2010 CRIMINAL PROCEDURE CASES

Case Title

Page

SORIANO, vs. PEOPLE OF THE PHILIPPINES (G.R. No. 162336 - February 1, 2010)

PEOPLE OF THE PHILIPPINES vs. VILLAMIN (G.R. No. 175590 - February 9, 2010)

11

SADULAGA vs SANDIGANBAYAN (GR no. 184537 - April 23, 2010)

20

KALALO vs OFFICE OF THE OMBUDSMAN (G.R. No. 158189 - April 23, 2010)

27

BONIFACIO vs. RTC OF MAKATI (G.R. No. 184800 - May 5, 2010)

33

BORLONGAN, JR vs. PEA (G.R. No. 14359 - May 5, 2010)

39

PEOPLE OF THE PHILIPPINES vs NOQUE G.R. No. 175319 - January 15, 2010)

51

LEE vs KBC BANK N.V. (G.R. No. 164673 - January 15, 2010)

58

CABRAL vs UY (G.R. No. 174584 - January 20, 2010)

69

TAMARGO vs AWINGAN (G.R. No. 177727 - January 19, 2010)

72

CACAO vs PEOPLE OF THE PHILIPPINES (G.R. No. 180870 - January 22, 2010)

79

PEOPLE OF THE PHILIPPINES vs. MORALES (G.R. No. 172873 - March 19, 2010)

88

PEOPLE OF THE PHILIPPINES vs. HABANA (G.R. No. 188900 - March 5, 2010)

99

ROMUALDEZ vs SANDIGANBAYAN (G.R. No. 161602 - July 13, 2010)

103

HILARIO P. SORIANO,
vs.
PEOPLE OF THE PHILIPPINES, BANGKO SENTRAL NG PILIPINAS (BSP),
PHILIPPINE DEPOSIT INSURANCE CORPORATION (PDIC), PUBLIC
PROSECUTOR ANTONIO C.BUAN, and STATE PROSECUTOR ALBERTO
R. FONACIER,
G.R. No. 162336
February 1, 2010
A bank officer violates the DOSRI2 law when he acquires bank funds
for his personal benefit, even if such acquisition was facilitated by a
fraudulent loan application. Directors, officers, stockholders, and
their related interests cannot be allowed to interpose the fraudulent
nature of the loan as a defense to escape culpability for their
circumvention of Section 83 of Republic Act (RA) No. 337. 3
Before us is a Petition for Review on Certiorari4 under Rule 45 of the
Rules of Court, assailing the September 26, 2003 Decision 5 and the
February 5, 2004 Resolution6 of the Court of Appeals (CA) in CAG.R. SP No. 67657. The challenged Decision disposed as follows:
WHEREFORE, premises considered, the instant petition for certiorari
is hereby DENIED.7
Factual Antecedents
Sometime in 2000, the Office of Special Investigation (OSI) of the
Bangko Sentral ng Pilipinas (BSP), through its officers,8 transmitted
a letter9 dated March 27, 2000 to Jovencito Zuo, Chief State
Prosecutor of the Department of Justice (DOJ). The letter attached
as annexes five affidavits,10 which would allegedly serve as bases
for filing criminal charges for Estafa thru Falsification of Commercial
Documents, in relation to Presidential Decree (PD) No. 1689, 11 and
for Violation of Section 83 of RA 337, as amended by PD 1795, 12
against, inter alia, petitioner herein Hilario P. Soriano. These five
affidavits, along with other documents, stated that spouses Enrico
and Amalia Carlos appeared to have an outstanding loan of P8
million with the Rural Bank of San Miguel (Bulacan), Inc. (RBSM),
but had never applied for nor received such loan; that it was
petitioner, who was then president of RBSM, who had ordered,
facilitated, and received the proceeds of the loan; and that the P8
million loan had never been authorized by RBSM's Board of
Directors and no report thereof had ever been submitted to the

Department of Rural Banks, Supervision and Examination Sector of

the BSP. The letter of the OSI, which was not subscribed under oath,
ended with a request that a preliminary investigation be conducted
and the corresponding criminal charges be filed against petitioner
at his last known address.
Acting on the letter-request and its annexes, State Prosecutor
Albert R. Fonacier proceeded with the preliminary investigation. He
issued a subpoena with the witnesses affidavits and supporting
documents attached, and required petitioner to file his counteraffidavit. In due course, the investigating officer issued a Resolution
finding probable cause and correspondingly filed two separate
informations against petitioner before the Regional Trial Court (RTC)
of Malolos, Bulacan.13
The first Information,14 dated November 14, 2000 and docketed as
Criminal Case No. 237-M-2001, was for estafa through falsification
of commercial documents, under Article 315, paragraph 1(b), of the
Revised Penal Code (RPC), in relation to Article 172 of the RPC and
PD 1689. It basically alleged that petitioner and his co-accused, in
abuse of the confidence reposed in them as RBSM officers, caused
the falsification of a number of loan documents, making it appear
that one Enrico Carlos filled up the same, and thereby succeeded in
securing a loan and converting the loan proceeds for their personal
gain and benefit.15 The information reads:
That in or about the month of April, 1997, and thereafter, in San
Miguel, Bulacan, and within the jurisdiction of this Honorable Court,
the said accused HILARIO P. SORIANO and ROSALINDA ILAGAN, as
principals by direct participation, with unfaithfulness or abuse of
confidence and taking advantage of their position as President of
the Rural Bank of San Miguel (Bulacan), Inc. and Branch Manager of
the Rural Bank of San Miguel San Miguel Branch [sic], a duly
organized banking institution under Philippine Laws, conspiring,
confederating and mutually helping one another, did then and
there, willfully and feloniously falsify loan documents consisting of
undated loan application/information sheet, credit proposal dated
April 14, 1997, credit proposal dated April 22, 1997, credit
investigation report dated April 15, 1997, promissory note dated
April 23, 1997, disclosure statement on loan/credit transaction
dated April 23, 1997, and other related documents, by making it
appear that one Enrico Carlos filled up the application/information
sheet and filed the aforementioned loan documents when in truth
and in fact Enrico Carlos did not participate in the execution of said

loan documents and that by virtue of said falsification and with

deceit and intent to cause damage, the accused succeeded in
securing a loan in the amount of eight million pesos
(PhP8,000,000.00) from the Rural Bank of San Miguel San
Ildefonso branch in the name of Enrico Carlos which amount of
PhP8 million representing the loan proceeds the accused thereafter
converted the same amount to their own personal gain and benefit,
to the damage and prejudice of the Rural Bank of San Miguel San
Ildefonso branch, its creditors, the Bangko Sentral ng Pilipinas, and
the Philippine Deposit Insurance Corporation.
CONTRARY TO LAW.16
The other Information17 dated November 10, 2000 and docketed as
Criminal Case No. 238-M-2001, was for violation of Section 83 of RA
337, as amended by PD 1795. The said provision refers to the
prohibition against the so-called DOSRI loans. The information
alleged that, in his capacity as President of RBSM, petitioner
indirectly secured an P8 million loan with RBSM, for his personal
use and benefit, without the written consent and approval of the
bank's Board of Directors, without entering the said transaction in
the bank's records, and without transmitting a copy of the
transaction to the supervising department of the bank. His ruse
was facilitated by placing the loan in the name of an unsuspecting
RBSM depositor, one Enrico Carlos.18 The information reads:
That in or about the month of April, 1997, and thereafter, and
within the jurisdiction of this Honorable Court, the said accused, in
his capacity as President of the Rural Bank of San Miguel (Bulacan),
Inc., did then and there, willfully and feloniously indirectly borrow or
secure a loan with the Rural Bank of San Miguel San Ildefonso
branch, a domestic rural banking institution created, organized and
existing under Philippine laws, amounting to eight million pesos
(PhP8,000,000.00), knowing fully well that the same has been done
by him without the written consent and approval of the majority of
the board of directors of the said bank, and which consent and
approval the said accused deliberately failed to obtain and enter
the same upon the records of said banking institution and to
transmit a copy thereof to the supervising department of the said
bank, as required by the General Banking Act, by using the name of
one depositor Enrico Carlos of San Miguel, Bulacan, the latter
having no knowledge of the said loan, and one in possession of the
said amount of eight million pesos (PhP8,000,000.00), accused

converted the same to his own personal use and benefit, in flagrant
violation of the said law.
CONTRARY TO LAW.19
Both cases were raffled to Branch 79 of the RTC of Malolos,
Bulacan.20
On June 8, 2001, petitioner moved to quash 21 these informations on
two grounds: that the court had no jurisdiction over the offense
charged, and that the facts charged do not constitute an offense.
On the first ground, petitioner argued that the letter transmitted by
the BSP to the DOJ constituted the complaint and hence was
defective for failure to comply with the mandatory requirements of
Section 3(a), Rule 112 of the Rules of Court, such as the statement
of address of petitioner and oath and subscription. 22 Moreover,
petitioner argued that the officers of OSI, who were the signatories
to the "letter-complaint," were not authorized by the BSP Governor,
much less by the Monetary Board, to file the complaint. According
to petitioner, this alleged fatal oversight violated Section 18, pars.
(c) and (d) of the New Central Bank Act (RA 7653).
On the second ground, petitioner contended that the commission of
estafa under paragraph 1(b) of Article 315 of the RPC is inherently
incompatible with the violation of DOSRI law (as set out in Section
8323 of RA 337, as amended by PD 1795),24 hence a person cannot
be charged for both offenses. He argued that a violation of DOSRI
law requires the offender to obtain a loan from his bank, without
complying with procedural, reportorial, or ceiling requirements. On
the other hand, estafa under par. 1(b), Article 315 of the RPC
requires the offender to misappropriate or convert something that
he holds in trust, or on commission, or for administration, or under
any other obligation involving the duty to return the same.25
Essentially, the petitioner theorized that the characterization of
possession is different in the two offenses. If petitioner acquired the
loan as DOSRI, he owned the loaned money and therefore, cannot
misappropriate or convert it as contemplated in the offense of
estafa. Conversely, if petitioner committed estafa, then he merely
held the money in trust for someone else and therefore, did not
acquire a loan in violation of DOSRI rules.

Ruling of the Regional Trial Court

convinced that the affiants fully understood their sworn

statements.31

In an Order26 dated August 8, 2001, the trial court denied

petitioner's Motion to Quash for lack of merit. The lower court
agreed with the prosecution that the assailed OSI letter was not the
complaint-affidavit itself; thus, it need not comply with the
requirements under the Rules of Court. The trial court held that the
affidavits, which were attached to the OSI letter, comprised the
complaint-affidavit in the case. Since these affidavits were duly
subscribed and sworn to before a notary public, there was
adequate compliance with the Rules. The trial court further held
that the two offenses were separate and distinct violations, hence
the prosecution of one did not pose a bar to the other. 27
Petitioners Motion for Reconsideration was likewise denied in an
Order dated September 5, 2001.28
Aggrieved, petitioner filed a Petition for Certiorari
reiterating his arguments before the trial court.

29

with the CA,

Anent the second ground, the CA found no merit in petitioner's

argument that the violation of the DOSRI law and the commission
of estafa thru falsification of commercial documents are inherently
inconsistent with each other. It explained that the test in
considering a motion to quash on the ground that the facts charged
do not constitute an offense, is whether the facts alleged, when
hypothetically admitted, constitute the elements of the offense
charged. The appellate court held that this test was sufficiently met
because the allegations in the assailed informations, when
hypothetically admitted, clearly constitute the elements of Estafa
thru Falsification of Commercial Documents and Violation of DOSRI
law.32
Petitioners Motion for Reconsideration33 was likewise denied for
lack of merit.
Hence, this petition.

Ruling of the Court of Appeals

Issues
The CA denied the petition on both issues presented by petitioner.
On the first issue, the CA determined that the BSP letter, which
petitioner characterized to be a fatally infirm complaint, was not
actually a complaint, but a transmittal or cover letter only. This
transmittal letter merely contained a summary of the affidavits
which were attached to it. It did not contain any averment of
personal knowledge of the events and transactions that constitute
the elements of the offenses charged. Being a mere transmittal
letter, it need not comply with the requirements of Section 3(a) of
Rule 112 of the Rules of Court.30
The CA further determined that the five affidavits attached to the
transmittal letter should be considered as the complaint-affidavits
that charged petitioner with violation of Section 83 of RA 337 and
for Estafa thru Falsification of Commercial Documents. These
complaint-affidavits complied with the mandatory requirements set
out in the Rules of Court they were subscribed and sworn to
before a notary public and subsequently certified by State
Prosecutor Fonacier, who personally examined the affiants and was

Restated, petitioner raises the following issues 34 for our

consideration:
I Whether the complaint complied with the mandatory
requirements provided under Section 3(a), Rule 112 of the Rules of
Court and Section 18, paragraphs (c) and (d) of RA 7653.
II Whether a loan transaction within the ambit of the DOSRI law
(violation of Section 83 of RA 337, as amended) could also be the
subject of Estafa under Article 315 (1) (b) of the Revised Penal
Code.
III Is a petition for certiorari under Rule 65 the proper remedy
against an Order denying a Motion to Quash?
IV Whether petitioner is entitled to a writ of injunction.
Our Ruling

The petition lacks merit.

First Issue:
Whether the complaint complied with the mandatory requirements
provided under Section 3(a), Rule 112 of the Rules of Court and
Section 18, paragraphs (c) and (d) of
Republic Act No. 7653
Petitioner moved to withdraw the first issue from the instant
petition
On March 5, 2007, the Court noted35 petitioner's Manifestation and
Motion for Partial Withdrawal of the Petition36 dated February 7,
2007. In the said motion, petitioner informed the Court of the
promulgation of a Decision entitled Soriano v. Hon. Casanova,37
which also involved petitioner and similar BSP letters to the DOJ.
According to petitioner, the said Decision allegedly ruled squarely
on the nature of the BSP letters and the validity of the sworn
affidavits attached thereto. For this reason, petitioner moved for
the partial withdrawal of the instant petition insofar as it involved
the issue of "whether or not a court can legally acquire jurisdiction
over a complaint which failed to comply with the mandatory
requirements provided under Section 3(a), Rule 112 of the Rules of
Court and Section 18, paragraphs (c) and (d) of RA 7653".38
Given that the case had already been submitted for resolution of
the Court when petitioner filed his latest motion, and that all
respondents had presented their positions and arguments on the
first issue, the Court deems it proper to rule on the same.
In Soriano v. Hon. Casanova, the Court held that the affidavits
attached to the BSP transmittal letter complied with the mandatory
requirements under the Rules of Court.
To be sure, the BSP letters involved in Soriano v. Hon. Casanova39
are not the same as the BSP letter involved in the instant case.
However, the BSP letters in Soriano v. Hon. Casanova and the BSP
letter subject of this case are similar in the sense that they are all
signed by the OSI officers of the BSP, they were not sworn to by the
said officers, they all contained summaries of their attached
affidavits, and they all requested the conduct of a preliminary

investigation and the filing of corresponding criminal charges

against petitioner Soriano. Thus, the principle of stare decisis
dictates that the ruling in Soriano v. Hon. Casanova be applied in
the instant case once a question of law has been examined and
decided, it should be deemed settled and closed to further
argument.40
We held in Soriano v. Hon. Casanova, after a close scrutiny of the
letters transmitted by the BSP to the DOJ, that these were not
intended to be the complaint, as envisioned under the Rules. They
did not contain averments of personal knowledge of the events and
transactions constitutive of any offense. The letters merely
transmitted for preliminary investigation the affidavits of people
who had personal knowledge of the acts of petitioner. We ruled that
these affidavits, not the letters transmitting them, initiated the
preliminary investigation. Since these affidavits were subscribed
under oath by the witnesses who executed them before a notary
public, then there was substantial compliance with Section 3(a),
Rule 112 of the Rules of Court.
Anent the contention that there was no authority from the BSP
Governor or the Monetary Board to file a criminal case against
Soriano, we held that the requirements of Section 18, paragraphs
(c) and (d) of RA 7653 did not apply because the BSP did not
institute the complaint but merely transmitted the affidavits of the
complainants to the DOJ.
We further held that since the offenses for which Soriano was
charged were public crimes, authority holds that it can be initiated
by "any competent person" with personal knowledge of the acts
committed by the offender. Thus, the witnesses who executed the
affidavits clearly fell within the purview of "any competent person"
who may institute the complaint for a public crime.
The ruling in Soriano v. Hon. Casanova has been adopted and
elaborated upon in the recent case of Santos-Concio v. Department
of Justice.41 Instead of a transmittal letter from the BSP, the Court in
Santos-Concio was faced with an NBI-NCR Report, likewise with
affidavits of witnesses as attachments. Ruling on the validity of the
witnesses sworn affidavits as bases for a preliminary investigation,
we held:
The Court is not unaware of the practice of incorporating all
allegations in one document denominated as "complaint-affidavit."

It does not pronounce strict adherence to only one approach,

however, for there are cases where the extent of ones personal
knowledge may not cover the entire gamut of details material to
the alleged offense. The private offended party or relative of the
deceased may not even have witnessed the fatality, in which case
the peace officer or law enforcer has to rely chiefly on affidavits of
witnesses. The Rules do not in fact preclude the attachment of a
referral or transmittal letter similar to that of the NBI-NCR. Thus, in
Soriano v. Casanova, the Court held:
A close scrutiny of the letters transmitted by the BSP and PDIC to
the DOJ shows that these were not intended to be the complaint
envisioned under the Rules. It may be clearly inferred from the
tenor of the letters that the officers merely intended to transmit the
affidavits of the bank employees to the DOJ. Nowhere in the
transmittal letters is there any averment on the part of the BSP and
PDIC officers of personal knowledge of the events and transactions
constitutive of the criminal violations alleged to have been made by
the accused. In fact, the letters clearly stated that what the OSI of
the BSP and the LIS of the PDIC did was to respectfully transmit to
the DOJ for preliminary investigation the affidavits and personal
knowledge of the acts of the petitioner. These affidavits were
subscribed under oath by the witnesses who executed them before
a notary public. Since the affidavits, not the letters transmitting
them, were intended to initiate the preliminary investigation, we
hold that Section 3(a), Rule 112 of the Rules of Court was
substantially complied with.
Citing the ruling of this Court in Ebarle v. Sucaldito, the Court of
Appeals correctly held that a complaint for purposes of preliminary
investigation by the fiscal need not be filed by the offended party.
The rule has been that, unless the offense subject thereof is one
that cannot be prosecuted de oficio, the same may be filed, for
preliminary investigation purposes, by any competent person. The
crime of estafa is a public crime which can be initiated by "any
competent person." The witnesses who executed the affidavits
based on their personal knowledge of the acts committed by the
petitioner fall within the purview of "any competent person" who
may institute the complaint for a public crime. x x x (Emphasis and
italics supplied)
A preliminary investigation can thus validly proceed on the basis of
an affidavit of any competent person, without the referral
document, like the NBI-NCR Report, having been sworn to by the

law enforcer as the nominal complainant. To require otherwise is a

needless exercise. The cited case of Oporto, Jr. v. Judge Monserate
does not appear to dent this proposition. After all, what is required
is to reduce the evidence into affidavits, for while reports and even
raw information may justify the initiation of an investigation, the
preliminary investigation stage can be held only after sufficient
evidence has been gathered and evaluated which may warrant the
eventual prosecution of the case in court.42
Following the foregoing rulings in Soriano v. Hon. Casanova and
Santos-Concio v. Department of Justice, we hold that the BSP letter,
taken together with the affidavits attached thereto, comply with the
requirements provided under Section 3(a), Rule 112 of the Rules of
Court and Section 18, paragraphs (c) and (d) of RA 7653.
Second Issue:
Whether a loan transaction within the ambit of the DOSRI law
(violation of Section 83 of RA 337, as amended) could be the
subject of Estafa under Article 315 (1) (b) of the
Revised Penal Code
The second issue was raised by petitioner in the context of his
Motion to Quash Information on the ground that the facts charged
do not constitute an offense.43 It is settled that in considering a
motion to quash on such ground, the test is "whether the facts
alleged, if hypothetically admitted, would establish the essential
elements of the offense charged as defined by law. The trial court
may not consider a situation contrary to that set forth in the
criminal complaint or information. Facts that constitute the defense
of the petitioner[s] against the charge under the information must
be proved by [him] during trial. Such facts or circumstances do not
constitute proper grounds for a motion to quash the information on
the ground that the material averments do not constitute the
offense". 44
We have examined the two informations against petitioner and we
find that they contain allegations which, if hypothetically admitted,
would establish the essential elements of the crime of DOSRI
violation and estafa thru falsification of commercial documents.

In Criminal Case No. 238-M-2001 for violation of DOSRI rules, the

information alleged that petitioner Soriano was the president of
RBSM; that he was able to indirectly obtain a loan from RBSM by
putting the loan in the name of depositor Enrico Carlos; and that he
did this without complying with the requisite board approval,
reportorial, and ceiling requirements.
In Criminal Case No. 237-M-2001 for estafa thru falsification of
commercial documents, the information alleged that petitioner, by
taking advantage of his position as president of RBSM, falsified
various loan documents to make it appear that an Enrico Carlos
secured a loan of P8 million from RBSM; that petitioner succeeded
in obtaining the loan proceeds; that he later converted the loan
proceeds to his own personal gain and benefit; and that his action
caused damage and prejudice to RBSM, its creditors, the BSP, and
the PDIC.
Significantly, this is not the first occasion that we adjudge the
sufficiency of similarly worded informations. In Soriano v. People, 45
involving the same petitioner in this case (but different
transactions), we also reviewed the sufficiency of informations for
DOSRI violation and estafa thru falsification of commercial
documents, which were almost identical, mutatis mutandis, with
the subject informations herein. We held in Soriano v. People that
there is no basis for the quashal of the informations as "they
contain material allegations charging Soriano with violation of
DOSRI rules and estafa thru falsification of commercial documents".
Petitioner raises the theory that he could not possibly be held liable
for estafa in concurrence with the charge for DOSRI violation.
According to him, the DOSRI charge presupposes that he acquired a
loan, which would make the loan proceeds his own money and
which he could neither possibly misappropriate nor convert to the
prejudice of another, as required by the statutory definition of
estafa.46 On the other hand, if petitioner did not acquire any loan,
there can be no DOSRI violation to speak of. Thus, petitioner posits
that the two offenses cannot co-exist. This theory does not
persuade us.
Petitioners theory is based on the false premises that the loan was
extended to him by the bank in his own name, and that he became
the owner of the loan proceeds. Both premises are wrong.

The bank money (amounting to P8 million) which came to the

possession of petitioner was money held in trust or administration
by him for the bank, in his
fiduciary capacity as the President of said bank.47 It is not accurate
to say that petitioner became the owner of the P8 million because it
was the proceeds of a loan. That would have been correct if the
bank knowingly extended the loan to petitioner himself. But that is
not the case here. According to the information for estafa, the loan
was supposed to be for another person, a certain "Enrico Carlos";
petitioner, through falsification, made it appear that said "Enrico
Carlos" applied for the loan when in fact he ("Enrico Carlos") did
not. Through such fraudulent device, petitioner obtained the loan
proceeds and converted the same. Under these circumstances, it
cannot be said that petitioner became the legal owner of the P8
million. Thus, petitioner remained the banks fiduciary with respect
to that money, which makes it capable of misappropriation or
conversion in his hands.
The next question is whether there can also be, at the same time, a
charge for DOSRI violation in such a situation wherein the accused
bank officer did not secure a loan in his own name, but was alleged
to have used the name of another person in order to indirectly
secure a loan from the bank. We answer this in the affirmative.
Section 83 of RA 337 reads:
Section 83. No director or officer of any banking institution shall,
either directly or indirectly, for himself or as the representative or
agent of others, borrow any of the deposits of funds of such bank,
nor shall he become a guarantor, indorser, or surety for loans from
such bank to others, or in any manner be an obligor for moneys
borrowed from the bank or loaned by it, except with the written
approval of the majority of the directors of the bank, excluding the
director concerned. Any such approval shall be entered upon the
records of the corporation and a copy of such entry shall be
transmitted forthwith to the Superintendent of Banks. The office of
any director or officer of a bank who violates the provisions of this
section shall immediately become vacant and the director or officer
shall be punished by imprisonment of not less than one year nor
more than ten years and by a fine of not less than one thousand
nor more than ten thousand pesos. x x x
The prohibition in Section 83 is broad enough to cover various
modes of borrowing.[48] It covers loans by a bank director or officer

(like herein petitioner) which are made either: (1) directly, (2)
indirectly, (3) for himself, (4) or as the representative or agent of
others. It applies even if the director or officer is a mere guarantor,
indorser or surety for someone else's loan or is in any manner an
obligor for money borrowed from the bank or loaned by it. The
covered transactions are prohibited unless the approval, reportorial
and ceiling requirements under Section 83 are complied with. The
prohibition is intended to protect the public, especially the
depositors,[49] from the overborrowing of bank funds by bank
officers, directors, stockholders and related interests, as such
overborrowing may lead to bank failures.[50] It has been said that
"banking institutions are not created for the benefit of the directors
[or officers]. While directors have great powers as directors, they
have no special privileges as individuals. They cannot use the
assets of the bank for their own benefit except as permitted by law.
Stringent restrictions are placed about them so that when acting
both for the bank and for one of themselves at the same time, they
must keep within certain prescribed lines regarded by the
legislature as essential to safety in the banking business".51
A direct borrowing is obviously one that is made in the name of the
DOSRI himself or where the DOSRI is a named party, while an
indirect borrowing includes one that is made by a third party, but
the DOSRI has a stake in the transaction.52 The latter type indirect
borrowing applies here. The information in Criminal Case 238-M2001 alleges that petitioner "in his capacity as President of Rural
Bank of San Miguel San Ildefonso branch x x x indirectly
borrow[ed] or secure[d] a loan with [RBSM] x x x knowing fully well
that the same has been done by him without the written consent
and approval of the majority of the board of directors x x x, and
which consent and approval the said accused deliberately failed to
obtain and enter the same upon the records of said banking
institution and to transmit a copy thereof to the supervising
department of the said bank x x x by using the name of one
depositor Enrico Carlos x x x, the latter having no knowledge of the
said loan, and once in possession of the said amount of eight
million pesos (P8 million), [petitioner] converted the same to his
own personal use and benefit".53
The foregoing information describes the manner of securing the
loan as indirect; names petitioner as the benefactor of the indirect
loan; and states that the requirements of the law were not
complied with. It contains all the required elements54 for a violation

of Section 83, even if petitioner did not secure the loan in his own
name.
The broad interpretation of the prohibition in Section 83 is justified
by the fact that it even expressly covers loans to third parties
where the third parties are aware of the transaction (such as
principals represented by the DOSRI), and where the DOSRIs
interest does not appear to be beneficial but even burdensome
(such as in cases when the DOSRI acts as a mere guarantor or
surety). If the law finds it necessary to protect the bank and the
banking system in such situations, it will surely be illogical for it to
exclude a case like this where the DOSRI acted for his own benefit,
using the name of an unsuspecting person. A contrary
interpretation will effectively allow a DOSRI to use dummies to
circumvent the requirements of the law.
In sum, the informations filed against petitioner do not negate each
other.
Third Issue:
Is a Rule 65 petition for certiorari the proper remedy against an
Order denying a Motion to Quash?
This issue may be speedily resolved by adopting our ruling in
Soriano v. People,55 where we held:
In fine, the Court has consistently held that a special civil action for
certiorari is not the proper remedy to assail the denial of a motion
to quash an information. The proper procedure in such a case is for
the accused to enter a plea, go to trial without prejudice on his part
to present the special defenses he had invoked in his motion to
quash and if after trial on the merits, an adverse decision is
rendered, to appeal therefrom in the manner authorized by law.
Thus, petitioners should not have forthwith filed a special civil
action for certiorari with the CA and instead, they should have gone
to trial and reiterated the special defenses contained in their
motion to quash. There are no special or exceptional circumstances
in the present case that would justify immediate resort to a filing of
a petition for certiorari. Clearly, the CA did not commit any
reversible error, much less, grave abuse of discretion in dismissing
the petition.56

Fourth Issue:
Whether petitioner is entitled to a writ of injunction
The requisites to justify an injunctive relief are: (1) the right of the
complainant is clear and unmistakable; (2) the invasion of the right
sought to be protected is material and substantial; and (3) there is
an urgent and paramount necessity for the writ to prevent serious
damage. A clear legal right means one clearly founded in or
granted by law or is "enforceable as a matter of law." Absent any
clear and unquestioned legal right, the issuance of an injunctive
writ would constitute grave abuse of discretion. 57 Caution and
prudence must, at all times, attend the issuance of an injunctive
writ because it effectively disposes of the main case without trial
and/or due process.58 In Olalia v. Hizon,59 the Court held as follows:
It has been consistently held that there is no power the exercise of
which is more delicate, which requires greater caution, deliberation
and sound discretion, or more dangerous in a doubtful case, than
the issuance of an injunction. It is the strong arm of equity that
should never be extended unless to cases of great injury, where
courts of law cannot afford an adequate or commensurate remedy
in damages.
Every court should remember that an injunction is a limitation upon
the freedom of action of the [complainant] and should not be
granted lightly or precipitately. It should be granted only when the
court is fully satisfied that the law permits it and the emergency
demands it.
Given this Court's findings in the earlier issues of the instant case,
we find no compelling reason to grant the injunctive relief sought
by petitioner.
WHEREFORE, the petition is DENIED. The assailed September 26,
2003 Decision as well as the February 5, 2004 Resolution of the
Court of Appeals in CA-G.R. SP No. 67657 are AFFIRMED. Costs
against petitioner.
SO ORDERED.

PEOPLE OF THE PHILIPPINES vs. FERNANDO VILLAMIN Y SAN JOSE

ALIAS ANDOY
G.R. No. 175590
February 9, 2010
DECISION
PERALTA, J.:
This is an appeal from the Decision1 dated July 19, 2006 of the
Court of Appeals (CA) in CA-G.R. CR-HC No. 00967, affirming the
Decision2 dated May 7, 2003 of the Regional Trial Court (RTC) of
Malolos, Bulacan, Branch 20, in Criminal Case No. 2332-M-2002,
finding accused-appellant Fernando Villamin guilty beyond
reasonable doubt of violation of Section 5, Article II of Republic Act
(R.A.) 9165.
The facts, as culled from the records, are the following:
Members of the Drug Enforcement Unit (DEU) of San Jose del Monte
Police Station received a report from a civilian informant and from
the Barangay Captain of Barangay Gumaok, San Jose del Monte,
Bulacan sometime during the first week of August 2002, that a
certain Fernando Villamin, alias "Andoy," was engaged in the sale
of shabu3 in that same place. 4 Thus, a team composed of Senior
Police Officer 2 (SPO2) Mario Llarinas, Eduardo Ocampo, a police
aide, and a civilian asset, was formed to conduct a test-buy
operation of shabu from accused-appellant.5
A civilian asset of the DEU and Police Aide Eduardo Ocampo, on
August 15, 2002, went to accused-appellant in order to buy shabu.
Accused-appellant informed them that he ran out of stock and
asked them to return the following day. When the civilian asset and
Eduardo Ocampo returned the next day, accused-appellant
informed them that the shabu was not yet available and again
suggested that they return the following day. 6
On August 17, 2002, a team -- composed of SPO4 Abelardo Taruc;
Police Officers 2 (PO2) Mario Llarinas and Nasser Saiyadi; members
of the DEU; and four (4) police aides, namely; Eduardo Ocampo,
Jude Illana, Glendo Villamor, and Jerson Bausa -- was then formed
to conduct a buy-bust operation directed at accused-appellant. 7 The
designated leader and poseur-buyer was SPO4 Taruc. 8 In connection

therewith, SPO4 Taruc prepared two P100.00 marked bills before

the buy-bust operation.9
The team then proceeded to Barangay Gumaok, San Jose del
Monte, Bulacan at around 11:00 o'clock in the morning. SPO4 Taruc
and the civilian asset approached the house of accused-appellant,
while the rest positioned themselves at strategic locations near the
house. The civilian asset introduced SPO4 Taruc to accusedappellant and told the latter that SPO4 Taruc wanted to buy shabu
worth P200.00. Accused-appellant responded, saying, "Meron na,
meron na."10 Afterwards, accused-appellant entered his house.
When accused-appellant opened the door of the house, SPO4 Taruc
noticed that there were several people sniffing shabu inside the
same house. After a few minutes, accused-appellant came out of
his house holding a small packet/plastic sachet. Accused-appelant
approached SPO4 Taruc, and the latter handed the former the two
P100.00 marked bills. Thereafter, accused-appellant gave the
plastic sachet he was holding to SPO4 Taruc. 11
SPO4 Taruc, after making sure that the content of the plastic sachet
was indeed shabu, held the hands of accused-appellant and placed
him under arrest. Accused-appellant was, thereafter, frisked and
the marked money, along with six more sachets of shabu, were
seized from him. As a signal to the other members of the buy-bust
operation team that the transaction was already completed, SPO4
Taruc placed his hand on his head. Hence, the rest of the team
hurried to apprehend accused-appellant and the other people
inside the house. However, the others scampered to different
directions.12 The police officers and their aides were able to
apprehend only two women, namely: Alma Frial, accusedappellant's neighbor, and Joselyn Patilano-Cabardo, accusedappellant's live-in partner. 13
Also recovered inside the house of accused-appellant were six
other sachets of shabu and shabu paraphernalia. Subsequently,
accused-appellant, Alma Frial, and Joselyn Patilano-Cabardo, as well
as the evidence recovered, were brought to the police
headquarters where the members of the buy-bust operation team
also prepared their joint affidavits.14
The seven (7) plastic sachets of shabu, including the one bought
from accused-appellant during the buy-bust operation, as well as
the drug paraphernalia, were referred to the Philippine National
Police (PNP) Crime Laboratory. 15 Forensic Chemist, PNP Inspector

Nellson Sta. Maria, after conducting a series of tests to determine

the contents of the gathered pieces of evidence, came out with the
following findings:
SPECIMEN SUBMITTED:
A - One (1) heat-sealed transparent plastic sachet with markings
"AT-FV" containing 0.145 gram of white crystalline substance.
xxx
FINDINGS:
Qualitative examination conducted on the above stated specimens
gave POSITIVE result to the test for the presence of
Methylamphetamine hydrochloride,16 a regulated drug.17
Resultantly, three separate Informations were filed charging
accused-appellant, and the others who were caught during the buybust operation, with violation of Secs. 5, 6 and 11, Art. II of R.A.
9165, which read, as follows:
Criminal Case No. 2331-M-2002
The undersigned City Prosecutor accuses Fernando Villamin y San
Jose alias Andoy of violation of Section 11, Art. II of R.A. 9165,
otherwise known as "The Comprehensive Dangerous Drugs Act of
2002," committed as follows:
That on or about the 17th day of August, 2002, in San Jose del
Monte City, province of Bulacan, Philippines, and within the
jurisdiction of this Honorable Court, the above-named accused,
without authority of law and legal justification, did then and there
willfully, unlawfully and feloniously have in his possession and
control six (6) heat-sealed transparent plastic sachets containing
Methylamphetamine Hydrochloride having a total weight of 1,042
grams, which is a regulated drug.
Contrary to law.
Criminal Case No. 2332-M-2002

10

The undersigned City Prosecutor accuses Fernando Villamin y San

Jose alias Andoy of Violation of Section 5, Art. II of R. A. 9165,
otherwise known as "The Comprehensive Dangerous Drugs Act of
2002," committed as follows:
That on or about the 17th day of August, 2002, in San Jose del
Monte City, province of Bulacan, Philippines, and within the
jurisdiction of this Honorable Court, the above-named accused,
without authority of law and legal justification, did then and there
willfully, unlawfully and feloniously sell, deliver dispatch in transit
and transport one (1) heat-sealed transparent plastic sachet
containing Methylamphetamine Hydrochloride weighing .145 gram,
which is a regulated drug.
Contrary to law.
Criminal Case No. 2333-M-2002
The undersigned City Prosecutor accuses Fernando Villamin y San
Jose alias Andoy of Violation of Section 6, Art. II of R. A. 9165,
otherwise known as "The Comprehensive Dangerous Drugs Act of
2002," committed as follows:
That on or about the 17th day of August, 2002, San Jose del Monte
City, province of Bulacan, Philippines, and within the jurisdiction of
this Honorable Court, the above-named accused, without authority
of law and legal justification, did then and there willfully, unlawfully
and feloniously openly maintain his residence located at Brgy.
Gumaok East, this City, as drug den where drugs are
administered/sold, dispensed and used.
Contrary to law.
On September 4, 2002, accused-appellant pleaded Not Guilty to all
the charges against him. Thereafter, trial ensued.
The Prosecution presented the testimonies of Police Officer 3 (PO3)
Nasser Saiyadi,18 SPO4 Abelardo Taruc,19 SPO2 Mario Llarina,20 and
Police Aide Eduardo Ocampo21 who testified as to the facts earlier
narrated.

Cabardo.23 According to accused-appellant, on August 17, 2002,

around 7:00 o'clock in the morning, he was having breakfast inside
his house at Barangay Gumaok, San Jose del Monte, Bulacan, when
three persons entered his house through the kitchen door. Alma
Prial, one of the three persons, asked accused-appellant if she and
her companions could stay in his house because somebody was
chasing them, and said that one of her companions was in trouble.
Accused-appellant refused the request of Alma for fear of being
implicated in whatever trouble Alma and her two companions were
involved. Accused-appellant added that Joselyn Patilano-Cabardo,
his live-in partner, overheard the above conversation and told the
former not to allow Alma Frial and her companions to stay in their
house. Accused-appellant, in turn, told Alma Frial about the
sentiments of his live-in partner.
Later on, as narrated by accused-appellant, somebody kicked the
kitchen door of his house. Three men entered as the door opened,
with one of them saying, "Walang kikilos, dyan ka lang." The two
other men immediately proceeded to the room of accusedappellant and Cabardo. Accused-appellant was then asked, "Nasaan
na yung mga kasama mo?" To this he replied that nobody else was
inside the house except he and his live-in partner. Upon realizing
the commotion, accused-appellant's live-in partner shouted, "Wala
kayong karapatan na pumasok dito."
Meanwhile, somebody outside the house shouted, "Mayroong tao
dito." Thereafter, four persons, one of them Alma Frial, entered
accused-appellant's house. One of the men who earlier barged
inside the house of accused-appellant said, "Sinungaling ka, ang
sabi mo hindi nanggaling dito yang mga taong iyan." Joselyn
Patilano-Cabardo tried to help accused-appellant but another man
said, "Isa ka pa, maingay ka, kasama ka rin." It was then that SPO4
Taruc ordered, "Dalhin na ninyo iyan." However, Cabardo said,
"Bakit ninyo kami dadalhin, wala naman kaming kasalanan?"
In short, accused-appellant denied that he was caught selling
shabu, a denial which Joselyn Patilano-Cabardo corroborated.
The RTC found accused-appellant guilty beyond reasonable doubt
of violation of Section 5, Article II of R.A. 9165 in Criminal Case No.
2332-M-2002, but acquitted him of the other charges. The
dispositive portion of the trial court's decision reads:

The defense, on the other hand, presented the testimonies of

accused-appellant22 and his live-in partner, Joselyn Patilano-

11

WHEREFORE, premises considered, judgment is hereby rendered as

follows:
(1) In Criminal Case No. 2332-M-2002, the Court finds
accused Fernando Villamin y San Jose, guilty beyond
reasonable doubt of Violation of Section 5, Article II of R. A.
9165 and hereby sentences him to life imprisonment. He is
also ordered to pay a fine of Five Hundred Thousand Pesos
(P500,00.00);
(2) In Criminal Cases Nos. 2331-M-2002 and 2333-M-2002,
the Court finds that the prosecution failed to prove beyond
reasonable doubt the guilt of accused Fernando Villamin y
San Jose of the crimes charged and he is therefore
acquitted;
(3) For insufficiency of evidence, the Court hereby acquits
accused Joselyn Patilano-Cabardo and Alma Frial y Caluntod
in Criminal Case No. 2334-M-2002.
The dangerous drugs and drug paraphernalia submitted as
evidence in these cases are hereby ordered to be transmitted to
the Dangerous Drugs Board (DDB).
SO ORDERED.
Due to the penalty imposed, which is Life Imprisonment, the case
was elevated to this Court on appeal. However, per Resolution 24 of
this Court dated March 28, 2005, the case was transferred to the
CA in conformity with the Decision of this Court dated July 7, 2004
in People v. Mateo,25 modifying the pertinent provisions of the
Revised Rules of Criminal Procedure, particularly Sections 3 and 10
of Rule 122, Section 13 of Rule 124, Section 3 of Rule 125, and any
other rule insofar as it provides for direct appeals from the RTC to
this Court in cases where the penalty imposed is death, reclusion
perpetua or life imprisonment; as well as the resolution of this
Court en banc, dated September 19, 1995, on Internal Rules of the
Supreme Court, in cases similarly involving the death penalty,
pursuant to this Court's power to promulgate rules of procedure in
all courts under Article VIII, Section 5 of the Constitution, and
allowing an intermediate review by the CA before such cases are
elevated to this Court.

The CA, in its Decision dated July 19, 2006, affirmed the conviction
of accused-appellant. The dispositive portion reads as follows:
WHEREFORE, premises considered, the instant appeal is hereby
DISMISSED for lack of merit, and the assailed decision is AFFIRMED
and UPHELD in toto.
SO ORDERED.
Accused-appellant, in his Brief dated September 20, 2004, ascribes
the following errors, to wit:
I
THE COURT A-QUO GRAVELY ERRED IN FINDING THAT THE
GUILT OF THE ACCUSED-APPELLANT FOR THE CRIME
CHARGED HAS BEEN PROVEN BEYOND REASONABLE DOUBT.
II
THE COURT A-QUO GRAVELY ERRED IN DISREGARDING THE
CONSTITUTIONAL RIGHTS OF THE ACCUSED-APPELLANT
AGAINST UNREASONABLE SEARCHES AND SEIZURES.
Accused-appellant claims that he was not given the opportunity to
know the reason for his arrest, as he was immediately handcuffed
by the arresting officers, making it appear that he was caught in
flagrante selling shabu, which is in contravention of his rights
against unreasonable searches and seizures as embodied under the
1987 Philippine Constitution. He further argues that the
presumption of regularity in the performance of official duty cannot
prevail over the constitutionally protected rights of an individual.
The Office of the Solicitor General (OSG), in its Brief, states the
argument that:
THE PROSECUTION SATISFACTORILY PROVED THE GUILT OF
APPELLANT BEYOND REASONABLE DOUBT.
The OSG posits that the crime of drug pushing merely requires the
consummation of the sale, whereby the pusher hands over the
drugs to the buyer in exchange for money, which the prosecution is

12

able to prove beyond reasonable doubt. It further contends that,

accused-appellant's denial cannot prevail over his positive
identification as a peddler of shabu. As to the claim of accusedappellant that his arrest and the search made by the police officers
were illegal, the OSG points out that during his testimony, when
asked if he ever protested his arrest during the time of the arrest
itself, accused-appellant admitted that he merely informed the
prosecutor about it, but did not file any written complaint or protest
against the arresting officers.1avvphi1
The appeal is devoid of any merit.

Q: Do you rcall if you have reported for duty on August 17, 2002?
A: Yes, sir.
Q: At what time did you report for duty on said date?
A: At about 9:00 o'clock in the morning, sir.
Q: When you reported for duty, do you recall if there was unusual
incident that transpired thereat?

The elements necessary for the prosecution of the illegal sale of

drugs are: (1) the identities of the buyer and the seller, the object,
and the consideration; and (2) the delivery of the thing sold and the
payment therefor. What is material to the prosecution for the illegal
sale of dangerous drugs is the proof that the transaction or sale
actually took place, coupled with the presentation in court of
evidence of corpus delicti.26

A: When we were instructed to proceed to Gumaok East to conduct

buy-bust operation, sir.

All of the above elements have been proven to be present in this

case. The identities of the buyer and the seller, as well as the
object and the consideration, were properly and sufficiently proven
by the prosecution. As testified to by SPO4 Taruc regarding the buybust operation conducted:

Q: And who is your chief of police Mr. Witness, at that time?

Q: Mr. Witness, you stated that you are presently assigned at the
San Jose de Monte Police Station, will you please tell before this
Honorable Court what particular unit or division were you assigned?
A: At DEU, sir.
Q: Being assigned at the DEU of the San Jose del Monte Police
Station, will you please tell before this Honorable Court your
specific duties as such?
A: I am the chief of that section, sir.
Q: Being the chief of the said section of the DEU, will you please tell
before this Honorable Court your duties as chief of the office?

Q: Who instructed you to conduct buy-bust operation at Gumaok

East, San Jose del Monte City, Bulacan?
A: Our chief of police, sir.

A: P/Sr. Supt. Romeo R. Palisoc, sir.

Q: Who are your companions who were directed by P/Sr. Supt.
Palisoc to conduct buy-bust operation at Gumaok East, City of San
Jose del Monte?
A: SPO2 Mario Llarinas, PO3 Nasser Saiyadi and the other members
of our station, sir.
Q: What did you prepare if any prior to the actual buy-bust
operation that took place at Gumaok East, San Jose del Monte City,
Bulacan?
A: The vehicle and our buy-bust money, sir.
Q: How much buy-bust money did you prepare?
A: Two hundred pesos (P200.00), sir.

A: To arrest drug pushers and drug users, sir.

13

Q: Will you please tell this Honorable Court your participation in the
actual buy-bust operation?
A: As Poseur buyer, sir.
Q: According to you you were directed by your chief of office to
conduct buy-bust operation in Gumaok, and who is the person or
the subject of the buy-bust to be conducted by you?
A: Fernando Villamin alias Andoy, sir.

A: We arrived there at around 11:00 a. m., sir.

Q: When you reached the place at 11:00 o'clock in the
morning, what transpired next if any?
A: When we arrived there, we saw Andoy and he met us and
announced "meron na, meron na," sir.
Q: Mr. Witness let us clarify this matter, how many of you
proceeded to the place?

Q: Mr. Witness, I am showing to you two (2) one hundred peso bills
which according to you utilized as the buy-bust money, will you
please go over the same and tell before this Honorable Court what
relation if any these two (2) one hundred peso bills?

A: Many, sir.

A: This is it, sir.

A: Llarinas, Saiyadi and other DEU members, sir.

Q: Why do you say that these are the same two (2) one hundred
peso bills, what were your identifying mark if any?

Q: Who are the DEU members?

A: My initial, sir.

A: Jerson Bausa, Eduardo Ocampo, Glendo Villamor and

many others, sir.

Q: Will you please point your initial which according to you you put
there?

Q: When you reached the place, being the poseur buyer

what did you do?

Q: According to you you acted as the poseur buyer, who

acted as the back up?

A: Here, sir. (witness pointed to the initial AT written on the

collar of Manuel Roxas already marked as Exhibits A-1 and
B-1).27

A: We bought already, sir.

From the above testimony, it is clear that the first element

has been complied with: the poseur-buyer positively
identified the seller of shabu and the money used for the
sale of the same. The second and crucial element, which is
the proof that a transaction indeed transpired between the
buyer and the seller, was categorically testified to by SPO4
Taruc, as follows:

A: They were from us, sir.

Q: At what time did you actually proceed to Gumaok, San

Jose del Monte City, Bulacan to conduct buy-bust operation
against Fernando Villamin?

Q: How about your other companions?

Q From where you are, how far were back up positioned

themselves, if you know?
A: They were on the opposite side of the street and they
were hidden, sir.
Q: According to you proceeded to the place, will you please
describe the place?

14

A: It is a small house made of wood and hollow blocks, sir.

Q: Who owns the place?
A: Fernando Villamin, sir.
Q: What happened next after you proceeded to the house of
Fernando Vilamin?

A: He turned his back and went inside and get the shabu
and came back carrying the shabu already, sir.
Q: Mr. Witness let us be specific, you stated he went inside,
from where did he went inside?
A: Inside his house, sir.
xxx

A: I already bought shabu from him, sir.

Q: Where did the transaction take place?

Q: What happened next thereafter after Villamin went inside

his house?

Q: In front of the house?

A: When Villamin entered his house and after we saw the

persons using shabu, he went outside and handed the shabu
to me, sir.

A: Yes, sir.

Q: How about the two hundred (P200.00)?

Q: Were you alone in buying the shabu?

A: I handed to him, sir.

A: I was with our civilian asset, sir.

Q: Which came first, the handing of shabu or the handing of

the two hundred (P200.00)?

Q So it is now very clear that you being the poseur buyer as

well as your asset together with Fernando Villamin were
alone in the place?

A: I first handed him the money and he handed to me the

shabu, sir.

A Yes, sir.

Q: How many pieces of shabu?

Q: What happened next thereafter?

A: Only one (1), sir.

A: When I said I am going to buy shabu, he readily gave me,

sir.

Q: I am showing to you one small plastic sachet and inside is

another plastic sachet which states BB OPN and Exhibit A,
will you please go over the same and tell before this
Honorable Court what relation if any that one small plastic
sachet?

A: Near his house, sir.

Q: What happened next thereafter?

A: When I said I am going to buy shabu, he readily gave me,
sir.
Q: What happened next thereafter?

A: This is what he handed me, sir. (witness referring to one

small plastic sachet placed inside a bigger sachet with
marking BB OPN)
xxx

15

Q: After the accused handed to you the shabu which is the

subject of the buy-bust, what happened next if any?
A: I held him by his hand and announced to him that I am
arresting him for selling shabu, sir.28
As distinctly narrated above by the witness, a transaction indeed
took place, which led to the arrest of the accused-appellant in
flagrante. The other witnesses, members of the buy-bust operation
team, corroborated the above testimony of SPO4 Taruc.
Prosecutions involving illegal drugs depend largely on the credibility
of the police officers who conducted the buy-bust operation. 29 It is a
fundamental rule that findings of the trial courts, which are factual
in nature and which involve credibility, are accorded respect when
no glaring errors; gross misapprehension of facts; or speculative,
arbitrary, and unsupported conclusions can be gathered from such
findings. The reason for this is that the trial court is in a better
position to decide the credibility of witnesses, having heard their
testimonies and observed their deportment and manner of
testifying during the trial. The rule finds an even more stringent
application where said findings are sustained by the Court of
Appeals.30
Accused-appellant, during his testimony and in his Appellant's Brief,
merely denied the charge against him. According to him, he was
just having breakfast when the members of the buy-bust team
suddenly barged inside the house and arrested him. Against the
positive testimonies of the prosecution witnesses, appellants plain
denial of the offenses charged, unsubstantiated by any credible and
convincing evidence, must simply fail.31 Frame-up, like alibi, is
generally viewed with caution by this Court, because it is easy to
contrive and difficult to disprove. Moreover, it is a common and
standard line of defense in prosecutions of violations of the
Dangerous Drugs Act.32 For this claim to prosper, the defense must
adduce clear and convincing evidence to overcome the
presumption that government officials have performed their duties
in a regular and proper manner.33 Unfortunately, the accusedappellant miserably failed to present any evidence that the
members of the buy-bust operation team did not properly perform
their duty, or that the entire operation was coupled with any
improper motive.

As an added argument, the accused-appellant questions the

legality of his arrest. He claims that he was not given the
opportunity to know the reason for his arrest, and that the arresting
officers were not armed with any warrant for arrest. This Court,
however, finds the said argument to be preposterous. It must be
remembered that the accused-appellant was the subject of a buybust operation, the main goal of which was to catch him in
flagrante selling shabu, and from the evidence for the prosecution,
he was arrested while committing a crime -- peddling of illegal
drugs, a circumstance where warrantless arrest is justified under
Rule 113, Section 5(a) of the Rules of Court, which states that:
SEC. 5. Arrest without warrant; when lawful. - A peace officer or a
private person may, without a warrant, arrest a person:
(a) When, in his presence, the person to be arrested has
committed, is actually committing, or is attempting to commit an
offense.
xxx
A buy-bust operation is a form of entrapment which in recent years
has been accepted as a valid and effective mode of apprehending
drug pushers. In a buy-bust operation, the idea to commit a crime
originates from the offender, without anybody inducing or prodding
him to commit the offense.34 If carried out with due regard for
constitutional and legal safeguards, a buy-bust operation deserves
judicial sanction.35 Thus, from the very nature of a buy-bust
operation, the absence of a warrant does not make the arrest
illegal.
WHEREFORE, the appealed decision dated July 19, 2006 of the
Court of Appeals in CA-G. R. CR. - H. C. No. 00967, affirming the
Decision dated May 7, 2003 of the Regional Trial Court of Malolos,
Bulacan, Branch 20 in Criminal Case No. 2332-M-2002, finding
accused-appellant, Fernando Villamin y San Jose, guilty beyond
reasonable doubt of violation of Section 5, Article II of Republic Act
(R.A.) 9165 is hereby AFFIRMED in toto.
SO ORDERED.

Quintin Saludaga and Fiel Genio v Sandiganbayan

16

GR no. 184537
April 23, 2010
MENDOZA, J.:
This is a petition for certiorari, prohibition and mandamus
under Rule 65 of the 1997 Rules on Civil Procedure with a prayer for
the issuance of a writ of preliminary injunction and temporary
restraining order assailing the July 14, 2008 Resolution of the
Sandiganbayan in Criminal Case No. SB-08 CRM 0263, denying the
Motion for Preliminary Investigation filed by the petitioners who
were charged with a violation of Section 3(e) of Republic Act No.
3019, and the denial of their Motion for Reconsideration done in
open court on August 13, 2008.

violation of Sec. 356 of Republic Act No. 7160 (The Local

Government Code) and COA Circular No. 91-368, to the damage
and prejudice of the government.
CONTRARY TO LAW.
This case was initially raffled to the Third Division of
Sandiganbayan and was docketed as Criminal Case No. 26319.
In a Resolution promulgated on June 14, 2002, the Third
Division granted petitioners Motion to Quash and dismissed the
information for failure of the prosecution to allege and prove the
amount of actual damages caused the government, an essential
element of the crime charged.

An Information dated September 13, 2000 charging both

petitioners with having violated Section 3(e) of Republic Act No.
3019, by causing undue injury to the government, reads:

In a Memorandum dated July 1, 2003, the Ombudsman

directed the Office of the Special Prosecutor (OSP) to study the
possibility of having the information amended and re-filed with the
Sandiganbayan.

The undersigned Graft Investigation Officer of

the Office of the Ombudsman-Visayas, accuses
QUINTIN B. SALUDAGA and SPO2 FIEL E. GENIO, for
VIOLATION OF SECTION 3(e) OF REPUBLIC ACT NO.
3019, AS AMENDED (THE ANTI-GRAFT AND CORRUPT
PRACTICES ACT), committed as follows:

Thus, the OSP re-filed the Information dated August 17,

2007, this time, docketed as Criminal Case No. SB-08 CRM 0263,
with the Fourth Division of the Sandiganbayan, charging the
petitioners for violation of Section 3(e) of R.A. No. 3019, by giving
unwarranted benefit to a private person, to the prejudice of the
government.

That in or about the months of November and December, 1997, at

the Municipality of Lavezares, Province of Northern Samar,
Philippines, and within the jurisdiction of this Honorable Court,
above-named accused, public officials, being the Municipal Mayor
and PNP Member of Lavezares, Northern Samar in such capacity
and committing the offense in relation to office, conniving,
confederating and mutually helping with one another, and with the
late Limpio Legua, a private individual, with deliberate intent, with
evident bad faith and manifest partiality, did then and there
willfully, unlawfully and feloniously enter into a Pakyaw Contract for
the Construction of Barangay Day Care Centers for Barangays Macarthur and Urdaneta, Lavezares, Northern Samar, each in the
amount of FORTY-EIGHT THOUSAND FIVE HUNDRED PESOS
(P48,500.00), Philippine Currency, or a total amount of NINETYSEVEN THOUSAND PESOS (P97,000.00), Philippine Currency,
without conducting a competitive public bidding, thus depriving the
government the chance to obtain the best, if not, the most
reasonable price, and thereby awarding said contracts to Olimpio
Legua, a non-license contractor and non-accredited NGO, in

The information, subject of the petition, now reads:

The undersigned Prosecutor of the Office of the Special
Prosecutor/Office of the Ombudsman, hereby accuses, MAYOR
QUINTIN B. SALUDAGA and SPO2 FIEL E. GENIO, for the violation of
Section 3(e) of Republic Act 3019, as amended, otherwise known as
the Anti-Graft and Corrupt Practices Act, committed as follows:
That in or about the months of November and December, 1997 at
the Municipality of Lavezares, Province of Northern Samar,
Philippines, and within the jurisdiction of this Honorable Court,
accused QUINTIN B. SALUDAGA, a high ranking public official being
then the Mayor of Lavezares, Northern Samar, and committing the
crime herein charged while in the discharge of his official
administrative function, conspiring and conniving with accused
SPO2 FIEL B. GENIO, a member of Lavezares Police Force (PNP) and
with the late OLIMPIO LEGUA, a private individual, with deliberate
intent, did then and there willfully, unlawfully and criminally give
unwarranted benefit or advantage to the late Olimpio Legua,

17

a non-license contractor and non- accredited NGO, through

evident bad faith and manifest partiality by then and there entering
into a Pakyaw Contract with the latter for the Construction of
Barangay Day Care Centers for barangays Mac-Arthur and
Urdaneta, Lavezares, Northern Samar, in the amount of FORTY
EIGHT THOUSAND FIVE HUNDRED PESOS (P48,500.00) each or a
total of NINETY SEVEN THOUSAND PESOS (P97,000.00) Philippine
Currency, without the benefit of a competitive public bidding to the
prejudice of the Government and public interest.
CONTRARY TO LAW.
Petitioners filed a Motion for Preliminary Investigation dated
June 4, 2008 which was strongly opposed by the prosecution
in its Opposition dated June 18, 2008.
Petitioners contend that the failure of the prosecution to
conduct a new preliminary investigation before the filing of the
second Information constituted a violation of the law because the
latter charged a different offensethat is, violation of Section 3(e)
by giving unwarranted benefit to private parties. Hence, there was
a substitution of the first Information. They argue that assuming
that no substitution took place, at the very least, there was a
substantial amendment in the new information and that its
submission should have been preceded by a new preliminary
investigation. Further, they claim that newly discovered evidence
mandates re-examination of the finding of a prima facie cause to
file the case.
On July 14, 2008, the Sandiganbayan Fourth Division issued
the assailed Resolution denying the petitioners motion for
preliminary investigation. The graft court found that there is no
substituted information or substantial amendment that would
warrant the conduct of a new preliminary investigation. It gave the
following ratiocination:
The re-filed information did not change the
nature of the offense charged, but merely modified
the mode by which accused committed the offense.
The substance of such modification is not such as to
necessitate the conduct of another preliminary
investigation.

the re-filed information. Thus,

investigation is not in order.

new preliminary

The dispositive portion of the Resolution states:

Finding the arguments of accused-movants
indefensible, the sufficiency of the information must
be sustained.
WHEREFORE,
having
sufficiency of the Information,
consideration is hereby DENIED
Accordingly, the arraignment of
proceed as scheduled.

established
the
the motion under
for lack of merit.
both accused shall

Petitioners filed a Motion for Reconsideration dated

August 6, 2008, submitting that the two Informations
substantially charged different offenses, such that the
present information constituted a substitution that should
have been preceded by a new preliminary investigation.
On August 13, 2008, in a hearing for the arraignment of
petitioners, the Sandiganbayan denied the Motion in open
court.
Hence, petitioners interpose the present petition for
certiorari, prohibition and mandamus with prayer for the
issuance of a writ of preliminary injunction and temporary
restraining order under Rule 65 of the Rules of Court
anchored on the following grounds:
I
THE HONORABLE SANDIGANBAYAN ACTED WITH
GRAVE ABUSE OF DISCRETION AMOUNTING TO LACK
OR EXCESS OF JURISDICTION WHEN IT REFUSED TO
ORDER THE PRELIMINARY INVESTIGATION OF THE
CASE A QUO, WHEN THE SECOND INFORMATION IN
THE INSTANT CASE CONSTITUTED SUBSTITUTED
INFORMATION WHOSE SUBMISSION REQUIRED THE
CONDUCT OF PRELIMINARY INVESTIGATION.
II

Moreover, no new allegations were made, nor

was the criminal liability of the accused upgraded in

18

THE HONORABLE SANDIGANBAYAN ACTED WITH

GRAVE ABUSE OF DISCRETION AMOUNTING TO LACK
OR EXCESS OF JURISDICTION WHEN IT REFUSED TO
ORDER
THE
CONDUCT
OF
A
PRELIMINARY
INVESTIGATION OF THE CASE A QUO, SINCE THE
SECOND
INFORMATION
THEREIN
CONTAINED
SUBSTANTIAL AMENDMENTS WHOSE SUBMISSION
REQUIRED
THE
CONDUCT
OF
PRELIMINARY
INVESTIGATION.
III
THE HONORABLE SANDIGANBAYAN ACTED WITH
GRAVE ABUSE OF DISCRETION AMOUNTING TO LACK
OR EXCESS OF JURISDICTION WHEN IT REFUSED TO
ORDER THE PRELIMINARY INVESTIGATION OF THE
CASE A QUO, ALTHOUGH THE NEWLY DISCOVERED
EVIDENCE MANDATES DUE RE-EXAMINATION OF THE
FINDING THAT PRIMA FACIE CAUSE EXISTED TO FILE
THE CASE A QUO.
From the arguments raised by petitioners, the core
issue is whether or not the two (2) ways of violating section
3(e) of Republic Act 3019, namely: (a) by causing undue
injury to any party, including the Government; or (b) by
giving any private party any unwarranted benefit,
advantage or preference constitute two distinct and
separate offenses that would warrant a new or another
preliminary investigation.
In its Comment dated January 12, 2009, respondent
People of the Philippines, represented by the Office of the
Special Prosecutor, counters that there is no substituted
information in contemplation of law and jurisprudence that
would require the conduct of another preliminary
investigation. There is no newly-discovered evidence that
would lead to a different determination should there be
another preliminary investigation conducted.
In their Reply, dated April 24, 2009, petitioners insist
that the offenses charged in the first and second Information
are not the same, and what transpired was a substitution of
Information that required prior conduct of preliminary
investigation. Even assuming there was no substitution,
substantial amendments were made in the second

Information, and that its submission should have been

preceded by a new preliminary investigation.
We find no merit in this petition.
Petitioners were charged with a violation of Section
3(e) of R.A. No. 3019 or the Anti-Graft and Corrupt Practices
Act which reads:
Section 3. Corrupt practices of public officers.- In
addition to acts or omissions of public officers already
penalized by existing law, the following shall constitute
corrupt practices of any public officer and are hereby
declared to be unlawful:
(e) Causing any undue injury to any party, including
the Government, or giving any private party any
unwarranted benefits, advantage or preference in the
discharge of his official, administrative or judicial functions
through manifest partiality, evident bad faith or gross
inexcusable negligence. This provision shall apply to
officers and employees charged with the grant of licenses or
permits or other concessions.
The essential elements of the offense are as follows:
1.

The accused must be a public

officer
discharging
administrative,
judicial or official functions;

2.

He must have acted with manifest

partiality,
evident bad
faith
or
inexcusable negligence; and

3.

That his action caused any undue

injury to any party, including the
government, or giving any private
party unwarranted benefits, advantage
or preference in the discharge of his
functions.

In a string of decisions, the Court has consistently ruled:

R.A. 3019, Section 3, paragraph (e), as
amended, provides as one of its elements that the

19

public officer should have acted by causing any

undue injury to any party, including the Government,
or by giving any private party unwarranted benefits,
advantage or preference in the discharge of his
functions. The use of the disjunctive term or
connotes that either act qualifies as a violation of
Section 3 paragraph (e), or as aptly held in Santiago,
as two (2) different modes of committing the
offense. This does not however indicate that each
mode constitutes a distinct offense, but rather, that
an accused may be charged under either mode or
under both.
The afore-stated ruling is consistent with the wellentrenched principle of statutory construction that The word or is
a disjunctive term signifying disassociation and independence of
one thing from the other things enumerated; it should, as a rule, be
construed in the sense in which it ordinarily implies, as a
disjunctive word.
Contrary to the argument of petitioners, there is no
substituted information. The Information dated August 17, 2007
filed in Criminal Case No. SB-08 CRM 0263 charged the same
offense, that is, violation of Section 3(e) of Republic Act No. 3019.
Only the mode of commission was modified. While jurisprudence,
the most recent being Talaga, Jr. v. Sandiganbayan, provides that
there are two (2) acts or modes of committing the offense, thus: a)
by causing any undue injury to any party, including the
government; or b) by giving any private party any unwarranted
benefit, advantage or preference, it does not mean that each act or
mode constitutes a distinct offense. An accused may be charged
under either mode or under both should both modes concur.
Petitioners reliance on the Teehankee v. Madayag, ruling
that, in substitution of information another preliminary
investigation is entailed and that the accused has to plead anew to
the new information is not applicable to the present case because,
as already stated, there is no substitution of information there
being no change in the nature of the offense charged.
Consequently, petitioners cannot invoke the principle
enunciated in Villaflor v. Vivar, that failure to conduct a new
preliminary investigation is tantamount to a violation of their
rights. While it is true that preliminary investigation is a statutory
and substantive right accorded to the accused before trial, the

denial of petitioners claim for a new investigation, however, did

not deprive them of their right to due process. An examination of
the records of the case discloses that there was a full-blown
preliminary investigation wherein both petitioners actively
participated.
Anent the contention of petitioners that the information
contained substantial amendments warranting a new preliminary
investigation, the same must likewise fail.
Petitioners erroneously concluded that giving undue injury,
as alleged in the first Information, and conferring unwarranted
benefits, alleged in the second Information, are two distinct
violations of, or two distinct ways of violating Section 3(e) of
Republic Act No. 3019, and that such shift from giving undue injury
to conferring unwarranted benefit constituted, at the very least, a
substantial amendment. It should be noted that the Information is
founded on the same transaction as the first Information, that of
entering into a Pakyaw Contract for the construction of barangay
day care centers for barangays Mac-Arthur and Urdaneta,
Lavezares, Northern Samar. Thus, the evidentiary requirements for
the prosecution and defense remain the same.
To bolster their claim for a reinvestigation of the offense,
petitioners cited the case of Matalam v. Sandiganbayan. The same
is inapplicable to petitioners case. In Matalam, there was indeed a
substantial amendment which entitled the accused to another
preliminary investigation. The recital of facts constituting the
offense charged therein was definitely altered. In the original
information, the prohibited act allegedly committed by the
petitioner was the illegal and unjustifiable refusal to pay the
monetary claims of the private complainants, whereas in the
amended information, it is the illegal dismissal from the service of
the private complainants. In the case at bar, there is no substantial
amendment to speak of. As discussed previously, the Information
in Criminal Case No. 26319 was already dismissed by the Third
Division of the Sandiganbayan in view of the petitioners Motion to
Quash. As such, there is nothing more to be amended.
The Court is not unaware of the case of People v. Lacson,
where it was written:
The case may be revived by the State within
the time-bar either by the refiling of the Information
or by the filing of a new Information for the same

20

offense or an offense necessarily included therein.

There would be no need of a new preliminary
investigation. However, in a case wherein after the
provisional dismissal of a criminal case, the original
witnesses of the prosecution or some of them may
have recanted their testimonies or may have died or
may no longer be available and new witnesses for
the State have emerged, a new preliminary
investigation must be conducted before an
Information is refiled or a new Information is filed. A
new preliminary investigation is also required if aside
from the original accused, other persons are charged
under a new criminal complaint for the same offense
or necessarily included therein; or if under a new
criminal complaint, the original charge has been
upgraded; or if under a new criminal complaint, the
criminal liability of the accused is upgraded from that
as an accessory to that as a principal. The accused
must be accorded the right to submit counteraffidavits and evidence.
No such circumstance is obtaining in this case, because
there was no modification in the nature of the charged offense.
Consequently, a new preliminary investigation is unnecessary and
cannot be demanded by the petitioners.
Finally, the third assigned error, that newly discovered
evidence mandates due re-examination of the finding of prima
facie cause to file the case, deserves scant consideration. For
petitioners, it is necessary that a new investigation be conducted to
consider newly discovered evidence, in particular, the Affidavit of
COA Auditor Carlos G. Pornelos, author of the audit report. We are
not convinced.
Under Section 2, Rule 121 of the Rules of Court, the
requisites for newly discovered evidence are: (a) the evidence was
discovered after trial (in this case, after investigation); (b) such
evidence could not have been discovered and produced at the trial
with reasonable diligence; and (c) that it is material, not merely
cumulative, corroborative or impeaching, and is of such weight
that, if admitted, will probably change the judgment.
The Pornelos affidavit, which petitioners claim as newlydiscovered, was executed by affiant way back in November 29,
2000, as correctly found by the Sandiganbayan. Clearly, it cannot

be considered as newly found evidence because it was already in

existence prior to the re-filing of the case. In fact, such sworn
affidavit was among the documents considered during the
preliminary investigation. It was the sole annexed document to
petitioners Supplement to Motion for Reinvestigation, offered to
dispute the charge that no public bidding was conducted prior to
the execution of the subject project.
bgMore important is the prosecutions statement in its
Memorandum that, after a careful re-evaluation of the
documentary evidence available to the prosecution at the time of
the filing of the initial Information, and at the time of the re-filing of
the Information, the prosecution insists on the finding of probable
cause, an exercise within the exclusive province of the Office of the
Ombudsman.
Worthy of note is the case of Soriano v. Marcelo, viz:
Case law has it that the determination of
probable cause against those in public office during a
preliminary investigation is a function that belongs to
the Office of the Ombudsman. The Ombudsman has
the discretion to determine whether a criminal case,
given its attendant facts and circumstances, should
be filed or not. It is basically his call.
Without good and compelling reasons, the Court cannot
interfere in the exercise by the Office of the Ombudsman of its
investigatory and prosecutory powers. The only ground upon which
it may entertain a review of the Office of the Ombudsmans action
is grave abuse of discretion.
Grave abuse of discretion is an evasion of a positive duty or
a virtual refusal to perform a duty enjoined by law or to act in
contemplation of law as when the judgment rendered is not based
on law and evidence but on caprice, whim and despotism.
The special civil action for certiorari under Rule 65 of the
Rules of Court is intended to correct errors of jurisdiction or grave
abuse of discretion amounting to lack or excess of jurisdiction. The
writ of certiorari is directed against a tribunal, board or officer
exercising judicial or quasi-judicial function that acted without or in
excess of its or his jurisdiction or with grave abuse of discretion.
Grave abuse of discretion means such capricious or whimsical
exercise of judgment which is equivalent to lack of jurisdiction. To

21

justify the issuance of the writ of certiorari, the abuse of discretion

must be grave, as when the power is exercised in an arbitrary or
despotic manner by reason of passion or personal hostility, and it
must be so patent and gross as to amount to an evasion of a
positive duty or to a virtual refusal to perform the duty enjoined, or
to act at all, in contemplation of law, as to be equivalent to having
acted without jurisdiction.
The case at bench discloses no evident indication that
respondent Sandiganbayan acted with arbitrariness, whim or
caprice. It committed no error in refusing to order the conduct of
another preliminary investigation. As sufficiently explained by the
prosecution, a new preliminary investigation is not necessary as
there was neither a modification of the nature of the offense
charged nor a new allegation. Such conduct of preliminary
investigation anew will only delay the resolution of the case and
would be an exercise in futility in as much as there was a complete
preliminary investigation actively participated by both petitioners.
In view of the foregoing, we hold that the public respondent
committed no grave abuse of discretion in issuing its Resolution of
July 14, 2008, denying petitioners motion for preliminary
investigation in Criminal Case No. SB-08 CRM 0263.
WHEREFORE, the petition is DENIED.

Roberto b. kalalo
vs
OFFICE OF THE OMBUDSMAN, ERNESTO M. DE CHAVEZ and
MARCELO L. AGUSTIN,
G.R. No. 158189
April 23, 2010
DECISION
PERALTA, J.:
This is a petition for certiorari under Rule 65 of the Rules of
Court seeking to nullify and/or set aside the Resolution dated May
14, 2002 and the Order dated October 8, 2002 of the Office of the
Ombudsman.
The antecedent facts are as follows.
Petitioner Roberto Kalalo, an employee of Pablo Borbon
Memorial Institute of Technology (PBMIT), now Batangas State

University, filed a Complaint Affidavit with the Office of the

Ombudsman against the officials of the same school, namely: Dr.
Ernesto M. De Chavez, President; Dr. Virginia M. Baes, Executive
Vice-President; Dr. Rolando L. Lontok, Sr., Vice-President for
Academic Affairs; Dr. Porfirio C. Ligaya, Vice-President for Extension
Campus Operations; Professor Maximo C. Panganiban, Dean and
Campus Administrator, Districts 1 and 2; Dr. Amador M. Lualhati,
University Secretary; and Marcelo L. Agustin, Researcher, Office of
the BSU President.
According to petitioner, the above-named officials committed
falsification of public documents and violations of Sections 3 (a)
and (e) of Republic Act No. 3019, or the Anti-Graft and Corrupt
Practices Act, based on the following incidents:
The 129th General Meeting of the Board of Trustees of the
PBMIT/BSU transpired on January 21, 1997.
In March 2001, petitioner, who was then the Board Secretary,
claimed that he found in his table, a final print of the Minutes of the
above-mentioned General Meeting which was forwarded by
respondent Marcelo Agustin upon the order of respondent De
Chavez, in order for the petitioner to certify as to its correctness.
The fact that the said copy of the Minutes was given to him after a
long period of time and other inconsistencies found in the same
document, caused suspicion on the part of the petitioner. After
conducting his own investigation, petitioner questioned the
following three (3) resolutions, which, according to him, were
inserted by De Chavez:
1) Resolution No. 6, s. 1997, which ratified the
referendum dated August 4, 1996 approving the
adjustment of charges or fees on the following
documents issued by the college: 1) Admission and
Testing Fee, 2) Transcript of Records, 3) Certification,
4) Honorable Dismissal, 5) Diploma, 6) Fine (late
enrollees), 7) Library Card, and 8) second copy of
Diploma;
2) Resolution No. 25, which relates to the
authorizing of the President of PBMIT/BSU to deposit
all the income of the college with government
depositary banks in the form of savings, time, money
placement and other deposit accounts, and to open a

22

PBMIT testing,
account;

admission

and

placement

office

3) Resolution No. 26, refers to the resolution

approving the construction contracts entered into by
PBMIT with C.S. Rayos Construction and General
Services for the construction of the DOST/FNRI/PBMIT
Regional Nutrition and Food Administration and
Training Center and the Physical Education and MultiPurpose Playground. The contract prices for the
approved
projects
were
P2,693,642.90
and
P968,283.63, respectively.
As claimed by petitioner, the authentic minutes had eight (8)
pages, while the falsified one had nine (9) pages. Thus, he
concluded that Resolution Nos. 25 and 26 were mere intercalations
on the minutes of the annual meeting.
Petitioner also claimed that respondent's deviation from the
usual procedure in signing and approving the minutes was highly
suspicious. According to petitioner, the usual procedure was for
respondent De Chavez, in his capacity as Vice-Chairman, to sign
the minutes only after the same has been attested by petitioner as
the Board Secretary. However, De Chavez submitted a copy of the
minutes to petitioner with his signature already affixed thereon.
Thus, petitioner refused to sign the said minutes.
Despite the refusal of petitioner to sign the minutes,
Resolution No. 25 was still implemented.
Respondents filed their Joint Counter-Affidavit denying
petitioner's allegations and stating that it was ministerial on the
part of respondent De Chavez to sign the minutes prepared by
petitioner himself in his capacity as Board Secretary. Petitioner, on
the other hand, reiterated and stood by his allegations in his
Complainant's Reply to Respondents' Joint Counter-Affidavit dated
April 1, 2002.
In its Resolution dated May 14, 2002, the Office of the Deputy
Ombudsman for Luzon dismissed the complaint of petitioner stating
that:

A careful evaluation of the case records and

the evidence submitted reveals that the charge of
falsification against respondents has no leg to stand
on.
What clearly appears on the records was that
complainant had issued certifications as to the
correctness of the resolutions in question, namely,
Resolution Nos. 6, s. 1997; 25 and 26. Readily, it can
be said that said certifications did not only dispute
complainant's claim, but casts serious doubt as to
the merit of the instant complaint as well.
It must be pointed out that complainant
assailed the authenticity of the minutes of the 129 th
General Assembly meeting of the Board of Trustees
of PBMIT and accused herein respondent for allegedly
inserting/intercalating
therein
the
aforesaid
Resolution Nos. 6, 25 and 26.
With the foregoing certifications subscribed
by complainant himself confirming the authenticity of
the subject resolutions and the contents thereof, we
fail to see any grounds for complainant to question
the same.
IN THE LIGHT OF THE FOREGOING, it is
respectfully recommended that the instant complaint
be DISMISSED as it is hereby dismissed.
SO RESOLVED.
Petitioner filed a Motion for Reconsideration dated August
16, 2002, which was denied by the Ombudsman in an Order dated
October 8, 2002 for lack of merit.
Hence, the present petition.
Petitioner raises the following arguments:
I
PUBLIC
RESPONDENT
GRAVELY
ABUSED
ITS
DISCRETION AMOUNTING TO LACK AND/OR EXCESS
OF JURISDICTION IN SERIOUSLY MISAPPRECIATING
THE FACTS AND ISSUES OF THE INSTANT CASE.

23

II
PUBLIC
RESPONDENT
GRAVELY
ABUSED
ITS
DISCRETION AMOUNTING TO LACK AND/OR EXCESS
OF JURISDICTION IN ISSUING THE ASSAILED
RESOLUTION AND ORDER WITHOUT FACTUAL AND
LEGAL BASES.
III
PUBLIC
RESPONDENT
GRAVELY
ABUSED
ITS
DISCRETION AMOUNTING TO LACK AND/OR EXCESS
OF JURISDICTION IN NOT FINDING PROBABLE
CAUSE AGAINST BOTH PRIVATE RESPONDENTS.
The petition is bereft of merit.
Petitioner extensively and exhaustively discusses in his
petition, the differences between what he claimed to be the
falsified Minutes and what he presented as the true and authentic
Minutes of the general meeting, and by not subscribing to his own
findings, he now comes to this Court alleging that the Office of the
Ombudsman gravely abused its discretion which amounted to lack
and/or excess of jurisdiction.
A careful reading of his arguments shows that the matters he
raised were purely factual. He claims that the Office of the
Ombudsman grievously erred in finding that petitioner had issued
certifications as to the correctness of the resolutions in question,
namely Resolution Nos. 6, s. 1997; 25 and 26, when, according to
petitioner, he positively asserted that the same were signed by
mistake or out of sheer inadvertence. He went on to state that the
signature on the questioned Minutes was forged and that the one
inadvertently signed was the excerpts, not the Minutes. This line of
argument has been repeatedly emphasized along with his own
findings of falsification.
In alleging the existence of grave abuse of discretion, it is
well to remember Sarigumba v. Sandiganbayan, where this Court
ruled that:
For grave abuse of discretion to prosper as a
ground for certiorari, it must first be demonstrated
that the lower court or tribunal has exercised its
power in an arbitrary and despotic manner, by

reason of passion or personal hostility, and it must be

patent and gross as would amount to an evasion or
to a unilateral refusal to perform the duty enjoined or
to act in contemplation of law. Grave abuse of
discretion is not enough. Excess of jurisdiction
signifies that the court, board or office, has
jurisdiction over the case but has transcended the
same or acted without authority.
After considering all the issues and arguments raised by the
parties, this Court finds no clear showing of manifest error or grave
abuse of discretion committed by the Office of the Ombudsman.
As a general rule, courts do not interfere with the discretion
of the Ombudsman to determine whether there exists reasonable
ground to believe that a crime has been committed and that the
accused is probably guilty thereof and, thereafter, to file the
corresponding information with the appropriate courts.
This Court has consistently held that the Ombudsman has
discretion to determine whether a criminal case, given its facts and
circumstances, should be filed or not. It is basically his call. He
may dismiss the complaint forthwith should he find it to be
insufficient in form and substance, or should he find it otherwise, to
continue with the inquiry; or he may proceed with the investigation
if, in his view, the complaint is in due and proper form and
substance.
In the present case, the Office of the Ombudsman did not find
probable cause that would warrant the filing of Information against
respondents. Probable cause, for purposes of filing a criminal
information, has been defined as such facts as are sufficient to
engender a well-founded belief that a crime has been committed
and that respondents are probably guilty thereof.
The
determination of its existence lies within the discretion of the
prosecuting officers after conducting a preliminary investigation
upon complaint of an offended party. Probable cause is meant such
set of facts and circumstances which would lead a reasonably
discreet and prudent man to believe that the offense charged in
the Information, or any offense included therein, has been
committed by the person sought to be arrested. In determining
probable cause, the average man weighs facts and circumstances
without resorting to the calibrations of the rules of evidence of
which he has no technical knowledge. He relies on common
sense. A finding of probable cause needs only to rest on evidence

24

showing that more likely than not a crime has been committed and
that it was committed by the accused. Probable cause demands
more than bare suspicion; it requires less than evidence which
would justify conviction. Unless it is shown that the questioned
acts were done in a capricious and whimsical exercise of judgment
evidencing a clear case of grave abuse of discretion amounting to
lack or excess of jurisdiction, this Court will not interfere in the
findings of probable cause determined by the Ombudsman.
The findings of the Office of the Ombudsman, as contained
in its Order dated October 8, 2002, does not, in any way, indicate
the absence of any factual or legal bases, as shown in the
following:
While we do acknowledge that the purpose of a
preliminary investigation is to determine the
existence of probable cause that which engender a
well-founded belief that an offense has been
committed and that the accused is probably guilty
thereof, we should not, however, lose sight of its
other objective. In the case of Duterte v.
Sandiganbayan, 289 SCRA 721, it is equally intoned
that the rationale for conducting a preliminary
investigation is to secure the innocent against
hasty, malicious, oppressive prosecution, and to
protect him from an open and public accusation of a
crime, from the trouble, expenses and anxiety of a
public trial. With the questioned minutes bearing
the signature of complainant-movant, the evidence
at hand tends to tilt in favor of the dismissal of the
case. This is rightfully so as complainant-movants
signature was never alleged to have been falsified,
although he claims to have signed the minutes
through inadvertence.
In relation thereto, complainant-movants
assertion that his signature in the disputed minutes
was a case of oversight is hardly impressive. It
should be noted that the minutes of the 129 th Regular
Meeting of the then PBMIT Board of Trustees was
approved during its 130th Regular Meeting held on
November 7, 1997. As the Board Secretary,
complainant-movant could have easily detected the
alleged insertions especially so when we consider
that Board Resolution Nos. 25 and 26, s. of 1997,

were those last mentioned as having been approved

by the Board. It was quite, therefore, convenient for
complainant-movant to blame respondent Marcelo L.
Agustin for having signed the questioned minutes
when it was his duty as Board Secretary to certify as
to the correctness of the minutes.
More telling is the fact that complainantmovant again certified correct the excerpts of the
minutes of the 129th Regular Meeting of then PBMIT
Board of Trustees pertaining to Resolution No. 6, s. of
1997, approving the adjustment of charges or fees
not only to the admission/testing fees but including
transcript of records, certification, honorable
dismissal, diploma, library card, fine (late enrollees)
and second copy of diploma. Given such situation,
we could not believe that complainant-movant
signed such excerpts of the minutes through the
same inadvertence or oversight. A single mistake
may be acceptable but to commit the same twice is
no longer a case of honest mistake. Corollary
thereto, this finding precludes any further discussion
that the letter dated August 14, 1996 of respondent
Ernesto M. de Chavez to then PBMIT Board of
Trustees is conclusive proof that the increase in fees
was limited only to the admission/testing fees.
It is not sound practice to depart from the policy of noninterference in the Ombudsman's exercise of discretion to
determine whether or not to file information against an accused. As
cited in a long line of cases, this Court has pronounced that it
cannot pass upon the sufficiency or insufficiency of evidence to
determine the existence of probable cause. The rule is based not
only upon respect for the investigatory and prosecutory powers
granted by the Constitution to the Office of the Ombudsman, but
upon practicality as well. If it were otherwise, this Court will be
clogged with an innumerable list of cases assailing investigatory
proceedings conducted by the Office of the Ombudsman with
regard to complaints filed before it, to determine if there is
probable cause.
Furthermore, it is not amiss to state that the findings of the
Ombudsman are essentially factual in nature. Therefore, when
petitioner assailed the findings of the Ombudsman on the guise
that the latter committed grave abuse of discretion, questions of

25

fact are inevitably raised. Clearly, petitioner centered his

arguments on the Ombudsmans appreciation of facts. It must
always be remembered that a petition for certiorari admits only of
questions of grave abuse of discretion amounting to lack or excess
of jurisdiction and never on questions of fact.
Petitioner raises as an incidental issue in his Memorandum
that the Solicitor General cannot act as the counsel of private
respondents in the instant criminal case, which is indisputable.
However, petitioner failed to understand that the Office of the
Solicitor General represents the public respondent the Office of
the Ombudsman upon which his petition revolves. The Office of
the Ombudsman is an instrumentality of the government and, as
mandated by law, the Office of the Solicitor General has the
authority to represent the said office. Cooperative Development
Authority v. DOLEFIL Agrarian Reform Beneficiaries Cooperative,
Inc., et al. is instructive as to the jurisdiction of the Office of the
Solicitor General, which reads:
The authority of the Office of the Solicitor
General to represent the Republic of the Philippines,
its agencies and instrumentalities, is embodied under
Section 35(1), Chapter 12, Title III, Book IV of the
Administrative Code of 1987, which provides that:
SEC. 35. Powers and Functions.
The Office of the Solicitor General
shall represent the Government of the
Philippines,
its
agencies
and
intrumentalities and its officials and
agents in any litigation, proceeding,
investigation or matter requiring the
services of lawyers. When authorized
by the President or head of the office
concerned, it shall also represent
government owned or controlled
corporations.
The Office of the
Solicitor General shall constitute the
law office of the Government and, as
such, shall discharge duties requiring
the services of lawyers. It shall have
the following specific powers and
functions:
(1)
Represent
the
Government in the Supreme Court and
the Court of Appeals in all criminal

proceedings;
represent
the
Government and its officers in the
Supreme Court, Court of Appeals, and
all other courts or tribunals in all civil
actions and special proceedings in
which the Government or any officer
thereof in his official capacity is a
party.
The import of the above-quoted provision of
the Administrative Code of 1987 is to impose upon
the Office of the Solicitor General the duty to appear
as counsel for the Government, its agencies and
instrumentalities and its officials and agents before
the Supreme Court, the Court of Appeals, and all
other courts and tribunals in any litigation,
proceeding, investigation or matter requiring the
services of a lawyer. Its mandatory character was
emphasized by this Court in the case of Gonzales v.
Chavez, thus:
It is patent that the intent of the
lawmaker was to give the designated
official, the Solicitor General, in this
case, the unequivocal mandate to
appear for the government in legal
proceedings. Spread out in the laws
creating the office is the discernible
intent which may be gathered from the
term
shall,
which is
invariably
employed, from Act No. 136 (1901) to
the more recent Executive Order No. 292
(1987).
xxx
xx
x
xxx
The decision of this Court as early as 1910
with respect to the duties of the Attorney-General
well applies to the Solicitor General under the facts
of the present case. The Court then declared:
In this jurisdiction, it is the duty
of the Attorney General to perform the
duties imposed upon him by law and
he shall prosecute all causes, civil and
criminal, to which the Government of the
Philippine Islands, or any officer thereof,
in his official capacity, is a party xxx.

26

xxx

xxx

xx

The Court is firmly convinced that

considering the spirit and the letter of
the law, there can be no other logical
interpretation of Sec. 35 of the
Administrative Code than that it is,
indeed, mandatory upon the OSG to
represent the Government of the
Philippines,
its
agencies
and
instrumentalities and its officials and
agents in any litigation, proceeding,
investigation or matter requiring the
services of a lawyer.

WONINA M. BONIFACIO, JOCELYN UPANO, VICENTE ORTUOSTE AND

JOVENCIO PERECHE, SR.,
vs.
REGIONAL TRIAL COURT OF MAKATI, BRANCH 149, and JESSIE JOHN
P. GIMENEZ,
G.R. No. 184800
May 5, 2010

DECISION
CARPIO MORALES, J.:

WHEREFORE, the petition is DISMISSED for lack of merit. The

Resolution dated May 14, 2002 and the Order dated October 8,
2002 of the Office of the Ombudsman are hereby AFFIRMED.
SO ORDERED

Via a petition for Certiorari and Prohibition, petitioners Wonina M.

Bonifacio, et al. assail the issuances of Branch 149 of the Regional
Trial Court (RTC) of Makati (public respondent) Order1 of April 22,
2008 which denied their motion to quash the Amended Information
indicting them for libel, and Joint Resolution 2 of August 12, 2008
denying reconsideration of the first issuance.
Private respondent Jessie John P. Gimenez3 (Gimenez) filed on
October 18, 2005, on behalf of the Yuchengco Family ("in
particular," former Ambassador Alfonso Yuchengco and Helen Y.
Dee (Helen) and of the Malayan Insurance Co., Inc. (Malayan), 4 a
criminal complaint, 5before the Makati City Prosecutors Office, for
thirteen (13) counts of libel under Article 355 in relation to Article
353 of the Revised Penal Code (RPC) against Philip Piccio, Mia
Gatmaytan and Ma. Anabella Relova Santos, who are officers of
Parents Enabling Parents Coalition, Inc. (PEPCI), John Joseph
Gutierrez, Jeselyn Upano, Jose Dizon, Rolanda Pareja, Wonina
Bonifacio, Elvira Cruz, Cornelio Zafra, Vicente Ortueste, Victoria
Gomez Jacinto, Jurencio Pereche, Ricardo Loyares and Peter
Suchianco, who are trustees of PEPCI, Trennie Monsod, a member of
PEPCI (collectively, the accused), and a certain John Doe, the
administrator of the website www.pepcoalition.com.
PEPCI appears to have been formed by a large group of disgruntled
planholders of Pacific Plans, Inc. (PPI) - a wholly owned subsidiary of
Great Pacific Life Assurance Corporation, also owned by the

27

Yuchengco Group of Companies (YGC) - who had previously

purchased traditional pre-need educational plans but were unable
to collect thereon or avail of the benefits thereunder after PPI, due
to liquidity concerns, filed for corporate rehabilitation with prayer
for suspension of payments before the Makati RTC.
Decrying PPIs refusal/inability to honor its obligations under the
educational pre-need plans, PEPCI sought to provide a forum by
which the planholders could seek redress for their pecuniary loss
under their policies by maintaining a website on the internet under
the address of www.pepcoalition.com.
Gimenez alleged that PEPCI also owned, controlled and moderated
on the internet a blogspot6 under the website
addresswww.pacificnoplan.blogspot.com, as well as a yahoo egroup7 at no2pep2010@yahoogroups.com. These websites are
easily accessible to the public or by anyone logged on to the
internet.
Gimenez further alleged that upon accessing the above-stated
websites in Makati on various dates from August 25 to October 2,
2005, he "was appalled to read numerous articles [numbering 13],
maliciously and recklessly caused to be published by [the accused]
containing highly derogatory statements and false accusations,
relentlessly attacking the Yuchengco Family, YGC, and particularly,
Malayan."8 He cited an article which was posted/published
on www.pepcoalition.com on August 25, 2005 which stated:
Talagang naisahan na naman tayo ng mga Yuchengcos. Nangyari
na ang mga kinatatakutan kong pagbagsak ng negotiation because
it was done prematurely since we had not file any criminal aspect
of our case. What is worse is that Yuchengcos benefited much from
the nego. x x x . That is the fact na talagang hindi dapat
pagtiwalaan ang mga Yuchengcos.
LETS MOVE TO THE BATTLEFIELD. FILE THE CRIMINAL CASES IN
COURT, BSP AND AMLC AND WHEREVER. Pumunta tayong muli sa
senado, congreso, RCBC Plaza, and other venues to air our
grievances and call for boycott ng YGC. Let us start within
ourselves. Alisin natin ang mga investments and deposits natin sa
lahat ng YGC and I mean lahat and again convince friends to do the
same. Yung mga nanonood lang noon ay dapat makisali na talaga
ngayon specially those who joined only after knowing that there
was a negotiation for amicable settlements.

FOR SURE MAY TACTICS PA SILANG NAKABASTA SA ATIN. LET US BE

READY FOR IT BECAUSE THEY HAD SUCCESSFULLY LULL US AND
THE NEXT TIME THEY WILL TRY TO KILL US NA. x x x 9 (emphasis in
the original)
By Resolution of May 5, 2006,10 the Makati City Prosecutors Office,
finding probable cause to indict the accused, filed thirteen (13)
separate Informations11 charging them with libel. The accusatory
portion of one Information, docketed as Criminal Case No. 06-876,
which was raffled off to public respondent reads:
That on or about the 25th day of August 2005 in Makati City, Metro
Manila, Philippines, a place within the jurisdiction of the Honorable
Court, the above-named accused, being then the trustees of
Parents Enabling Parents Coalition and as such trustees they hold
the legal title to the website www.pepcoalition.com which is of
general circulation, and publication to the public conspiring,
confederating and mutually helping with one another together with
John Does, did then and there willfully, unlawfully and feloniously
and publicly and maliciously with intention of attacking the
honesty, virtue, honor and integrity, character and reputation of
complainant Malayan Insurance Co. Inc., Yuchengco Family
particularly Ambassador Alfonso Yuchengco and Helen Dee and for
further purpose exposing the complainant to public hatred and
contempt published an article imputing a vice or defect to the
complainant and caused to be composed, posted and published in
the said website www.pepcoalition.com and injurious and
defamatory article as follows:
Talagang naisahan na naman tayo ng mga Yuchengcos. Nangyari
na ang mga kinatatakutan kong pagbagsak ng negotiation. x x x x
xxxxx
For sure may tactics pa silang nakabasta sa atin. Let us be ready
for it because they had successfully lull us and the next time they
will try to kill us na. x x x
A copy of the full text of the foregoing article as published/posted
in www.pepcoalition.com is attached as Annex "F" of the complaint.
That the keyword and password to be used in order to post and
publish the above defamatory article are known to the accused as
trustees holding legal title to the above-cited website and that the

28

accused are the ones responsible for the posting and publication of
the defamatory articles that the article in question was posted and
published with the object of the discrediting and ridiculing the
complainant before the public.

verbatim that the libelous publication was "printed and first

published" in the appropriate venue. And it pointed out that
Malayan has an office in Makati of which Helen is a resident.
Moreover, the prosecution alleged that even assuming that the
Information was deficient, it merely needed a formal amendment.

CONTRARY TO LAW.12
Several of the accused appealed the Makati City Prosecutors
Resolution by a petition for review to the Secretary of Justice who,
by Resolution of June 20, 2007,13 reversed the finding of probable
cause and accordingly directed the withdrawal of the Informations
for libel filed in court. The Justice Secretary opined that the crime of
"internet libel" was non-existent, hence, the accused could not be
charged with libel under Article 353 of the RPC.14
Petitioners, as co-accused,15 thereupon filed on June 6, 2006, before
the public respondent, a Motion to Quash16 the Information in
Criminal Case No. 06-876 on the grounds that it failed to vest
jurisdiction on the Makati RTC; the acts complained of in the
Information are not punishable by law since internet libel is not
covered by Article 353 of the RPC; and the Information is fatally
defective for failure to designate the offense charged and the acts
or omissions complained of as constituting the offense of libel.
Citing Macasaet v. People,17 petitioners maintained that the
Information failed to allege a particular place within the trial courts
jurisdiction where the subject article was printed and first published
or that the offended parties resided in Makati at the time the
alleged defamatory material was printed and first published.
By Order of October 3, 2006,18 the public respondent, albeit finding
that probable cause existed, quashed the Information, citing
Agustin v. Pamintuan.19 It found that the Information lacked any
allegations that the offended parties were actually residing in
Makati at the time of the commission of the offense as in fact they
listed their address in the complaint-affidavit at Yuchengco Tower in
Binondo, Manila; or that the alleged libelous article was printed and
first published in Makati.
The prosecution moved to reconsider the quashal of the
Information,20 insisting that the Information sufficiently conferred
jurisdiction on the public respondent. It cited Banal III v.
Panganiban21 which held that the Information need not allege

Petitioners opposed the prosecutions motion for reconsideration,

contending, inter alia, that since venue is jurisdictional in criminal
cases, any defect in an information for libel pertaining to
jurisdiction is not a mere matter of form that may be cured by
amendment.22
By Order of March 8, 2007,23 the public respondent granted the
prosecutions motion for reconsideration and accordingly ordered
the public prosecutor to "amend the Information to cure the defect
of want of venue."
The prosecution thereupon moved to admit the Amended
Information dated March 20, 2007,24 the accusatory portion of
which reads:
That on or about the 25th day of August 2005 in Makati City, Metro
Manila, Philippines, a place within the jurisdiction of the Honorable
Court, the above-named accused, being then the trustees of
Parents Enabling Parents Coalition and as such trustees they hold
the legal title to the website www.pepcoalition.com which is of
general circulation, and publication to the public conspiring,
confederating together with John Does, whose true names,
identities and present whereabouts are still unknown and all of
them mutually helping and aidingone another, did then and there
willfully, unlawfully and feloniously and publicly and maliciously
with intention of attacking the honesty, virtue, honor and integrity,
character and reputation of complainant Malayan Insurance Co.
Inc., Yuchengco Family particularly Ambassador Alfonso Yuchengco
and Helen Dee and for further purpose exposing the complainant to
public hatred and contempt published an article imputing a vice or
defect to the complainant and caused to be composed, posted and
published in the said websitewww.pepcoalition.com, a website
accessible in Makati City, an injurious and defamatory article, which
was first published and accessed by the private complainant in
Makati City, as follows:
x x x x (emphasis and underscoring in the original; italics supplied)

29

Petitioners moved to quash the Amended Information25 which, they

alleged, still failed to vest jurisdiction upon the public respondent
because it failed to allege that the libelous articles were "printed
and first published" by the accused in Makati; and the prosecution
erroneously laid the venue of the case in the place where the
offended party accessed the internet-published article.
By the assailed Order of April 22, 2008, the public respondent,
applying Banal III, found the Amended Information to be sufficient
in form.
Petitioners motion for reconsideration26 having been denied by the
public respondent by Joint Resolution of August 12, 2008, they filed
the present petition for Certiorari and Prohibition faulting the public
respondent for:
1. NOT FINDING THAT THE ACTS ALLEGED IN THE
INFORMATION ARE NOT PUNISHABLE BY LAW;
2. ADMITTING AN AMENDED INFORMATION WHOSE
JURISDICTIONAL ALLEGATIONS CONTINUES TO BE
DEFICIENT; and
3. NOT RULING THAT AN AMENDMENT IN THE INFORMATION
FOR THE PURPOSE OF CURING JURISDICTIONAL DEFECTS IS
ILLEGAL.27
With the filing of Gimenezs Comment28 to the petition, the issues
are: (1) whether petitioners violated the rule on hierarchy of courts
to thus render the petition dismissible; and (2) whether grave
abuse of discretion attended the public respondents admission of
the Amended Information.
The established policy of strict observance of the judicial hierarchy
of courts,29 as a rule, requires that recourse must first be made to
the lower-ranked court exercising concurrent jurisdiction with a
higher court.30 A regard for judicial hierarchy clearly indicates that
petitions for the issuance of extraordinary writs against first level
courts should be filed in the RTC and those against the latter should
be filed in the Court of Appeals.31 The rule is not iron-clad, however,
as it admits of certain exceptions.

Thus, a strict application of the rule is unnecessary when cases

brought before the appellate courts do not involve factual but
purely legal questions.32
In the present case, the substantive issue calls for the Courts
exercise of its discretionary authority, by way of exception, in order
to abbreviate the review process as petitioners raise a pure
question of law involving jurisdiction in criminal complaints for libel
under Article 360 of the RPC whether the Amended Information is
sufficient to sustain a charge for written defamation in light of the
requirements under Article 360 of the RPC, as amended by Republic
Act (RA) No. 4363, reading:
Art. 360. Persons responsible.Any person who shall publish, exhibit
or cause the publication or exhibition of any defamation in writing
or by similar means, shall be responsible for the same.
The author or editor of a book or pamphlet, or the editor or
business manager of a daily newspaper, magazine or serial
publication, shall be responsible for the defamations contained
therein to the same extent as if he were the author thereof.
The criminal action and civil action for damages in cases of written
defamations, as provided for in this chapter shall be filed
simultaneously or separately with the Court of First Instance of
the province or city where the libelous article is printed and first
published or where any of the offended parties actually resides at
the time of the commission of the offense: Provided, however, That
where one of the offended parties is a public officer whose office is
in the City of Manila at the time of the commission of the offense,
the action shall be filed in the Court of First Instance of the City of
Manila or of the city or province where the libelous article is printed
and first published, and in case such public officer does not hold
office in the City of Manila, the action shall be filed in the Court of
First Instance of the province or city where he held office at the
time of the commission of the offense or where the libelous article
is printed and first published and in case one of the offended
parties is a private individual, the action shall be filed in the Court
of First Instance of the province or city where he actually resides at
the time of the commission of the offense or where the libelous
matter is printed and first published x x x. (emphasis and
underscoring supplied)

30

Venue is jurisdictional in criminal actions such that the place where

the crime was committed determines not only the venue of the
action but constitutes an essential element of jurisdiction. 33 This
principle acquires even greater import in libel cases, given that
Article 360, as amended, specifically provides for the possible
venues for the institution of the criminal and civil aspects of such
cases.
In Macasaet,34 the Court reiterated its earlier pronouncements in
Agbayani v. Sayo35 which laid out the rules on venue in libel cases,
viz:
For the guidance, therefore, of both the bench and the bar, this
Court finds it appropriate to reiterate our earlier pronouncement in
the case of Agbayani, to wit:
In order to obviate controversies as to the venue of the criminal
action for written defamation, the complaint or information should
contain allegations as to whether, at the time the offense was
committed, the offended party was a public officer or a private
individual and where he was actually residing at that
time. Whenever possible, the place where the written defamation
was printed and first published should likewise be alleged. That
allegation would be a sine qua non if the circumstance as to where
the libel was printed and first published is used as the basis of the
venue of the action. (emphasis and underscoring supplied)
It becomes clear that the venue of libel cases where the
complainant is a private individual is limited to only either of two
places, namely: 1) where the complainant actually resides at the
time of the commission of the offense; or 2) where the alleged
defamatory article was printed and first published. The Amended
Information in the present case opted to lay the venue by availing
of the second. Thus, it stated that the offending article "was first
published and accessed by the private complainant in Makati City."
In other words, it considered the phrase to be equivalent to the
requisite allegation of printing and first publication.
The insufficiency of the allegations in the Amended Information to
vest jurisdiction in Makati becomes pronounced upon an
examination of the rationale for the amendment to Article 360 by
RA No. 4363. Chavez v. Court of Appeals36 explained the nature of
these changes:

Agbayani supplies a comprehensive restatement of the rules of

venue in actions for criminal libel, following the amendment by
Rep. Act No. 4363 of the Revised Penal Code:
"Article 360 in its original form provided that the venue of the
criminal and civil actions for written defamations is the province
wherein the libel was published, displayed or exhibited, regardless
of the place where the same was written, printed or composed.
Article 360 originally did not specify the public officers and the
courts that may conduct the preliminary investigation of complaints
for libel.
Before article 360 was amended, the rule was that a criminal action
for libel may be instituted in any jurisdiction where the libelous
article was published or circulated, irrespective of where it was
written or printed (People v. Borja, 43 Phil. 618). Under that rule,
the criminal action is transitory and the injured party has a choice
of venue.
Experience had shown that under that old rule the offended party
could harass the accused in a libel case by laying the venue of the
criminal action in a remote or distant place.
Thus, in connection with an article published in the Daily Mirror and
the Philippine Free Press, Pio Pedrosa, Manuel V. Villareal and
Joaquin Roces were charged with libel in the justice of the peace
court of San Fabian, Pangasinan (Amansec v. De Guzman, 93 Phil.
933).
To forestall such harassment, Republic Act No. 4363 was enacted. It
lays down specific rules as to the venue of the criminal action so as
to prevent the offended party in written defamation cases from
inconveniencing the accused by means of out-of-town libel suits,
meaning complaints filed in remote municipal courts (Explanatory
Note for the bill which became Republic Act No. 4363,
Congressional Record of May 20, 1965, pp. 424-5; Time, Inc. v.
Reyes, L-28882, May 31, 1971, 39 SCRA 303, 311).
x x x x (emphasis and underscoring supplied)
Clearly, the evil sought to be prevented by the amendment to
Article 360 was the indiscriminate or arbitrary laying of the venue
in libel cases in distant, isolated or far-flung areas, meant to

31

accomplish nothing more than harass or intimidate an accused. The

disparity or unevenness of the situation becomes even more acute
where the offended party is a person of sufficient means or
possesses influence, and is motivated by spite or the need for
revenge.
If the circumstances as to where the libel was printed and first
published are used by the offended party as basis for the venue in
the criminal action, the Information must allege with
particularity where the defamatory article was printed
and first published, as evidenced or supported by, for instance, the
address of their editorial or business offices in the case of
newspapers, magazines or serial publications. This pre-condition
becomes necessary in order to forestall any inclination to harass.
The same measure cannot be reasonably expected when it pertains
to defamatory material appearing on a website on the internet as
there would be no way of determining the situs of its printing and
first publication. To credit Gimenezs premise of equating his first
access to the defamatory article on petitioners website in Makati
with "printing and first publication" would spawn the very ills that
the amendment to Article 360 of the RPC sought to discourage and
prevent. It hardly requires much imagination to see the chaos that
would ensue in situations where the websites author or writer, a
blogger or anyone who posts messages therein could be sued for
libel anywhere in the Philippines that the private complainant may
have allegedly accessed the offending website.
For the Court to hold that the Amended Information sufficiently
vested jurisdiction in the courts of Makati simply because the
defamatory article was accessed therein would open the floodgates
to the libel suit being filed in all other locations where the
pepcoalition website is likewise accessed or capable of being
accessed.
Respecting the contention that the venue requirements imposed by
Article 360, as amended, are unduly oppressive, the Courts
pronouncements in Chavez37 are instructive:
For us to grant the present petition, it would be necessary to
abandon the Agbayani rule providing that a private person must file
the complaint for libel either in the place of printing and first
publication, or at the complainants place of residence. We would
also have to abandon the subsequent cases that reiterate this rule

in Agbayani, such as Soriano, Agustin, and Macasaet. There is no

convincing reason to resort to such a radical action. These
limitations imposed on libel actions filed by private persons are
hardly onerous, especially as they still allow such persons to file the
civil or criminal complaint in their respective places of residence, in
which situation there is no need to embark on a quest to determine
with precision where the libelous matter was printed and first
published.
(Emphasis and underscoring supplied.)
IN FINE, the public respondent committed grave abuse of discretion
in denying petitioners motion to quash the Amended Information.
WHEREFORE, the petition is GRANTED. The assailed Order of April
22, 2008 and the Joint Resolution of August 12, 2008 are hereby
SET ASIDE. The Regional Trial Court of Makati City, Br. 149 is hereby
DIRECTED TO QUASH the Amended Information in Criminal Case
No. 06-876 and DISMISS the case.
SO ORDERED.

TEODORO C. BORLONGAN, JR., CORAZON M. BEJASA, ARTURO E.

MANUEL, JR., ERIC L. LEE, P. SIERVO H. DIZON, BENJAMIN DE LEON,
DELFIN C. GONZALES, JR., and BEN YU LIM, JR.,
vs.
MAGDALENO M. PEA and HON. MANUEL Q. LIMSIACO, JR., as Judge
Designate of the Municipal Trial Court in Cities, Bago City
G.R. No. 14359

32

May 5, 2010
DECISION
PEREZ, J.:
The pivotal issue in this case is whether or not the Court of
Appeals, in its Decision1 dated 20 June 2000 in CA-G.R. SP No.
49666, is correct when it dismissed the petition for certiorari filed
by petitioners Teodoro C. Borlongan, Jr., Corazon M. Bejasa, Arturo
E. Manuel, Jr., Benjamin de Leon, P. Siervo H. Dizon, Delfin C.
Gonzales, Jr., Eric L. Lee and Ben Yu Lim, Jr., and ruled that the
Municipal Trial Court in Cities (MTCC), Bago City, did not gravely
abuse its discretion in denying the motion for reinvestigation and
recall of the warrants of arrest in Criminal Case Nos. 6683, 6684,
6685, and 6686.
The factual antecedents of the case are as follows:
Respondent Atty. Magdaleno M. Pea (Atty. Pea) instituted a civil
case for recovery of agents compensation and expenses, damages,
and attorneys fees2 against Urban Bank and herein petitioners,
before the Regional Trial Court (RTC) of Negros Occidental, Bago
City. The case was raffled to Branch 62 and was docketed as Civil
Case No. 754. Atty. Pea anchored his claim for compensation on
the Contract of Agency3 allegedly entered into with the petitioners,
wherein the former undertook to perform such acts necessary to
prevent any intruder and squatter from unlawfully occupying Urban
Banks property located along Roxas Boulevard, Pasay City.
Petitioners filed a Motion to Dismiss4 arguing that they never
appointed the respondent as agent or counsel. Attached to the
motion were the following documents: 1) a Letter5 dated 19
December 1994 signed by Herman Ponce and Julie Abad on behalf
of Isabela Sugar Company, Inc. (ISCI), the original owner of the
subject property; 2) an unsigned Letter6 dated 7 December 1994
addressed to Corazon Bejasa from Marilyn G. Ong; 3) a
Letter7 dated 9 December 1994 addressed to Teodoro Borlongan, Jr.
and signed by Marilyn G. Ong; and 4) a Memorandum8 dated 20
November 1994 from Enrique Montilla III. Said documents were
presented in an attempt to show that the respondent was
appointed as agent by ISCI and not by Urban Bank or by the
petitioners.

In view of the introduction of the above-mentioned documents,

Atty. Pea filed his Complaint-Affidavit9 with the Office of the City
Prosecutor, Bago City.10 He claimed that said documents were
falsified because the alleged signatories did not actually affix their
signatures, and the signatories were neither stockholders nor
officers and employees of ISCI.11 Worse, petitioners introduced said
documents as evidence before the RTC knowing that they were
falsified.
In a Resolution12 dated 24 September 1998, the City Prosecutor
found probable cause for the indictment of petitioners for four (4)
counts of the crime of Introducing Falsified Documents, penalized
by the second paragraph of Article 172 of the Revised Penal Code.
The City Prosecutor concluded that the documents were falsified
because the alleged signatories untruthfully stated that ISCI was
the principal of the respondent; that petitioners knew that the
documents were falsified considering that the signatories were
mere dummies; and that the documents formed part of the record
of Civil Case No. 754 where they were used by petitioners as
evidence in support of their motion to dismiss, and then adopted in
their answer and in their Pre-Trial Brief. 13 Subsequently, the
corresponding Informations14 were filed with the MTCC, Bago City.
The cases were docketed as Criminal Case Nos. 6683, 6684, 6685,
and 6686. Thereafter, Judge Primitivo Blanca issued the
warrants15 for the arrest of the petitioners.
On 1 October 1998, petitioners filed an Omnibus Motion to Quash,
Recall Warrants of Arrest and/or For Reinvestigation. 16 Petitioners
insisted that they were denied due process because of the nonobservance of the proper procedure on preliminary investigation
prescribed in the Rules of Court. Specifically, they claimed that they
were not afforded the right to submit their counter-affidavit. Then
they argued that since no such counter-affidavit and supporting
documents were submitted by the petitioners, the trial judge
merely relied on the complaint-affidavit and attachments of the
respondent in issuing the warrants of arrest, also in contravention
with the Rules of Court. Petitioners further prayed that the
information be quashed for lack of probable cause. Moreover, one
of the accused, i.e., Ben Lim, Jr., is not even a director of Urban
Bank, contrary to what complainant stated. Lastly, petitioners
posited that the criminal cases should have been suspended on the
ground that the issue being threshed out in the civil case is a
prejudicial question.

33

In an Order17 dated 13 November 1998, the MTCC denied the

omnibus motion primarily on the ground that preliminary
investigation was not available in the instant case which fell within
the jurisdiction of the first-level court. The court, likewise, upheld
the validity of the warrant of arrest, saying that it was issued in
accordance with the Rules of Court. Besides, the court added,
petitioners could no longer question the validity of the warrant
since they already posted bail. The court also believed that the
issue involved in the civil case was not a prejudicial question, and,
thus, denied the prayer for suspension of the criminal proceedings.
Lastly, the court was convinced that the Informations contained all
the facts necessary to constitute an offense.
Petitioners immediately instituted a special civil action for Certiorari
and Prohibition with Prayer for Writ of Preliminary Injunction and
Temporary Restraining Order (TRO) before the Court of Appeals,
ascribing grave abuse of discretion amounting to lack or excess of
jurisdiction on the part of the MTCC in issuing and not recalling the
warrants of arrest, reiterating the arguments in their omnibus
motion.18 They, likewise, questioned the courts conclusion that by
posting bail, petitioners already waived their right to assail the
validity of the warrants of arrest.
On 20 June 2000, the Court of Appeals dismissed the
petition.19 Thus, petitioners filed the instant petition for review on
certiorari under Rule 45 of the Rules of Court, raising the following
issues:

Can a complaint-affidavit containing matters which are not within

the personal knowledge of the complainant be sufficient basis for
the finding of probable cause?
C.
Where there is offense charged in a criminal complaint is not
cognizable by the Regional Trial Court and not covered by the Rule
on Summary Procedure, and the record of the preliminary
investigation does not show the existence of probable cause,
should not the judge refuse to issue a warrant of arrest and dismiss
the criminal case, or at the very least, require the accused to
submit his counter-affidavit in order to aid the judge in determining
the existence of probable cause?
D.
Can a criminal prosecution be restrained?
E.
Can this Honorable Court itself determine the existence of probable
cause?20
On the other hand, respondent contends that the issues raised by
the petitioners had already become moot and academic when the
latter posted bail and were already arraigned.

A.
Where the offense charged in a criminal complaint is not cognizable
by the Regional Trial Court and not covered by the Rule on
Summary Procedure, is the finding of probable cause required for
the filing of an Information in court?

On 2 August 2000, this Court issued a TRO21 enjoining the judge of

the MTCC from proceeding in any manner with Criminal Case Nos.
6683 to 6686, effective during the entire period that the case is
pending before, or until further orders of, this Court.
We will first discuss the issue of mootness.

If the allegations in the complaint-affidavit do not establish

probable cause, should not the investigating prosecutor dismiss the
complaint, or at the very least, require the respondent to submit his
counter-affidavit?
B.

The issues raised by the petitioners have not been mooted by the
fact that they had posted bail and were already arraigned.
It appears from the records that upon the issuance of the warrant
of arrest, petitioners immediately posted bail as they wanted to
avoid embarrassment, being then the officers of Urban Bank. On
the scheduled date for the arraignment, despite the petitioners

34

refusal to enter a plea, the court a quo entered a plea of "Not

Guilty" for them.

the particular right that no other explanation of his conduct is

possible. x x x.

The erstwhile ruling of this Court was that posting of bail

constitutes a waiver of any irregularity in the issuance of a warrant
of arrest, that has already been superseded by Section 26, Rule 114
of the Revised Rule of Criminal Procedure. The principle that the
accused is precluded from questioning the legality of the arrest
after arraignment is true only if he voluntarily enters his plea and
participates during trial, without previously invoking his objections
thereto.22

Herein petitioners filed the Omnibus Motion to Quash, Recall

Warrants of Arrest and/or For Reinvestigation on the same day that
they posted bail. Their bail bonds likewise expressly contained a
stipulation that they were not waiving their right to question the
validity of their arrest.24 On the date of their arraignment,
petitioners refused to enter their plea due to the fact that the issue
on the legality of their arrest is still pending with the Court. Thus,
when the court a quo entered a plea of not guilty for them, there
was no valid waiver of their right to preclude them from raising the
same with the Court of Appeals or this Court. The posting of bail
bond was a matter of imperative necessity to avert their
incarceration; it should not be deemed as a waiver of their right to
assail their arrest. The ruling to which we have returned in People
v. Red25 stated:

As held in Okabe v. Hon. Gutierrez:23

It bears stressing that Section 26, Rule 114 of the Revised Rules on
Criminal Procedure is a new one, intended to modify previous
rulings of this Court that an application for bail or the admission to
bail by the accused shall be considered as a waiver of his right to
assail the warrant issued for his arrest on the legalities or
irregularities thereon. The new rule has reverted to the ruling of
this Court in People v. Red. The new rule is curative in nature
because precisely, it was designed to supply defects and curb evils
in procedural rules. Hence, the rules governing curative statutes
are applicable. Curative statutes are by their essence retroactive in
application. Besides, procedural rules as a general rule operate
retroactively, even without express provisions to that effect, to
cases pending at the time of their effectivity, in other words to
actions yet undetermined at the time of their effectivity. Before the
appellate court rendered its decision on January 31, 2001, the
Revised Rules on Criminal Procedure was already in effect. It
behoved the appellate court to have applied the same in resolving
the petitioners petition for certiorari and her motion for partial
reconsideration.
Moreover, considering the conduct of the petitioner after posting
her personal bail bond, it cannot be argued that she waived her
right to question the finding of probable cause and to assail the
warrant of arrest issued against her by the respondent judge. There
must be clear and convincing proof that the petitioner had an
actual intention to relinquish her right to question the existence of
probable cause. When the only proof of intention rests on what a
party does, his act should be so manifestly consistent with, and
indicative of, an intent to voluntarily and unequivocally relinquish

x x x The present defendants were arrested towards the end of

January, 1929, on the Island and Province of Marinduque by order
of the judge of the Court of First Instance of Lucena, Tayabas, at a
time when there were no court sessions being held in Marinduque.
In view of these circumstances and the number of the accused, it
may properly be held that the furnishing of the bond was prompted
by the sheer necessity of not remaining in detention, and in no way
implied their waiver of any right, such as the summary examination
of the case before their detention. That they had no intention of
waiving this right is clear from their motion of January 23, 1929, the
same day on which they furnished a bond, and the fact that they
renewed this petition on February 23, 1929, praying for the stay of
their arrest for lack of the summary examination; the first motion
being denied by the court on January 24, 1929 (G.R. No. 33708,
page 8), and the second remaining undecided, but with an order to
have it presented in Boac, Marinduque.
Therefore, the defendants herein cannot be said to have waived the
right granted to them by section 13, General Order No. 58, as
amended by Act No. 3042.
The rest of the issues raised by the petitioners may be grouped into
two, which are: (1) the procedural aspect, i.e., whether the
prosecution and the court a quo properly observed the required
procedure in the instant case, and, (2) the substantive aspect,

35

which is whether there was probable cause to pursue the criminal

cases to trial.
The procedural aspect:
Petitioners contend that they were denied due process as they
were unable to submit their counter-affidavits and were not
accorded the right to a preliminary investigation. Considering that
the complaint of Atty. Pea was filed in September 1998, the rule
then applicable was the 1985 Rules of Criminal Procedure.
The provisions of the 1985 Rules of Criminal Procedure relevant to
the issue are Sections 1, 3(a) and 9(a) of Rule 112, to wit:
Section 1. Definition. Preliminary investigation is an inquiry or
proceeding for the purpose of determining whether there is
sufficient ground to engender a well founded belief that a crime
cognizable by the Regional Trial Court has been committed and that
the respondent is probably guilty thereof, and should be held for
trial.
Sec. 3. Procedure. Except as provided for in Section 7 hereof, no
complaint or information for an offense cognizable by the Regional
Trial Court shall be filed without a preliminary investigation having
been first conducted in the following manner:
(a) The complaint shall state the known address of the
respondent and be accompanied by affidavits of the
complainant and his witnesses as well as other supporting
documents, in such number of copies as there are
respondents, plus two (2) copies for the official file. The said
affidavits shall be sworn to before any fiscal, state
prosecutor or government official authorized to administer
oath, or, in their absence or unavailability, a notary public,
who must certify that he personally examined the affiants
and that he is satisfied that they voluntarily executed and
understood their affidavits.
Sec. 9. Cases not falling under the original jurisdiction of the
Regional Trial Courts nor covered by the Rule on Summary
Procedure.

(a) Where filed with the fiscal. If the complaint is filed

directly with the fiscal or state prosecutor, the procedure
outlined in Section 3(a) of this Rule shall be observed. The
fiscal shall take appropriate action based on the affidavits
and other supporting documents submitted by the
complainant. (underscoring supplied)
The crime to which petitioners were charged was defined and
penalized under second paragraph of Article 172 in relation to
Article 171 of the Revised Penal Code.
Art. 172. Falsification by private individual and use of falsified
documents. The penalty of prision correccional in its medium and
maximum periods and a fine of not more than P5,000 pesos shall
be imposed upon:
1. Any private individual who shall commit any of the
falsifications enumerated in the next preceding article in any
public or official document or letter of exchange or any
other kind of commercial document; and
2. Any person who, to the damage of a third party, or with
the intent to cause such damage, shall in any private
document commit any of the acts of falsification
enumerated in the next preceding article.
Any person who shall knowingly introduce in evidence in any
judicial proceeding or to the damage of another or who, with the
intent to cause such damage, shall use any of the false documents
embraced in the next preceding article or in any of the foregoing
subdivisions of this article, shall be punished by the penalty next
lower in degree.
Prision correccional in its medium and maximum periods translates
to imprisonment of 2 years, 4 months and 1 day. 26 The next lower in
degree to prision correccional is arresto mayor in its maximum
period to prision correccional in its minimum period which
translates to 4 months and 1 day to 2 years and 4 months 27 of
imprisonment. Since the crime committed is not covered by the
Rules of Summary Procedure,28 the case falls within the exclusive
jurisdiction of the first level courts but applying the ordinary rules.
In such instance, preliminary investigation as defined in Section 1,
Rule 112 of the 1985 Rules of Criminal Procedure is not applicable

36

since such section covers only crimes cognizable by the RTC. That
which is stated in Section 9(a) is the applicable rule.
Under this Rule, while probable cause should first be determined
before an information may be filed in court, the prosecutor is not
mandated to require the respondent to submit his counter-affidavits
to oppose the complaint. In the determination of probable cause,
the prosecutor may solely rely on the complaint, affidavits and
other supporting documents submitted by the complainant. If he
does not find probable cause, the prosecutor may dismiss outright
the complaint or if he finds probable cause or sufficient reason to
proceed with the case, he shall issue a resolution and file the
corresponding information.
The complaint of respondent, verbatim, is as follows:
COMPLAINT AFFIDAVIT
I, MAGDALENO M. PEA, Filipino, of legal age, with address at Brgy.
Ubay, Pulupandan, Negros Occidental, after having been sworn in
accordance with law hereby depose and state:
1. I am the Plaintiff in Civil Case No. 754 pending with the Regional
Trial Court of Bago City entitled "Atty. Magdaleno M. Pea v. Urban
Bank, et al" Impleaded therein as defendants of the board of the
bank, namely, Teodoro Borlongan, Delfin Gonzales, Jr., Benjamin De
Leon, P. Siervo Dizon, Eric Lee, Ben Lim Jr., Corazon Bejasa and
Arturo Manuel.(underlining ours)
2. I filed the said case to collect my fees as agent of Urban Bank,
Inc.(hereinafter referred to as the "bank") in ridding a certain parcel
of land in Pasay City of squatters and intruders. A certified true
copy of the Complaint in the said case is hereto attached as Annex
"A".
3. In the Motion to Dismiss dated 12 March 1996 (a certified true
copy of which is attached as Annex "B"), Answer dated 28 October
1996 (Annex "C"), and Pre-Trial Brief dated 28 January 1997 (Annex
"D") filed by the bank and the respondent members of the board,
the said respondents used as evidence the following documents:

a. Letter dated 19 December 1994 supposedly signed by a certain

Herman Ponce and Julie Abad for Isabela Sugar Company (ISC) (a
copy of which is attached as Annex "E"), which states:
December 19, 1994
Urban Bank
Urban Avenue, Makati
Metro Manila
Gentlemen:
This has reference to your property located among Roxas
Boulevard, Pasay City which you purchased from Isabela Sugar
Company under a Deed of Absolute Sale executed on December 1,
1994.
In line with our warranties as the Seller of the said property and our
undertaking to deliver to you the full and actual possession and
control of said property, free from tenants, occupants or squatters
and from any obstruction or impediment to the free use and
occupancy of the property and to prevent the former tenants or
occupants from entering or returning to the premises. In view of the
transfer of ownership of the property to Urban Bank, it may be
necessary for Urban Bank to appoint Atty. Pea likewise as its
authorized representative for purposes of holding/maintaining
continued possession of the said property and to represent Urban
Bank in any court action that may be instituted for the
abovementioned purposes.
It is understood that any attorneys fees, cost of litigation and any
other charges or expenses that may be incurred relative to the
exercise by Atty. Pea of his abovementioned duties shall be for the
account of Isabela Sugar Company and any loss or damage that
may be incurred to third parties shall be answerable by Isabela
Sugar Company.
Very truly yours,
Isabela Sugar Company
By:

37

HERMAN PONCE
JULIE ABAD
b. Memorandum dated 7 December 1994 supposedly executed by a
certain Marilyn Ong on behalf of ISC, a copy of which is hereto
attached as annex "F", which states:

c. Memorandum dated 20 November 1994, copy of which is

attached as annex "H", which states:
MEMORANDUM
To: Atty. Magadaleno M. Pea
Director

December 7, 1994
To: ATTY. CORA BEJASA

From: Enrique C. Montilla III

President

From: MARILYN G. ONG

Date: 20 November 1994

RE: ISABELA SUGAR CO., INC.

You are hereby directed to recover and take possession of the

property of the corporation situated at Roxas Boulevard covered by
TCT No. 5382 of the Registry of Deeds for Pasay City, immediately
upon the expiration of the contract of lease over the said property
on 29 November 1994. For this purpose, you are authorized to
engage the services of security guards to protect the property
against intruders. You may also engage the services of a lawyer in
case there is a need to go to court to protect the said property of
the corporation. In addition, you may take whatever steps or
measures are necessary to ensure our continued possession of the
property.

Atty. Magdaleno M. Pea, who has been assigned by Isabela Sugar

Company inc. to take charge of inspecting the tenants would like to
request an authority similar to this from the Bank to new owners.
Can you please issue something like this today as he (unreadable)
this.
b. Letter dated 9 December 1994 supposedly executed by the
same Marilyn Ong, a copy of which is hereto attached as Annex
"G", which states:
December 9, 1994
Atty. Ted Borlongan
URBAN BANK OF THE PHILIPPINES
MAKATI, METRO MANILA
Attention: Mr. Ted Borlongan
Dear Mr. Borlongan
I would like to request for an authority from Urban Bank per
attached immediately as the tenants are questioning authority of
the people who are helping us to take possession of the property.

ENRIQUE C. MONTILLA III

President
4. The respondent member of the board of the bank used and
introduced the aforestated documents as evidence in the civil case
knowing that the same are falsified. They used thae said
documents to justify their refusal to pay my agents fees, to my
damage and prejudice.
5. The 19 December 1994 letter (Annex E") is a falsified document,
in that the person who supposedly executed the letter on behalf of
ISC, a certain Herman Ponce and Julie Abad did not actually affix
their signatures on the document. The execution of the letter was
merely simulated by making it appear that Ponce and Abad
executed the letter on behalf of ISC when they did not in fact do so.

Marilyn Ong
6. No persons by the name of Herman Ponce and Julie Abad were
ever stockholders, officers, employees or representatives of ISC. In

38

the letter, Herman Ponce was represented to be the President of

ISC and Julie Abad, the Corporate Secretary. However, as of 19
December 1994, the real President of plaintiff was Enrique Montilla,
III and Cristina Montilla was the Corporate Secretary. A copy of the
Minutes of the Regular Meeting of ISC for the year 1994, during
which Montilla, et al. Were elected is hereto attached as Annex "I".
On the otherhand, a list of the stockholders of ISC on or about the
time of the transaction is attached as Annex "J".
7. The same holds true with respect to the Memorandum dated 7
December 1994 and athe letter dated 9 December 1994 allegedly
written by a ceratin Marilyn Ong. Nobody by the said name was
ever a stockholder of ISC.
8. Lastly, with respect to the supposed Memorandum issued by
Enrique Montilla, III his signature thereon was merely forged by
respondents. Enrique Montilla III, did not affix his signature on any
such document.
9. I am executing this affidavit for the purpose of charging Teodoro
C. Borlongan, Corazon M. Bejasa and Arturo E. Manuel, Delfin C.
Gonzales Jr., Benjamin L. De Leon, P. Siervo H. Dizon and Eric Lee,
with the crime of use of falsified documents under Artilce 172,
paragraph 2, of the Revised Penal Code.(underlining ours)
10. I am likewise executing this affidavit for whatever legal purpose
it may serve.
FURTHER AFFIANT SAYETH NAUGHT.
Sgd. MAGDALENO M. PEA
It is evident that in the affidavit-complaint, specifically in paragraph
1, respondent merely introduced and identified "the board of the
bank, namely, Teodoro Borlongan, Jr., Delfin Gonzales, Jr., Benjamin
De Leon, P. Siervo Dizon, Eric Lee, Ben Lim, Jr., Corazon Bejasa and
Arturo Manuel, Sr." However, in the accusatory portion of the
complaint which is paragraph number 9, Mr. Ben Lim, Jr. was not
included among those charged with the crime of use of falsified
documents under Article 172, paragraph 2, of the Revised Penal
Code. The omission indicates that respondent did not intend to
criminally implicate Mr. Ben Lim, Jr., even as he was acknowledged
to be a member of the board. And there was no explanation in the

Resolution and Information by the City Prosecutor why Mr. Ben Lim,
Jr. was included. Moreover, as can be gleaned from the body of the
complaint and the specific averments therein, Mr. Ben Lim, Jr. was
never mentioned.
The City Prosecutor should have cautiously reviewed the complaint
to determine whether there were inconsistencies which ought to
have been brought to the attention of the respondent or, on his
own, considered for due evaluation. It is a big mistake to bring a
man to trial for a crime he did not commit.
Prosecutors are endowed with ample powers in order that they may
properly fulfill their assigned role in the administration of justice. It
should be realized, however, that when a man is hailed to court on
a criminal charge, it brings in its wake problems not only for the
accused but for his family as well. Therefore, it behooves a
prosecutor to weigh the evidence carefully and to deliberate
thereon to determine the existence of a prima facie case before
filing the information in court. Anything less would be a dereliction
of duty.29
Atty. Pea, in his Second Manifestation30 dated 16 June 1999,
averred that petitioners, including Mr. Ben Lim, Jr., were already
estopped from raising the fact that Mr. Ben Lim, Jr. was not a
member of the board of directors of Urban Bank, as the latter
participated and appeared through counsel in Civil Case No. 754
without raising any opposition. However, this does not detract from
the fact that the City Prosecutor, as previously discussed, did not
carefully scrutinize the complaint of Atty. Pea, which did not
charge Mr. Ben Lim, Jr. of any crime.
What tainted the procedure further was that the Judge issued a
warrant for the arrest of the petitioners, including, Mr. Ben Lim, Jr.
despite the filing of the Omnibus Motion to Quash, Recall Warrants
of Arrest and/or For Reinvestigation raising among others the issue
that Mr. Ben Lim, Jr., was not even a member of the board of
directors. With the filing of the motion, the judge is put on alert that
an innocent person may have been included in the complaint. In
the Order31 dated 13 November 1998, in denying the motion to
quash, Judge Primitivo Blanca ruled that:
Courts in resolving a motion to quash cannot consider facts
contrary to those alleged in the information or which do not appear
on the face of the information because said motion is hypothethical

39

admission of the facts alleged in the information x x x. (citations

omitted.)
We cannot accept as mere oversight the mistake of respondent
judge since it was at the expense of liberty. This cannot be
condoned.
In the issuance of a warrant of arrest, the mandate of the
Constitution is for the judge to personally determine the existence
of probable cause:
Section 2, Article III of the Constitution provides:
Section 2. The right of the people to be secure in their persons,
houses, papers and effects against unreasonable searches and
seizures of whatever nature and for any purpose shall be inviolable,
and no search warrant or warrant of arrest shall issue except upon
probable cause to be determined personally by the judge after
examination under oath or affirmation of the complainant and the
witnesses he may produce, and particularly describing the place to
be searched and the persons or things to be seized.
Corollary thereto, Section 9(b) of the 1985 Rules of Criminal
Procedure provides:
Sec. 9. Cases not falling under the original jurisdiction of the
Regional Trial Courts nor covered by the Rule on Summary
Procedure.
(a) x x x.
(b) Where filed directly with the Municipal Trial Court. If the
complaint or information is filed directly with the Municipal Trial
Court, the procedure provided for in Section 3(a) of this Rule shall
likewise be observed. If the judge finds no sufficient ground to hold
the respondent for trial, he shall dismiss the complaint or
information. Otherwise, he shall issue a warrant of arrest after
personally examining in writing and under oath the complainant
and his witnesses in the form of searching questions and answers.
Enshrined in our Constitution is the rule that "[n]o x x x warrant of
arrest shall issue except upon probable cause to be determined
personally by the judge after examination under oath or affirmation

of the complainant and the witnesses he may produce, and

particularly describing x x x the persons x x x to be
seized."32 Interpreting the words "personal determination," we said
in Soliven v. Makasiar33 that it does not thereby mean that judges
are obliged to conduct the personal examination of the complainant
and his witnesses themselves. To require thus would be to unduly
laden them with preliminary examinations and investigations of
criminal complaints instead of concentrating on hearing and
deciding cases filed before them. Rather, what is emphasized
merely is the exclusive and personal responsibility of the issuing
judge to satisfy himself as to the existence of probable cause. To
this end, he may: (a) personally evaluate the report and the
supporting documents submitted by the prosecutor regarding the
existence of probable cause and, on the basis thereof, issue a
warrant of arrest; or (b) if on the basis thereof he finds no probable
cause, disregard the prosecutor's report and require the submission
of supporting affidavits of witnesses to aid him in determining its
existence. What he is never allowed to do is to follow blindly the
prosecutor's bare certification as to the existence of probable
cause. Much more is required by the constitutional provision.
Judges have to go over the report, the affidavits, the transcript of
stenographic notes if any, and other documents supporting the
prosecutor's certification. Although the extent of the judge's
personal examination depends on the circumstances of each case,
to be sure, he cannot just rely on the bare certification alone but
must go beyond it. This is because the warrant of arrest issues not
on the strength of the certification standing alone but because of
the records which sustain it.34 He should even call for the
complainant and the witnesses to answer the court's probing
questions when the circumstances warrant. 35
An arrest without a probable cause is an unreasonable seizure of a
person, and violates the privacy of persons which ought not to be
intruded by the State.36
Measured against the constitutional mandate and established
rulings, there was here a clear abdication of the judicial function
and a clear indication that the judge blindly followed the
certification of a city prosecutor as to the existence of probable
cause for the issuance of a warrant of arrest with respect to all of
the petitioners. The careless inclusion of Mr. Ben Lim, Jr., in the
warrant of arrest gives flesh to the bone of contention of petitioners
that the instant case is a matter of persecution rather than
prosecution.37 On this ground, this Court may enjoin the criminal

40

cases against petitioners. As a general rule, criminal prosecutions

cannot be enjoined. However, there are recognized exceptions
which, as summarized in Brocka v. Enrile,38 are:
a. To afford adequate protection to the constitutional rights
of the accused;39
b. When necessary for the orderly administration of justice
or to avoid oppression or multiplicity of actions; 40
c. When there is a prejudicial question which is sub judice;41
d. When the acts of the officer are without or in excess of
authority;42
e. Where the prosecution is under an invalid law, ordinance
or regulation;43
f. When double jeopardy is clearly apparent; 44
g. Where the court had no jurisdiction over the offense;45
h. Where it is a case of persecution rather than
prosecution;46
i. Where the charges are manifestly false and motivated by
the lust for vengeance;47 and
j. When there is clearly no prima facie case against the
accused and a motion to quash on that ground has been
denied.48
The substantive aspect:
Petitioners were charged with violation of par. 2, Article 172 of the
Revised Penal Code or Introduction of Falsified Document in a
judicial proceeding. The elements of the offense are as follows:
1. That the offender knew that a document was falsified by
another person.

2. That the false document is embraced in Article 171 or in

any subdivisions Nos. 1 or 2 of Article 172.
3. That he introduced said document in evidence in any
judicial proceeding. 49
The falsity of the document and the defendants knowledge of its
falsity are essential elements of the offense. The Office of the City
Prosecutor filed the Informations against the petitioners on the
basis of the Complaint-Affidavit of respondent Atty. Pea, attached
to which were the documents contained in the Motion to Dismiss
filed by the petitioners in Civil Case No. 754. Also included as
attachments to the complaint were the Answers, Pre-Trial Brief, the
alleged falsified documents, copy of the regular meetings of ISCI
during the election of the Board of Directors and the list of ISCI
Stockholders.50 Based on these documents and the complaintaffidavit of Atty. Pea, the City Prosecutor concluded that probable
cause for the prosecution of the charges existed. On the strength of
the same documents, the trial court issued the warrants of arrest.
This Court, however, cannot find these documents sufficient to
support the existence of probable cause.
Probable cause is such set of facts and circumstances as would lead
a reasonably discreet and prudent man to believe that the offense
charged in the Information or any offense included therein has
been committed by the person sought to be arrested. In
determining probable cause, the average man weighs the facts and
circumstances without restoring to the calibrations of the rules of
evidence of which he has no technical knowledge. He relies on
common sense. A finding of probable cause needs only to rest on
evidence showing that, more likely than not, a crime has been
committed and that it was committed by the accused. Probable
cause demands more than suspicion; it requires less than evidence
that would justify conviction.51
As enunciated in Baltazar v. People,52 the task of the presiding
judge when the Information is filed with the court is first and
foremost to determine the existence or non-existence of probable
cause for the arrest of the accused.
The purpose of the mandate of the judge to first determine
probable cause for the arrest of the accused is to insulate from the

41

very start those falsely charged with crimes from the tribulations,
expenses and anxiety of a public trial.53
We do not see how it can be concluded that the documents
mentioned by respondent in his complaint-affidavit were falsified. In
his complaint, Atty. Pea stated that Herman Ponce, Julie Abad and
Marilyn Ong, the alleged signatories of the questioned letters, did
not actually affix their signatures therein; and that they were not
actually officers or stockholders of ISCI.54 He further claimed that
Enrique Montillas signature appearing in another memorandum
addressed to respondent was forged.55 These averments are mere
assertions which are insufficient to warrant the filing of the
complaint or worse the issuance of warrants of arrest. These
averments cannot be considered as proceeding from the personal
knowledge of herein respondent who failed to, basically, allege that
he was present at the time of the execution of the documents.
Neither was there any mention in the complaint-affidavit that
herein respondent was familiar with the signatures of the
mentioned signatories to be able to conclude that they were
forged. What Atty. Pea actually stated were but sweeping
assertions that the signatories are mere dummies of ISCI and that
they are not in fact officers, stockholders or representatives of the
corporation. Again, there is no indication that the assertion was
based on the personal knowledge of the affiant.
The reason for the requirement that affidavits must be based on
personal knowledge is to guard against hearsay evidence. A
witness, therefore, may not testify as what he merely learned from
others either because he was told or read or heard the same. Such
testimony is considered hearsay and may not be received as proof
of the truth of what he has learned.56 Hearsay is not limited to oral
testimony or statements; the general rule that excludes hearsay as
evidence applies to written, as well as oral statements. 57
The requirement of personal knowledge should have been strictly
applied considering that herein petitioners were not given the
opportunity to rebut the complainants allegation through counteraffidavits.
Quite noticeable is the fact that in the letter dated 19 December
1994 of Herman Ponce and Julie Abad, neither of the two made the
representation that they were the president or secretary of ISCI. It
was only Atty. Pea who asserted that the two made such
representation. He alleged that Marilyn Ong was never a

stockholder of ISCI but he did not present the stock and transfer
book of ISCI. And, there was neither allegation nor proof that
Marilyn Ong was not connected to ISCI in any other way. Moreover,
even if Marilyn Ong was not a stockholder of ISCI, such would not
prove that the documents she signed were falsified.
The Court may not be compelled to pass upon the correctness of
the exercise of the public prosecutors function without any showing
of grave abuse of discretion or manifest error in his
findings.58 Considering, however, that the prosecution and the court
a quo committed manifest errors in their findings of probable
cause, this Court therefore annuls their findings.
Our pronouncement in Jimenez v. Jimenez59 as reiterated in Baltazar
v. People is apropos:
It is x x x imperative upon the fiscal or the judge as the case may
be, to relieve the accused from the pain of going through a trial
once it is ascertained that the evidence is insufficient to sustain a
prima facie case or that no probable cause exists to form a
sufficient belief as to the guilt of the accused. Although there is no
general formula or fixed rule for the determination of probable
cause since the same must be decided in the light of the conditions
obtaining in given situations and its existence depends to a large
degree upon the finding or opinion of the judge conducting the
examination, such a finding should not disregard the facts before
the judge nor run counter to the clear dictates of reasons. The
judge or fiscal, therefore, should not go on with the prosecution in
the hope that some credible evidence might later turn up during
trial for this would be a flagrant violation of a basic right which the
courts are created to uphold. It bears repeating that the judiciary
lives up to its mission by visualizing and not denigrating
constitutional rights. So it has been before. It should continue to be
so.
On the foregoing discussion, we find that the Court of Appeals erred
in affirming the findings of the prosecutor as well as the court a quo
as to the existence of probable cause. The criminal complaint
against the petitioners should be dismissed.
WHEREFORE, the petition is hereby GRANTED. The Decision of the
Court of Appeals dated 20 June 2000, in CA-G.R. SP No. 49666,
isREVERSED and SET ASIDE. The Temporary Restraining Order
dated 2 August 2000 is hereby made permanent. Accordingly, the

42

Municipal Trial Court in Cities, Negros Occidental, Bago City, is

hereby DIRECTED to DISMISS Criminal Case Nos. 6683, 6684, 6685
and 6686.
SO ORDERED.

PEOPLE OF THE PHILIPPINES,

vs
JOSELITO NOQUE y GOMEZ,
G.R. No. 175319
January 15, 2010
DECISION
DEL CASTILLO, J.:
The illicit trade and use of dangerous drugs destroys the moral
fiber of society. It has eroded and disrupted family life, increased the
transmission of sexually related diseases, resulted in permanent and fatal
damage to the physical and mental health, and wasted dreams,
opportunities and hopes for a better future. As an ardent sentinel of the
peoples rights and welfare, this Court shall not hesitate to dispense
justice on people who engage in such an activity. [1] The commitment to
this end is exemplified in this appeal.

The Charges

The appeal stems from two Informations filed before the

Regional Trial Court (RTC) of Manila, which were subsequently docketed
as Criminal Case Nos. 01-189458 and 01-189459, and raffled to Branch

43

35 of said court. The Information in Criminal Case No. 01-189458

During his arraignment on July 23, 2001, appellant pleaded not

charging appellant Joselito Noque y Gomez with violation of Section 15,

guilty to both charges. Pre-trial conference was conducted and upon its

Article III in relation to Section 21 (e), (f), (m), (o), Article 1 of Republic Act

termination a joint trial ensued.

(RA) No. 6425, as amended by Presidential Decree (PD) No. 1683 and as
further amended by RA 7659 reads:
That on or about January 30, 2001, in the City of
Manila, Philippines, the said accused, not having been
authorized by law to sell, dispense, deliver, transport or
distribute any regulated drug, did then and there willfully,
unlawfully and knowingly sell or offer for sale, dispense,
deliver, transport or distribute 2.779 (two point seven
seven nine grams) and 2.729 (two point seven two nine
grams) of white crystalline substance known as shabu
containing methamphetamine hydrochloride, which is a
regulated drug.
Contrary to law.[2]

Version of the Prosecution

At 9 oclock in the evening of January 30, 2001, a confidential

informant of
Senior Police Officer 4 (SPO4) Norberto Murillo, went to Police Station No.
4 of the Western Police District (WPD) to tip off on the drug trafficking
activities of the appellant in Malate, Manila. SP04 Murillo immediately
directed Police Officers (POs) Christian Balais (Balais) and Dionisio Borca
(Borca) to conduct surveillance in the area mentioned by the
informant. The surveillance confirmed appellants illegal operations

On the other hand, the Information in Criminal Case No. 01-

being

conducted

at No.

630

San

Andres

Street,

189459 contains the following accusatory allegations for violation of

Malate, Manila. Thereafter, SP04 Murillo formed and led a buy-bust team

Section 16, Article III in relation to Section 2 (e-2) Article I of RA 6425 as

with POs Balais, Borca, Ramon Pablo, Roberto Godoy, Edgardo Book,

amended by Batas Pambansa (BP) Bilang 179 and as further amended

Bernard Mino, Rodante Bollotano, and Melchor Barolo as members. PO1

by RA 7659:

Balais was designated as poseur-buyer and was provided with 10 pieces

That on or about January 30, 2001, in the City of

Manila, Philippines, the said accused without being
authorized by law to possess or use any regulated drug,
did then and there willfully, unlawfully and knowingly
have in his possession and under his custody and control
(six seven nine point two one five grams) 679.215 grams
of white crystalline substance known as shabu
containing methamphetamine hydrochloride, a regulated
drug, without the corresponding license or prescription
thereof.
Contrary to law.[3]

of 100 peso bills as buy-bust money.

The buy-bust team, together with the informant, proceeded to

the aforementioned address and upon arrival thereat, positioned
themselves outside the appellants house. PO1 Balais and the informant
thereafter called out the appellant, who welcomed the two and brought
them to his bedroom. The informant asked the appellant if he
had P1,000.00 worth of methamphetamine hydrochloride or shabu
then pointed to PO1 Balais as the actual buyer. When PO1 Balais handed

44

the marked money to the appellant, the latter brought out from under a

The appellant gave a different version of the events that

table a pranela bag from which he took two plastic sachets containing

transpired. He testified that he was in his house in the evening

white crystalline granules suspected to be shabu. The informant

of January 23, 2001 when six policemen led by SPO4 Murillo entered and

slipped out of the house as the pre-arranged signal to the buy-bust team

arrested an unidentified occupant of the room next to his. The arresting

that the sale had been consummated.

team

returned

after

30

minutes

and

apprehended

another

person. When they came back the third time, they took him with them
After seeing the informant leave, the team entered appellants

to WPD Station No. 9 where his wallet, belt and shoes were taken. While

house. SPO4 Murillo frisked the appellant and recovered the buy-bust

under detention, SPO4 Murillo ordered him to admit selling illegal

money. He also confiscated the pranela bag that contained a large

substances but he refused. He was released on January 26, 2001 only to

quantity of crystalline granules suspected to be shabu. The two persons

be rearrested at around 9 oclock in the evening on January 30,

who were in a pot session with the appellant at the time of the raid

2001 when SPO4 Murillo and his team returned to his house and took

were likewise arrested and brought to the WPD Station No. 9 for

him at gunpoint to the police station where he was detained for 24

investigation.

hours. Police officers presented him later to Mayor Lito Atienza and
General Avelino Razon for a press conference.

The seized articles were taken to the police station and

submitted to the crime laboratory for examination to determine the

Ruling of the Regional Trial Court

chemical composition of the crystalline substance. Police Inspector

(P/Insp.) and Forensic Chemical Officer Miladenia Tapan examined one

In its Decision[4] dated February 28, 2003, the trial court

self-sealing transparent plastic bag with markings JNG containing

convicted the appellant of both charges. It declared that the evidence

679.215 grams of white crystalline granules; and two heat-sealed

adduced by the prosecution established with moral certainty his guilt for

transparent plastic sachets each containing white crystalline substance,

committing the crimes in the manner narrated in the Informations. The

pre-marked JNG-1 weighing 2.779 grams and JNG-2weighing 2.729

testimonies of police officers that they caught appellant in flagrante

grams. The qualitative examinations yielded positive results for

delicto of selling and possessing a dangerous drug are clear and positive

ephedrine, a regulated drug.

evidence that deserve more evidentiary weight than appellants

defenses of denial and frame-up, which are mere negative and self-

Version of the Defense

serving

assertions

unsubstantiated

by

clear

and

convincing

evidence. The trial court also ruled that it cannot deviate from the
presumption of regularity in the performance of duty on the part of the

45

police officers since no ill motives were ascribed to them that would
entice them to testify falsely against the appellant.

The dispositive portion of the Decision of the trial court reads:

WHEREFORE, judgment is rendered:

The trial court also held that while the Informations alleged
methamphetamine hydrochloride as the drug seized from the appellant,
the drug actually confiscated which was ephedrine, is a precursor of
methamphetamine, i.e., methamphetamine is an element of, and is
present

in

ephedrine. Ephedrine

is

the

raw

material

while

methamphetamine is its refined product. Both drugs have the same

chemical formula except for the presence of a single atom of oxygen
which when removed by means of chemical reaction changes ephedrine
to methamphetamine. Thus, the trial court ruled that the appellant can
be convicted of the offenses charged, which are included in the crimes
proved. The trial court further held that under Section 4, Rule 120 of the
Rules of Court, a variance in the offense charged in the complaint or
information and that proved shall result in the conviction for the offense
charged which is included in the offense proved.

In determining the quantity of methamphetamine hydrochloride

upon which the proper imposable penalty on the appellant must be
based, the trial court gave credence to the testimony of prosecution
witness, P/Insp. Tapan that a gram of ephedrine would produce gram
of methamphetamine when refined.[5]

Conformably,

the

methamphetamine

contents

of

5.508

grams[6] of ephedrine in Criminal Case No. 01-189458 would be 2.754

grams. Moreover, the methamphetamine contents of 679.215 grams of
ephedrine in Criminal Case No. 01-189459 would be 339.6075 grams.

In Criminal Case No. 01-189458, pronouncing

accused JOSELITO NOQUE y GOMEZ guilty beyond
reasonable doubt of selling a net quantity of 2.754 grams
of methamphetamine hydrochloride without authority of
law, penalized under Section 15 in relation to Section 20
of Republic Act No. 6425, as amended, and sentencing
the said accused to the indeterminate penalty ranging
from four (4) years and two (2) months of prision
correccional, as minimum, to six (6) years and one (1)
day of prision mayor, as maximum, and to pay the costs.
In Criminal Case No. 01-189459, pronouncing the
same accused JOSELITO NOQUE y GOMEZ guilty beyond
reasonable doubt of possession of a net quantity of
339.6075 grams of methamphetamine hydrochloride
without license or prescription, penalized under Section
16 in relation to Section 20 of Republic Act No. 6425, as
amended, and sentencing the said accused to the
penalty of reclusion perpetua and to pay a fine of
P5,000,000.00, plus the costs.
In the service of his sentences, the full time
during which the accused had been under preventive
imprisonment should be credited in his favor provided
that he had agreed voluntarily in writing to abide with the
same disciplinary rules imposed on convicted
prisoner. Otherwise, he should be credited with four-fifths
(4/5) only of the time he had been under preventive
imprisonment.
Exhibits B and C are ordered confiscated and
forfeited in favor of the government. Within ten (10) days
following the promulgation of this judgment, the Branch
Clerk of this Court, is ordered to turn over, under proper
receipt, the regulated drug involved in these cases to the
Philippine Drug Enforcement Agency (PDEA) for proper
disposal.
SO ORDERED.[7]

46

Ruling of the Court of Appeals

The CA affirmed the trial courts judgment. It held that the

designations in the Informations are for violations of Sections 15 and 16
of RA 6425 that define and penalize the crimes of illegal sale and illegal
possession of regulated drugs. While the allegations in the Informations
refer

to

unauthorized

sale

and

possession

of

shabu

WHEREFORE, premises considered, the February

28, 2003 Decision of the Regional Trial Court of Manila,
Branch 35, is hereby AFFIRMED with the MODIFICATION
that in Criminal Case No. 01-189458, accused-appellant is
hereby sentenced to suffer the indeterminate penalty of
six (6) months of arresto mayor, as minimum, to two (2)
years, four (4) months and one (1) day of prision
correccional, as maximum.
SO ORDERED.[9]

or
Our Ruling

methamphetamine hydrochloride, and not of ephedrine, the allegations

are however immediately followed by the qualifying phrase which is a
regulated drug. Stated differently, the CA held that the designations
and allegations in the informations are for the crimes of illegal sale and
illegal possession of regulated drugs. There being no dispute that
ephedrine is a regulated drug, pursuant to Board Resolution No. 2, Series
of 1988, issued by the Dangerous Drugs Board on March 17, 1988, the
CA ruled that the appellant is deemed to have been sufficiently informed

The appeal is bereft of merit.

The prosecutions
evidence
satisfactorily
proved
that
appellant is guilty
of illegal sale of a
dangerous drug.

of the nature of the crime with which he is accused. The fact that the
chemical structures of ephedrine and methamphetamine are the same
except for the presence of an atom of oxygen in the former strengthens
this ruling.[8]

However, the CA modified the penalty imposed by the trial court

in Criminal Case No. 01-189458. It held that in the absence of any
mitigating or aggravating circumstances in this case, the penalty should
be imposed in its medium period, ranging from six months of arresto
mayor, as minimum, to two years, four months and one day of prision
correccional, as maximum. Thus, the dispositive portion of the Decision
of the CA reads:

The prosecution successfully proved that appellant violated

Section 15, Article III of RA 6425. The prosecutions evidence established
the concurrence of the elements of an illegal sale of a dangerous drug, to
wit: (1) the identity of the buyer and seller, object, and consideration; and
(2) the delivery of the thing sold and the payment therefor.[10]

In the instant case, the police officers conducted a buy-bust

operation after receiving confirmed surveillance reports that the
appellant was engaged in the illicit sale of dangerous drugs at No. 630
San Andres Street, Malate, Manila. PO1 Balais, the designated poseur-

47

buyer of the buy-bust team, personally identified the appellant as the

seconstitutes prima

person who volunteered to sell to him P1,000.00 worth of white

possidendi sufficient to convict an accused absent a satisfactory

crystalline substance alleged to be shabu. The police officer received

explanation of such possession the onus probandi is shifted to the

this illegal merchandise after giving the appellant the marked money as

accused,

payment. Undoubtedly, the appellant is guilty of selling a dangerous

possidendi.[12] With the burden of evidence shifted to the appellant, it

drug.

was his duty to explain his innocence on the regulated drug seized from

The prosecutions
evidence
satisfactorily
proved
that
appellant illegally
possessed
a
dangerous drug.

to

facie evidence

explain

the

absence

of

knowledge

of

knowledge

or animus

or animus

his person. However, as already mentioned, he did not offer any excuse
or explanation regarding his possession thereof.
There
is
no
evidence showing
that the police
officers
are
actuated by ill
motives.

The prosecution was also successful in proving that appellant

violated Section 16, Article III of RA 6425. It adduced evidence that
established the presence of the elements of illegal possession of a
dangerous drug. It showed that (1) the appellant was in possession of an
item or an object identified to be a prohibited or regulated drug, (2) such
possession is not authorized by law, and (3) the appellant was freely and
consciously aware of being in possession of the drug.[11]

The police buy-bust team apprehended the appellant for the sale
of a white crystalline substance then proceeded to search the
premises. They found a large quantity of the same substance inside the
bag that contained the two sachets of the regulated drug sold to PO1

Likewise to be considered against the appellant is his failure to

present evidence imputing evil motive on the part of the police officers
who participated in the entrapment operation to testify falsely against
him. Where there is no evidence that the principal witness of the
prosecution was actuated by ill or devious motive, the testimony is
entitled to full faith and credit.[13]
Appellants right to
be informed of the
nature and cause
of the accusations
was not violated.

Balais. Appellant did not offer any explanation why he is in custody of

the said substance. Neither did the appellant present any authorization

The only issue raised by the appellant in this petition is that his

to possess the same. Mere possession of a regulated drug per

conviction for the sale and possession of shabu, despite the fact that
what was established and proven was the sale and possession of

48

ephedrine, violated his constitutional right to be informed of the nature

regulated drugs. The allegations in the Informations for the unauthorized

and cause of the accusations against him since the charges in the

sale and possession of shabu or methamphetamine hydrochloride are

Informations

immediately followed by the qualifying phrase which is a regulated

are

for

selling

and

possessing

methamphetamine

hydrochloride.

drug. Thus, it is clear that the designations and allegations in the

Informations are for the crimes of illegal sale and illegal possession of

We agree with the findings of the CA and the trial court, as well as
the testimony of the forensic chemical officer, that the drug known as

regulated drugs. Ephedrine has been classified as a regulated drug by

the Dangerous Drugs Board in Board Resolution No. 2, Series of 1988.

ephedrine has a central nervous stimulating effect similar to that of

methamphetamine. In fact, ephedrine is an important precursor used in

The CA correctly ruled that Sections 4 and 5, Rule 120 of the

the clandestine synthesis of methamphetamine, which in crystallized

Rules of Court,[14] can be applied by analogy in convicting the appellant of

form is methamphetamine hydrochloride.

the offenses charged, which are included in the crimes proved. Under
these provisions, an offense charged is necessarily included in the

Thus, on March 17, 1988, pursuant to Section 20(8) of RA 6425,

offense proved when the essential ingredients of the former constitute or

as amended, the Dangerous Drugs Board in its Board Regulation No. 2, S.

form part of those constituting the latter. At any rate, a minor variance

1988, classified as regulated drug all raw materials of ephedrine, as well

between the information and the evidence does not alter the nature of

as preparations containing the said drug. The chemical formula of

the offense, nor does it determine or qualify the crime or penalty, so that

ephedrine is C10 H15 NO, whereas that of methamphetamine is C10 H15

even if a discrepancy exists, this cannot be pleaded as a ground for

N. The only difference between ephedrine and methamphetamine is the

acquittal.[15] In other words, his right to be informed of the charges

presence of a single atom of oxygen in the former. The removal of the

against him has not been violated because where an accused is charged

oxygen in ephedrine will produce methamphetamine. With ephedrine

with a specific crime, he is duly informed not only of such specific crime

containing fifty percent (50%) of methamphetamine hydrochloride if the

but also of lesser crimes or offenses included therein.[16]

oxygen content in the former is removed, the nearly 680 grams of

ephedrine seized from the appellant contains about 340 grams of

The Penalties

methamphetamine hydrochloride.
In Criminal Case No. 01-189458, appellant is found guilty of
Moreover, as correctly observed by CA, the offenses designated
in the Informations are for violations of Sections 15 and 16 of RA 6425,
which define and penalize the crimes of illegal sale and possession of

violation of Section 15, Article III of RA 6425, as amended. We

explained in People
v. Isnani[17] that:

49

Under Section 15, Article III in relation to the

second paragraph of Sections 20 and 21 of Article IV of
Republic Act No. 6425, as amended by Section 17 of R.A.
No. 7659, the imposable penalty of illegal sale of a
regulated drug (shabu), less than 200 grams, as in this
case, is prision correccional to reclusion perpetua. Based
on the quantity of the regulated drug subject of the
offense, the imposable penalty shall be as follows:
QUANTITY
PENALTY Less than one (1) gram
grams
correccional

IMPOSABLE
to 49.25
prision

In Criminal Case No. 01-189458, the quantity of the prohibited

drug seized from appellant is 2.754 grams. Accordingly, the Court of
Appeals correctly modified the penalty imposed by the trial court to six
months of arresto mayor, as minimum, to two years, four months and
one day of prision correccional, as maximum.

As regards Criminal Case No. 01-189459, Section 16, Article III of

RA 6425, as amended, provides for the penalty of reclusion perpetua to
death and a fine ranging from P500,000.00 to P10 million upon any

49.26 grams to 98.50

grams
prision mayor

person who shall possess or use any regulated drug without the

98.51 grams to 147.75 grams

temporal

reclusion

147.76 grams to 199 grams

perpetua

reclusion

The quantity of shabu involved is 0.060

grams. Pursuant to the second paragraph of Sections 20
and 21 of Article IV of R.A. No. 6425, as amended by
Section 17 of R.A. No. 7659 (for unauthorized sale of less
than 200 grams of shabu) and considering our ruling in
the above case, the imposable penalty is prision
correccional.
Applying the Indeterminate Sentence Law, and
there being no aggravating or mitigating circumstance
that attended the commission of the crime, the
maximum period is prision correccional in its medium
period which has a duration of 2 years, 4 months and 1
day to 4 years and 2 months. The minimum period is
within the range of the penalty next lower in degree
which is arresto mayor, the duration of which is 1 month
and 1 day to 6 months. Hence, appellant should be
sentenced to 6 months of arresto mayor, as minimum, to
2 years, 4 months and 1 days of prision correctional in its
medium period, as maximum.

corresponding license or prescription. Section 20 of RA 6425, as

amended, further provides that the penalty imposed for the offense
under Section 16, Article III shall be applied if the dangerous drug
involved is 200 grams or more of shabu. In this case, the appellant was
found

in

illegal

possession

of

339.6075

grams

of

prohibited

drug. Therefore, both the trial court and the Court of Appeals correctly
imposed the penalty of reclusion perpetua and a fine of P500,000.00 to
appellant.

WHEREFORE, the Decision of the Court of Appeals in CA-G.R. CRH.C. No. 00684 is AFFIRMED.

SO ORDERED.

50

DECISION
CARPIO, J.:
The Case

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

the Rules of Court. The petition challenges the 10 February 2004
Decision[2] and 27 July 2004 Resolution [3] of the Court of Appeals in
CA-G.R. SP No. 78004. The Court of Appeals set aside the 26 March
2003 Order[4] of the Regional Trial Court (RTC), National Capital
Judicial Region, Branch 58, Makati City, in Criminal Case Nos. 02344-45.
The Facts

Midas Diversified Export Corporation (MDEC) obtained a

$1,400,000 loan from KBC Bank N.V. (KBC Bank). KBC Bank is a
Belgian corporation licensed to do business in the Philippines. On
12 August 1997, Samuel U. Lee (Lee), assistant treasurer and
director of MDEC, executed a promissory note in favor of KBC Bank
and a deed of assignment transferring all of MDECs rights over
Confirmed Purchase Order No. MTC-548 to KBC Bank. Confirmed
Purchase Order No. MTC-548 was allegedly dated 15 July 1997,
issued by Otto Versand, a company based in Germany, and covered
SAMUEL U. LEE and MAYBELLE LEE LIM
vs
KBC BANK N.V.,
G.R. No. 164673
January 15, 2010

a shipment of girls basic denim jeans amounting to $1,863,050.

MDEC obtained another loan, amounting to $65,000, from
KBC Bank. On 14 November 1997, Maybelle L. Lim (Lim), treasurer
and assistant secretary of MDEC, executed a promissory note in

51

favor of KBC Bank and a deed of assignment transferring all of

MDECs rights over Confirmed Purchase Order No. WC-128 to KBC
Bank. Confirmed Purchase Order No. WC-128 was allegedly dated
1 October 1997, issued by Otto Versand, and covered a shipment of
boys bermuda jeans amounting to $841,500.
On 23 December 1997, Lim renewed the 12 August 1997
promissory note and issued a notice of renewal and drawdown
certificate to KBC Bank. On 29 December 1997, Lim executed an
amended deed of assignment transferring all of MDECs rights over
Confirmed Purchase Order No. MTC-548 to KBC Bank.

MDEC was considered in default in paying the $65,000 loan

on 30 January 1998. Under a facility agreement between KBC Bank
and MDEC, any default in payment of any obligation under the
agreement would render MDEC in default with regard to the
$65,000 loan MDEC defaulted in paying two other obligations
under the agreement. MDEC also failed to pay the $1,400,000 loan
when it became due on 9 February 1998.
On 17 March 1998, KBC Bank sent a letter to Otto Versand
verifying the validity of Confirmed Purchase Order Nos. MTC-548
and WC-128. On 19 March 1998, Otto Versand sent a facsimile
message to KBC Bank stating that (1) it did not issue the purchase
orders, (2) it did not order or receive the items covered by the
purchase orders, and (3) it would not pay MDEC any amount.
In a complaint-affidavit[5] dated 21 April 1998, Liza M.
Pajarillo, manager of the corporate division of KBC Bank, charged
Lee and Lim of estafa. In his Resolution[6] dated 27 November
2001, State Prosecutor Josefino A. Subia (State Prosecutor Subia)
found the existence of probable cause and recommended that two
counts of estafa be filed against Lee and Lim. State Prosecutor
Subia stated that:
After a careful evaluation of the evidence
presented by the Bank, as well as of the respondents,
we find the existence of a probable cause to indict
respondents Samuel Lee and Maybelle Lee Lim.

It is an established fact that the confirmed

purchase order nos. MTC-548 and WC-128 presented
with the Bank by the Midas thru respondents Samuel
Lee and Maybelle Lee Lim were false and spurious,
having been unequivocably repudiated and/or
disowned by Otto Versand, Germany, the foreign
buyer who allegedly issued the same, as evidenced
by a telefax message sent to the Bank by Otto
Versand. Evidently, respondent Samuel Lee signed
the following documents, to wit: the conforme
portion of the US$2.0 million short-term trade facility,
the promissory note and the corresponding deed of
assignment both dated August 12, 1997, covering
the confirmed purchase order no[.] MTC-548, while
respondent Maybelle Lee Lim signed in the
promissory note and the corresponding deed of
assignment both dated Nov. 14, 1997, the renewed
promissory note and the notice of renewal and
drawdown
certificate
both
dated
Dec.
23,
1997. Respondents Samuel Lee and Maybelle Lee
Lim, thus cannot escape indictment, aside from
signing those relevant loan documents, as they also
clearly helped one
another
in
fraudulently
representing to the Bank that indeed said confirmed
two (2) purchased [sic] orders does [sic] exists [sic]
and that Midas have [sic] their [sic] rights, titles and
interests
thereto. With
their
fraudulent
representation, they were able to entice or induce
the Bank to extend [to] them the loan of USD$1.4
million and USD$ 65,000 under the short-term trade
facility previously granted to them.[7]

Accordingly, two informations for estafa against Lee and Lim

were filed with the RTC. After finding probable cause, Judge
Winlove M. Dumayas (Judge Dumayas) of the RTC issued warrants
of arrest against Lee and Lim.
Lee and Lim filed a petition[8] for review dated 26 April 2002
with the Department of Justice. Lee and Lim challenged State
Prosecutor Subias 27 November 2001 Resolution and 17 April 2002
Order denying their motion for reconsideration. They claimed that:

52

I. THE RESOLUTIONS OF 27 NOVEMBER 2001

AND 17 APRIL 2002 MERELY RELIED ON
HEARSAY EVIDENCE WHICH CANNOT BE THE
BASIS FOR A FINDING OF A PROBABLE
CAUSE.
II. THE ASSAILED RESOLUTIONS WERE ISSUED
BASED ONLY ON THE UNCORROBORATED
ALLEGATIONS OF PAJARILLO THAT LEE AND
LIM MADE FRAUDULENT REPRESENTATIONS
TO [KBC BANK].
III. THE ASSAILED RESOLUTIONS ERRED IN
HOLDING LEE AND LIM TO BE CRIMINALLY
LIABLE DESPITE THE TWO LOANS CREATING
MERELY CIVIL LIABILITY ON THE PART OF
MIDAS.[9]

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

Perez (Secretary Perez) directed the withdrawal of the informations
filed against Lee and Lim. Secretary Perez held that the facsimile
message constituted hearsay evidence:
The twin charges of estafa are primarily
anchored on respondents alleged fraudulent
representations to [KBC Bank] that the two purchase
orders were fake or sham. To prove this point, Ms.
Pajarillo of [KBC Bank] claims that she received a fax
message from a representative of Otto Versand,
stating that the latter company did not issue the
purchase orders mentioned. There was no sworn
statement from a responsible officer of Otto Versand
presented to attest to the allegation that the subject
purchase orders were fake. Since Ms. Pajarillo did
not have personal knowledge of the fact that the
subject purchase orders were in fact fake, her
testimony cannot be the basis for finding probable
cause against respondents. Ms. Pajarillo can testify

only to those facts that she knew of her personal

knowledge. Admittedly, she derived knowledge of
the supposed spurious character of the purchase
orders from a mere fax copy of a message that [KBC
Bank] received from a certain representative of Otto
Versand in Germany, someone who she did not even
know personally. Unfortunately, this fax copy is
hearsay evidence and therefore, inadmissible to
prove the truth of what it contains (Pastor vs. Gaspar,
2 Phil 592).[11] (Emphasis supplied)

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

2002 with the Department of Justice.
Lee and Lim had not been arraigned. In a motion[13] dated 18
October 2002 and filed with the RTC, Assistant City Prosecutor Nora
C. Sibucao (Assistant City Prosecutor Sibucao) prayed for the
withdrawal of the informations filed against Lee and Lim. Assistant
City Prosecutor Sibucao stated that:
The Prosecution, through the undersigned Trial
Prosecutor, unto the Honorable Court, most
respectfully moves and prays for the withdrawal of
Information filed in the above-entitled cases in view
of the resolution of the Department of Justice
promulgated on July 12, 2002 reversing the
resolution of the City Prosecutor of Makati City.[14]
The RTCs Ruling
In his one-page Order[15] dated 26 March 2003, Judge
Dumayas granted Assistant City Prosecutor Sibucaos motion to
withdraw the informations against Lee and Lim. Judge Dumayas
held that:
This Court, after an in-depth scrutiny of the
arguments raised by the prosecution and private
complainant, finds the contentions of the prosecution
to be sufficient and meritorious.

53

Accordingly, the Motion to Withdraw Information filed by the

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

KBC Bank filed with the Court a petition

[17]

for review on

The Court of Appeals Ruling

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

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

that:
I.
The court a quo committed reversible error in issuing
the questioned Order without specifying its legal
basis.
II.
The court a quo committed reversible error in
prematurely acting upon the Makati Prosecutors
Motion to Withdraw of Information.
III.
The court a quo committed reversible error in finding
that no probable cause exists to hold respondents for
trial for estafa under Article 315, par. 2(a) and in
granting the Makati Prosecutors Motion to Withdraw
Information.[18]

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

petition to the Court of Appeals pursuant to Section 6, [20] Rule 56 of

It has long been established that the filing of a

complaint or information in Court initiates a criminal
action. The Court thereby acquires jurisdiction over
the case, which is the authority to hear and
determine the case. When after the filing of the
complaint or information, a warrant for the arrest of
the accused is issued by the trial court and the
accused either voluntarily submitted himself to the
Court or was duly arrested, the Court thereby
acquired jurisdiction over the person of the accused.
xxxx
The trial judge practically concurred with the findings of the
Secretary of Justice that the fax copy is hearsay evidence and
therefore, inadmissible to prove the truth that it contains, contrary
to the well-reasoned findings of the investigating prosecutor. It is
emphasized that a preliminary investigation is not the occasion for
the full and exhaustive display of the parties evidence; it is for the
presentation of such evidence only as may engender a wellgrounded belief that an offense has been committed and that the
accused is probably guilty thereof.
The issue of admissibility or inadmissibility of evidence is a
matter of defense that is best ventilated in a full-blown trial;
preliminary investigation is not the occasion for the exhaustive
display of presentation of evidence.[22]
Hence, the present petition.

the Rules of Court. In his Resolution[21] dated 19 November 2003,

Secretary Simeon A. Datumanong denied KBC Banks 2 August

The Issues

2002 motion for reconsideration.

54

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

I
THE COURT EXCEEDED ITS AUTHORITY IN
PASSING UPON THE ISSUE OF WHETHER OR NOT
THERE WAS PRIMA FACIE EVIDENCE OF ESTAFA
AGAINST THE PETITIONERS, AN ISSUE THAT WAS
PENDING BEFORE THE SECRETARY OF JUSTICE
xxxx
II
QUESTION IS NOT ONE OF ADMISSIBILITY OF
EVIDENCE BUT THE NEED IN PRELIMINARY
INVESTIGATION FOR EVIDENCE OF VALUE TO
ESTABLISH PROBABLE CAUSE

Lee and Lim claim that the Court of Appeals erred when it
reviewed the findings of Secretary Perez. They stated that:
[T]he Court of Appeals cannot indirectly review the
findings of the Secretary under the pretext of
correcting the actuation of the trial court. x x x
[T]he only ruling before the Court of Appeals is the ruling of the trial
court x x x.
But the Court of Appeals ignored the fact that the case
before it is not one for the review of the final order of the Secretary
of Justice, acting as a quasi-judicial officer, which is governed by
Rule 43 of the Rules of Court. The actual case filed with it was
rather a petition for review on certiorari of the dismissal order of
the trial court under Rule 45.[24]

The Court is not impressed. The Court of Appeals reviewed

xxxx
III
RESPONDENT COURT DID NOT PREMATURELY
ALLOW THE WITHDRAWAL OF THE INFORMATIONS

Judge Dumayas 26 March 2003 Order, not Secretary Perezs 12 July

2002 Resolution. The Court of Appeals held that Judge Dumayas
erred when he failed to make his own evaluation and merely relied
on Secretary Perezs recommendation that there was no probable

xxxx
IV
THE TRIAL COURT DID NOT ABDICATE ITS
DUTY TO DETERMINE THE SUFFICIENCY OF THE
PROSECUTIONS REASON FOR WITHDRAWING THE
INFORMATIONS.[23]

The Courts Ruling

The petition is unmeritorious.

cause. The Court of Appeals stated that:

In a more recent case, the Supreme Court
ruled that:
A judge acts with grave abuse
of discretion when he grants a
prosecutors motion to dismiss the
criminal charges against an accused
on
the
basis
solely
of
the
recommendation of the Secretary of
Justice his reliance on the
prosecutors
averment
that
the
Secretary of Justice had recommended

55

the dismissal of the case against the

petitioner is an abdication of the trial
courts duty and jurisdiction to
determine a prima facie case in blatant
violation of the Courts pronouncement
in Crespo vs. Mogul.

But the Secretary of Justices rejection of the fax copy of

Otto Versands letter as hearsay evidence merely affirmed
petitioners right to due process in a preliminary investigation. x x
x

When the trial judge issued its Order of February 14, 2002
directing the issuance of warrants of arrest against the
respondents, he clearly found probable cause to sustain the filing of
criminal complaints against the latter. The issuance of a warrant of
arrest is not a ministerial function of the court it calls for the
exercise of judicial discretion on the part of the issuing
magistrate.

Ms. Pajarillo authenticated it by stating under oath that she

received it. The cause for its rejection is the fact that its contents
are purely hearsay since Ms. Pajarillo who testified about them had
no personal knowledge of the fact that the purchase orders were
false. The author of the fax message did not swear under oath to
the truth of the statement in the document contrary to what
section 3 (e) of Rule 112 mandates.

If the trial court judge finds it appropriate to dismiss the

Informations, the same should be based upon his own personal
individual conviction that there is no case against the
accused/respondents. To rely solely on the recommendation of the
Secretary of Justice, to say the least, is an abdication of the
judge[]s duty and jurisdiction to determine a prima facie
case. What was imperatively required was the trial judges own
assessment of just evidence, it not being sufficient for the valid and
proper exercise of judicial discretion merely to accept the
prosecutions word for its supposed insufficiency. [25]

Lee and Lim claim that the Court of Appeals erred when it

xxxx

The Office of the Solicitor General agreed with the

petitioners. In the comment dated October 28, 2003 that it filed
with the Court of Appeals, it said:
xxxx
20. In this case, the Secretary of
Justices realistic judicial appraisal of
the merits of petitioners complaintaffidavit show that its evidence of
estafa is insufficient for lack of proof of
the requisite element of deceit. So
much so that if the case were tried, the
trial court would be bound to order an
acquittal.[26]

ruled that the admissibility of the facsimile message is a matter

best ventilated in a full-blown trial. They stated that:
At any rate, the Court of Appeals also said in its
decision that the issue of admissibility of evidence
assailed as hearsay is a matter of defense to be
ventilated in a full blown trial. It held that
preliminary investigation is not the occasion for
exhaustive display of evidence and the issue of
admissibility or inadmissibility of evidence is a matter
of defense to be ventilated at the trial.

The Court is not impressed. Whether the facsimile message

is admissible in evidence and whether the element of deceit in the
crime of estafa is present are matters best ventilated in a full-blown
trial, not in the preliminary investigation. In Andres v. Justice
Secretary Cuevas,[27] the Court held that:
[A preliminary investigation] is not the occasion for
the full and exhaustive display of [the prosecutions]
evidence. The presence or absence of the elements
of the crime is evidentiary in nature and is a matter
of defense that may be passed upon after a fullblown trial on the merits.

56

In fine, the validity and merits of a partys defense or

accusation, as well as the admissibility of testimonies
and evidence, are better ventilated during trial proper than at the
preliminary investigation level.[28] (Emphasis supplied)

Lee and Lim claim that the Court of Appeals erred when it
ruled that Judge Dumayas failed to make his own evaluation and
merely relied on Secretary Perezs recommendation that there was
no probable cause. They stated that:
Contrary to the Court of Appeals[] ruling, the
trial court made an effort to evaluate the merit of the
prosecutions motion to withdraw the informations. It
evaluated the merits of both the prosecutions
motion and respondent banks opposition to the
motion. x x x
Clearly, it cannot be said that the trial court abandoned its
responsibility of making an independent assessment of the
sufficiency of the prosecution motion [sic]. Indeed, it scrutinized
the arguments of respondent bank just as it did the arguments of
the prosecution in order to determine for itself whether or not the
withdrawal of the informations was warranted.[29]

The Court is not impressed. Judge Dumayas failed to make

his own evaluation in granting the motion to withdraw the
informations. Judge Dumayas 26 March 2003 Order states in full:
This Court, after an in-depth scrutiny of the
arguments raised by the prosecution and private
complainant, finds the contentions of the prosecution
to be sufficient and meritorious.
Accordingly, the Motion to Withdraw Information filed by the
Prosecution is hereby granted and the two (2) informations for the

crime of Estafa penalized under par. 2 (a) of the Revised Penal Code
are hereby withdrawn from the docket of this court.

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

Once a case is filed with the court, any
disposition of it rests on the sound discretion of the
court. The trial court is not bound to adopt the
resolution of the Secretary of Justice, since it is
mandated to independently evaluate or assess the
merits of the case. Reliance on the resolution of the
Secretary of Justice alone would be an abdication of
its duty and jurisdiction to determine a prima
facie case. The trial court may make an independent
assessment of the merits of the case based on the
affidavits and counter-affidavits, documents, or
evidence appended to the Information; the records of
the public prosecutor, which the court may order the
latter to produce before the court; or any evidence
already adduced before the court by the accused at
the time the motion is filed by the public prosecutor.
XXXX
[T]HE TRIAL JUDGE DID NOT POSITIVELY STATE THAT
THE
EVIDENCE
PRESENTED
AGAINST
THE
RESPONDENTS WASINSUFFICIENT FOR A PRIMA
FACIE CASE, NOR DID THE AFOREQUOTED ORDER
INCLUDE A DISCUSSION OF THE MERITS OF THE CASE
BASED ON AN EVALUATION OR ASSESSMENT OF THE
EVIDENCE ON RECORD. IN OTHER WORDS, THE
DISMISSAL OF THE CASE WAS BASED UPON
CONSIDERATIONS OTHER THAN THE JUDGES OWN
PERSONAL INDIVIDUAL CONVICTION THAT THERE
WAS NO CASE AGAINST THE RESPONDENTS. THUS,
THE TRIAL JUDGE IMPROPERLY RELINQUISHED THE
DISCRETION THAT HE WAS BOUND TO EXERCISE,
AND THE ORDERS DATED 11 FEBRUARY 2004 AND 29
JUNE 2004 ARE INVALID FOR HAVING BEEN ISSUED IN
GRAVE
ABUSE
OF
DISCRETION. (EMPHASIS
SUPPLIED)

57

DOWNGRADED THE CHARGES AGAINST JOVITO AND

EXCLUDED
JAIME
THEREFROM.[32] (EMPHASIS
SUPPLIED)

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

CONSIDERING THAT THE TRIAL COURT HAS THE
POWER AND DUTY TO LOOK INTO THE PROPRIETY OF
THE PROSECUTIONS MOTION TO DISMISS, WITH
MUCH MORE REASON IS IT FOR THE TRIAL COURT TO
EVALUATE AND TO MAKE ITS OWN APPRECIATION
AND CONCLUSION, WHETHER THE MODIFICATION OF
THE CHARGES AND THE DROPPING OF ONE OF THE
ACCUSED IN THE INFORMATION, AS RECOMMENDED
BY THE JUSTICE SECRETARY, IS SUBSTANTIATED BY
EVIDENCE. THIS SHOULD BE THE STATE OF AFFAIRS,
SINCE THE DISPOSITION OF THE CASE SUCH AS ITS
CONTINUATION OR DISMISSAL OR EXCLUSION OF AN
ACCUSED IS REPOSED IN THE SOUND DISCRETION
OF THE TRIAL COURT.
IN THE CASE UNDER CONSIDERATION, THE CITY
PROSECUTOR INDICTED JAIME AND JOVITO FOR THE
CRIMES
OF
MURDER
AND
FRUSTRATED
MURDER. HOWEVER, UPON REVIEW, THE SECRETARY
OF JUSTICE DOWNGRADED THE CHARGES TO
HOMICIDE
AND
FRUSTRATED
HOMICIDE. THE
SECRETARY ALSO DROPPED JAIME FROM THE
CHARGES. THIS RESOLUTION PROMPTED THE CITY
PROSECUTOR TO FILE A MANIFESTATION AND
MOTION
FOR
THE
WITHDRAWAL
OF
THE
INFORMATIONS FOR MURDER AND FRUSTRATED
MURDER AND FOR THE ADMISSION OF NEW
INFORMATIONS FOR HOMICIDE AND FRUSTRATED
HOMICIDE AGAINST JOVITO ONLY, WHICH WAS
GRANTED BY JUDGE CRUZ IN HIS ORDER DATED 18
NOVEMBER 1997. JUDGE CRUZ, HOWEVER, FAILED
TO MAKE AN INDEPENDENT ASSESSMENT OF THE
MERITS OF THE CASES AND THE EVIDENCE ON
RECORD OR IN THE POSSESSION OF THE PUBLIC
PROSECUTOR. IN GRANTING THE MOTION OF THE
PUBLIC
PROSECUTOR
TO
WITHDRAW
THE
INFORMATIONS, THE TRIAL COURT NEVER MADE ANY
ASSESSMENT WHETHER THE CONCLUSIONS ARRIVED
AT BY THE SECRETARY OF JUSTICE WAS SUPPORTED
BY EVIDENCE. IT DID NOT EVEN TAKE A LOOK AT THE
BASES ON WHICH THE JUSTICE SECRETARY

IN ARK TRAVEL EXPRESS V. THE PRESIDING JUDGE OF MAKATI,

[33]

THE COURT HELD THAT:

IT IS SETTLED THAT WHEN CONFRONTED
WITH A MOTION TO WITHDRAW AN INFORMATION ON
THE GROUND OF LACK OF PROBABLE CAUSE BASED
ON A RESOLUTION OF THE SECRETARY OF THE
DEPARTMENT OF JUSTICE, THE BOUNDEN DUTY OF
THE TRIAL COURT IS TO MAKE AN INDEPENDENT
ASSESSMENT
OF
THE
MERITS
OF
SUCH
MOTION. HAVING ACQUIRED JURISDICTION OVER
THE CASE, THE TRIAL COURT IS NOT BOUND BY
SUCH RESOLUTION BUT IS REQUIRED TO EVALUATE
IT BEFORE PROCEEDING FURTHER WITH THE
TRIAL AND SHOULD EMBODY SUCH ASSESSMENT IN
THE ORDER DISPOSING THE MOTION.
THE SUBJECT MTC ORDERS DO NOT SHOW
THAT THE MTC MADE AN INDEPENDENT ASSESSMENT
OF THE MERITS OF THE MOTION TO WITHDRAW
INFORMATIONS. X X X
THE
MTC
SHOULD
HAVE
MADE
AN
INDEPENDENT EVALUATION AND EMBODIED ITS
ASSESSMENT IN AT LEAST ONE OF ITS ASSAILED
ORDERS.[34] (EMPHASIS SUPPLIED)
IN LEDESMA V. COURT OF APPEALS,[35] THE COURT HELD

THAT:
ONCE A COMPLAINT OR INFORMATION IS FILED IN
COURT, ANY DISPOSITION OF THE CASE SUCH AS ITS
DISMISSAL OR ITS CONTINUATION RESTS ON THE
SOUND DISCRETION OF THE COURT. TRIAL JUDGES
ARE THUS REQUIRED TO MAKE THEIR OWN
ASSESSMENT OF WHETHER THE SECRETARY OF

58

JUSTICE COMMITTED GRAVE ABUSE OF DISCRETION

IN GRANTING OR DENYING THE APPEAL, SEPARATELY
AND INDEPENDENTLY OF THE PROSECUTIONS OR
THE SECRETARYS EVALUATION THAT SUCH EVIDENCE
IS INSUFFICIENT OR THAT NO PROBABLE CAUSE TO
HOLD THE ACCUSED FOR TRIAL EXISTS. THEY
SHOULD EMBODY SUCH ASSESSMENT IN THEIR
WRITTEN ORDER DISPOSING OF THE MOTION.

WHEREFORE, THE PETITION IS DENIED. THE

COURT AFFIRMS THE 10 FEBRUARY 2004 DECISION AND 27 JULY
2004 RESOLUTION OF THE COURT OF APPEALS IN CA-G.R. SP NO.
78004. THE CASE IS REMANDED TO THE REGIONAL TRIAL COURT,
NATIONAL CAPITAL JUDICIAL REGION, BRANCH 58, MAKATI CITY FOR
EVALUATION ON WHETHER PROBABLE CAUSE EXISTS TO HOLD THE
ACCUSED FOR TRIAL.
SO ORDERED.

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

IN THE PRESENT CASE, JUDGE DUMAYAS, IN HIS 26 MARCH

2003 ORDER, DID NOT (1) POSITIVELY STATE THAT THE EVIDENCE
AGAINST LEE AND LIM IS INSUFFICIENT, (2) INCLUDE A DISCUSSION
OF THE MERITS OF THE CASE, (3) ASSESS WHETHER SECRETARY
PEREZS CONCLUSION IS SUPPORTED BY EVIDENCE, (4) LOOK AT
THE BASIS OF SECRETARY PEREZS RECOMMENDATION, (5) EMBODY

VICTORIA P. CABRAL
Vs
JACINTO UY, MICHAEL UY, MARILYN O. UY, RICHARD O. UY, REY
IGNACIO DIAZ, JOSE PO and JUANITO MALTO
G.R. No. 174584
January 20, 2010

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

DECISION

GRANTING THE MOTION TO WITHDRAW THE INFORMATIONS.

JUDGE DUMAYAS FAILURE TO MAKE HIS OWN EVALUATION OF
THE MERITS OF THE CASE VIOLATES KBC BANKS RIGHT TO DUE
PROCESS AND CONSTITUTES GRAVE ABUSE OF
DISCRETION. JUDGE DUMAYAS 26 MARCH 2003 ORDER GRANTING
THE MOTION TO WITHDRAW THE INFORMATIONS IS VOID.[37]

ABAD, J.:

This case is about the power of courts to hear criminal

violations of the law that protects subdivision buyers against
developers selling lots before they are issued licenses to sell and

59

the effect of the subsequent issuance of such licenses to sales that

land developers make before the issuance of their licenses.
On April 28, 2003 the public prosecutors office filed a
The Facts and the Case

criminal information before the Regional Trial Court of Quezon

City[5] in Criminal Case Q-03-116823 against respondent Uy and the

Respondent Jacinto Uy (Uy) is the chairman of Moldex Realty,

Inc.

(Moldex);

the

other

respondents

are

its

officers

other Moldex officers, namely, respondents Michael Uy, Marilyn O.

and

Uy, Richard O. Uy, Rey Ignacio Diaz, Jose Po, and Juanito Malto for

directors. Uy entered into a joint venture agreement with Quintin

selling subdivision lots to a certain Josefa C. Yanga without a license

Bernardo for the inclusion into Moldexs residential subdivision

from the HLURB.[6]

project in Bulacan of two parcels of land, totaling 20,954 square

meters, that Bernardo held under two emancipation patents. [1]

Subsequently, however, or on September 17, 2003 the

HLURB issued Moldex the license to sell that it needed. [7]

On June 21, 2001 Moldex applied for a license to sell

subdivision lots in the project mentioned with the Housing and Land
Use

Regulatory

Board

(HLURB)[2] but

the

latter

denied

the

application for failure to comply with the requirements. [3]

Respondents

Uy, et al.

filed a motion

to quash

the

information and motion for judicial determination of probable

cause[8] claiming that the office of the prosecutor and the trial court
had no jurisdiction over violations of P.D. 957, such jurisdiction

On July 2, 2002 petitioner Victoria P. Cabral filed a criminal

being with the HLURB alone and, granting that they could take

complaint[4] against respondents Uy, et al. for violation of Section 5

cognizance of the case, respondents Uy, et al. could not be held

of Presidential Decree (P.D.) 957, alleging that she was the

criminally liable because the HLURB subsequently issued them a

registered owner of the lots subject of Bernardos emancipation

license to sell.[9]

patents. She said that prior to the transaction between Bernardo

and respondent Uy, the latter offered to acquire the lots from her

On May 20, 2004 the trial court denied the motions of

but she refused because of the pending case for cancellation of the

respondents Uy, et al.[10] On June 15, 2005 it also denied their

patents that she filed against Bernardo with the Department of

motion for reconsideration,[11]prompting them to appeal to the

Agrarian Reform Adjudication Board.

Court of Appeals (CA) in CA-G.R. SP 90468, which court granted

60

their prayer for the issuance of a temporary restraining order.

courts power to hear and adjudicate the action, the penalty being

[12]

On June 2, 2006 the latter court rendered a decision,

a P20,000.00 fine and imprisonment of not exceeding 10 years or

[13]

upholding the trial courts jurisdiction over the subject case but

both such fine and imprisonment. This penalty brings the offense

ordaining its dismissal, given that the subsequent issuance of a

within the jurisdiction of that court.

license to sell extinguished respondents Uy, et al.s criminal

liability. Petitioner Cabral filed a motion for reconsideration but the
appeals court denied[14] it, hence, this petition.

Second. P.D. 957 has been enacted to regulate for the public
good the sale of subdivision lots and condominiums. Its Section 5
prohibits such sale without the prior issuance of an HLURB

Required to comment on the petition, the Office of the

license[17] and punishes those who engage in such selling. [18] The

Solicitor General joined the petitioner in asking this Court to

crime is regarded as malum prohibitum since P.D. 957 is a special

reverse the CAs decision.

law designed to protect the welfare of society and ensure the

The Issues Presented

The issues presented in this case[15] are:

carrying on of the purposes of civil life. [19] It is the commission of

that act as defined by law, not its character or effect that
determines whether or not its provision has been violated. Malice
or criminal intent is immaterial in such crime. [20] In crimes that

1.
Whether or not the office of the public
prosecutor and the trial court have jurisdiction over
criminal actions for violation of P.D. 957; and
2.
Whether or not HLURBs subsequent
issuance to Moldex of a license to sell extinguished
respondents Uy, et al.s criminal liability for selling
subdivision lots prior to the issuance of such license.

aremala prohibita, the forbidden acts might not be inherently

immoral. Still they are punished because the law says they are
forbidden. With these crimes, the sole issue is whether the law has
been violated.[21]

Since the Information in this case sufficiently alleged that

The Courts Rulings

Moldex sold a subdivision lot when it did not yet have a license to
do so, the crime was done. Assuming the allegations to be true, the

[16]

First. Conformably with what this Court ruled in Sia v. People,

subsequent issuance of the license and the invocation of good faith

the CA correctly upheld the public prosecutors authority to file

cannot reach back to erase the offense and extinguish respondents

the criminal information for violation of P.D. 957 and the trial

Uy, et al.s criminal liability.

61

In ruling that respondents criminal liability has been

extinguished, the CA relied on Co Chien v. Sta. Lucia Realty and
Development, Inc.[22] But CoChien is a case for refund of down
payment and nullification of the contract of sale between the buyer
and the developer whose license was issued only after the
execution

of

the

contract. This

Court

refused

to

void

the

transaction in the case because the absence of the license was not
in itself sufficient to invalidate the contract. And while there was
no fraud on the part of the developer, the HLURB directed it to pay
an administrative fine of P20,000.00 for selling the lot without the
necessary license. This only shows that the subsequent issuance of
a license, as in this case, will not extinguish the liability of the
developer for violation of Section 5 of P.D. 957.

WHEREFORE,

the

Court GRANTS the

petition

and REVERSES and SETS ASIDE the June 2, 2006 Decision and the
August 22, 2006 Resolution of the Court of Appeals in CA-G.R. SP
90468. The Court REINSTATES the May 20, 2004 Order of the
Regional Trial Court of Quezon City in Criminal Case Q-03-116823,
which denied respondents omnibus motion to quash and motion
for judicial determination of probable cause.

SO ORDERED.

HAROLD V. TAMARGO
vs
ROMULO AWINGAN, LLOYD ANTIPORDA and LICERIO ANTIPORDA,
JR.,
G.R. No. 177727
January 19, 2010

62

CORONA, J.:

DECISION

resolution dated December 5, 2003 finding probable cause against

Columna and three John Does. [6] On February 2, 2004, the

This is a petition for review on certiorari [1] of the November

10, 2006 decision[2] and May 18, 2007 resolution[3] of the Court of
Appeals (CA) in CA-G.R. SP No. 93610.

corresponding Informations for murder were filed against them in

the Regional Trial Court (RTC) of Manila, one assigned to Branch 27
for the death of Atty. Franklin Tamargo, and the other to Branch 29
for the death of the minor Gail Franzielle. [7] Columna was arrested

Atty. Franklin V. Tamargo and his eight-year-old daughter, Gail

Franzielle, were shot and killed at around 5:15 p.m. of August 15,

in the province of Cagayan on February 17, 2004 and brought to

Manila for detention and trial.[8]

2003 along Nueva Street corner Escolta Street, Binondo, Manila.

The police had no leads on the perpetrators of the crime until a
certain Reynaldo Geron surfaced and executed an affidavit dated
September 12, 2003. He stated that a certain Lucio Columna told
him during a drinking spree that Atty. Tamargo was ordered killed
by respondent Lloyd Antiporda and that he (Columna) was one of
those who killed Atty. Tamargo. He added that he told the Tamargo
family what he knew and that the sketch of the suspect closely
resembled Columna. [4]

On March 8, 2004, Columna (whose real name was Manuel,

Jr.) executed an affidavit wherein he admitted his participation as
look out during the shooting and implicated respondent Romulo
Awingan (alias Mumoy) as the gunman and one Richard Mecate.
He also tagged as masterminds respondent Licerio Antiporda, Jr.
and his son, respondent Lloyd Antiporda. [9] The former was the exmayor and the latter the mayor of Buguey, Cagayan at that
time. When the killing took place, Licerio Antiporda was in
detention for a kidnapping case in which Atty. Tamargo was acting

After conducting a preliminary investigation and on the

as private prosecutor.

strength of Gerons affidavit, the investigating prosecutor [5] issued a

63

Pursuant to this affidavit, petitioner Harold V. Tamargo

(brother

of

Atty.

Tamargo)

filed

complaint

against

During the preliminary investigation, respondent Licerio

those

presented Columnas unsolicited handwritten letter dated May 3,

implicated by Columna in the Office of the City Prosecutor of

2004 to respondent Lloyd, sent from Columnas jail cell in

Manila.[10]

Manila. In the letter, Columna disowned the contents of his March

On April 19, 2004, Columna affirmed his affidavit before the

investigating

prosecutor[11] who

subjected

him

to

clarificatory

questions.[12]

8, 2004 affidavit and narrated how he had been tortured until he

signed the extrajudicial confession. He stated that those he
implicated had no participation in the killings. [14] Respondent Licerio

Respondents denied any involvement in the killings. They

also submitted an affidavit of Columna dated May 25, 2004 wherein

alleged that Licerio was a candidate for mayor in Buguey, Cagayan

the latter essentially repeated the statements in his handwritten

during the May 2004 elections and that the case was instituted by

letter.

his political opponents in order to derail his candidacy. The

Due to the submission of Columnas letter and affidavit, the

Antipordas admitted that Atty. Tamargo was their political rival for

investigating prosecutor set a clarificatory hearing, to enable

the mayoralty post of Buguey. Atty. Tamargo had been defeated

Columna to clarify his contradictory affidavits and his unsolicited

twice by Lloyd and once by Licerio. Before the killing, Atty. Tamargo

letter. During the hearing held on October 22, 2004, Columna

filed an election case against Lloyd and a kidnapping case in the

categorically admitted the authorship and voluntariness of the

Sandiganbayan against Licerio. However, they claimed that both

unsolicited letter. He affirmed the May 25, 2004 affidavit and

cases were dismissed as Lloyd emerged as the winner in the

denied that any violence had been employed to obtain or extract

elections and Licerio was acquitted by the Sandiganbayan. [13]

the affidavit from him.[15]

64

Thus, on November 10, 2004, the investigating prosecutor

However, on August 12, 2005, Secretary Gonzales granted

recommended the dismissal of the charges. This was approved by

the Antipordas motion for reconsideration (MR) and directed the

the city prosecutor.

withdrawal of the Informations.[21] This time, he declared that the

Meanwhile, in another handwritten letter addressed to City

extrajudicial confession of Columna was inadmissible against

Prosecutor Ramon Garcia dated October 29, 2004, Columna said

respondents and that, even if it was admissible, it was not

that he was only forced to withdraw all his statements against

corroborated by other evidence.[22] As a result, on August 22, 2005,

respondents during the October 22, 2004 clarificatory hearing

the trial prosecutor filed a motion to withdraw the Informations. On

because of the threats to his life inside the jail. He requested that

October 4, 2005, Secretary Gonzalez denied petitioners MR.

he be transferred to another detention center.[16]

Aggrieved by the dismissal of the charges, petitioner filed an
appeal to the Department of Justice (DOJ).

[17]

On May 30, 2005, the

DOJ, through then Secretary Raul M. Gonzalez, reversed the

dismissal and ordered the filing of the Informations for murder.
[18]

He opined that the March 8, 2004 extrajudicial confession was

not effectively impeached by the subsequent recantation and that

there was enough evidence to prove the probable guilt of
respondents.

[19]

Accordingly, the Informations were filed and the

cases were consolidated and assigned to the RTC of Manila, Branch

29.

The RTC, through Judge Cielito Mindaro-Grulla, granted the

motion to withdraw the Informations in an order dated October 26,
2005.[23] Petitioner filed an MR but the judge voluntarily inhibited
herself without resolving the same. The cases were re-raffled to
Branch 19, presided by Judge Zenaida R. Daguna. Judge Daguna
granted the MR of petitioner in a resolution dated December 9,
2005. She ruled that, based on Columnas March 8, 2004 affidavit
which he affirmed before the investigating prosecutor, there was
probable cause to hold the accused for trial. She denied the MR of
the Antipordas in an order dated February 6, 2006.

[20]

65

Consequently, respondent Awingan filed a special civil

reconsideration in a resolution dated May 18, 2007. In a decision

action for certiorari and prohibition in the CA docketed as CA-G.R.

dated August 24, 2007, the CA likewise granted the petition for

SP No. 93610. The Antipordas separately filed another certiorari

certiorari of respondents Antiporda.[24]

case docketed as CA-G.R. SP No. 94188.

Petitioner filed this petition assailing the decision in CA-G.R.

In a decision dated November 10, 2006 in CA-G.R. SP No.

SP No. 93610. Later on, he filed an amended petition impleading

93610, the CA ruled that the RTC judge gravely abused her

respondents Antiporda and likewise assailing the CA decision in CA-

discretion because she arbitrarily left out of her assessment and

G.R. SP No. 94188. The Court treated this as a supplemental

evaluation the substantial matters that the DOJ Secretary had fully

petition.

taken into account in concluding that there was no probable cause

The main issue for our resolution is whether or not the CA
against all the accused. It also held that Columnas extrajudicial
erred in finding that Judge Daguna had committed grave abuse of
confession was not admissible against the respondents because,
discretion in denying the withdrawal of the Informations for murder
aside from the recanted confession, there was no other piece of
against respondents.
evidence

presented

to

establish

the

existence

of

the

conspiracy. Additionally, the confession was made only after

Petitioner

argues

that,

based

on

the

independent

Columna was arrested and not while the conspirators were

assessment of Judge Daguna, there was probable cause based on

engaged in carrying out the conspiracy.

the earlier affidavit of Columna. She considered all the pieces of

evidence but did not give credit to Columnas recantation.

After this decision was promulgated, CA-G.R. SP No. 93610

was consolidated with CA-G.R. SP No. 94188. The CA denied

66

Respondents counter that Judge Daguna committed grave

We agree with the CA that Judge Daguna limited herself only

abuse of discretion by limiting her evaluation and assessment only

to the following: (1) Columnas affidavit dated March 8, 2004

to evidence that supported probable cause while completely

wherein he implicated the respondents in the murders; (2) his

disregarding

that

affirmation of this affidavit during the April 19, 2004 clarificatory

against

hearing; (3) his letter dated October 29, 2004 and (4) the May 30,

Columnas

contradicting
extrajudicial

evidence. They

confession

was

also

contend

inadmissible

respondents because of the rule on res inter alios acta.

We find no merit in the petition.

2005 DOJ resolution upholding the prosecutors recommendation to

file the murder charges.[28]

She completely ignored other relevant pieces of evidence

It is settled that, when confronted with a motion to withdraw
such as: (1) Columnas May 3, 2004 letter to respondent Lloyd
an Information (on the ground of lack of probable cause to hold the
Antiporda narrating the torture he suffered to force him to admit his
accused for trial based on a resolution of the DOJ Secretary), the
participation in the crimes and to implicate the respondents; (2) his
trial court has the duty to make an independent assessment of the
May 25, 2004 affidavit where he stated that neither he nor the
merits of the motion. [25] It may either agree or disagree with the
respondents had any involvement in the murders and (3) his
recommendation of the Secretary. Reliance alone on the resolution
testimony during the October 22, 2004 clarificatory hearing
of the Secretary would be an abdication of the trial courts duty and
wherein he categorically affirmed his May 3, 2004 letter and May
jurisdiction to determine a prima facie case.[26] The court must
25, 2004 affidavit.
itself be convinced that there is indeed no sufficient evidence
against the accused.[27]

We declared in Jimenez v. Jimenez[29] that

[although] there is no general formula or fixed rule
for the determination of probable cause since the
same must be decided in the light of the conditions

67

obtaining in given situations and its existence

depends to a large degree upon the finding or
opinion
of
the
judge
conducting
the
examination, such a finding should not disregard the
facts before the judge nor run counter to the clear
dictates of reason. The judge or fiscal, therefore,
should not go on with the prosecution in the hope
that some credible evidence might later turn up
during trial for this would be a flagrant violation of a
basic right which the courts are created to uphold.
[30]
(Emphasis supplied)

Moreover, Judge Daguna failed to consider that Columnas

extrajudicial confession in his March 8, 2004 affidavit was not
admissible as evidence against respondents in view of the rule
on res inter alios acta.

Res inter alios acta alteri nocere non debet. The rule on res
Had Judge Daguna reviewed the entire records of the
inter alios acta provides that the rights of a party cannot be
investigation, she would have seen that, aside from the pieces of
prejudiced

by

an

act,

declaration,

or

omission

of

another.

evidence she relied on, there were others which cast doubt on
[32]

Consequently, an extrajudicial confession is binding only on the

them. We quote with approval the reflections of the CA on this

confessant, is not admissible against his or her co-accused [33] and is
point:
The selectivity of respondent RTC Judge for
purposes of resolving the motion to withdraw the
informations effectively sidetracked the guidelines
for an independent assessment and evaluation of the
merits of the case. Respondent RTC Judge thus
impaired
the
substantial
rights
of
the
accused. Instead, she should have made a
circumspect evaluation by looking at everything
made available to her at that point of the cases. No
less than that was expected and required of her as a
judicial officer. According to Santos v. Orda, Jr., the
trial judge may make an independent assessment of
the merits of the case based on the affidavits and
counter-affidavits, documents, or evidence appended
to the Information; the records of the public
prosecutor which the court may order the latter to
produce before the court; or any evidence already
adduced before the court by the accused at the time
the motion is filed by the public prosecutor. [31]

considered as hearsay against them.[34] The reason for this rule is

that:
on a principle of good faith and mutual convenience,
a mans own acts are binding upon himself, and are
evidence against him. So are his conduct and
declarations. Yet it would not only be rightly
inconvenient, but also manifestly unjust, that a man
should be bound by the acts of mere unauthorized
strangers; and if a party ought not to be bound by
the acts of strangers, neither ought their acts or
conduct be used as evidence against him. [35]

68

An exception to the res inter alios acta rule is an admission

made by a conspirator under Section 30, Rule 130 of the Rules of

right to be confronted with the witnesses against them and to

cross-examine them.[38]

Court:

Here, aside from the extrajudicial confession, which was

Admission by conspirator. The act or
declaration of a conspirator relating to the conspiracy
and during its existence, may be given in evidence
against the co-conspirator after the conspiracy is
shown by evidence other than such act or
declaration.

later on recanted, no other piece of evidence was presented to

prove the alleged conspiracy. There was no other prosecution
evidence,

direct

or

circumstantial,

which

the

extrajudicial

confession could corroborate. Therefore, the recanted confession of

This rule prescribes that the act or declaration of the
conspirator relating to the conspiracy and during its existence may

Columna, which was the sole evidence against respondents, had no

probative value and was inadmissible as evidence against them.

be given in evidence against co-conspirators provided that the

conspiracy is shown by independent evidence aside from the

Considering the paucity and inadmissibility of the evidence

extrajudicial confession.[36] Thus, in order that the admission of a

presented against the respondents, it would be unfair to hold them

conspirator may be received against his or her co-conspirators, it is

for trial. Once it is ascertained that no probable cause exists to

necessary that (a) the conspiracy be first proved by evidence other

form a sufficient belief as to the guilt of the accused, they should

than the admission itself (b) the admission relates to the common

be relieved from the pain of going through a full blown court case.

object and (c) it has been made while the declarant was engaged in

[39]

When,

at

the

outset,

the

evidence

offered

during

the

carrying out the conspiracy.[37] Otherwise, it cannot be used against

preliminary investigation is nothing more than an uncorroborated

the alleged co-conspirators without violating their constitutional

extrajudicial confession of an alleged conspirator, the criminal

complaint should not prosper so that the system would be spared

69

from the unnecessary expense of such useless and expensive

litigation.[40] The rule is all the more significant here since
respondent Licerio Antiporda remains in detention for the murder
charges pursuant to the warrant of arrest issued by Judge Daguna.
[41]

Indeed, at that stage of the proceedings, the duty of Judge

Daguna was only to satisfy herself whether there was probable
cause or sufficient ground to hold respondents for trial as coconspirators. Given that she had no sufficient basis for a finding of
probable cause against respondents, her orders denying the
withdrawal of the Informations for murder against them were
issued with grave abuse of discretion.

Hence, we hold that the CA committed no reversible error in

granting the petitions for certiorari of respondents.

WHEREFORE, the petition is hereby DENIED.

No pronouncement as to costs.

JULIUS CACAO y PRIETO

vs
PEOPLE OF THE PHILIPPINES
G.R. No. 180870
January 22, 2010
DECISION

SO ORDERED.

DEL CASTILLO, J.:

70

In order to safeguard its citizenry from the harmful effects of

of Section 11, Article II of RA 9165 before the RTC of Laoag City. Insofar

dangerous drugs on their physical and mental well-being, the State

as pertinent to this petition, we shall quote the information only against

pursued an intensive and unrelenting campaign against the trafficking

Cacao in Criminal Case No. 11489-13 which reads:

and use of dangerous drugs and other similar substances.[1] However, in

our desire to totally eradicate this social ill, we must adhere to the
constitutional pronouncement that in all criminal prosecutions, the
accused shall be presumed innocent until the contrary is proved. [2] This
case illustrates once more our faithful adherence to said constitutional
requirement.
Factual Antecedents
For review is the Decision[3] of the Court of Appeals (CA) in
CA-G.R. CR

That on or about the 14th day of October, 2004,

at Laoag City, Philippines, and within the jurisdiction of
this Honorable Court, the above-named accused, did then
and there willfully, unlawfully and feloniously [sic] have in
his possession, control and custody 1 plastic sachet of
methamphetamine hydrochloride or shabu containing a
total of 1.6 grams including plastic sachets [sic] without
any license or authority, in violation of the aforesaid law.
CONTRARY TO LAW.[8]
When arraigned on November 30, 2004, Cacao pleaded not
guilty.[9] Thereafter trial on the merits followed.
The inculpatory facts, as unveiled by the prosecution in its

No. 29985 dated July 27, 2007 affirming in toto the Decision[4] of the

evidence given during the trial, were briefly synthesized by the Office of

Regional Trial Court (RTC) of Laoag City, Branch 13 in Criminal Case No.

the Solicitor General,viz:

On October 14, 2004, at around 7:45 in the
evening, Police Officer 3 (PO3) Celso Pang-ag of the
Intelligence and Operation Section of the Laoag City
Police Station received a telephone call from an informant
about a drug session being held inside Room 5 of the
Starlight
Hotel
located
at
Barangay
5, Ablan
Avenue, Laoag City.

11489-13 dated November 25, 2005 finding herein petitioner Julius

Cacao y Prieto (Cacao) guilty beyond reasonable doubt of violating
Section 11, Article II of Republic Act (RA) No. 9165 (The Comprehensive
Dangerous Drugs Act of 2002) and sentencing him to suffer the penalty
of imprisonment ranging from 12 years and one day to 15 years and
ordering him to pay a fine of P400,000.00. Also assailed is the
Resolution[5] of the CA dated December 11, 2007 denying the motion for
reconsideration.

On October 15, 2004, two separate informations were filed

against Joseph Canlas y Naguit[6] and Cacao[7] indicting them for violation

Acting on the information, PO3 Pang-ag,

together with PO2 Jonel Mangapit, went immediately to
the Starlight Hotel to determine the veracity of the
report. Upon arrival at the target area, PO3 Pang-ag and
PO2 Mangapit approached the lady clerk manning the
information counter of Starlight Hotel and inquired about
the alleged drug session at Room 5 of the hotel.
The lady clerk informed PO3 Pang-ag and PO2
Mangapit that the roomboy of the hotel was about to
deliver a softdrink to Room 5 and they could follow him if
they [so wish]. Thus, PO3 Pang-ag and PO2 Mangapit

71

followed the roomboy to Room 5. Upon arrival, the

roomboy knocked at the door and a woman, later
identified as Mylene, opened the door wide enough to
enable the police officers to look inside.
PO3 Pang-ag and PO2 Mangapit saw petitioner
seated on top of the bed sniffing shabu while Joseph
Canlas was on the floor assisting petitioner sniffing
shabu. At this juncture, PO3 Pang-ag and PO2
Mangapit arrested petitioner and Joseph and confiscated
from them the drug paraphernalia, glass tooter, scissors,
lighters and plastic sachets.
PO2 Mangapit frisked petitioner and recovered
from him one plastic sachet containing shabu.
After informing petitioner and Joseph of their
constitutional rights, PO3 Pang-ag and PO2 Mangapit
brought them to the Laoag City Police Station and turned
them over to the police officer on duty while the
confiscated items were turned over to SPO3 Loreto
Ancheta.
The Philippine National Police (PNP) laboratory
conducted an examination on the specimen recovered
from appellant and his companion which tested positive
for shabu.[10]

Cacao professed his innocence and presented his defense in this

wise:
In the afternoon of 14 October 2004, petitioner
was waiting for a ride going home along the National
Road at the rotunda of San Nicolas, Ilocos Norte. Joseph
Canlas [who was on his way to] Laoag City aboard his
motorcycle x x x pulled over and asked the petitioner if
the latter could spare a moment to estimate a work he
wanted to be done in his house. Admittedly, the
petitioner is a contractor. Petitioner agreed and they both
boarded Canlas motorcycle for Laoag City.

While in Laoag City, petitioner and Canlas

stopped at the public market for the latter to collect [loan
payment] as he is also a money lender. Petitioner stayed
[by] Canlas motorcycle. When Canlas returned, it was
then that they decided to have chicks (or
womanize). They then proceeded to Starlight Hotel
located along Ablan Ave., Laoag City on board Canlas
motorcycle.
x x x at the Starlight Hotel, petitioner asked for
a room and [was given] Room 5 x x x. Thereafter, Canlas
stayed inside Room 5 while petitioner went out to the
hotels counter to wait for the woman they [had]
contacted. Present at the counter at the time was the
lady cashier [named] Cherry Corpuz.
In about thirty (30) minutes, a tricycle-for-hire
arrived with a man and a woman on board as
passengers. The tricycle went inside the hotel and
stopped right in front of the counter where the petitioner
and the lady cashier were. After alighting from the
tricycle, the woman companion inquired where Room 5 is
[and was directed] by the lady cashier. The woman
[who] alighted from the tricycle in the company of
another male person was later on identified to be Mylene
Daquioag. Thereafter, Mylene Daquioag proceeded to
Room 5 while the male companion stayed behind with
the petitioner at the hotels counter. When petitioner
could not wait [any] longer because there was only one
woman who arrived, he x x x asked the male companion
of Mylene Daquioag if another woman is coming. The
male companion answered in the negative. A couple of
minutes [later], petitioner followed to Room 5 so he could
[sic] go home instead because it was then getting late.
Upon entering the room, petitioner saw
Mylene Daquioag and Canlas seated at the table inside
the room. He also saw Mylene Daquioag offer something
contained in plastic x x x to Canlas. The latter refused as
he said it is a woman that he was asking [for].
Barely a moment after entering Room 5, the
two then heard a knock on the door from the
outside. Mylene Daquiaog immediately stood up and told

72

the petitioner
companions.

and

Canlas

that

they

are

(her)

sentenced to suffer the indeterminate penalty of

imprisonment from TWELVE (12) YEARS and ONE (1) DAY
to FIFTEEN (15) YEARS and to pay the fine of Four
hundred thousand (P400,000.00) pesos, Philippine
Currency.

As soon as the door was unlocked by Mylene

Daquioag, several policemen barged inside the room with
their guns drawn out. Petitioner was shoved to the bed by
one of the police. He was later bodily searched but
nothing was found from [sic] him except his wallet
containing cash of about P 7,000.00. The wallet was
later turned over to the petitioners wife at the Police
Station of Laoag, City. The P7,000.00 was never seen
again.
As petitioner was made to sit at [sic] the bed,
one of the police officers pointed to a plastic sachet on
the floor. It was about two (2) meters away from him and
about a meter from the police pointing [to] it. The same
police then explained that the plastic sachet belongs to
the petitioner. Immediately, petitioner cried foul on the
assertion.

The sachets of shabu confiscated from the

accused are all confiscated in favor of the Government,
the same to be disposed as the law prescribes. Cost de
oficio.
SO ORDERED.[12]
Ruling of the Court of Appeals

Aggrieved by the Decision of the trial court, Cacao interposed an

appeal to the CA. On July 27, 2007, the appellate court rendered

Due to the suddenness of events, the

petitioner was not as much as able to notice what the
other police did to Canlas.

judgment affirming Cacaos conviction. It held that the circumstances

Without much ado, the petitioner and Canlas

were apprehended, handcuffed and brought to the Laoag
City Police Station. Charges were later on filed against
them.[11]

authority to search and seize any contraband or prohibited material

Ruling of the Regional Trial Court

obtaining in this case validly cloaked the arresting officers with the

which may be used as proof of the offense of which Cacao is charged. It

also ruled that there is no proof that the police officers compelled Cacao
to admit a crime. As to the alleged contradictory statements, the
appellate court ruled that they refer only to minor details which are not

On November 25, 2005, the trial court rendered its judgment

finding Cacao guilty of the offense charged and sentenced him

sufficient to overthrow the probative value accorded them by the trial

court.

accordingly, viz:
WHEREFORE x x x
The accused Julius Cacao is likewise found
GUILTY beyond reasonable doubt as charged of illegal
possession of methamphetamine hydrochloride weighing
1.3987 grams in Criminal Case No. 11489 and is therefore

Petitioner moved for reconsideration[13] but the motion was

denied by the appellate court in its Resolution[14] dated on December 11,
2007.
Issues

73

In this petition, Cacao ascribes to the trial court the following

errors:

substantially affect the disposition of the case,[21] we will not hesitate to

review the same. In this case, we find it imperative to review the factual

I.

II.

III.

IV.

The lower court gravely

erred in ruling that the guilt of the accused was
proven beyond reasonable doubt considering the
myriad material inconsistencies, discrepancies,
and incredible statements in the prosecution
evidence.[15]

findings of the trial court because of certain inconsistencies in the

The lower court gravely erred in

failing to lend credence to the critical testimony of
Benedict Villanueva.[16]

certainty the elemental act of possession of a prohibited substance

testimonies of the prosecution witnesses on material points.

Jurisprudence holds that in prosecution of cases involving illegal
possession of prohibited drugs, the prosecution must establish with moral

coupled with the fact that such possession is not authorized by

law. Essential, however, in a drug-related case is that the identity of the

The lower court erred in not

finding that the crucial first link in the chain of
custody of the specimen subjected for
examination was not proven.[17]

dangerous drug be established beyond reasonable doubt. [22] Since the

dangerous drug constitutes the corpus delicti of the offense and the fact
of its existence is vital to a judgment of conviction, [23] it behooves upon

The lower court gravely erred in

declaring that the defense of frame-up cannot be
given weight.[18]

V.

The lower court gravely erred in

relying on the weakness of the defense.[19]

VI.

The lower court gravely erred in

failing to find that the presumption of innocence
of the petitioner stands unrebutted, hence, his
conviction is erroneous.[20]

the prosecution to establish and prove with certainty that the dangerous
drug presented in court as evidence against the accused is the same
item recovered from his possession.

We have scrutinized in detail the testimonies of the prosecution

witnesses and found not only glaring inconsistencies on material points
but more importantly a failure to identify indubitably the prohibited drug
allegedly confiscated from Cacao.

Our Ruling
We find merit in the petition.
As a general rule, factual findings and conclusions of the trial
court and the CA are entitled to great weight and respect and will not be
disturbed on appeal. However, if there is any indication that the trial
court

overlooked

certain

facts

or

circumstances

which

would

The testimonies of
the prosecutions
principal witnesses
are inconsistent as
to who delivered
the
prohibited
drug
to
the

74

evidence
custodian.

The foregoing assertions are totally at odds with the testimony of

Ancheta, the evidence custodian. The latter denied that it was Mangapit

PO3 Celso Pang-ag (Pang-ag) and PO2 Jonel Mangapit (Mangapit)

both testified that it was the latter who brought the item confiscated from
petitioner to the evidence custodian, SPO3 Loreto Ancheta (Ancheta).

who delivered the item allegedly recovered from Cacao. Instead, he

repeatedly and categorically declared that it was SP03 Balolong
(Balolong) from whom he received the plastic sachet of shabu.
Q:

Thus:
Q:

A:

Q:
A:

What about the two plastic sachets you

confiscated from the possession of the accused
Joseph and the one plastic sachet which Jonel
Mangapit confiscated from the possession of Julius
Cacao as well as the drug paraphernalia you
mentioned, what did you do with them?
We turned over the confiscated drug
paraphernalia and the one I confiscated to the
evidence custodian, SP03 Loreto Ancheta and the
one confiscated by P02 Mangapit was also turned
over by him to the evidence custodian, sir.
Who was the evidence custodian whom you
and Jonel Mangapit turned over the items you
said?
SPO3 Loreto Ancheta, Sir.[24]

Mangapit corroborated Pang-ags testimony that it was he who

delivered to Ancheta the item he seized from Cacao. Thus:
Q:
A:
Q:
A:

How about the one big plastic sachet you were

able to seize from the right front pocket of
accused Cacao, what did you do?
I turned it over to the evidence custodian, Sir.
Who was that evidence custodian to whom you
turned over that plastic sachet?
SP02 Loreto Ancheta, Sir.[25]

A:

Who delivered to you the specimen allegedly

confiscated from the possession of Cacao?
SP03 Balolong, Sir.[26]

During his cross-examination, Ancheta confirmed his declaration

that it was Balolong and definitely not Mangapit who handed to him the
plastic sachet ofshabu. Ancheta testified thus:
Q:

A:
Q:
A:
Q:
A:

You said that it was officer Balolong who

handed to you the plastic sachet of shabu which
was allegedly taken from the possession of
accused Julius Cacao, did I hear you right?
Julius Cacao, yes sir.
It was not officer Mangapit who handed to you
the plastic sachet of shabu?
Balolong, sir.
It was not Mangapit?
No sir.[27]

When confronted with the afore-quoted testimony of Ancheta,

Mangapit cannot explain the variance. He just gave a sweeping answer
I do not know.[28]

We cannot understand why the courts below did not doubt or

suspect the patently inconsistent and contradictory testimonies of the
principal witnesses of the prosecution. Contrary to the findings of the

75

appellate court, we are of the considered view that this contradiction is

not so inconsequential or minor but a discrepancy touching on

A:

substantial and significant matter which could well affect the credibility of
the witnesses.
Q:

The
prosecution
failed
to
satisfactorily
establish that the
item presented in
court
was
the
same
item
confiscated from
Cacao.

A:
Q:
A:

sort out [the] contents and bring out that big

plastic sachet you claimed you confiscated from
the custody of accused Cacao?
(Witness sorting out the contents of the plastic
bag
containing
several
items).
(Witness
examining the plastic sachet mounted on the
bond paper marked as Exhibit B-1).
Are the markings you claimed which were
placed in the plastic sachet still visible and
readable?
Yes, sir.
Will you please read for record purposes the
markings?
Initial JPC and my signature, sir.
(Witness pointing to the initials and signature
written on a darker masking tape on the plastic
sachet).[29]

The patent inconsistency between the testimonies of Mangapit

and Pang-ag, on one hand, and the testimony of Ancheta on the other
hand,

necessarily

leads

us

to

doubt

that

the

plastic

sachet

of shabu identified in court is the same item that was allegedly seized
and confiscated from petitioner. If the version of Mangapit is to be
believed, then the most lamentable aspect pertains to his failure to
identify the seized item with certainty. For sure Mangapit, who is the

Verily, there was no actual and effective identification of the

subject specimen. After sorting out the contents of the plastic bag,
witness Mangapit merely pointed to the initial and signature written on a
masking tape attached to the plastic sachet. At no instance did he make
a categorical and accurate declaration that the sachet contained
the shabu allegedly confiscated from Cacao.

most competent person to make the proper identification being the

officer who confiscated the item from Cacao, never actually identified the

The only other person who could have identified the subject drug
is Pang-ag. However, we cannot lend credence to his supposed

same:
Q:
A:
Q:

If shown to you again that one big plastic

sachet where you put markings would you be
able to recognize and identify the same?
Yes, sir.
Giving to you an already opened brown
envelope with several contents, will you please

identification,

the

same

not

being

also

positive,

certain

and

unequivocal. Besides, there is no showing that this witness actually saw

the shabu at the time it was allegedly seized from petitioner. In fact,
Pang-ag is even incompetent to make the identification since from all
indications, he has never been in possession of it.

76

case. Thus, there is no evidence to prove that what was turned over to
Be that as it may, any identification made by these witnesses on

the evidence custodian by Balolong and later presented in court was the

the item allegedly seized from petitioner is rendered meaningless and

same substance recovered from petitioner. The failure to establish the

bereft of probative value in view of the categorical denial of the evidence

chain of custody is fatal to the prosecutions case. There can be no

custodian that he received the same from Mangapit. It is now clearly

crime of illegal possession of a prohibited drug when nagging doubts

evident from the records that the sachet of shabu which the evidence

persist on whether the item confiscated was the same specimen

custodian received, marked and submitted for examination and later

examined and established to be the prohibited drug.[31] In People v.

presented in court is not the same sachet of shabu which Mangapit

Casimiro,[32] citing People v. Mapa,[33] we acquitted the accused for failure

claimed

of the prosecution to establish the identity of the prohibited drug which

to

have

confiscated

from

petitioner

and

subsequently

transmitted to the evidence custodian.

constitutes the corpus delicti. Equally true in Zarraga v. People,[34] we

also acquitted the accused in view of the prosecutions failure to

Moreover, considering the testimony of Ancheta, it was Balolong

indubitably show the identity of the shabu.

who forwarded the seized item. It is quite strange that Ancheta would
point to Balolong as the sender of the seized items if he had no basis in

At this juncture, it must be stressed that the corpus delicti in

saying so. However, our own scrutiny of the records failed to show the

dangerous drugs cases constitutes the drug itself. This means that proof

role of Balolong in the operation since admittedly, the only lawmen who

beyond reasonable doubt of the identity of the prohibited drug is

participated therein were Mangapit and Pang-ag. In fact, as testified to

essential.[35]

by Mangapit, Balolong proceeded to the hotel after the operation.

[30]

How then was Balolong able to get hold of the confiscated substance

when he was neither a party to nor present during the operation? Who
entrusted the substance to him assuming that somebody requested him
to submit it for safekeeping? These are only some of the lingering
questions which must be answered convincingly and satisfactorily so as
to ensure that there had been no substitution, contamination or
tampering with the sachet of shabu allegedly taken from petitioner. It
must be noted that Balolong was never presented to testify in this

Likewise, our ruling in People v. Gutierrez[36] on chain of custody

rule is instructive. Thus:
As a mode of authenticating evidence, the
chain of custody rule requires the presentation of the
seized prohibited drugs as an exhibit be preceded by
evidence sufficient to support a finding that the matter in
question is what the proponent claims it to be. This
would ideally cover the testimony about every link in the
chain, from seizure of the prohibited drug up to the time it
is offered in evidence, in such a way that everyone who
touched the exhibit would describe how and from whom

77

it was received, to include, as much as possible, a

description of the condition in which it was delivered to
the next in the chain.

December

11,

2007

are REVERSED and SET

denying

the

motion

ASIDE. Petitioner

for

Julius

reconsideration,

Cacao

Prieto

is ACQUITTED on ground of reasonable doubt.

Finally, petitioners defenses of denial and frame-up are

SO ORDERED.

concededly inherently weak and commonly used in drug-related

cases. However, it must be stressed that conviction of the accused must
rest not on the weakness of the defense but on the strength of the
evidence of the prosecution.

Based on the foregoing, we are of the considered view that the

quantum of evidence needed to convict, that is proof beyond reasonable
doubt, has not been adequately established by the prosecution. While
as a rule we desist from disturbing the findings and conclusions of the
trial court especially with respect to the credibility of witnesses, we must

PEOPLE OF THE PHILIPPINES

vs.
ROLDAN MORALES y MIDARASA
G.R. No. 172873
March 19, 2010

bow to the superior and immutable rule that the guilt of the accused

DECISION

must be proved beyond reasonable doubt because the law presumes

DEL CASTILLO, J.:

that

the

accused

is

innocent

unless

and

until

proven

otherwise. Presumption of regularity in the performance of official duty

cannot by itself override the constitutional right of the accused to be
presumed innocent unless overcome by strong, clear and compelling
evidence.

WHEREFORE, the petition is GRANTED. The assailed Decision of

the Court of Appeals in CA-G.R. CR No. 29985 dated July 27, 2007

The requirement of proof beyond a reasonable doubt has this vital

role in our criminal procedure for cogent reasons. The accused
during a criminal prosecution has at stake interest of immense
importance, both because of the possibility that he may lose his
liberty upon conviction and because of the certainty that he would
be stigmatized by the conviction. Accordingly, a society that values
the good name and freedom of every individual should not
condemn a man for commission of a crime when there is
reasonable doubt about his guilt.1 Due process commands that no
man shall lose his liberty unless the Government has borne the
burden of convincing the factfinder of his guilt. To this end, the
reasonable-doubt standard is indispensable, for it impresses on the
trier of fact the necessity of reaching certitude of the facts in issue. 2

affirming in toto the Decision of the Regional Trial Court of Laoag City,
Branch 13, in Criminal Case No. 11489-13, and its Resolution dated

Moreover, use of the reasonable-doubt standard is indispensable to

command the respect and confidence of the community in

78

applications of criminal law. It is critical that the moral force of

criminal law not be diluted by a standard of proof that leaves
people in doubt whether innocent men are being condemned. It is
also important in our free society that every individual going about
his ordinary affairs has confidence that his government cannot
adjudge him guilty of a criminal offense without convincing a
proper factfinder of his guilt with utmost certainty. 3
Lest there remain any doubt about the constitutional stature of the
reasonable-doubt standard, we explicitly hold that the Due Process
Clause protects the accused against conviction except upon proof
beyond a reasonable doubt of every fact necessary to constitute
the crime with which he is charged. 4
On appeal is the Decision 5 of the Court of Appeals (CA)
promulgated on April 24, 2006 affirming in toto the Decision 6 of the
Regional Trial Court (RTC) of Quezon City, Branch 103 finding
appellant Roldan Morales y Midarasa guilty of the crimes of
possession and sale of dangerous drugs.
Factual Antecedents
Appellant was charged in two separate Informations before the RTC
with possession and sale of methylamphetamine hydrochloride
(shabu), to wit:
Criminal Case No. Q-03-114256
That on or about the 2nd day of January, 2003 in Quezon City,
Philippines, the said accused not being authorized by law to
possess or use any dangerous drug, did then and there, willfully,
unlawfully and knowingly have in her/his/their possession and
control, zero point zero three (0.03) grams of methylamphetamine
hydrochloride, a dangerous drug.
CONTRARY TO LAW.7
Criminal Case No. Q-03-114257
That on or about the 2nd day of January, 2003, in Quezon City,
Philippines, the said accused, not being authorized by law to sell,
dispense, deliver, transport or distribute any dangerous drug, did,
then and there, willfully and unlawfully sell, dispense, deliver,

transport, distribute or act as broker in the said transaction, zero

point zero three (0.03) gram of methylamphetamine hydrochloride,
a dangerous drug.
CONTRARY TO LAW.8
Upon arraignment, appellant, assisted by counsel, pleaded not
guilty to both charges read in Filipino, a language known and
understood by him.9 On motion of the City Prosecutor, the cases
were consolidated for joint trial.10Trial on the merits ensued
thereafter.
The testimonies of PO1 Eduardo Roy (PO1 Roy) and PO3 Armando
Rivera (PO3 Rivera) were presented by the prosecution:
PO1 Roy testified that on January 2, 2003, at about 2:00 p.m., he
was on duty at Police Station 9 where he made a pre-operation
report on the buy-bust operation to be conducted on the herein
appellant that same afternoon. 11He then proceeded to Brgy. San
Vicente, Quezon City with PO3 Rivera for the operation. 12 At a point
near Jollibee, they met the informant who, upon seeing the subject
appellant, went with him to meet PO1 Roy. 13 After being introduced
to the appellant as a buyer of "piso" worth of "shabu", appellant
immediately produced a sachet containing the alleged drug. When
appellant received the marked money amounting to P100.00,14 PO1
Roy raised his left hand, at which point his back-up officer, PO3
Rivera appeared and immediately arrested the appellant. 15 The
appellant was immediately brought to the Police Station for
investigation, while the two sachets of "shabu" and aluminum foil
discovered on the said appellant were brought to the Crime
Laboratory for examination.16
PO3 Rivera testified that he was the back-up officer of PO1 Roy, the
poseur-buyer in the buy-bust operation conducted against the
appellant in the afternoon of January 2, 2003. 17 In preparation for
the said operation, he conducted a short briefing and recorded the
particulars of the operation they were about to carry out: the place
of the operation which is at the parking lot of Jollibee Philcoa; the
identification of the suspect as the appellant; and the preparation
of the buy-bust money to be used.18 With respect to the buy-bust
money, he prepared oneP50.00 bill, two P20.00 bills and
one P10.00 bill, by making the appropriate marking on the top
portion of each bill and recording their respective serial
numbers.19 Later that afternoon, police officers proceeded to the

79

meeting place. PO3 Rivera positioned himself in a parked

vehicle20 about 20 meters from the situs of the transaction. 21 He
thus had a clear view of the appellant with the informant and PO1
Roy.22 Shortly thereafter, he saw PO1 Roy make the pre-arranged
signal at which point he approached the appellant to arrest
him.23 He recovered the marked money from the appellant and
proceeded to frisk the latter.24 Upon conducting the body search, he
found another sachet which he suspected to be "shabu" and two
aluminum foils. Appellant was brought to the Police Station for
detention, while the items seized from him were brought to the
Crime Laboratory for examination. 25 The two sachets tested
positive for Methylamphetamine Hydrochloride (shabu) while the
aluminum foil sheets tested negative of the aforementioned
substance.26
Both PO1 Roy and PO3 Rivera identified a Joint Affidavit dated
January 3, 2003 during their respective testimonies, which they
acknowledged to have executed subsequent to the buy-bust
operation.27
The defense presented the testimonies of Joaquin Artemio Marfori,
Arsenia Morales and the appellant:
Appellant denied the charges against him. 28 He testified that he is a
resident of Dolores, Quezon where he worked in a fertilizer
store.29 He was in Manila at that time to bring money for his parents
who live at Cruz na Ligas.30 As his mother did not give him enough
money for his fare back to Quezon, he sidelined as a parking
attendant at Philcoa in order to earn the balance of his bus
fare.31 However, sometime that afternoon, two male persons in
civilian clothes suddenly approached him and his co-attendant,
identified themselves as policemen and poked their guns at
them.32 The said policemen handcuffed them and proceeded to
frisk them.33 He averred that nothing was found on him and yet the
policemen still brought him to the police station. 34 He denied the
allegation made against him that he sold, much less possessed, the
"shabu" subject of this action. 35 He further testified that in the
tricycle on the way to the police station, PO1 Roy took out a plastic
of "shabu" from his (PO1 Roys) pocket and once at the station, the
said policeman showed it to the desk officer and claimed that the
plastic sachet was found on the appellant.36
He likewise denied having received the buy-bust money and
claimed that the P50.00 bill and the two P20.00 bills,

totaling P90.00, were given to him by his mother for his bus fare to
Quezon.37 He disclaimed any knowledge of theP10.00 bill.38 He
further testified that he personally knew PO3 Rivera prior to the
arrest, since his first cousin and PO3 Rivera had a quarrel which he
had no involvement whatsoever.39 He noted the fact that it was PO3
Rivera who arrested him.40
Witness Joaquin Artemio Marfori testified that he is the employer of
the appellant in his agricultural and poultry supply store in
Babayan, Calamba, Laguna.41 He further stated that he allowed the
appellant to go on vacation on December 12, 2003 to celebrate the
New Year with his family in Manila. 42 However, the appellant failed
to report back for work at the start of the New Year. 43
Finally, witness Arsenia Morales (Arsenia) corroborated the
testimony of her son that she gave him P90.00, consisting of
one P50.00 bill and two P20.00 bills as bus fare back to Laguna
where he worked.44 Thinking that her son was already on his way
home, she was surprised to receive a call from her daughter
informing her that her son, the appellant, was arrested for
possession and sale of "shabu".45
Ruling of the Regional Trial Court
On April 29, 2004, the trial court rendered a Decision finding the
appellant guilty beyond reasonable doubt of illegal possession and
illegal sale of dangerous drugs. The dispositive portion of the said
Decision reads:
WHEREFORE, in view of the foregoing disquisition, judgment is
hereby rendered finding the accused ROLDAN MORALES y
Midarasa, GUILTY beyond reasonable doubt in Criminal Case No. Q03-114257 for violation of Section 5, Article II, R.A. [No.] 9165 for
drug pushing [of] zero point zero three (0.03) gram of white
crystalline substance containing Methylamphetamine hydrochloride
and is hereby sentenced to suffer Life Imprisonment and to pay a
fine of Five Hundred Thousand (P500,000.00) pesos.
The Court likewise finds the accused ROLDAN MORALES y Midarasa
GUILTY beyond reasonable doubt in Criminal Case No. Q-03-114256
for violation of Section 11, Article II, R.A. [No.] 9165 for drug
possession x x x of zero point zero three (0.03) gram of white
crystalline substance containing Methylamphetamine hydrochloride

80

and is hereby sentenced to suffer an imprisonment term of Twelve

(12) Years and One (1) Month to Thirteen (13) Years and to pay a
fine of Three Hundred Fifty Thousand (P350,000.00) Pesos.
The sachets of shabu subject of these cases are ordered
transmitted to the PDEA thru Dangerous Drugs Board for proper
disposition after this decision becomes final.
SO ORDERED.46
The trial court held that the prosecution witnesses positively
identified the appellant as the person who possessed and sold to
the poseur-buyer the "shabu" subject of this case, during the buybust operation conducted in the afternoon of January 2, 2003. 47 The
trial court found that from the evidence presented, the prosecution
was able to sufficiently establish the following: (1) the fact of the
buy-bust operation conducted in the afternoon of January 2, 2003
at the parking lot of Jollibee Philcoa which led to the arrest of the
appellant; and (2) the corpus delicti, through the presentation in
court of the two sachets of white substance which was confirmed
by the Chemistry Report to be methylamphetamine hydrochloride
("shabu"), found in the possession of and sold by the appellant. 48
Ruling of the Court of Appeals
The CA affirmed the Decision of the trial court in toto. It found that
contrary to the allegations of the appellant, there was no
instigation that took place.49 Rather, a buy-bust operation was
employed by the police officers to apprehend the appellant while in
the act of unlawfully selling drugs. 50 The appellate court further
held that what is material in a prosecution for illegal sale of
prohibited drugs is the proof that the transaction or sale actually
took place, coupled with the presentation in court of the corpus
delicti.51 Stripped of non-essentials, the CA summarized the
antecedent facts of the case as follows:
PO1 Eduardo Roy prepared a pre-arranged report on the buy-bust
operation to be conducted against appellant at Barangay San
Vicente, Quezon City upon an informants tip that appellant was
selling "shabu" in the said area. On the other hand, PO3 Armando
Ragundiaz Rivera recorded the briefing, summary, identification of
appellant and the buy-bust money to be used in the operation
consisting of one (1) fifty peso bill, two (2) twenty peso bill[s] and

one (1) ten peso bill. PO1 Roy who acted as the poseur-buyer and
PO3 Rivera as his back-up proceeded to University Avenue corner
Commonwealth Avenue, Barangay San Vicente, Quezon City
together with the informant.
PO1 Roy and the informant met appellant at the parking lot of
Jollibee restaurant while PO3 Rivera positioned himself at the side
of a parked car where he can easily have a clear view of the three.
After PO1 Roy was introduced by the informant to the appellant as
a buyer of "shabu", the latter immediately produced a sachet
containing the said prohibited drugs and handed the same to him.
PO1 Roy raised his left hand as the pre-arranged signal that the
transaction was consummated. Thereafter, PO3 Rivera went to the
area, introduced himself as a police officer and frisked appellant
from whom he recovered the marked money and a matchbox,
where the suspected "shabu" was placed, and two (2) aluminum
foils. They informed appellant of his constitutional rights and
brought him to the police station while the two (2) small
transparent heat sealed sachets containing the suspected
prohibited drugs and paraphernalia were turned over to the crime
laboratory for examination, and which [was] later, found to be
positive for methylamphetamine hydrochloride (commonly known
as "shabu").52
Thence, the CA rendered judgment to wit:
WHEREFORE, premises considered, the assailed decision of the
Regional Trial Court of Quezon City, Branch 103 dated April 29,
2004 is hereby AFFIRMED IN TOTO.
SO ORDERED.53
Appellant elevated the case to this Court via Notice of Appeal.54 In
our Resolution dated July 12, 2006, we resolved to accept the case
and required the parties to submit their respective supplemental
briefs simultaneously, if they so desire, within 30 days from
notice.55 Both parties adopted their respective appellants and
appellees briefs, instead of filing supplemental briefs.56
Our Ruling
Appellant claims that he should not be convicted of the offenses
charged since his guilt has not been proven by the prosecution

81

beyond reasonable doubt.57 In support of his contention, appellant

alleges that the arresting officers did not even place the proper
markings on the alleged shabu and paraphernalia at the time and
place of the alleged buy-bust operation. 58 Appellant hence posits
that this created serious doubt as to the items and actual quantity
of shabu recovered, if at all.59
The Office of the Solicitor General, on the other hand, insists that
the direct testimony of the two arresting officers sufficiently
established the elements of illegal sale and possession of shabu.60
At the outset, we draw attention to the unique nature of an appeal
in a criminal case: the appeal throws the whole case open for
review and it is the duty of the appellate court to correct, cite and
appreciate errors in the appealed judgment whether they are
assigned or unassigned.61 On the basis of such review, we find the
present appeal meritorious.
Prevailing jurisprudence uniformly hold that the trial courts
findings of fact, especially when affirmed by the CA, are, as a
general rule, entitled to great weight and will not be disturbed on
appeal.62 However, this rule admits of exceptions and does not
apply where facts of weight and substance with direct and material
bearing on the final outcome of the case have been overlooked,
misapprehended or misapplied.63 After due consideration of the
records of this case, evidence presented and relevant law and
jurisprudence, we hold that this case falls under the exception.
In actions involving the illegal sale of dangerous drugs, the
following elements must first be established: (1) proof that the
transaction or sale took place and (2) the presentation in court of
the corpus delicti or the illicit drug as evidence.64
On the other hand, in prosecutions for illegal possession of a
dangerous drug, it must be shown that (1) the accused was in
possession of an item or an object identified to be a prohibited or
regulated drug, (2) such possession is not authorized by law, and
(3) the accused was freely and consciously aware of being in
possession of the drug. 65 Similarly, in this case, the evidence of the
corpus delicti must be established beyond reasonable doubt. 66
With respect to corpus delicti, Section 21 of Republic Act (RA) No.
9165 provides:

Section 21. Custody and Disposition of Confiscated, Seized, and/or

Surrendered Dangerous Drugs, Plant Sources of Dangerous Drugs,
Controlled
Precursors
and
Essential
Chemicals,
Instruments/Paraphernalia and/or Laboratory Equipment. The
PDEA shall take charge and have custody of all dangerous drugs,
plant sources or dangerous drugs, controlled precursors and
essential chemicals, as well as instruments/paraphernalia and/or
laboratory equipment so confiscated, seized and or surrendered, for
proper disposition in the following manner:
(1) The apprehending team having initial custody and control of the
drugs shall, immediately after seizure and confiscation, physically
inventory and photograph the same in the presence of the accused
or the persons/s from whom such items were confiscated and/or
seized, or his/her representative or counsel, a representative from
the media and the Department of Justice (DOJ), and any elected
public official who shall be required to sign the copies of the
inventory and be given a copy thereof; x x x (Emphasis supplied)
In People v. Partoza,67 we held that the identity of the corpus
delicti was not proven beyond reasonable doubt. In the said case,
the apprehending policeman did not mark the seized drugs after he
arrested the appellant in the latters presence. Neither did he make
an inventory and take a photograph of the confiscated items in the
presence of the appellant. There was no representative from the
media and the Department of Justice, or any elected public official
who participated in the operation and who were supposed to sign
an inventory of seized items and be given copies thereof. Hence,
we held in the afore-cited case that there was no compliance with
the statutory safeguards. In addition, while the apprehending
policeman admitted to have in his possession the shabufrom the
time the appellant was apprehended at the crime scene to the
police station, records are bereft of proof on how the seized items
were handled from the time they left the hands of the said police
officer.
We declared in People v. Orteza, 68 that the failure to comply with
Paragraph 1, Section 21, Article II of RA 9165 implied a concomitant
failure on the part of the prosecution to establish the identity of
the corpus delicti:
In People v. Laxa, where the buy-bust team failed to mark the
confiscated marijuana immediately after the apprehension of the
accused, the Court held that the deviation from the standard

82

procedure in anti-narcotics operations produced doubts as to the

origins of the marijuana. Consequently, the Court concluded that
the prosecution failed to establish the identity of the corpus delicti.

A- Raising my left hand.

The Court made a similar ruling in People v. Kimura, where the

Narcom operatives failed to place markings on the seized
marijuana at the time the accused was arrested and to observe the
procedure and take custody of the drug.

A- My back up PO3 Rivera came.

More recently, in Zarraga v. People, the Court held that the material
inconsistencies with regard to when and where the markings on
the shabu were made and the lack of inventory on the seized drugs
created reasonable doubt as to the identity of the corpus delicti.
The Court thus acquitted the accused due to the prosecution's
failure to indubitably show the identity of the shabu.

Q- And what happened next?

Q- What [did] your back up do when you raised your hand?

A- He arrested Morales.
Q- What were you doing when he arrested Morales?
A- I put the informant away from the scene.
Q- And what happened next after that?

Likewise, in People v. Obmiranis, 69 we acquitted the appellant due

to flaws in the conduct of the post-seizure custody of the dangerous
drug allegedly recovered from the appellant, together with the
failure of the key persons who handled the same to testify on the
whereabouts of the exhibit before it was offered in evidence in
court.
In the instant case, it is indisputable that the procedures for the
custody and disposition of confiscated dangerous drugs, as
mandated in Section 21 of RA 9165, were not observed. The
records utterly failed to show that the buy-bust team complied with
these procedures despite their mandatory nature as indicated by
the use of "shall" in the directives of the law. The procedural lapse
is plainly evident from the testimonies of the two police officers
presented by the prosecution, namely: PO1 Roy and PO3 Rivera.

A- We brought him to the police station.

Q- How about the shabu, what did you do with it?
A- We brought it to the crime lab.
Q- How did you send it to crime lab?
A- Shabu and paraphernalia recovered by my companion
from the suspect.
Q- How many items were sent to the crime lab?
A- 2 shabu and paraphernalia.

PO1 Roy, in his testimony, failed to concretely identify the items

seized from the appellant. Moreover, he confirmed that they did not
make a list of the items seized. The patent lack of adherence to the
procedural mandate of RA 9165 is manifest in his testimony, to wit:

Q- What are the paraphernalia?

A- Foil, sir.

Fiscal Jurado

Q- How many foil?

x x x You mentioned that you gave the pre-arranged signal,

what is that?

A- I cannot recall.

Witness

Q- What happened to the accused in the police station?

83

A- He was investigated.

Fiscal Jurado

Q- Do you know the accused?

Q- There is another plastic sachet?

A- Yes, sir.

Witness

Q- What is his name?

A- Recovered.

A- Roldan Morales.

Q- How about these two?

xxxx

A- I was not the one who confiscated that.

Fiscal Jurado

Q- What happened to the said item submitted to the crime

lab?

Q- If the said sachet and paraphernalia will be shown to you,

how would you be able to identify the said items?

A- Positive, sir.

Witness

xxxx

A- I could not recall "pare-pareho yung shabu"

Fiscal Jurado

Atty. Mosing

xxxx

I will object because that would be leading on the part of the

prosecution because he could not identify on what shabu.

Q- How about the specimen forwarded to the crime lab?

Court

Witness
A- My companion brought that.

That question is overruled.

Fiscal Jurado

Q- What was your participation in the case?

A- Poseur buyer.

I am showing to you an item, would you be able to identify?

Court

xxxx
Atty. Mosing

Fiscal showing several shabu.

WITNESS
A- This one.

xxxx
Q- After the arrest you brought the suspect and the items to
the station?

84

A- Yes, sir.

Q- Who was the person you took x x x custody [of]?

Q- Did you not make a list of items you have confiscated in

this case?

A- Roldan Morales
Q- And what did you do with him?

A- No, we turned it over to the investigator.

Q- You have presented the buy bust money a while ago, was
that buy bust money suppose to be turned over to the
investigator?
A- No, inquest. Upon request, I was the one who received
it.70 (Emphasis supplied)
The testimony of the other arresting officer, PO3 Rivera
further confirms the failure of the buy-bust team to observe
the procedure mandated under Section 21 of RA 9165:

A- Because he ha[d] a marked money I got hold of it and

arrest[ed] him.
Q- And what did you do with him?
A- I frisked him.
Q- And what was the result of your frisking?
A- A box of match which I was able to recover [containing]
another suspected shabu.

Court

Q- Where did you find that on his body?

Q- Where did you position yourself?

A- Front [pocket of] pants.

Witness

Q- How about the match?

A- Parked vehicle.

A- The same.

Fiscal Jurado

Q- What else did you find?

Q- What did you notice?

A- Aluminum foil.

Witness

Q- And after you recovered that evidence, what did you do

with the accused?

A- The confidential informant introduced our poseur buyer to

the suspect and after a few conversation I waited and I saw
the pre-arranged signal. And when he raised his left hand
that is the signal that the transaction is consummated.
Q- After he made that signal, what did you do?
A- I rushed to the area and arrest[ed] the suspect.

A- We informed him of his constitutional rights and brought

him to the station.
Q- How about the items you recovered?
A- Delivered it to the crime lab for examination.
Q- What else did you deliver [to] the crime lab?

85

A- Request, sir.71 (Emphasis supplied)

Other than PO1 Roy and PO3 Rivera, the prosecution did not
present any other witnesses. Hence, the investigator,
referred to by PO1 Roy in his testimony as the one who took
delivery of the seized items, was not identified nor was he
presented in court. More importantly, the testifying police
officers did not state that they marked the seized drugs
immediately after they arrested the appellant and in the
latters presence. Neither did they make an inventory and
take a photograph of the confiscated items in the presence
of the appellant. There was likewise no mention of any
representative from the media and the Department of
Justice, or any elected public official who participated in the
operation and who were supposed to sign an inventory of
seized items and be given copies thereof. None of these
statutory safeguards were observed.
Even PO1 Roy, the poseur-buyer, was not certain as to the
identity of the confiscated shabu, to wit:
Fiscal Jurado:
Q- If the said sachet and paraphernalia will be shown to you,
how would you be able to identify the said items?
Witness
A- I could not recall "pare-pareho yung shabu". 72
The procedural lapses in the handling and identification of the
seized items
collectively raise doubts as to whether the items presented in court
were the exact same items that were confiscated from appellant
when he was apprehended.
While this Court recognizes that non-compliance by the buy-bust
team with Section 21 of RA 9165 is not fatal as long as there is a
justifiable ground therefor, for and as long as the integrity and the
evidentiary value of the siezed items are properly preserved by the
apprehending team,73 these conditions were not met in the case at
bar. No explanation was offered by the testifying police officers for

their failure to observe the rule. In this respect, we cannot fault the
apprehending policemen either, as PO1 Roy admitted that he was
not a PDEA operative74 and the other witness, PO3 Rivera, testified
that he was not aware of the procedure involved in the conduct of
anti-drug operations by the PNP.75 In fine, there is serious doubt
whether the drug presented in court was the same drug recovered
from the appellant. Consequently, the prosecution failed to prove
beyond reasonable doubt the identity of the corpus delicti.1avvphi1
Furthermore, the evidence presented by the prosecution failed to
reveal the identity of the person who had custody and safekeeping
of the drugs after its examination and pending presentation in
court. Thus, the prosecution likewise failed to establish the chain of
custody which is fatal to its cause.1avvphi1
In fine, the identity of the corpus delicti in this case was not proven
beyond reasonable doubt. There was likewise a break in the chain
of custody which proves fatal to the prosecutions case. Thus, since
the prosecution has failed to establish the element of corpus delicti
with the prescribed degree of proof required for successful
prosecution of both possession and sale of prohibited drugs, we
resolve to ACQUIT Roldan Morales y Midarasa.
WHEREFORE, in view of the foregoing, the Decision of the Court of
Appeals dated April 24, 2006 in CA-G.R. CR-H.C. No. 00037
affirming the judgment of conviction of the Regional Trial Court of
Quezon City, Branch 103 dated April 29, 2004 is hereby REVERSED
and SET ASIDE. Appellant Roldan Morales y Midarasa
is ACQUITTED based on reasonable doubt, and is ordered to be
immediately RELEASED from detention, unless he is confined for
any other lawful cause.
The
Director
of
the
Bureau
of
Corrections
is DIRECTED to IMPLEMENT this Decision and to report to this Court
the action taken hereon within five days from receipt.
SO ORDERED.

PEOPLE OF THE PHILIPPINES

vs.
FERNANDO HABANA y ORANTE
G.R. No. 188900

86

March 5, 2010
DECISION
ABAD, J.:
This case is about whether the forensic examiner and the police
investigator are indispensable witnesses in a drugs case to
establish the chain of custody over the substance seized from the
accused.
The Facts and the Case
On July 21, 2003 the public prosecutor of Caloocan City filed two
separate informations1 against the accused Fernando Habana
before the Regional Trial Court (RTC) of that city in Criminal Cases
C-68627 and C-68628 for violations of Sections 5 and 11, Article II
of Republic Act (R.A.) 9165, otherwise known as the Comprehensive
Dangerous Drugs Act of 2002.
At the trial, the prosecution presented PO1 Fortunato Paras 2 and
PO2 Amadeo Tayag.3 On the other hand, the defense called to the
witness stand the accused Habana and one Amelia Sevilla.4
The prosecution evidence shows that in the morning of July 17,
2003, members of the Anti-Illegal Drug Task Force Unit of the
Caloocan City Police Station met with an informant at Chowking
Restaurant in Sangandaan, Caloocan City. The informant told them
that a certain Loloy, later on identified as the accused Habana, was
selling shabu on Salmon Street.5 Acting on this, the group
proceeded to the place and staked it out. 6
After locating accused Habana, PO3 Rizalino Rangel held a short
briefing with his unit. They decided to undertake a buy-bust
operation with PO1 Paras as poseur-buyer. Rangel told Paras to
scratch his head by way of signal after he had made a purchase of
drugs and handed over two pieces of fifty-peso bills that made up
the buy-bust money.7 Paras placed his initials "FP" on the money. 8
Accompanied by the informant, Paras approached accused Habana
who asked them how much they wanted to buy. Paras handed over
the money to Habana who pocketed it. In turn, the latter handed
over to Paras one plastic sachet that contained what appeared to

be shabu. After PO1 Paras got the plastic sachet, he executed the
pre-arranged signal, introduced himself as a policeman, and
arrested Habana.9
Tayag rushed to the scene and helped Paras collar Habana. Tayag
searched Habanas body and this yielded two more plastic sachets
containing what appeared to be shabu and the marked bills. 10 The
arresting officers handed over custody of his person and the items
seized from him to PO3 Fernando Moran, the investigator on duty,
who placed his marking on them and submitted the same to the
Philippine National Police (PNP) Crime Laboratory for forensic
examination.
Forensic Chemist Police Inspector Erickson Calabocal submitted
Physical Science Report D-848-03, which revealed that the white
crystalline substance contained in the plastic sachets tested
positive for Methamphetamine Hydrochloride, otherwise known as
"shabu."11
At the pre-trial,12 the parties stipulated: 1) that the assigned
forensic chemist got the police request for laboratory examination
of the specimen involved and, upon examination, found it positive
for methamphetamine hydrochloride13 and 2) that PO3 Fernando
Moran was the investigating officer assigned to the case to whom
the arresting officers turned over the accused as well as the three
plastic sachets and that it was he who prepared the referral
slip,14 sworn affidavit of the arresting officers,15 and the request for
laboratory examination16 of the specimen subject of this case.17
Accused Habana presented a different version. According to him, on
the afternoon of July 17, 2003 he was on his way home when five to
seven men in civilian clothes blocked his way. He asked what the
matter was and they replied that they had to search him. He
resisted because he was not doing anything illegal. Still, the men
frisked him and took five hundred pesos from his pocket. They then
brought him to the police station where he was detained. When his
wife and sister came, the police officers told them to
produce P20,000.00 for his freedom. When they failed to give the
amount, they charged him with illegal possession and sale of
shabu.18
Amelia Sevilla testified that on the date of the incident, at around
6:00 p.m., she was about to close her store when she saw two men
suddenly approach and frisk accused Habana who was just

87

standing near her store. Habana raised his hands and said, "Bakit
ano po ang kasalanan ko bakit ninyo ako kinakapkapan?" After the
men frisked him, they got the coins in his short pants pocket and
then left with him. On the following day, Sevilla heard from her
neighbors that the police had arrested Habana.
On January 21, 2008, the trial court found Habana guilty of both
charges and sentenced him to a penalty of life imprisonment plus a
fine of P500,000.00 in Criminal Case C-68627 and imprisonment for
12 years and 1 day to 14 years and a fine of P300,000.00 in
Criminal Case C-68628.
Since one of the penalties imposed was life imprisonment, the case
was elevated to the Court of Appeals (CA) for review and
disposition pursuant to the ruling in People v. Mateo. 19 Upon review,
the CA rendered a Decision20 on June 17, 2009, affirming in full the
decision of the trial court. The case is on appeal to this Court.
The Issues Presented
Two issues are presented:
1. Whether or not the prosecutions failure to present the
forensic chemist and the police investigator assigned to the
case is fatal to its case against accused Habana; and
2. Whether or not the prosecution failed to establish the
integrity of the seized substance taken from Habana along
the chain of custody.
The Rulings of the Court
One. Habana points out that the prosecutions failure to present at
the trial the informant, the investigating officer, and the forensic
chemist militates against the trustworthiness of the prosecutions
evidence.
But no rule requires the prosecution to present as witness in a
drugs case every person who had something to do with the arrest
of the accused and the seizure of prohibited drugs from him. The
discretion on which witness to present in every case belongs to the
prosecutor.21

The non-presentation of the informant cannot prejudice the

prosecutions theory of the case. His testimony would merely be
corroborative since police officers Paras and Tayag who witnessed
everything already testified. Besides, as a rule, it is rarely that the
prosecutor would present the informant because of the need to
hide his identity and preserve his invaluable service to the police. 22
The prosecution did not deliberately omit the presentation of the
forensic chemist who examined the seized substance or the
investigating officer who was assigned to the case. As the trial
court said in its decision, the prosecution wanted to present both as
witnesses but the parties chose instead to stipulate on the
substance of their testimonies.23
Accused Habana also insists that the RTC should not have admitted
the laboratory report in evidence for failure of the forensic chemist
to testify. But, as the Office of the Solicitor General correctly
pointed out, the parties agreed at the pre-trial to dispense with
such testimony and just stipulate that the police submitted the
drug specimens involved in the case to the crime laboratory for
analysis; that forensic chemist Calabocal examined it; that the
result was positive for methamphetamine hydrochloride; and that
this fact was as stated in Calabocals report. It is too late for
Habana to now impugn the veracity of such report.
Two. Accused Habana points out that, since the police officers
involved failed to adhere strictly to the requirements of Section
21(1) of R.A. 9165, the evidence of the seized shabu cannot be
admitted against him.
In all prosecutions for the violation of The Dangerous Drugs Act, the
existence of the prohibited drug has to be proved. 24 The chain of
custody rule requires that testimony be presented about every link
in the chain, from the moment the item was seized up to the time it
is offered in evidence. To this end, the prosecution must ensure that
the substance presented in court is the same substance seized
from the accused.
While this Court recognizes substantial adherence to the
requirements of R.A. 9165 and its implementing rules and
regulations, not perfect adherence, is what is demanded of police
officers attending to drugs cases,25 still, such officers must present
justifiable reason for their imperfect conduct and show that the
integrity and evidentiary value of the seized items had been

88

preserved. Here, however, they failed to meet these conditions.

The police officers offered no explanation for their failure to
observe the chain of custody rule.
The prosecution failed to show how the seized items changed
hands, from when the police officers seized them from Habana to
the time they were presented in court as evidence. PO1 Paras said
that he turned over the sachets of shabu to the investigator on
duty. But the prosecution did not adduce evidence on what the
investigator on duty did with the seized articles, how these got to
the laboratory technician, and how they were kept before being
adduced in evidence at the trial.1avvphi1
Usually, the police officer who seizes the suspected substance turns
it over to a supervising officer, who would then send it by courier to
the police crime laboratory for testing. Since it is unavoidable that
possession of the substance changes hand a number of times, it is
imperative for the officer who seized the substance from the
suspect to place his marking on its plastic container and seal the
same, preferably with adhesive tape that cannot be removed
without leaving a tear on the plastic container. At the trial, the
officer can then identify the seized substance and the procedure he
observed to preserve its integrity until it reaches the crime
laboratory.

Since the failure in this case to comply with the procedure in the
custody of seized drugs compromised the identity and integrity of
the items seized, which is the corpus delicti of each of the crimes
charged against Habana, his acquittal is in order.
WHEREFORE, the Court GRANTS the petition, REVERSES and SETS
ASIDE the decision of the Court of Appeals in CA-G.R. CR-H.C.
03165 dated June 17, 2009 as well as the decision of the Regional
Trial Court of Caloocan City, Branch 120, in Criminal Cases C-68627
and C-68628, and ACQUITS the accused-appellant Fernando
Habana y Orante on the ground of reasonable doubt.
Let a copy of this Decision be furnished the Director, Bureau of
Corrections, Muntinlupa City for immediate implementation. The
Director of the Bureau of Corrections is DIRECTED to report the
action he has taken to this Court within five days from receipt of
this Decision.
SO ORDERED.

If the substance is not in a plastic container, the officer should put

it in one and seal the same. In this way the substance would
assuredly reach the laboratory in the same condition it was seized
from the accused. Further, after the laboratory technician tests and
verifies the nature of the substance in the container, he should put
his own mark on the plastic container and seal it again with a new
seal since the police officers seal has been broken. At the trial, the
technician can then describe the sealed condition of the plastic
container when it was handed to him and testify on the procedure
he took afterwards to preserve its integrity.
If the sealing of the seized substance has not been made, the
prosecution would have to present every police officer, messenger,
laboratory technician, and storage personnel, the entire chain of
custody, no matter how briefly ones possession has been. Each of
them has to testify that the substance, although unsealed, has not
been tampered with or substituted while in his care.

89

On January 16, 2000 the Romualdezes filed a motion to

dismiss the action on grounds of a) violation of their right to a
speedy disposition of their case; b) lack of jurisdiction of the
Sandiganbayan over the action; c) prematurity; d) prescription; and
e) litis pendentia.
denied the motion.
ALFREDO T. ROMUALDEZ
vs
THE HONORABLE SANDIGANBAYAN (THIRD DIVISION) and THE
REPUBLIC OF THE PHILIPPINES,
G.R. No. 161602
July 13, 2010
DECISION
ABAD, J.:

On September 11, 2002 the Sandiganbayan

It also denied on March 10, 2003 their

subsequent motion for reconsideration.

On March 31, 2003 the Romualdezes next filed a motion for
preliminary investigation and to suspend proceedings.2[2]

They

claim that since Civil Case 0167 was a forfeiture proceeding filed
under R.A. 1379, the Ombudsman should have first conducted a
previous inquiry similar to preliminary investigations in criminal
cases before the filing of the case pursuant to Section 2 of the

This case is about the Ombudsmans authority to conduct

law.3[3]

preliminary investigation in a forfeiture case where the petitioner

In its Comment4[4] on the motion, the Republic pointed out

allegedly amassed ill-gotten wealth before February 25, 1986.

that the Office of the Ombudsman in fact conducted such a

The Facts and the Case

preliminary investigation in 1991 in OMB-0-91-08205[5] and issued

on January 22, 1992 a resolution, recommending the endorsement

On March 6, 1996 respondent Republic of the Philippines

(Republic) filed an action for the forfeiture of alleged unlawfully

of the matter to the Office of the Solicitor General (OSG) for the
filing of the forfeiture case.

acquired property with the Sandiganbayan in Civil Case 0167

On August 13, 2003 the Sandiganbayan issued a resolution, 6

against petitioner Alfredo T. Romualdez and his wife Agnes Sison

Romualdez as well as against Romson Realty, Inc., R & S Transport,

[6]

Inc., Fidelity Management, Inc., and Dio Island Resort, Inc.

by resolution on December 3, 2003 their subsequent motion for

(collectively, the Romualdezes) pursuant to Republic Act (R.A.)

2
3
4
5
6

1379.1[1]

denying the Romualdezes March 31, 2003 motion. It also denied

90

reconsideration.7[7]

Thus, the Romualdezes filed the present

absence. The spouses Alfredo and Agnes Romualdez were in the

petition for certiorari and prohibition, seeking to annul the

United States when that investigation took place. They were thus

Sandiganbayans rulings and prevent it from further proceeding

denied their right to be heard in that investigation.

with Civil Case 0167 until another preliminary investigation is

conducted in their case.

But, as the Sandiganbayan correctly pointed out, quoting

Republic v. Sandiganbayan,9[9] the Ombudsman has under its

The Question Presented

general investigatory powers the authority to investigate forfeiture

cases where the alleged ill-gotten wealth had been amassed before

The sole question presented in this case is whether or not

February 25, 1986. Thus:

the preliminary investigation that the Ombudsman conducted in

OMB-0-91-0820 in 1991 satisfied the requirement of the law in

Nonetheless, while we do not discount the

authority of the Ombudsman, we believe and so hold
that the exercise of his correlative powers to both
investigate and initiate the proper action for the
recovery of ill-gotten and/or unexplained wealth is
restricted only to cases for the recovery of ill-gotten
and/or unexplained wealth which were amassed after
February 25, 1986.
Prior to said date, the
Ombudsman is without authority to initiate such
forfeiture proceedings. We, however, uphold his
authority to investigate cases for the forfeiture or
recovery of such ill-gotten and/or unexplained wealth
amassed even before the aforementioned date,
pursuant to his general investigatory power under
Section 15(1) of Republic Act No. 6770.10[10]
(Emphasis supplied)

forfeiture cases.
The Ruling of the Court
The

Romualdezes

point

out

that

the

Office

of

the

Ombudsman should not have conducted an investigation of their

case, since its authority to investigate ill-gotten or unexplained
wealth cases pertained only to wealth amassed after February 25,
1986 and not before that date.8[8] Since the Romualdezes acquired
the allegedly ill-gotten wealth involved in their case as early as
1970, then the Ombudsman had no authority to conduct the
investigation that it did in OMB-0-91-0820.

And, although it was the Ombudsman who conducted the

In the absence of a

prior valid preliminary investigation, the forfeiture proceedings in

Civil Case 0167 cannot continue.

preliminary investigation, it was the OSG that instituted the action

in Civil Case 0167 in line with the Courts ruling in the above-cited
Republic and other cases that followed.

In addition, the Romualdezes insist that it was improper for

The Court cannot also subscribe to the Romualdezes claim

the Ombudsman to have conducted its investigation in their

7
8

9
10
91

that they are entitled to a new preliminary investigation since they

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 the 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.14[14]

had no opportunity to take part in the one held in 1991, in OMB-091-0820. They admit that the subpoena for that investigation had
been sent to their last known residence at the time it was
conducted.11[11]

The

Republic

categorically

insists

that

the

appropriate subpoena had been served on the Romualdezes.12[12]

Actually, the lament of the spouses was that they left the
Philippines because of danger to their lives after the EDSA

In sum, no reason exists for suspending or interrupting the

conduct of the forfeiture proceedings before the Sandiganbayan.

revolution of February 1986 and so could not take part in the

proceedings against them.

While it is true that the Court

characterized the departure of the Romualdezes as forced upon

WHEREFORE, the Court DISMISSES the petition for lack of

merit.

them by the uncertainty of the situation in 1986, it also said that

such was the case only until things shall have stabilized. 13[13] The

SO ORDERED

Court will take judicial notice of the fact that the peoples
ratification of the 1987 Constitution on February 2, 1987 signaled
the return to normalcy of the political situation in the Philippines.
Consequently, the Romualdezes had no valid excuse for not
responding to the subpoena served on them at their last known
address in 1991, which they do not deny having received.
The Ombudsman could not be faulted for proceeding with
the investigation of the Romualdezes cases when they did not
show up despite notice being sent to them at their last known
residence. As the Court held in a case:
The New Rules on Criminal Procedure does not
require as a condition sine qua non to the validity of

11
12
13

14
92

93