when a judgment of conviction attains finality is explained in Section 7 of Rule
120 of the 2000 Rules of Criminal Procedure, which we quote:
A judgment of conviction may, upon motion of the accused, be modified or set
aside before it becomes final or before appeal is perfected. Except where the death
penalty is imposed, a judgment becomes final after the lapse of the period for
perfecting an appeal, or when the sentence has been partially or totally satisfied or
served, or when the accused has waived in writing his right to appeal, or has
applied for probation.
In the case before us, the accused-employee has escaped and refused to surrender
to the proper authorities; thus, he is deemed to have abandoned his appeal.
Consequently, the judgment against him has become final and executory.[17]
Liability of an Employer in a Finding of Guilt
Article 102 of the Revised Penal Code states the subsidiary civil liabilities of
innkeepers, as follows:
In default of the persons criminally liable, innkeepers, tavernkeepers, and any
other persons or corporations shall be civilly liable for crimes committed in their
establishments, in all cases where a violation of municipal ordinances or some
general or special police regulation shall have been committed by them or their
employees.
Innkeepers are also subsidiary liable for restitution of goods taken by robbery or
theft within their houses from guests lodging therein, or for payment of the value
thereof, provided that such guests shall have notified in advance the innkeeper
himself, or the person representing him, of the deposit of such goods within the inn;
and shall furthermore have followed the directions which such innkeeper or his
representative may have given them with respect to the care and vigilance over
such goods. No liability shall attach in case of robbery with violence against or
intimidation of persons unless committed by the innkeepers employees.

Moreover, the foregoing subsidiary liability applies to employers, according to

Article 103 which reads:
The subsidiary liability established in the next preceding article shall also apply to
employers, teachers, persons, and corporations engaged in any kind of industry for
felonies committed by their servants, pupils, workmen, apprentices, or employees in
the discharge of their duties.
Having laid all these basic rules and principles, we now address the main issue
raised by petitioner.
Civil Liability Deemed Instituted in the Criminal Prosecution
At the outset, we must explain that the 2000 Rules of Criminal Procedure has
clarified what civil actions are deemed instituted in a criminal prosecution.
Section 1 of Rule 111 of the current Rules of Criminal Procedure provides:
When a criminal action is instituted, the civil action for the recovery of civil liability
arising from the offense charged shall be deemed instituted with the criminal action
unless the offended party waives the civil action, reserves the right to institute it
separately or institutes the civil action prior to the criminal action.

x x x

xxx

x x x

Only the civil liability of the accused arising from the crime charged is deemed
impliedly instituted in a criminal action, that is, unless the offended party waives
the civil action, reserves the right to institute it separately, or institutes it prior to
the criminal action.[18] Hence, the subsidiary civil liability of the employer under
Article 103 of the Revised Penal Code may be enforced by execution on the basis of
the judgment of conviction meted out to the employee.[19]
It is clear that the 2000 Rules deleted the requirement of reserving independent
civil actions and allowed these to proceed separately from criminal actions. Thus,
the civil actions referred to in Articles 32,[20] 33,[21]34[22] and 2176[23] of the
Civil Code shall remain separate, distinct and independent of any criminal
prosecution based on the same act. Here are some direct consequences of such
revision and omission:
1. The right to bring the foregoing actions based on the Civil Code need not be
reserved in the criminal prosecution, since they are not deemed included therein.
2. The institution or the waiver of the right to file a separate civil action arising from
the crime charged does not extinguish the right to bring such action.

3. The only limitation is that the offended party cannot recover more than once for
the same act or omission.[24]
What is deemed instituted in every criminal prosecution is the civil liability arising
from the crime or delict per se (civil liability ex delicto), but not those liabilities
arising from quasi-delicts, contracts or quasi-contracts. In fact, even if a civil action
is filed separately, the ex delicto civil liability in the criminal prosecution remains,
and the offended party may -- subject to the control of the prosecutor -- still
intervene in the criminal action, in order to protect the remaining civil interest
therein.[25]
This discussion is completely in accord with the Revised Penal Code, which states
that [e]very person criminally liable for a felony is also civilly liable.[26]
Petitioner argues that, as an employer, it is considered a party to the criminal case
and is conclusively bound by the outcome thereof. Consequently, petitioner must
be accorded the right to pursue the case to its logical conclusion -- including the
appeal.
The argument has no merit. Undisputedly, petitioner is not a direct party to the
criminal case, which was filed solely against Napoleon M. Roman, its employee.
In its Memorandum, petitioner cited a comprehensive list of cases dealing with the
subsidiary liability of employers. Thereafter, it noted that none can be applied to it,
because in all th[o]se cases, the accuseds employer did not interpose an
appeal.[27] Indeed, petitioner cannot cite any single case in which the employer
appealed, precisely because an appeal in such circumstances is not possible.

The cases dealing with the subsidiary liability of employers uniformly declare that,
strictly speaking, they are not parties to the criminal cases instituted against their
employees.[28] Although in substance and in effect, they have an interest therein,
this fact should be viewed in the light of their subsidiary liability. While they may
assist their employees to the extent of supplying the latters lawyers, as in the
present case, the former cannot act independently on their own behalf, but can only
defend the accused.
Waiver of Constitutional Safeguard Against Double Jeopardy
Petitioners appeal obviously aims to have the accused-employee absolved of his
criminal responsibility and the judgment reviewed as a whole. These intentions are
apparent from its Appellants Brief[29] filed with the CA and from its Petition[30]
before us, both of which claim that the trial courts finding of guilt is not supported
by competent evidence.[31]

An appeal from the sentence of the trial court implies a waiver of the constitutional
safeguard against double jeopardy and throws the whole case open to a review by
the appellate court. The latter is then called upon to render judgment as law and
justice dictate, whether favorable or unfavorable to the appellant.[32] This is the
risk involved when the accused decides to appeal a sentence of conviction.[33]
Indeed, appellate courts have the power to reverse, affirm or modify the judgment
of the lower court and to increase or reduce the penalty it imposed.[34]
If the present appeal is given course, the whole case against the accused-employee
becomes open to review. It thus follows that a penalty higher than that which has
already been imposed by the trial court may be meted out to him. Petitioners
appeal would thus violate his right against double jeopardy, since the judgment
against him could become subject to modification without his consent.
We are not in a position to second-guess the reason why the accused effectively
waived his right to appeal by jumping bail. It is clear, though, that petitioner may
not appeal without violating his right against double jeopardy.

Effect of Absconding on the Appeal Process

Moreover, within the meaning of the principles governing the prevailing criminal
procedure, the accused impliedly withdrew his appeal by jumping bail and thereby
made the judgment of the court below final.[35] Having been a fugitive from justice
for a long period of time, he is deemed to have waived his right to appeal. Thus, his
conviction is now final and executory. The Court in People v. Ang Gioc[36] ruled:
There are certain fundamental rights which cannot be waived even by the accused
himself, but the right of appeal is not one of them. This right is granted solely for
the benefit of the accused. He may avail of it or not, as he pleases. He may waive
it either expressly or by implication. When the accused flees after the case has
been submitted to the court for decision, he will be deemed to have waived his right
to appeal from the judgment rendered against him. x x x.[37]
By fleeing, the herein accused exhibited contempt of the authority of the court and
placed himself in a position to speculate on his chances for a reversal. In the
process, he kept himself out of the reach of justice, but hoped to render the
judgment nugatory at his option.[38] Such conduct is intolerable and does not
invite leniency on the part of the appellate court.[39]
Consequently, the judgment against an appellant who escapes and who refuses to
surrender to the proper authorities becomes final and executory.[40]
Thus far, we have clarified that petitioner has no right to appeal the criminal case
against the accused-employee; that by jumping bail, he has waived his right to
appeal; and that the judgment in the criminal case against him is now final.

Subsidiary Liability Upon Finality of Judgment

As a matter of law, the subsidiary liability of petitioner now accrues. Petitioner
argues that the rulings of this Court in Miranda v. Malate Garage & Taxicab, Inc.,[41]
Alvarez v. CA[42] and Yusay v. Adil[43] do not apply to the present case, because it
has followed the Courts directive to the employers in these cases to take part in the
criminal cases against their employees. By participating in the defense of its
employee, herein petitioner tries to shield itself from the undisputed rulings laid
down in these leading cases.
Such posturing is untenable. In dissecting these cases on subsidiary liability,
petitioner lost track of the most basic tenet they have laid down -- that an
employers liability in a finding of guilt against its accused-employee is subsidiary.
Under Article 103 of the Revised Penal Code, employers are subsidiarily liable for
the adjudicated civil liabilities of their employees in the event of the latters
insolvency.[44] The provisions of the Revised Penal Code on subsidiary liability -Articles 102 and 103 -- are deemed written into the judgments in the cases to which
they are applicable.[45] Thus, in the dispositive portion of its decision, the trial court
need not expressly pronounce the subsidiary liability of the employer.
In the absence of any collusion between the accused-employee and the offended
party, the judgment of conviction should bind the person who is subsidiarily liable.
[46] In effect and implication, the stigma of a criminal conviction surpasses mere
civil liability.[47]
To allow employers to dispute the civil liability fixed in a criminal case would enable
them to amend, nullify or defeat a final judgment rendered by a competent court.
[48] By the same token, to allow them to appeal the final criminal conviction of their
employees without the latters consent would also result in improperly amending,
nullifying or defeating the judgment.
The decision convicting an employee in a criminal case is binding and conclusive
upon the employer not only with regard to the formers civil liability, but also with
regard to its amount. The liability of an employer cannot be separated from that of
the employee.[49]
Before the employers subsidiary liability is exacted, however, there must be
adequate evidence establishing that (1) they are indeed the employers of the
convicted employees; (2) that the former are engaged in some kind of industry; (3)
that the crime was committed by the employees in the discharge of their duties;
and (4) that the execution against the latter has not been satisfied due to
insolvency.[50]

The resolution of these issues need not be done in a separate civil action. But the
determination must be based on the evidence that the offended party and the
employer may fully and freely present. Such determination may be done in the
same criminal action in which the employees liability, criminal and civil, has been
pronounced;[51] and in a hearing set for that precise purpose, with due notice to
the employer, as part of the proceedings for the execution of the judgment.
Just because the present petitioner participated in the defense of its accusedemployee does not mean that its liability has transformed its nature; its liability
remains subsidiary. Neither will its participation erase its subsidiary liability. The
fact remains that since the accused-employees conviction has attained finality,
then the subsidiary liability of the employer ipso facto attaches.
According to the argument of petitioner, fairness dictates that while the finality of
conviction could be the proper sanction to be imposed upon the accused for
jumping bail, the same sanction should not affect it. In effect, petitioner-employer
splits this case into two: first, for itself; and second, for its accused-employee.
The untenability of this argument is clearly evident. There is only one criminal case
against the accused-employee. A finding of guilt has both criminal and civil
aspects. It is the height of absurdity for this single case to be final as to the
accused who jumped bail, but not as to an entity whose liability is dependent upon
the conviction of the former.
The subsidiary liability of petitioner is incidental to and dependent on the pecuniary
civil liability of the accused-employee. Since the civil liability of the latter has
become final and enforceable by reason of his flight, then the formers subsidiary
civil liability has also become immediately enforceable. Respondent is correct in
arguing that the concept of subsidiary liability is highly contingent on the imposition
of the primary civil liability.
No Deprivation of Due Process
As to the argument that petitioner was deprived of due process, we reiterate that
what is sought to be enforced is the subsidiary civil liability incident to and
dependent upon the employees criminal negligence. In other words, the employer
becomes ipso facto subsidiarily liable upon the conviction of the employee and upon
proof of the latters insolvency, in the same way that acquittal wipes out not only
his primary civil liability, but also his employers subsidiary liability for his criminal
negligence.[52]
It should be stressed that the right to appeal is neither a natural right nor a part of
due process.[53] It is merely a procedural remedy of statutory origin, a remedy that
may be exercised only in the manner prescribed by the provisions of law authorizing
such exercise.[54] Hence, the legal requirements must be strictly complied with.[55]

It would be incorrect to consider the requirements of the rules on appeal as merely

harmless and trivial technicalities that can be discarded.[56] Indeed, deviations
from the rules cannot be tolerated.[57] In these times when court dockets are
clogged with numerous litigations, such rules have to be followed by parties with
greater fidelity, so as to facilitate the orderly disposition of those cases.[58]
After a judgment has become final, vested rights are acquired by the winning party.
If the proper losing party has the right to file an appeal within the prescribed period,
then the former has the correlative right to enjoy the finality of the resolution of the
case.[59]
In fact, petitioner admits that by helping the accused-employee, it participated in
the proceedings before the RTC; thus, it cannot be said that the employer was
deprived of due process. It might have lost its right to appeal, but it was not denied
its day in court.[60] In fact, it can be said that by jumping bail, the accusedemployee, not the court, deprived petitioner of the right to appeal.
All told, what is left to be done is to execute the RTC Decision against the accused.
It should be clear that only after proof of his insolvency may the subsidiary liability
of petitioner be enforced. It has been sufficiently proven that there exists an
employer-employee relationship; that the employer is engaged in some kind of
industry; and that the employee has been adjudged guilty of the wrongful act and
found to have committed the offense in the discharge of his duties. The proof is
clear from the admissions of petitioner that [o]n 26 August 1990, while on its
regular trip from Laoag to Manila, a passenger bus owned by petitioner, being then
operated by petitioners driver, Napoleon Roman, figured in an accident in San Juan,
La Union x x x.[61] Neither does petitioner dispute that there was already a finding
of guilt against the accused while he was in the discharge of his duties.
WHEREFORE, the Petition is hereby DENIED, and the assailed Resolutions AFFIRMED.
Costs against petitioner.

SO ORDERED.

Republic of the Philippines

SUPREME COURT
Manila
FIRST DIVISION
G.R. No. 175241

February 24, 2010

INTEGRATED BAR OF THE PHILIPPINES represented by its National President, Jose Anselmo
I. Cadiz, H. HARRY L. ROQUE, and JOEL RUIZ BUTUYAN, Petitioners,
vs.
HONORABLE MANILA MAYOR JOSE "LITO" ATIENZA, Respondent.
DECISION
CARPIO MORALES, J.:
Petitioners Integrated Bar of the Philippines1 (IBP) and lawyers H. Harry L. Roque and Joel R.
Butuyan appeal the June 28, 2006 Decision2 and the October 26, 2006 Resolution3 of the Court of
Appeals that found no grave abuse of discretion on the part of respondent Jose "Lito" Atienza, the
then mayor of Manila, in granting a permit to rally in a venue other than the one applied for by the
IBP.
On June 15, 2006, the IBP, through its then National President Jose Anselmo Cadiz (Cadiz), filed
with the Office of the City Mayor of Manila a letter application4 for a permit to rally at the foot of
Mendiola Bridge on June 22, 2006 from 2:30 p.m. to 5:30 p.m. to be participated in by IBP officers
and members, law students and multi-sectoral organizations.
Respondent issued a permit5 dated June 16, 2006 allowing the IBP to stage a rally on given date but
indicated therein Plaza Miranda as the venue, instead of Mendiola Bridge, which permit the IBP
received on June 19, 2006.
Aggrieved, petitioners filed on June 21, 2006 before the Court of Appeals a petition for certiorari
docketed as CA-G.R. SP No. 94949.6 The petition having been unresolved within 24 hours from its
filing, petitioners filed before this Court on June 22, 2006 a petition for certiorari docketed as G.R.
No. 172951 which assailed the appellate courts inaction or refusal to resolve the petition within the
period provided under the Public Assembly Act of 1985.7
The Court, by Resolutions of July 26, 2006, August 30, 2006 and November 20, 2006, respectively,
denied the petition for being moot and academic, denied the relief that the petition be heard on the
merits in view of the pendency of CA-G.R. SP No. 94949, and denied the motion for reconsideration.
The rally pushed through on June 22, 2006 at Mendiola Bridge, after Cadiz discussed with P/Supt.
Arturo Paglinawan whose contingent from the Manila Police District (MPD) earlier barred petitioners
from proceeding thereto. Petitioners allege that the participants voluntarily dispersed after the
peaceful conduct of the program.

The MPD thereupon instituted on June 26, 2006 a criminal action, 8 docketed as I.S. No. 06I-12501,
against Cadiz for violating the Public Assembly Act in staging a rally at a venue not indicated in the
permit, to which charge Cadiz filed a Counter-Affidavit of August 3, 2006.
In the meantime, the appellate court ruled, in CA-G.R. SP No. 94949, by the first assailed issuance,
that the petition became moot and lacked merit. The appellate court also denied petitioners motion
for reconsideration by the second assailed issuance.
Hence, the filing of the present petition for review on certiorari, to which respondent filed his
Comment of November 18, 2008 which merited petitioners Reply of October 2, 2009.
The main issue is whether the appellate court erred in holding that the modification of the venue in
IBPs rally permit does not constitute grave abuse of discretion.
Petitioners assert that the partial grant of the application runs contrary to the Pubic Assembly Act
and violates their constitutional right to freedom of expression and public assembly.
The Court shall first resolve the preliminary issue of mootness.
Undoubtedly, the petition filed with the appellate court on June 21, 2006 became moot upon the
passing of the date of the rally on June 22, 2006.
A moot and academic case is one that ceases to present a justiciable controversy by virtue of
supervening events, so that a declaration thereon would be of no practical use or value. Generally,
courts decline jurisdiction over such case or dismiss it on ground of mootness. However, even in
cases where supervening events had made the cases moot, this Court did not hesitate to resolve the
legal or constitutional issues raised to formulate controlling principles to guide the bench, bar and
public. Moreover, as an exception to the rule on mootness, courts will decide a question otherwise
moot if it is capable of repetition, yet evading review.9
In the present case, the question of the legality of a modification of a permit to rally will arise each
time the terms of an intended rally are altered by the concerned official, yet it evades review, owing
to the limited time in processing the application where the shortest allowable period is five days prior
to the assembly. The susceptibility of recurrence compels the Court to definitively resolve the issue
at hand.
Respecting petitioners argument that the issues presented in CA-G.R. SP No. 94949 pose a
prejudicial question to the criminal case against Cadiz, the Court finds it improper to resolve the
same in the present case.
Under the Rules,10 the existence of a prejudicial question is a ground in a petition to suspend
proceedings in a criminal action. Since suspension of the proceedings in the criminal action may be
made only upon petition and not at the instance of the judge or the investigating prosecutor,11 the
latter cannot take cognizance of a claim of prejudicial question without a petition to suspend being
filed. Since a petition to suspend can be filed only in the criminal action, 12 the determination of the

pendency of a prejudicial question should be made at the first instance in the criminal action, and not
before this Court in an appeal from the civil action.
In proceeding to resolve the petition on the merits, the appellate court found no grave abuse of
discretion on the part of respondent because the Public Assembly Act does not categorically require
respondent to specify in writing the imminent and grave danger of a substantive evil which warrants
the denial or modification of the permit and merely mandates that the action taken shall be in writing
and shall be served on respondent within 24 hours. The appellate court went on to hold that
respondent is authorized to regulate the exercise of the freedom of expression and of public
assembly which are not absolute, and that the challenged permit is consistent with Plaza Mirandas
designation as a freedom park where protest rallies are allowed without permit.
The Court finds for petitioners.
Section 6 of the Public Assembly Act reads:
Section 6. Action to be taken on the application (a) It shall be the duty of the mayor or any official acting in his behalf to issue or grant a
permit unless there is clear and convincing evidence that the public assembly will create a
clear and present danger to public order, public safety, public convenience, public morals or
public health.
(b) The mayor or any official acting in his behalf shall act on the application within two (2)
working days from the date the application was filed, failing which, the permit shall be
deemed granted. Should for any reason the mayor or any official acting in his behalf refuse
to accept the application for a permit, said application shall be posted by the applicant on the
premises of the office of the mayor and shall be deemed to have been filed.
(c) If the mayor is of the view that there is imminent and grave danger of a substantive evil
warranting the denial or modification of the permit, he shall immediately inform the applicant
who must be heard on the matter.
(d) The action on the permit shall be in writing and served on the application [sic] within
twenty-four hours.
(e) If the mayor or any official acting in his behalf denies the application or modifies the terms
thereof in his permit, the applicant may contest the decision in an appropriate court of law.
(f) In case suit is brought before the Metropolitan Trial Court, the Municipal Trial Court, the
Municipal Circuit Trial Court, the Regional Trial Court, or the Intermediate Appellate Court, its
decisions may be appealed to the appropriate court within forty-eight (48) hours after receipt
of the same. No appeal bond and record on appeal shall be required. A decision granting
such permit or modifying it in terms satisfactory to the applicant shall, be immediately
executory.

(g) All cases filed in court under this Section shall be decided within twenty-four (24) hours
from date of filing. Cases filed hereunder shall be immediately endorsed to the executive
judge for disposition or, in his absence, to the next in rank.
(h) In all cases, any decision may be appealed to the Supreme Court.
(i) Telegraphic appeals to be followed by formal appeals are hereby allowed. (underscoring
supplied)
In Bayan, Karapatan, Kilusang Magbubukid ng Pilipinas (KMP) v. Ermita,13 the Court reiterated:
x x x Freedom of assembly connotes the right of the people to meet peaceably for consultation and
discussion of matters of public concern. It is entitled to be accorded the utmost deference and
respect. It is not to be limited, much less denied, except on a showing, as is the case with
freedom of expression, of a clear and present danger of a substantive evil that the state has a
right to prevent. Even prior to the 1935 Constitution, Justice Malcolm had occasion to stress that it
is a necessary consequence of our republican institutions and complements the right of free speech.
To paraphrase the opinion of Justice Rutledge, speaking for the majority of the American Supreme
Court in Thomas v. Collins, it was not by accident or coincidence that the rights to freedom of speech
and of the press were coupled in a single guarantee with the rights of the people peaceably to
assemble and to petition the government for redress of grievances. All these rights, while not
identical, are inseparable. In every case, therefore, where there is a limitation placed on the exercise
of this right, the judiciary is called upon to examine the effects of the challenged governmental
actuation. The sole justification for a limitation on the exercise of this right, so fundamental to
the maintenance of democratic institutions, is the danger, of a character both grave and
imminent, of a serious evil to public safety, public morals, public health, or any other
legitimate public interest.14 (emphasis supplied)
The Court in Bayan stated that the provisions of the Public Assembly Act of 1985 practically codified
the 1983 ruling in Reyes v. Bagatsing.15 In juxtaposing Sections 4 to 6 of the Public Assembly Act
with the pertinent portion of the Reyes case, the Court elucidated as follows:
x x x [The public official concerned shall] appraise whether there may be valid objections to the grant
of the permit or to its grant but at another public place. It is an indispensable condition to such
refusal or modification that the clear and present danger test be the standard for the decision
reached. If he is of the view that there is such an imminent and grave danger of a substantive
evil, the applicants must be heard on the matter. Thereafter, his decision, whether favorable or
adverse, must be transmitted to them at the earliest opportunity. Thus if so minded, they can have
recourse to the proper judicial authority.16 (italics and underscoring supplied)
In modifying the permit outright, respondent gravely abused his discretion when he did not
immediately inform the IBP who should have been heard first on the matter of his perceived
imminent and grave danger of a substantive evil that may warrant the changing of the venue. The
opportunity to be heard precedes the action on the permit, since the applicant may directly go to
court after an unfavorable action on the permit.
1avvphi1

Respondent failed to indicate how he had arrived at modifying the terms of the permit against the
standard of a clear and present danger test which, it bears repeating, is an indispensable condition
to such modification. Nothing in the issued permit adverts to an imminent and grave danger of a
substantive evil, which "blank" denial or modification would, when granted imprimatur as the
appellate court would have it, render illusory any judicial scrutiny thereof.
It is true that the licensing official, here respondent Mayor, is not devoid of discretion in determining
whether or not a permit would be granted. It is not, however, unfettered discretion. While prudence
requires that there be a realistic appraisal not of what may possibly occur but of what
may probably occur, given all the relevant circumstances, still the assumption especially so where
the assembly is scheduled for a specific public place is that the permit must be for the assembly
being held there. The exercise of such a right, in the language of Justice Roberts, speaking for
the American Supreme Court, is not to be "abridged on the plea that it may be exercised in
some other place."17 (emphasis and underscoring supplied)
Notably, respondent failed to indicate in his Comment any basis or explanation for his action. It
smacks of whim and caprice for respondent to just impose a change of venue for an assembly that
was slated for a specific public place. It is thus reversible error for the appellate court not to have
found such grave abuse of discretion and, under specific statutory
provision, not to have modified the permit "in terms satisfactory to the applicant." 18
WHEREFORE, the assailed Decision and Resolution of the Court of Appeals in CA-G.R. SP No.
94949 areREVERSED. The Court DECLARES that respondent committed grave abuse of discretion
in modifying the rally permit issued on June 16, 2006 insofar as it altered the venue from Mendiola
Bridge to Plaza Miranda.
SO ORDERED.
CONCHITA CARPIO MORALES
Associate Justice
WE CONCUR:

SECOND DIVISION

JOSELITO R. PIMENTEL,

G.R. No. 172060

Petitioner,
,
- versus MARIA CHRYSANTINE
L. PIMENTEL and PEOPLE
OF THE PHILIPPINES,
Promulgated: September 13, 2010

Respondents.

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

DECISION

CARPIO, J.:

The Case
Before the Court is a petition for review[1] assailing the Decision[2] of the
Court of Appeals, promulgated on 20 March 2006, in CA-G.R. SP
No. 91867.
The Antecedent Facts
The facts are stated in the Court of Appeals decision:
On 25 October 2004, Maria Chrysantine Pimentel y Lacap (private respondent)
filed an action for frustrated parricide against Joselito R. Pimentel (petitioner),
docketed as Criminal Case No. Q-04-130415, before the Regional Trial Court of
Quezon City, which was raffled to Branch 223 (RTC Quezon City).
On 7 February 2005, petitioner received summons to appear before the
Regional Trial Court of Antipolo City, Branch 72 (RTC Antipolo) for the pre-trial and
trial of Civil Case No. 04-7392 (Maria Chrysantine Lorenza L. Pimentel v. Joselito
Pimentel) for Declaration of Nullity of Marriage under Section 36 of the Family Code
on the ground of psychological incapacity.

On 11 February 2005, petitioner filed an urgent motion to suspend the

proceedings before the RTC Quezon City on the ground of the existence of a
prejudicial question. Petitioner asserted that since the relationship between the
offender and the victim is a key element in parricide, the outcome of Civil Case No.
04-7392 would have a bearing in the criminal case filed against him before the RTC
Quezon City.
The Decision of the Trial Court
The RTC Quezon City issued an Order dated 13 May 2005[3] holding that the
pendency of the case before the RTC Antipolo is not a prejudicial question that
warrants the suspension of the criminal case before it. The RTC Quezon City held
that the issues in Criminal Case No. Q-04-130415 are the injuries sustained by
respondent and whether the case could be tried even if the validity of petitioners
marriage with respondent is in question. The RTC Quezon City ruled:
WHEREFORE, on the basis of the foregoing, the Motion to Suspend
Proceedings On the [Ground] of the Existence of a Prejudicial Question is, for lack of
merit, DENIED.
SO ORDERED.[4]
Petitioner filed a motion for reconsideration. In its 22 August 2005 Order,
[5] the RTC Quezon City denied the motion.
Petitioner filed a petition for certiorari with application for a writ of preliminary
injunction and/or temporary restraining order before the Court of Appeals, assailing
the 13 May 2005 and 22 August 2005 Orders of the RTC Quezon City.
The Decision of the Court of Appeals
In its 20 March 2006 Decision, the Court of Appeals dismissed the petition.
The Court of Appeals ruled that in the criminal case for frustrated parricide, the
issue is whether the offender commenced the commission of the crime of parricide
directly by overt acts and did not perform all the acts of execution by reason of
some cause or accident other than his own spontaneous desistance. On the other
hand, the issue in the civil action for annulment of marriage is whether petitioner is
psychologically incapacitated to comply with the essential marital obligations. The
Court of Appeals ruled that even if the marriage between petitioner and respondent
would be declared void, it would be immaterial to the criminal case because prior
to the declaration of nullity, the alleged acts constituting the crime of frustrated
parricide had already been committed. The Court of Appeals ruled that all that is
required for the charge of frustrated parricide is that at the time of the commission
of the crime, the marriage is still subsisting.
Petitioner filed a petition for review before this Court assailing the Court of
Appeals decision.

The Issue
The only issue in this case is whether the resolution of the action for
annulment of marriage is a prejudicial question that warrants the suspension of the
criminal case for frustrated parricide against petitioner.
The Ruling of this Court
The petition has no merit.
Civil Case Must be Instituted Before the Criminal Case
Section 7, Rule 111 of the 2000 Rules on Criminal Procedure[6] provides:
Section 7. Elements of Prejudicial Question. - The elements of a prejudicial
question are: (a) the previously instituted civil action involves an issue similar or
intimately related to the issue raised in the subsequent criminal action and (b) the
resolution of such issue determines whether or not the criminal action may proceed.
The rule is clear that the civil action must be instituted first before the filing of
the criminal action. In this case, the Information[7] for Frustrated Parricide was
dated 30 August 2004. It was raffled to RTC Quezon City on 25 October 2004 as per
the stamped date of receipt on the Information. The RTC Quezon City set Criminal
Case No. Q-04-130415 for pre-trial and trial on 14 February 2005. Petitioner was
served summons in Civil Case No. 04-7392 on 7 February 2005.[8] Respondents
petition[9] in Civil Case No. 04-7392 was dated 4 November 2004 and was filed on 5
November 2004. Clearly, the civil case for annulment was filed after the filing of the
criminal case for frustrated parricide. As such, the requirement of Section 7, Rule
111 of the 2000 Rules on Criminal Procedure was not met since the civil action was
filed subsequent to the filing of the criminal action.
Annulment of Marriage is not a Prejudicial Question in Criminal Case for Parricide
Further, the resolution of the civil action is not a prejudicial question that
would warrant the suspension of the criminal action.
There is a prejudicial question when a civil action and a criminal action are
both pending, and there exists in the civil action an issue which must be
preemptively resolved before the criminal action may proceed because howsoever
the issue raised in the civil action is resolved would be determinative of the guilt or
innocence of the accused in the criminal case.[10] A prejudicial question is defined
as:
x x x one that arises in a case the resolution of which is a logical antecedent of
the issue involved therein, and the cognizance of which pertains to another tribunal.
It is a question based on a fact distinct and separate from the crime but so
intimately connected with it that it determines the guilt or innocence of the

accused, and for it to suspend the criminal action, it must appear not only that said
case involves facts intimately related to those upon which the criminal prosecution
would be based but also that in the resolution of the issue or issues raised in the
civil case, the guilt or innocence of the accused would necessarily be determined.
[11]
The relationship between the offender and the victim is a key element in
the crime of parricide,[12] which punishes any person who shall kill his father,
mother, or child, whether legitimate or illegitimate, or any of his ascendants or
descendants, or his spouse.[13] The relationship between the offender and the
victim distinguishes the crime of parricide from murder[14] or homicide.[15]
However, the issue in the annulment of marriage is not similar or intimately related
to the issue in the criminal case for parricide. Further, the relationship between the
offender and the victim is not determinative of the guilt or innocence of the
accused.
The issue in the civil case for annulment of marriage under Article 36 of the
Family Code is whether petitioner is psychologically incapacitated to comply with
the essential marital obligations. The issue in parricide is whether the accused
killed the victim. In this case, since petitioner was charged with frustrated parricide,
the issue is whether he performed all the acts of execution which would have killed
respondent as a consequence but which, nevertheless, did not produce it by reason
of causes independent of petitioners will.[16] At the time of the commission of the
alleged crime, petitioner and respondent were married. The subsequent dissolution
of their marriage, in case the petition in Civil Case No. 04-7392 is granted, will have
no effect on the alleged crime that was committed at the time of the subsistence of
the marriage. In short, even if the marriage between petitioner and respondent is
annulled, petitioner could still be held criminally liable since at the time of the
commission of the alleged crime, he was still married to respondent.
We cannot accept petitioners reliance on Tenebro v. Court of Appeals[17] that
the judicial declaration of the nullity of a marriage on the ground of psychological
incapacity retroacts to the date of the celebration of the marriage insofar as the
vinculum between the spouses is concerned
x x x. First, the issue in Tenebro is
the effect of the judicial declaration of nullity of a second or subsequent marriage
on the ground of psychological incapacity on a criminal liability for bigamy. There
was no issue of prejudicial question in that case. Second, the Court ruled in Tenebro
that [t]here is x x x a recognition written into the law itself that such a marriage,
although void ab initio, may still produce legal consequences.[18] In fact, the
Court declared in that case that a declaration of the nullity of the second marriage
on the ground of psychological incapacity is of absolutely no moment insofar as the
States penal laws are concerned.[19]
In view of the foregoing, the Court upholds the decision of the Court of
Appeals. The trial in Criminal Case No. Q-04-130415 may proceed as the resolution

of the issue in Civil Case No. 04-7392 is not determinative of the guilt or innocence
of petitioner in the criminal case.
WHEREFORE, we DENY the petition. We AFFIRM the 20 March 2006 Decision
of the Court of Appeals in CA-G.R. SP No. 91867.

SO ORDERED.

Republic of the Philippines

SUPREME COURT
Manila
FIRST DIVISION
G.R. No.148004

January 22, 2007

VINCENT E. OMICTIN, Petitioner,

vs.
HON. COURT OF APPEALS (Special Twelfth Division) and GEORGE I. LAGOS, Respondents.
DECISION
AZCUNA, J.:
This is a petition for certiorari1 with prayer for a writ of preliminary injunction seeking the nullification
of the decision rendered by the Court of Appeals (CA) on June 30, 2000, and its resolution, dated
March 5, 2001 in CA-G.R. SP No. 55834 entitled "George I. Lagos v. Hon. Reinato G. Quilala,
Presiding Judge of RTC, Br. 57, Makati, Hon. Elizabeth Tayo Chua, Asst. City Prosecutor, Makati
City, and Vincent E. Omictin."
In its assailed decision, the CA declared the existence of a prejudicial question and ordered the
suspension of the criminal proceedings initiated by petitioner Vincent E. Omictin on behalf of Saag
Phils., Inc. against private respondent George I. Lagos, in view of a pending case before the
Securities and Exchange Commission (SEC) filed by the latter against the former, Saag Pte. (S) Ltd.,
Nicholas Ng, Janifer Yeo and Alex Y. Tan.
The facts are as follows:
Petitioner Vincent E. Omictin, Operations Manager Ad Interim of Saag Phils., Inc., filed a complaint
for two counts of estafa with the Office of the City Prosecutor of Makati against private respondent
George I. Lagos. He alleged that private respondent, despite repeated demands, refused to return
the two company vehicles entrusted to him when he was still the president of Saag Phils., Inc..
On February 26, 1999, public prosecutor Alex G. Bagaoisan recommended the indictment of private
respondent, and on the same day, respondent was charged with the crime of estafa under Article
315, par. 1(b) of the Revised Penal Code before the Regional Trial Court (RTC), Branch 57 of Makati
City. The case was docketed as Criminal Case No. 99-633, entitled "People of the Philippines v.
George I. Lagos."
On June 4, 1999, private respondent filed a motion to recuse praying that Presiding Judge Reinato
G. Quilala inhibit himself from hearing the case based on the following grounds:
a) In an order, dated May 28, 1999, the presiding judge summarily denied respondents
motion: 1) to defer issuance of the warrant of arrest; and 2) to order reinvestigation.

b) Immediately before the issuance of the above-mentioned order, the presiding judge and
Atty. Alex Y. Tan, SAAG Philippines, Inc.s Ad Interim President, were seen together.2
On June 24, 1999, private respondent filed a motion to suspend proceedings on the basis of a
prejudicial question because of a pending petition with the Securities and Exchange Commission
(SEC) involving the same parties.
It appears that on January 7, 1999, private respondent filed SEC Case No. 01-99-6185 for the
declaration of nullity of the respective appointments of Alex Y. Tan and petitioner as President Ad
Interim and Operations Manager Ad Interim of Saag Phils., Inc., declaration of dividends, recovery of
share in the profits, involuntary dissolution and the appointment of a receiver, recovery of damages
and an application for a temporary restraining order (TRO) and injunction against Saag (S) Pte. Ltd.,
Nicholas Ng, Janifer Yeo, Tan and petitioner. 3
In the action before the SEC, private respondent averred that Saag (S) Pte. Ltd. is a foreign
corporation organized and existing under the laws of Singapore, and is fully owned by Saag
Corporation (Bhd). On July 1, 1994, he was appointed as Area Sales Manager in the Philippines by
Thiang Shiang Hiang, Manager of Saag (S) Pte. Ltd. Pursuant to his appointment, respondent was
authorized to organize a local joint venture corporation to be known as Saag Philippines, Inc. for the
wholesale trade and service of industrial products for oil, gas and power industries in the Philippines.
On September 9, 1994, Saag Philippines, Inc. was incorporated with Saag (S) Pte. Ltd. as the
majority stockholder. Private respondent was appointed to the board of directors, along with Rommel
I. Lagos, Jose E. Geronimo, Gan Ching Lai and Thiang Shiang Hiang, and was elected president of
the domestic corporation.
Later, due to intra-corporate disputes, Gan and Thiang resigned and divested their shares in Saag
Corporation (Bhd), thereby resulting in a change in the controlling interest in Saag (S) Pte. Ltd.
Barely three months after, or on June 23, 1998, private respondent resigned his post as president of
Saag Phils., Inc. while still retaining his position as a director of the company.4 According to private
respondent, the joint venture agreement (JVA) between him or Saag Phils., Inc. and Saag (S) Pte.
Ltd. provided that should the controlling interest in the latter company, or its parent company Saag
Corp. (Bhd), be acquired by any other person or entity without his prior consent, he has the option
either to require the other stockholders to purchase his shares or to terminate the JVA and dissolve
Saag Phils., Inc. altogether. Thus, pursuant to this provision, since private respondent did not give
his consent as regards the transfer of shares made by Gan and Thiang, he made several requests to
Nicholas Ng, who replaced Gan as director, and Janifer Yeo, Executive Director of Saag (S) Pte.
Ltd., to call for a board meeting in order to discuss the following: a) implementation of the board
resolution declaring dividends; b) acquisition of private respondents shares by Saag (S) Pte. Ltd.; c)
dissolution of Saag Phils., Inc.; and d) the termination of the JVA.
Ng and Yeo failed to appear, however, in the scheduled board meetings. Instead, on September 30,
1998 they issued a letter appointing Alex Y. Tan as President Ad Interim of Saag Phils., Inc. Tan, in
turn, appointed petitioner Omictin as the companys Operations Manager Ad Interim.

Citing as a reason the absence of a board resolution authorizing the continued operations of Saag
Phils., Inc., private respondent retained his possession of the office equipment of the company in a
fiduciary capacity as director of the corporation pending its dissolution and/or the resolution of the
intra-corporate dispute. He likewise changed the locks of the offices of the company allegedly to
prevent Tan and petitioner from seizing company property.
Private respondent stressed that Tans appointment was invalid because it was in derogation of the
company by-laws requiring that the president must be chosen from among the directors, and elected
by the affirmative vote of a majority of all the members of the board of directors. 5 As Tans
appointment did not have the acquiescence of the board of directors, petitioners appointment by the
former is likewise allegedly invalid. Thus, neither has the power or the authority to represent or act
for Saag Phils., Inc. in any transaction or action before the SEC or any court of justice.
The trial court, in an order dated September 8, 1999, denied respondents motion to suspend
proceedings and motion to recuse.
His motion for reconsideration having been denied by the trial court in its order issued on October
29, 1999, respondent filed with the CA the petition for certiorari[6] assailing the aforesaid orders.
On June 30, 2000, the CA rendered its challenged decision. The pertinent portion reads:
In a case for estafa, a valid demand made by an offended party is one of the essential elements. It
appears from the records that the delay of delivery of the motor vehicles by petitioner to Saag
Corporation is by reason of petitioners contention that the demand made by Omictin and Atty. Tan to
him to return the subject vehicles is not a valid demand. As earlier mentioned, petitioner filed a case
with the SEC questioning therein private respondents appointment.
If the SEC should rule that the dissolution of Saag Phils. is proper, or that the appointments of
private respondents are invalid, the criminal case will eventually be dismissed due to the absence of
one of the essential elements of the crime of estafa.
Based on the foregoing, it is clear that a prejudicial question exists which calls for the suspension of
the criminal proceedings before the lower court.
WHEREFORE, in view of the foregoing, the assailed Order of September 8, 1999 and October 29,
1999, are hereby MODIFIED. The motion to suspend proceedings is hereby GRANTED and
respondent court is hereby enjoined from hearing Criminal Case No. 99-633, entitled "People of the
Philippines v. George I. Lagos," until the termination of the case with the Securities and Exchange
Commission. The denial of the motion to recuse is hereby AFFIRMED.
SO ORDERED.7
Incidentally, on January 18, 2001, the SEC case8 was transferred to the Regional Trial Court (RTC)
of Mandaluyong City, Branch 214, pursuant to A.M. No. 00-11-03-SC9 implementing the Securities
and Regulation Code (Republic Act No. 8799)10 enacted on July 19, 2000, vesting in the RTCs
jurisdiction over intra-corporate disputes.11

Meanwhile, on March 5, 2001, the CA, addressing petitioners motion for reconsideration of the
aforementioned decision, issued its assailed resolution:
Considering that the petition for review on certiorari of the 30 June 2000 decision of this Court, filed
by the Office of the Solicitor General before the Supreme Court has already TERMINATED on
November 20, 2000 and a corresponding entry of judgment has already been issued by the High
Court, that the same is final and executory, the private respondents motion for reconsideration of the
decision 30 June 2000 before this Court is NOTED for being moot and academic.
SO ORDERED.12
Hence, this petition raises the following issues:
I
RESPONDENT COURT OF APPEALS COMMITTED GRAVE ABUSE OF DISCRETION
AMOUNTING TO LACK OF JURISDICTION A) WHEN IT DECREED THAT A PREJUDICIAL QUESTION EXISTS IN THE SEC CASE FILED BY
PRIVATE RESPONDENT AGAINST SAAG (S) PTE. LTD., A FOREIGN CORPORATION,
ALTHOUGH THE PRIVATE COMPLAINANT IN THE CRIMINAL CASE FOR ESTAFA (WHERE
PRIVATE RESPONDENT IS THE ACCUSED THEREIN) IS ACTUALLY SAAG PHILIPPINES, INC. A
DOMESTIC CORPORATION WITH A SEPARATE JURIDICAL PERSONALITY OF ITS OWN AND
WHICH IS NOT EVEN A PARTY IN THE SEC CASE; AND,
B) WHEN IT ORDERED THE SUSPENSION OF THE PROCEEDINGS IN CRIMINAL CASE NO. 99633 AGAINST PRIVATE RESPONDENT.
II
THIS PETITION FOR CERTIORARI IS THE ONLY PLAIN, SPEEDY AND ADEQUATE REMEDY IN
THE PREMISES.
In support of the above, petitioner argues, as follows:
1. The action before the SEC and the criminal case before the trial court do not involve any
prejudicial question.13 SEC Case No. 01-99-6185 mainly involves the dissolution of Saag (S)
Pte. Ltd., the appointment of a receiver, the distribution of profits, and the authority of
petitioner and Tan to represent Saag Phils., Inc. The entity which is being sued is Saag (S)
Pte. Ltd., a foreign corporation over which the SEC has yet to acquire jurisdiction. Hence,
any decision that may be rendered in the SEC case will neither be determinative of the
innocence or guilt of the accused nor bind Saag Phils., Inc. because the same was not made
a party to the action even if the former is its holding corporation;
2. Saag Phils., Inc. has a separate corporate existence and is to be treated as a separate
entity from its holding or parent company, Saag (S) Pte. Ltd. The mere fact that one or more

corporations are owned or controlled by the same or single stockholder is not a sufficient
ground for disregarding separate corporate personalities;
3. Private respondents petition with the SEC seeks affirmative relief against Saag (S) Pte.
Ltd. for the enforcement or application of the alleged terms of the joint venture agreement
(JVA) that he purportedly entered into with the foreign corporation while he was still its Area
Sales Manager in the Philippines. The foreign corporation is not licensed to do business in
the Philippines, thus, a party to a contract with a foreign corporation doing business in the
Philippines without a license is not entitled to relief from the latter; and
4. There is no pending civil or administrative case in SEC against Saag Phils., Inc. that
warrants the application of a prejudicial question and the consequent suspension of the
criminal action it has instituted against private respondent. If any, the action before the SEC
was merely a ploy to delay the resolution of the criminal case and eventually frustrate the
outcome of the estafa case.
In sum, the main issue is whether or not a prejudicial question exists to warrant the suspension of
the criminal proceedings pending the resolution of the intra-corporate controversy that was originally
filed with the SEC.
A prejudicial question is defined as that which arises in a case, the resolution of which is a logical
antecedent of the issue involved therein and the cognizance of which pertains to another
tribunal.14 Here, the case which was lodged originally before the SEC and which is now pending
before the RTC of Mandaluyong City by virtue of Republic Act No. 8799 involves facts that are
intimately related to those upon which the criminal prosecution is based.
Ultimately, the resolution of the issues raised in the intra-corporate dispute will determine the guilt or
innocence of private respondent in the crime of estafa filed against him by petitioner before the RTC
of Makati. As correctly stated by the CA, one of the elements of the crime of estafa with abuse of
confidence under Article 315, par. 1(b) of the Revised Penal Code is a demand made by the
offended party to the offender:
The elements of estafa with abuse of confidence under subdivision No. 1, par. (b) of Art. 315 are as
follows:
1. That money, goods, or other personal property be received by the offender in trust, or on
commission, or for administration, or under any other obligation involving the duty to make
delivery of, or to return the same;
2. That there be misrepresentation or conversion of such money or property by the offender,
or denial on his part of such receipt;
3. That such misappropriation or conversion or denial is to the prejudice of another; and
4. That there is a demand made by the offended party to the offender.15

Logically, under the circumstances, since the alleged offended party is Saag Phils., Inc., the validity
of the demand for the delivery of the subject vehicles rests upon the authority of the person making
such a demand on the companys behalf. Private respondent is challenging petitioners authority to
act for Saag Phils., Inc. in the corporate case pending before the RTC of Mandaluyong, Branch 214.
Taken in this light, if the supposed authority of petitioner is found to be defective, it is as if no
demand was ever made, hence, the prosecution for estafa cannot prosper. Moreover, the mere
failure to return the thing received for safekeeping or on commission, or for administration, or under
any other obligation involving the duty to deliver or to return the same or deliver the value thereof to
the owner could only give rise to a civil action and does not constitute the crime of estafa. This is
because the crime is committed by misappropriating or converting money or goods received by the
offender under a lawful transaction. As stated in the case of United States v. Bleibel:16
The crime of estafa is not committed by the failure to return the things received for sale on
commission, or to deliver their value, but, as this class of crime is defined by law, by
misappropriating or converting the money or goods received on commission. Delay in the fulfillment
of a commission or in the delivery of the sum on such account received only involves civil liability. So
long as the money that a person is under obligation to deliver is not demanded of him, and he fails to
deliver it for having wrongfully disposed of it, there is no estafa, whatever be the cause of the debt.
Likewise, by analogy, the doctrine of primary jurisdiction may be applied in this case. The issues
raised by petitioner particularly the status of Saag Phils., Inc. vis--vis Saag (S) Pte. Ltd., as well as
the question regarding the supposed authority of the latter to make a demand on behalf of the
company, are proper subjects for the determination of the tribunal hearing the intra-corporate case
which in this case is the RTC of Mandaluyong, Branch 214. These issues would have been referred
to the expertise of the SEC in accordance with the doctrine of primary jurisdiction had the case not
been transferred to the RTC of Mandaluyong.
Strictly speaking, the objective of the doctrine of primary jurisdiction is to guide a court in determining
whether it should refrain from exercising its jurisdiction until after an administrative agency has
determined some question or some aspect of some question arising in the proceeding before the
court.17 The court cannot or will not determine a controversy involving a question which is within the
jurisdiction of the administrative tribunal prior to resolving the same, where the question demands
the exercise of sound administrative discretion requiring special knowledge, experience and services
in determining technical and intricate matters of fact.18
While the above doctrine refers specifically to an administrative tribunal, the Court believes that the
circumstances in the instant case do not proscribe the application of the doctrine, as the role of an
administrative tribunal such as the SEC in determining technical and intricate matters of special
competence has been taken on by specially designated RTCs by virtue of Republic Act No.
8799.19 Hence, the RTC of Mandaluyong where the intra-corporate case is pending has the primary
jurisdiction to determine the issues under contention relating to the status of the domestic
corporation, Saag Phils., Inc., vis--vis Saag Pte. Ltd.; and the authority of petitioner to act on behalf
of the domestic corporation, the determination of which will have a direct bearing on the criminal
case. The law recognizes that, in place of the SEC, the regular courts now have the legal
competence to decide intra-corporate disputes.20

In view of the foregoing, the Court finds no substantial basis in petitioners contention that the CA
committed grave abuse of discretion amounting to lack or excess of jurisdiction. Absent a showing of
a despotic, whimsical and arbitrary exercise of power by the CA, the petition must fail.
WHEREFORE, the petition is DISMISSED. The decision and resolution of the Court of Appeals in
CA-G.R. SP No. 55834, dated June 30, 2000 and March 5, 2001, respectively, are AFFIRMED.
No costs.
SO ORDERED.
ADOLFO S. AZCUNA
Associate Justice
WE CONCUR:

SECOND DIVISION

SPS. CAROLINA and REYNALDO JOSE, Petitioners,

176795

G.R. No.

- versus
SPS. LAUREANO and PURITA
30, 2008

SUAREZ, Respondents.

promulgated:June

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

DECISION

TINGA, J.:
Petitioners filed this case assailing the Decision[1] of the Court of Appeals in
CA-G.R. CEB SP No. 00397 dated 17 August 2006 which affirmed the Orders[2] of
the Regional Trial Court (RTC) of Cebu City, Branch 19 restraining Branches 2 and 5
of the Municipal Trial Court in Cities (MTCC) of Cebu City from proceeding with the
criminal cases for violation of Batas Pambansa Bilang 22 (B.P. Blg. 22) filed against
respondent Purita Suarez.
The facts of the case follow.
Respondents, spouses Laureano and Purita Suarez, had availed of petitioner
Carolina Joses (Carolina) offer to lend money at the daily interest rate of 1% to 2%.
However, Carolina and her husband, petitioner Reynaldo Jose, later on increased the
interest to 5% per day, which respondents were forced to accept because they
allegedly had no other option left. It then became a practice that petitioners would
give the loaned money to Purita and the latter would deposit the same in her and
her husbands account to cover the maturing postdated checks they had previously
issued in payment of their other loans. Purita would then issue checks in favor of
petitioners in payment of the amount borrowed from them with the agreed 5% daily
interest.
On 7 May 2004, respondents filed a Complaint[3] against petitioners seeking the
declaration of nullity of interest of 5% per day, fixing of interest, recovery of
interest payments[4] and the issuance of a writ of preliminary injunction, alleging
that the interest rate of 5% a day is iniquitous, contrary to morals, done under

vitiated consent and imposed using undue influence by taking improper advantage
of their financial distress. They claimed that due to serious liquidity problems, they
were forced to rely on borrowings from banks and individual lenders, including
petitioners, and that they had to scramble for funds to cover the maturing
postdated checks they issued to cover their other borrowings. In their prayer,
respondents stated:

WHEREFORE, it is prayed that upon the filing of the instant case and in accordance
with the 1997 Rules on Civil Procedure[,] a writ of preliminary injunction or at least a
temporary restraining order be issued restraining defendant from enforcing the
checks as listed in Annex E including the filing of criminal cases for violation of
B.P. [Blg.] 22 and restraining defendants from entering plaintiffs store and premises
to get cash sales and other items against plaintiffs will [sic] under such terms and
conditions as this Court may affix.[5]
Thereafter, at the instance of Carolina, several cases for violation of B.P. Blg.
22[6] were filed against respondent Purita before the MTCC of Cebu City, Branches
2 and 5. Purita, in turn filed motions to suspend the criminal proceedings on the
ground of prejudicial question, on the theory that the checks subject of the B.P. Blg.
22 cases are void for being contra bonos mores or for having been issued in
payment of the iniquitous and unconscionable interest imposed by petitioners. The
motions were denied.[7]
Respondents thereafter filed before the RTC a Motion for Writ of Preliminary
Injunction with Temporary Restraining Order[8] seeking to restrain the MTCCs from
further proceeding with the B.P. Blg. 22 cases on the ground of prejudicial question.
Petitioners opposed the motion. Nevertheless, the RTC through its 20 December
2004 Order[9] issued a writ of preliminary injunction, thereby enjoining the MTCCs
from proceeding with the cases against Purita. Petitioners sought reconsideration of
the order but their motion was denied due course in the RTCs 3 February 2005
Order.[10]
Petitioners elevated the case to the Court of Appeals[11] and questioned the
propriety of the RTCs issuance of a preliminary injunction based on a prejudicial
question. The appellate court stated that respondents had sought to annul the
checks for being void pursuant to Article 1422 of the Civil Code which provides that
a contract which is the direct result of a previous illegal contract, is also void and
inexistent. Accordingly, the appellate court concluded that if the checks subject of
the criminal cases were later on declared null and void, then said checks could not
be made the bases of criminal prosecutions under B.P. Blg. 22. In other words, the
outcome of the determination of the validity of the said checks is determinative of
guilt or innocence of Purita in the criminal case.[12]

The appellate court also observed that respondents resort to an application

for preliminary injunction could not be considered as forum shopping since it is the
only remedy available to them considering the express proscription of filing a
petition for certiorari against interlocutory orders issued in cases under B.P. Blg. 22
which are governed by the rules on summary procedure.[13]
Before us, petitioners submit that because under Section 6, Rule 111 of the Rules
on Criminal Procedure a petition to suspend proceedings on the ground of
prejudicial question should be filed in the same criminal action, the RTC has no
jurisdiction to issue the writ of preliminary injunction as it is not the court where the
B.P. Blg. 22 cases were filed. Moreover, they argue that respondents are guilty of
forum shopping because after the denial of their motion to suspend the proceedings
before Branches 2 and 5 of the MTCC, they resorted to the filing of a motion for
preliminary injunction before the RTC also on the ground of prejudicial question;
therefore, they succeeded in getting the relief in one forum (RTC) which they had
failed to obtain in the first forum (MTCCs). Likewise, petitioners claim that the Court
of Appeals erred in holding that the civil case poses a prejudicial question to the B.P.
Blg. 22 cases, thus resulting in the erroneous suspension of the proceedings the
latter cases. Finally, petitioners posit that the RTC erred in issuing the preliminary
injunction because respondents have no clear and unmistakable right to its
issuance.[14]
Respondents, for their part, state that the possibility of a ruling in the civil
case to the effect that the subject checks are contra bonos mores and hence null
and void constitutes a prejudicial question in the B.P. Blg. 22 cases. Thus,
proceeding with the trial in the criminal cases without awaiting the outcome of the
civil case is fraught with mischievous consequences.[15] They cite the case of
Medel v. Court of Appeals,[16] wherein the Court nullified the interest rate of 5.5%
per month for being contra bonos mores under Article 1306 of the Civil Code, and
recomputed the interest due at the rate of 1% per month.[17] Thus, if their loans
are computed at 1% per month, it would mean that the checks subject of the B.P.
Blg. 22 cases are not only fully paid but are also in fact overpaid. They also invoke
the case of Danao v. Court of Appeals[18] wherein the Court allegedly ruled that
there is no violation of B.P. Blg. 22 if the dishonored checks have been paid.[19]
They claim that since the 5% interest per day was not contained in any written
agreement, per Article 1956[20] of the Civil Code, petitioners are bound to return
the total interest they collected from respondents. Respondents point out that they
incorporated in their complaint an application for preliminary injunction and
temporary restraining order to restrain Carolina from enforcing the interest and from
filing criminal cases for violation of B.P. Blg. 22. Quoting the RTC, respondents
explain:
Since there was no proof at that time that plaintiff sustain or are about to
sustain damages or prejudice if the acts complained of are not enjoined, the
application was not acted upon by the Court. When the attention of the Court was

invited by the plaintiffs of the refusal of the MTC, Branches 2 and 5, to suspend the
criminal proceedings despite being appraised of the pendency of this case, the
Court has to act accordingly.[21]
Respondents maintain that they are not guilty of forum shopping because
after the denial by the MTCCs of their motion to suspend proceedings, their only
available remedy was the filing of an application for preliminary injunction in the
existing civil case filed earlier than the B.P. Blg. 22 cases. In any case, respondents
argue that the rule on forum shopping is not intended to deprive a party to a case of
a legitimate remedy.[22]
Finally, they claim that the case falls under the
exceptions to the rule that the prosecution of criminal cases may not be enjoined by
a writ of injunction, considering that in this case there is a prejudicial question which
is sub judice, and that there is persecution rather than prosecution.[23]
The case hinges on the determination of whether there exists a prejudicial
question which necessitates the suspension of the proceedings in the MTCCs.
We find that there is none and thus we resolve to grant the petition.
A prejudicial question generally comes into play in a situation where a civil
action and a criminal action are both pending and there exists in the former an
issue which must be preemptively resolved before the latter may proceed, because
howsoever the issue raised in the civil action is resolved would be determinative
juris et de jure of the guilt or innocence of the accused in the criminal case. The
rationale behind the principle of prejudicial question is to avoid two conflicting
decisions. It has two essential elements: (i) the civil action involves an issue similar
or intimately related to the issue raised in the criminal action; and (ii)
the
resolution of such issue determines whether or not the criminal action may proceed.
[24]
Now the prejudicial question posed by respondents is simply this: whether
the daily interest rate of 5% is void, such that the checks issued by respondents to
cover said interest are likewise void for being contra bonos mores, and thus the
cases for B.P. Blg. 22 will no longer prosper.
The prejudicial question theory advanced by respondents must fail.
In the first place, the validity or invalidity of the interest rate is not
determinative of the guilt of respondents in the criminal cases. The Court has
consistently declared that the cause or reason for the issuance of a check is
inconsequential in determining criminal culpability under B.P. Blg. 22.[25] In
several instances, we have held that what the law punishes is the issuance of a
bouncing check and not the purpose for which it was issued or the terms and
conditions relating to its issuance; and that the mere act of issuing a worthless
check is malum prohibitum provided the other elements of the offense are properly
proved.[26]

The nature and policy of B.P. Blg. 22 were aptly enunciated by the Court in Meriz v.
People,[27] when it stated:
x x x. [B.P. Blg.] 22 does not appear to concern itself with what might actually be
envisioned by the parties, its primordial intention being to instead ensure the
stability and commercial value of checks as being virtual substitutes for currency. It
is a policy that can easily be eroded if one has yet to determine the reason for
which checks are issued, or the terms and conditions for their issuance, before an
appropriate application of the legislative enactment can be made. The gravamen of
the offense under [B.P. Blg.] 22 is the act of making or issuing a worthless check or
a check that is dishonored upon presentment for payment. The act effectively
declares the offense to be one of malum prohibitum. The only valid query then
is whether the law has been breached,
i.e., by the mere act of issuing a bad check, without so much regard as to the
criminal intent of the issuer.[28]
Thus, whether or not the interest rate imposed by petitioners is eventually declared
void for being contra bonos mores will not affect the outcome of the B.P. Blg. 22
cases because what will ultimately be penalized is the mere issuance of bouncing
checks. In fact, the primordial question posed before the court hearing the B.P. Blg.
22 cases is whether the law has been breached, that is, if a bouncing check has
been issued.
The issue has in fact been correctly addressed by the MTCCs when
respondents motion to suspend the criminal proceedings was denied upon the
finding that there exists no prejudicial question which could be the basis for the
suspension of the proceedings. The reason for the denial of the motion is that the
cases can very well proceed for the prosecution of the accused in order to
determine her criminal propensity as a consequence of the issuance of several
checks which subsequently bounced for what the law punishes is the issuance
and/or drawing of a check and upon presentment for deposit or encashment, it was
dishonored due to insufficient funds [or] account closed. [29]
There being no prejudicial question, the RTC and, consequently, the Court of
Appeals gravely erred when they allowed the suspension of the proceedings in the
B.P. Blg. 22 cases.
Now, on to other matters.
We find that respondents are guilty of forum shopping. There is forum
shopping when a party seeks to obtain remedies in an action in one court, which
had already been solicited, and in other courts and other proceedings in other
tribunals. Forum shopping is the act of one party against another, when an adverse
judgment has been rendered in one forum, of seeking another and possibly
favorable opinion in another forum other than by appeal or by special civil action of

certiorari; or the institution of two or more acts or proceedings grounded on the

same cause on the supposition that one or the other court would make a favorable
disposition.[30]
Respondents filed their motions to suspend proceedings in the MTCCs
hearing the B.P. Blg. 22 cases but unfortunately, the same were denied. Failing to
get the relief they wanted, respondents sought before the RTC, the suspension of
the criminal proceedings which was granted. Respondents tried to extricate
themselves from the charge of forum shopping by explaining that after the denial of
their motions to suspend, their only remedy was the application for preliminary
injunction in the civil casea relief which they had already asked for in their
complaint and which was also initially not granted to them. Any which way the
situation is viewed, respondents acts constituted forum shopping since they sought
a possibly favorable opinion from one court after another had issued an order
unfavorable to them.
The Court notes that three cases, namely, Ras v. Rasul,[31] Medel v. CA[32]
and Danao v. Court of Appeals[33]finding no application to the instant case
were mentioned by the RTC, the Court of Appeals and by respondents themselves in
support of their position.
Ras v. Rasul cropped up in the order of the RTC which was quoted with
approval by the Court of Appeals. According to the RTC, the ruling in the said case
allegedly can be squarely applied in this case which nullified and set aside the
conviction in a criminal case because of a prejudicial question.[34] We do not
agree. The Ras case involves a petition for nullification of a deed of sale on the
ground of forgery. While the civil case was pending, an information for estafa was
filed against the respondent in the civil case. The Court ruled that there were
prejudicial questions considering that the defense against the charge of forgery in
the civil case is based on the very same facts which would be determinative of the
guilt or innocence of the respondent in the estafa case. The instant case is different
from Ras inasmuch as the determination of whether the 5% daily interest is contra
bonos mores and therefore void, or that the total amount loaned from petitioners
has been sufficiently paid, will not affect the guilt or innocence of Purita because the
material question in the B.P. Blg. 22 cases is whether Purita had issued a bad check,
regardless of the purpose or condition of its issuance.
Medel v. CA is the case upon which respondents anchor their claim that the
interest due on their loans is only 1% per month and thus they have already
overpaid their obligation to petitioners. In Medel, the Court declared that the rate of
5.5% interest per month on a P500,000.00 loan is iniquitous, unconscionable and
hence contrary to morals, and must equitably be reduced to 12% per annum. While
the Medel case made a finding that the stipulated interest rate is excessive and
thus may be equitably reduced by the courts, we do not see how a reduction of the
interest rate, should there be any, or a subsequent declaration that the amount due

has been fully paid, will have an effect on the determination of whether or not Purita
had in fact issued bouncing checks.
Meanwhile, respondents misunderstood our ruling in Danao v. Court of
Appeals, which they claim to have ruled that there could be no violation of B.P. Blg.
22 if the dishonored checks have been paid. In Danao, the accused was convicted
by the trial court for having issued two checks which eventually bounced. The
Court found that there was no proof of receipt by the accused of any notice of
nonpayment of the checks, and thus there was no way of determining when the
five-day period prescribed in Section 2 of B.P. Blg. 22 would start and end. Thus, the
presumption or prima facie evidence of knowledge of the insufficiency of funds or
credit at the time of the issuance of the checks did not arise. While there was a
finding that the accused had already paid her obligations prior to receipt of the
complainants demand letter,[35] there was no declaration from the Court that such
payment exonerated accused from liability for having issued bouncing checks.
Instead, accused was acquitted due to insufficiency of evidence, and not because
she had paid the amount covered by the dishonored checks[36] or that the
obligation was deemed paid.
WHEREFORE, the petition is GRANTED. The impugned Decision of
the Court of Appeals dated 17 August 2006 and its Resolution dated 27 February
2007, in CA-G.R. CEB-SP No. 00397, are SET ASIDE. The preliminary injunction
issued by the Regional Trial Court of Cebu City, Branch 19 in its Order dated 20
December 2004 in Civil Case No. CEB-30278 enjoining the proceedings in the
criminal cases for violation of B.P. Blg. 22 is LIFTED AND SET ASIDE and the MTCC
of Cebu City, Branches 2 and 5 are ORDERED to proceed with dispatch with the
arraignment and trial in the B.P. Blg. 22 cases pending before them.
SO ORDERED.