1

2008 CRIMINAL PROCEDURE CASES

LASALA and ARNOLD ROSALES, as Members of

the Evaluating Panel, .
FERRER, vs. SANDIGANBAYAN (G.R. No. 161067 - March
14,
2008)
G.R.
No.
175057
January 29, 2008

Case Title
SANTOS-CONCIO vs. DEPARTMENT OF JUSTICE (G.R. No. 175057 - January 29,
2008)
BOISER, vs. PEOPLE OF THE PHILIPPINES (G.R. No. 180299 - January 31, 2008)

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

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

MA. ROSARIO SANTOS-CONCIO, MA. SOCORRO
V. VIDANES, MARILOU ALMADEN, CIPRIANO
LUSPO, MORLY STEWART NUEVA, HAROLD
JAMES NUEVA, NORBERT VIDANES, FRANCISCO
RIVERA, MEL FELICIANO, and JEAN OWEN
MENDOZA vs. ALARMA (G.R. No. 151970 - May 7, 2008)
ERCIA,
vs.
DEPARTMENT OF JUSTICE, HON. RAUL M.
GONZALEZ, as Secretary of the Department of
JOSE vs. SUAREZ (G.R. No. 176795 - June 30, 2008) Justice,
NATIONAL
CAPITAL
REGION
NATIONAL BUREAU OF INVESTIGATION, PANEL
OF INVESTIGATING PROSECUTORS created
under Department of Justice Department
Order No. 165 dated 08 March 2006, LEO B.
DACERA
as Chairman
GALO MONGE vs. PEOPLE OF THE PHILIPPINES (G.R. No.
170308III,
- March
7, 2008) of the Panel of
Investigating Prosecutors, and DEANA P.
PEREZ, MA. EMILIA L. VICTORIO, EDEN S.
CRUZ vs. THE PEOPLE OF THE PHILIPPINES (G.R. No.
176504 - September
03,
WAKAY-VALDES
and PETER
L. ONG, as
2008)
Members of the Panel of Investigating
Prosecutors, the EVALUATING PANEL created
under Department of Justice Department
Order No. 90 dated 08 February 2006,
JOSELITA C. MENDOZA as Chairman of the
Evaluating
Panel, and MERBA WAGA, RUEL
PEOPLE OF THE PHILIPPINES vs. ROSAS (G.R. No. 177825
-

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

2
which necessitated emergency medical support and
prompted the cancellation of the shows episode.
The Department of Interior and Local Government
(DILG), through then Secretary Angelo Reyes,
immediately created an inter-agency fact-finding
team5 to investigate the circumstances surrounding
the stampede. The team submitted its report 6 to the
DOJ on February 7, 2006.
By Department Order No. 90 of February 8, 2006,
respondent DOJ Secretary Raul Gonzalez (Gonzalez)
constituted a Panel (Evaluating Panel)7 to evaluate
the DILG Report and "determine whether there is
sufficient basis to proceed with the conduct of a
preliminary investigation on the basis of the
documents submitted."
The Evaluating Panel later submitted to Gonzalez a
February 20, 2006 Report8 concurring with the DILG
Report but concluding that there was no sufficient
basis to proceed with the conduct of a preliminary
investigation in view of the following considerations:
a) No formal complaint/s had been
filed by any of the victims and/or
their
relatives,
or
any
law
enforcement agency authorized to file
a complaint, pursuant to Rule 110 of
the Revised Rules of Criminal
Procedure;
b) While it was mentioned in the FactFinding Report that there were 74
deaths
and
687
injuries,
no
documents were submitted to prove
the same, e.g. death certificates,
autopsy reports, medical certificates,
etc.;
c) The Fact-Finding Report did not
indicate the names of the persons
involved
and
their
specific
participation in the "Ultra Incident";
d) Most of the victims did not
mention, in their sworn statements,
the names of the persons whom they
alleged to be responsible for the
"Ultra Incident".9

Respondent National Bureau of InvestigationNational Capital Region (NBI-NCR), acting on the

Evaluating Panels referral of the case to it for
further investigation, in turn submitted to the DOJ
an investigation report, by a March 8, 2006
transmittal
letter
(NBI-NCR
Report10),
with
supporting documents recommending the conduct
of
preliminary
investigation
for
Reckless
Imprudence resulting in Multiple Homicide and
Multiple Physical Injuries11 against petitioners and
seven others12 as respondents.
Acting on the recommendation of the NBI-NCR,
Gonzalez, by Department Order No. 165 of March 8,
2006, designated a panel of state prosecutors 13
(Investigating Panel) to conduct the preliminary
investigation of the case, docketed as I.S. No. 2006291, "NCR-NBI v. Santos-Concio, et al.," and if
warranted by the evidence, to file the appropriate
information and prosecute the same before the
appropriate court. The following day or on March 9,
2006, the Investigating Panel issued subpoenas 14
directing the therein respondents to appear at the
preliminary investigation set on March 20 and 27,
2006.
At the initial preliminary investigation, petitioners
sought clarification and orally moved for the
inhibition, disqualification or desistance of the
Investigating
Panel
from
conducting
the
investigation.15 The Investigating Panel did not
formally resolve the motion, however, as petitioners
manifested their reservation to file an appropriate
motion on the next hearing scheduled on March 27,
2006, without prejudice to other remedies.16
On March 23, 2006, petitioners filed a petition for
certiorari and prohibition with the Court of Appeals
which issued on March 27, 2006 a Resolution 17
granting the issuance of a temporary restraining
order,18 conducted on April 24, 2006 a hearing on
the application for a writ of preliminary injunction,
and subsequently promulgated the assailed two
issuances.
In the meantime, the Investigating Panel, by
Resolution19 of October 9, 2006, found probable
cause to indict the respondents-herein petitioners

for Reckless Imprudence resulting in Multiple

Homicide and Physical Injuries, and recommended
the conduct of a separate preliminary investigation
against certain public officials.20 Petitioners Motion
for Reconsideration21 of the said October 9, 2006
Resolution, filed on October 30, 2006 "with
abundance of caution," is pending resolution, and in
the present petition they additionally pray for its
annulment.
In asserting their right to due process, specifically to
a fair and impartial preliminary investigation,
petitioners impute reversible errors in the assailed
issuances, arguing that:
Respondents have already prejudged
the case, as shown by the public
declarations of Respondent Secretary
and the Chief Executive, and have,
therefore, lost their impartiality to
conduct preliminary investigation.
Respondents have already prejudged
the case as shown by the indecent
haste by which the proceedings were
conducted.
The alleged complaint-affidavits filed
against Petitioners were not under
oath.
The supposed complaint-affidavits
filed against Petitioners failed to state
the acts or omissions constituting the
crime.
Although Respondents may have the
power
to
conduct
criminal
investigation
or
preliminary
investigation, Respondents do not
have the power to conduct both in
the same case.22 (Emphasis and
underscoring supplied)
The issues shall, for logical reasons, be resolved in
reverse sequence.
On the Investigatory Power of the DOJ
In the assailed Decision, the appellate court ruled
that the Department Orders were issued within the
scope of authority of the DOJ Secretary pursuant to

3
the Administrative Code of 198723 bestowing
general investigatory powers upon the DOJ.
Petitioners concede that the DOJ has the power to
conduct both criminal investigation and preliminary
investigation but not in their case,24 they invoking
Cojuangco, Jr. v. PCGG.25 They posit that in
Cojuangco, the reshuffling of personnel was not
considered by this Court which ruled that the entity
which conducted the criminal investigation is
disqualified
from
conducting
a
preliminary
investigation in the same case. They add that the
DOJ cannot circumvent the prohibition by simply
creating a panel to conduct the first, and another to
conduct the second.
In insisting on the arbitrariness of the two
Department Orders which, so they claim, paved the
way for the DOJs dual role, petitioners trace the
basis for the formation of the five-prosecutor
Investigating Panel to the NBI-NCR Report which
was
spawned
by
the
supposed
criminal
investigation26 of the Evaluating Panel the members
of which included two, albeit different, prosecutors.
While petitioners do not assail the constitution of
the Evaluating Panel,27 they claim that it did not just
evaluate the DILG Report but went further and
conducted its own criminal investigation by
interviewing witnesses, conducting an ocular
inspection, and perusing the evidence.
Petitioners position does not lie. Cojuangco was
borne out of a different factual milieu.
In Cojuangco, this Court prohibited the Presidential
Commission on Good Government (PCGG) from
conducting a preliminary investigation of the
complaints for graft and corruption since it had
earlier found a prima facie case basis of its
issuance of sequestration/freeze orders and the
filing of an ill-gotten wealth case involving the same
transactions. The Court therein stated that it is
"difficult to imagine how in the conduct of such
preliminary investigation the PCGG could even
make a turn about and take a position contradictory
to its earlier findings of a prima facie case," and so
held that "the law enforcer who conducted the
criminal investigation,

gathered the evidence and thereafter filed the

complaint
for
the
purpose
of
preliminary
investigation cannot be allowed to conduct the
preliminary investigation of his own complaint." 28
The present case deviates from Cojuangco.
The measures taken by the Evaluating Panel do not
partake of a criminal investigation, they having
been done in aid of evaluation in order to relate the
incidents to their proper context. Petitioners own
video footage of the ocular inspection discloses this
purpose. Evaluation for purposes of determining
whether there is sufficient basis to proceed with the
conduct of a preliminary investigation entails not
only reading the report or documents in isolation,
but also deems to include resorting to reasonably
necessary means such as ocular inspection and
physical evidence examination. For, ultimately, any
conclusion on such sufficiency or insufficiency
needs to rest on some basis or justification.
Had the Evaluating Panel carried out measures
partaking of a criminal investigation, it would have
gathered the documents that it enumerated as
lacking. Notatu dignum is the fact that the
Evaluating Panel was dissolved functus oficio upon
rendering its report. It was the NBI, a constituent
unit29 of the DOJ, which conducted the criminal
investigation. It is thus foolhardy to inhibit the
entire DOJ from conducting a preliminary
investigation on the sheer ground that the DOJs
constituent
unit
conducted
the
criminal
investigation.
Moreover, the improbability of the DOJ contradicting
its prior finding is hardly appreciable. It bears
recalling that the Evaluating Panel found no
sufficient basis to proceed with the conduct of a
preliminary investigation. Since the Evaluating
Panels report was not adverse to petitioners,
prejudgment may not be attributed "vicariously," so
to speak, to the rest of the state prosecutors.
Partiality, if any obtains in this case, in fact weighs
heavily in favor of petitioners.
On the Alleged Defects of the Complaint
On the two succeeding issues, petitioners fault the
appellate courts dismissal of their petition despite,

so they claim, respondents commission of grave

abuse of discretion in proceeding with the
preliminary investigation given the fatal defects in
the supposed complaint.
Petitioners point out that they cannot be compelled
to submit their counter-affidavits because the NBINCR Report, which they advert to as the complaintaffidavit, was not under oath. While they admit that
there were affidavits attached to the NBI-NCR
Report, the same, they claim, were not executed by
the NBI-NCR as the purported complainant, leaving
them as "orphaned" supporting affidavits without a
sworn complaint-affidavit to support.
These affidavits, petitioners further point out,
nonetheless do not qualify as a complaint 30 within
the scope of Rule 110 of the Rules of Court as the
allegations therein are insufficient to initiate a
preliminary investigation, there being no statement
of specific and individual acts or omissions
constituting reckless imprudence. They bewail the
assumptions or conclusions of law in the NBI-NCR
Report as well as the bare narrations in the
affidavits that lack any imputation relating to them
as the persons allegedly responsible.
IN FINE, petitioners contend that absent any act or
omission ascribed to them, it is unreasonable to
expect them to confirm, deny or explain their side.
A complaint for purposes of conducting a
preliminary investigation differs from a complaint
for purposes of instituting a criminal prosecution.
Confusion
apparently
springs
because
two
complementary procedures adopt the usage of the
same word, for lack of a better or alternative term,
to refer essentially to a written charge. There should
be no confusion about the objectives, however,
since, as intimated during the hearing before the
appellate court, preliminary investigation is
conducted precisely to elicit further facts or
evidence.31 Being generally inquisitorial, the
preliminary investigation stage is often the only
means of discovering the persons who may be
reasonably charged with a crime, to enable the
preparation of a complaint or information.32

4
Consider the following pertinent provision of Rule
112 of the Revised Rules on Criminal Procedure:
SEC. 3. Procedure. The preliminary
investigation shall be conducted in
the following manner:
(a) The complaint shall state the
address of the respondent and shall
be accompanied by the affidavits
of the complainant and his
witnesses, as well as other
supporting
documents
to
establish probable cause. They
shall be in such number of copies as
there are respondents, plus two (2)
copies for the official file. The
affidavits shall be subscribed and
sworn to before any prosecutor or
government official authorized to
administer oath, or, in their absence
or unavailability, before a notary
public, each of whom must certify
that he personally examined the
affiants and that he is satisfied that
they
voluntarily
executed
and
understood
their
affidavits.33
(Emphasis
and
underscoring
supplied)
As clearly worded, the complaint is not entirely the
affidavit of the complainant, for the affidavit is
treated as a component of the complaint. The
phraseology of the above-quoted rule recognizes
that all necessary allegations need not be contained
in a single document. It is unlike a criminal
"complaint or information" where the averments
must be contained in one document charging only
one offense, non-compliance with which renders it
vulnerable to a motion to quash.34
The Court is not unaware of the practice of
incorporating all allegations in one document
denominated as "complaint-affidavit." It does not
pronounce strict adherence to only one approach,
however, for there are cases where the extent of
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,35 in which case the peace officer or law
enforcer has to rely chiefly on affidavits of
witnesses. The Rules do not in fact preclude the
attachment of a referral or transmittal letter similar
to that of the NBI-NCR. Thus, in Soriano v.
Casanova,36 the Court held:
A close scrutiny of the letters
transmitted by the BSP and PDIC to
the DOJ shows that these were not
intended to be the complaint
envisioned under the Rules. It may be
clearly inferred from the tenor of the
letters that the officers merely
intended to transmit the affidavits of
the bank employees to the DOJ.
Nowhere in the transmittal letters is
there any averment on the part of the
BSP and PDIC officers of personal
knowledge of the events and
transactions
constitutive
of
the
criminal violations alleged to have
been made by the accused. In fact,
the letters clearly stated that what
the OSI of the BSP and the LIS of the
PDIC did was to respectfully transmit
to
the
DOJ
for
preliminary
investigation
the
affidavits
and
personal knowledge of the acts of the
petitioner. These affidavits were
subscribed under oath by the
witnesses who executed them before
a notary public. Since the affidavits,
not the letters transmitting them,
were intended to initiate the
preliminary investigation, we hold
that Section 3(a), Rule 112 of the
Rules of Court was substantially
complied with.
Citing the ruling of this Court in
Ebarle v. Sucaldito, the Court of
Appeals
correctly
held
that
a
complaint for purposes of preliminary

investigation by the fiscal need not

be filed by the offended party. The
rule has been that, unless the
offense subject thereof is one
that cannot be prosecuted de
oficio, the same may be filed, for
preliminary investigation purposes,
by any competent person. The
crime of estafa is a public crime
which can be initiated by "any
competent person." The witnesses
who executed the affidavits based on
their personal knowledge of the acts
committed by the petitioner fall
within the purview of "any competent
person" who may institute the
complaint for a public crime. x x x 37
(Emphasis
and
underscoring
supplied)
A preliminary investigation can thus validly proceed
on the basis of an affidavit of any competent
person, without the referral document, like the NBINCR Report, having been sworn to by the law
enforcer as the nominal complainant. To require
otherwise is a needless exercise. The cited case of
Oporto, Jr. v. Judge Monserate38 does not appear to
dent this proposition. After all, what is required is to
reduce the evidence into affidavits, for while
reports and even raw information may justify the
initiation of an investigation, the preliminary
investigation stage can be held only after sufficient
evidence has been gathered and evaluated which
may warrant the eventual prosecution of the case in
court.39
In the present case, there is no doubt about the
existence of affidavits. The appellate court found
that "certain complaint-affidavits were already filed
by some of the victims,"40 a factual finding to which
this Court, by rule, generally defers.
A complaint for purposes of conducting preliminary
investigation is not required to exhibit the attending
structure of a "complaint or information" laid down
in Rule 110 (Prosecution of Offenses) which already
speaks of the "People of the Philippines" as a

5
party,41 an "accused" rather than a respondent, 42
and a "court" that shall pronounce judgment. 43 If a
"complaint or information" filed in court does not
comply with a set of constitutive averments, it is
vulnerable to a motion to quash. 44 The filing of a
motion to dismiss in lieu of a counter-affidavit is
proscribed by the rule on preliminary investigation,
however.45 The investigating officer is allowed to
dismiss outright the complaint only if it is not
sufficient in form and substance or "no ground to
continue with the investigation"46 is appreciated.
The investigating fiscal, to be sure,
has discretion to determine the
specificity
and
adequacy
of
averments of the offense charged. He
may dismiss the complaint forthwith
if he finds it to be insufficient in form
or substance or if he otherwise finds
no ground to continue with the
inquiry,
or
proceed
with
the
investigation if the complaint is, in his
view, in due and proper form. It
certainly is not his duty to require a
more particular statement of the
allegations of the complaint merely
upon the respondents motion, and
specially where after an analysis of
the complaint and its supporting
statements he finds it sufficiently
definite to apprise the respondents of
the offenses which they are charged.
Moreover, the procedural device of a
bill of particulars, as the Solicitor
General points out, appears to have
reference to informations or criminal
complaints filed in a competent court
upon
which
the
accused
are
arraigned and required to plead, and
strictly speaking has no application to
complaints initiating a preliminary
investigation which cannot result in
any finding of guilt, but only of
probable cause.47 (Italics and ellipses

in the original omitted; underscoring

supplied)
Petitioners claims of vague allegations or
insufficient imputations are thus matters that can
be properly raised in their counter-affidavits to
negate or belie the existence of probable cause.
On the Claim of Bias and Prejudgment
On the remaining issues, petitioners charge
respondents to have lost the impartiality to conduct
the preliminary investigation since they had
prejudged the case, in support of which they cite
the "indecent" haste in the conduct of the
proceedings. Thus, they mention the conduct of the
criminal investigation within 24 working days 48 and
the issuance of subpoenas immediately following
the creation of the Investigating Panel.
Petitioners likewise cite the following public
declarations made by Gonzalez as expressing his
conclusions that a crime had been committed, that
the show was the proximate cause, and that the
shows organizers are guilty thereof:
February 6, 2006: "[ ] should have
anticipated it because one week na
iyan e. The crowds started gathering
since one week before. This is simply
negligence x x x on the part of
the organizers."
February 14, 2006: "I think ABS-CBN
is trying to minimize its own
responsibility and its discernible
from the way by which talk shows
nila being conducted on people who
talk about liabilities of others.
"The
reason
for
this
incident was the program.
If there was no program, there
would
have
been
no
stampede. There would have
been no people. There would
have been no attempt by
people to queue there for days
and rush for the nearest entry
point."

March 20, 2006: "Ill bet everything

I have that they are responsible
at least on the civil aspect." 49
(Emphasis in the original)
Continuing, petitioners point out that long before
the conclusion of any investigation, Gonzalez
already ruled out the possibility that some other
cause or causes led to the tragedy or that someone
else or perhaps none should be made criminally
liable; and that Gonzalez had left the preliminary
investigation to a mere determination of who within
ABS-CBN are the programs organizers who should
be criminally prosecuted.
Petitioners even cite President Arroyos declaration
in a radio interview on February 14, 2006 that
"[y]ang stampede na iyan, Jo, ay isang trahedya na
pinapakita yung kakulangan at pagkapabaya
nagpabaya ng organisasyon na nag-organize nito."
To petitioners, the declarations admittedly50 made
by Gonzalez tainted the entire DOJ, including the
Evaluating and Investigating Panels, since the
Department is subject to the direct control and
supervision of Gonzalez in his capacity as DOJ
Secretary who, in turn, is an alter ego of the
President.
Petitioners thus fault the appellate court in not
finding grave abuse of discretion on the part of the
Investigating Panel members who "refused to inhibit
themselves from conducting the preliminary
investigation despite the undeniable bias and
partiality publicly displayed by their superiors."51
Pursuing, petitioners posit that the bias of the DOJ
Secretary is the bias of the entire DOJ.52 They thus
conclude that the DOJ, as an institution, publicly
adjudged their guilt based on a pre-determined
notion of supposed facts, and urge that the
Investigating Panel and the entire DOJ for that
matter should inhibit from presiding and deciding
over such preliminary investigation because they,
as quasi-judicial officers, do not possess the "cold
neutrality of an impartial judge."53
Responding to the
claim of prejudgment,
respondents
maintain
that
the
above-cited
statements of Gonzalez and the President merely

6
indicate that the incident is of such nature and
magnitude as to warrant a natural inference that it
would not have happened in the ordinary course of
things and that any reasonable mind would
conclude that there is a causal connection between
the shows preparations and the resultant deaths
and injuries.
Petitioners fears are speculatory.
Speed in the conduct of proceedings by a judicial or
quasi-judicial officer cannot per se be instantly
attributed to an injudicious performance of
functions.54 For ones prompt dispatch may be
anothers undue haste. The orderly administration
of justice remains as the paramount and constant
consideration,55 with particular regard of the
circumstances peculiar to each case.
The presumption of regularity56 includes the public
officers official actuations in all phases of work. 57
Consistent with such presumption, it was incumbent
upon petitioners to present contradictory evidence
other than a
mere tallying of days or numerical calculation. 58
This, petitioners failed to discharge. The swift
completion of the Investigating Panels initial task
cannot be relegated as shoddy or shady without
discounting the presumably regular performance of
not just one but five state prosecutors.
As for petitioners claim of undue haste indicating
bias, proof thereof is wanting. The pace of the
proceedings is anything but a matter of
acceleration. Without any objection from the
parties, respondents even accorded petitioners a
preliminary investigation even when it was not
required since the case involves an alleged offense
where the penalty prescribed by law is below Four
Years, Two Months and One Day.59
Neither is there proof showing that Gonzalez
exerted undue pressure on his subordinates to tailor
their decision with his public declarations and
adhere to a pre-determined result. The Evaluating
Panel in fact even found no sufficient basis, it bears
emphatic reiteration, to proceed with the conduct of
a preliminary investigation, and one member of the

Investigating Panel even dissented to its October 9,

2006 Resolution.
To follow petitioners theory of institutional bias
would logically mean that even the NBI had
prejudged the case in conducting a criminal
investigation since it is a constituent agency of the
DOJ. And if the theory is extended to the Presidents
declaration, there would be no more arm of the
government credible enough to conduct a criminal
investigation and a preliminary investigation.
On petitioners citation of Ladlad v. Velasco60 where
a public declaration by Gonzalez was found to
evince a "determination to file the Information even
in the absence of probable cause,"61 their attention
is drawn to the following ruling of this Court in
Roberts, Jr. v. Court of Appeals:62
Ordinarily, the determination of
probable cause is not lodged with this
Court. Its duty in an appropriate case
is confined to the issue of whether
the
executive
or
judicial
determination, as the case may be, of
probable cause was done without or
in excess of jurisdiction or with grave
abuse of discretion amounting to
want of jurisdiction. This is consistent
with the general rule that criminal
prosecution may not be restrained or
stayed by injunction, preliminary or
final.
There
are,
however,
exceptions to this rule x x x
enumerated in Brocka vs. Enrile (192
SCRA 183, 188-189 [1990]) x x x. In
these exceptional cases, this Court
may ultimately resolve the existence
or non-existence of probable cause by
examining
the
records
of the
preliminary investigation x x x.63
(Emphasis
and
underscoring
supplied)
Even assuming arguendo that petitioners case falls
under the exceptions enumerated in Brocka, any
resolution on the existence or lack of probable
cause or, specifically, any conclusion on the issue of

prejudgment as elucidated in Ladlad, is made to

depend on the records of the preliminary
investigation. There have been, as the appellate
court points out, no finding to speak of when the
petition was filed, much less one that is subject to
judicial review due to grave abuse.64 At that
incipient stage, records were wanting if not nil since
the Investigating Panel had not yet resolved any
matter brought before it, save for the issuance of
subpoenas. The Court thus finds no reversible error
on the part of the appellate court in dismissing
petitioners petition for certiorari and prohibition
and in refraining from reviewing the merits of the
case until a ripe and appropriate case is presented.
Otherwise, court intervention would have been only
pre-emptive and piecemeal.
Oddly enough, petitioners eventually concede that
they are "not asking for a reversal of a ruling on
probable cause."65
A word on the utilization by petitioners of the video
footages provided by ABS-CBN. While petitioners
deny wishing or causing respondents to be biased
and impartial,66 they admit67 that the media, ABSCBN included, interviewed Gonzalez in order to elicit
his opinion on a matter that ABS-CBN knew was
pending investigation and involving a number of its
own staff. Gonzalezs actuations may leave much to
be desired; petitioners are not, however, totally
spotless as circumstances tend to show that they
were asking for or fishing from him something that
could later be used against him to favor their cause.
A FINAL WORD. The Court takes this occasion to
echo its disposition in Cruz v. Salva68 where it
censured a fiscal for inexcusably allowing undue
publicity in the conduct of preliminary investigation
and appreciated the press for wisely declining an
unusual probing privilege. Agents of the law ought
to recognize the buoys and bounds of prudence in
discharging what they may deem as an earnest
effort to herald the governments endeavor in
solving a case.
WHEREFORE, the petition is DENIED.
Costs against petitioners.
SO ORDERED.

7
January 31, 2008
RESOLUTION
NACHURA, J.:
Before the Court is a petition for review on
certiorari[2] assailing the Decision of the Court of
Appeals (CA), dated June 5, 2007 in CA-G.R. CEB-SP.
No. 02368.[3]
The main issue in this case is whether the CA
committed reversible error in affirming the decision
of the RTC which denied petitioners omnibus
motion to quash the informations filed against him.
Based on the findings of the CA, the pertinent facts
of the case are as follows:
On June 4, 2004, three (3) Informations were filed
against petitioner, charging him with acts of
lasciviousness, other acts of child abuse, and rape [4]
of minor AAA before the Regional Trial Court (RTC),
Branch 1, Tagbilaran, Bohol.
On June 11, 2004, petitioner filed a Motion praying
that a hearing be conducted to determine the
existence of probable cause and to hold in
abeyance the issuance of a warrant of arrest
against him. On June 16, 2004, private respondent
filed an Opposition thereto.

LYNDON D. BOISER,
PHILIPPINES
G.R. No. 180299

vs.

PEOPLE

OF

THE

On June, 18, 2004, the family court issued three (3)

separate Orders in the three (3) criminal cases,
directing the prosecution to submit additional
evidence on the cases along with the transcript of
proceedings during the preliminary investigation.
On June 20, 2004, the prosecutor filed a
Manifestation saying that the prosecution had no
additional evidence to present and that due to the
non-availability of a stenographer who could take
down notes during the preliminary investigation on
April 28, 2004 and May 7, 2004, he personally took
down notes, and submitted certified photocopies of

the same to the court. On July 2, 2004, the family

court directed the City Prosecution Office in
Tagbilaran City to complete the preliminary
investigation in a regular manner with duly recorded
proceedings attended by a stenographer. On August
4, 2004, a Reinvestigation Report was submitted by
the prosecutor maintaining the existence of
probable cause in the three cases.
On August 9, 2004, petitioner filed an Omnibus
Motion for Determination of Probable Cause. On
September 10, 2004, the family court issued three
(3) separate Orders finding probable cause against
petitioner in the three (3) cases, issued a warrant of
arrest against him and fixed the corresponding bail
for each case. On November 19 and 24, 2004,
petitioner filed Motions to Inhibit the judge of
Branch 1 from hearing the 3 cases. The judge
acceded. Thereafter, the cases were raffled to
Branch 2 of the same court. On March 1, 2005,
petitioner again filed a Motion to Inhibit the judge of
Branch 2. The same was granted and the case was
raffled to Branch 4 of the same court. Then again,
petitioner filed a Motion to Inhibit the Judge of
Branch 4. The three (3) cases were then raffled to
Branch 49 of the said court.
On August 19, 2005, petitioner filed an Omnibus
Motion to Quash the three (3) Informations to which
private respondent filed an Opposition. On June 30,
2006, Branch 49 issued a Joint Order denying the
aforesaid motion. A Motion for Reconsideration was
filed by petitioner citing absence of probable cause
and lack of jurisdiction over his person as grounds
in support of his motion. However, upon the request
of private respondents parents, the Judge of
Branch 49 inhibited himself from hearing the three
(3) cases. Finally, the cases were raffled to Branch 3
of the RTC of Tagbilaran City, Bohol, presided over
by Judge Venancio J. Amila (Judge Amila).
On November 6, 2006, the lower court issued an
Omnibus Order denying petitioners omnibus
motion
for
reconsideration
to
quash
the

8
informations. On November 22, 2006, petitioner
filed anew an Urgent Omnibus Motion to Quash. On
November 30, 2006, the RTC issued an Order
denying the second omnibus motion to quash, and
set the arraignment on December 15, 2006. A day
before the arraignment, petitioner filed a Second
Omnibus Motion for Reconsideration of the order
denying his motion to quash.
On December 15, 2006, petitioner reminded Judge
Amila of his second omnibus motion for
reconsideration. Judge Amila, in open court, denied
for lack of merit the second omnibus motion for
reconsideration. Upon arraignment, petitioner
refused to enter a plea for the 3 cases. Accordingly,
a plea of not guilty was entered for petitioner for
each of the 3 criminal cases.
On January 2, 2007, petitioner filed a Petition for
certiorari[5] before the CA claiming that the family
court acted with grave abuse of discretion in issuing
the orders denying his omnibus motions to quash
the
information.
On June 5, 2007, the CA rendered a Decision [6]
affirming the Orders of the RTC. In denying the
petition, the CA ratiocinated that it cannot reverse
the RTC orders because: (1) an order denying a
motion to quash is interlocutory and not appealable;
and (2) the petitioner failed to positively prove
grave abuse of discretion on the part of the RTC
judge in the issuance of the assailed orders. The
fallo of the Decision reads:
WHEREFORE, premises considered, the petition is
hereby DENIED. The assailed orders of the
respondent judge are hereby AFFIRMED.
Costs against the petitioner.
SO ORDERED.[7]
A motion for reconsideration was filed by petitioner
which the CA denied in a Resolution [8] dated
September
19,
2007.

On November 16, 2007, petitioner filed the instant

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

to rest on evidence showing that more likely than

not a crime has been committed and was
committed by the suspect. Probable cause need not
be based on clear and convincing evidence of guilt,
neither on evidence establishing guilt beyond
reasonable doubt, and definitely, not on evidence
establishing
absolute
certainty
of
guilt.[12]

That the Honorable Court of Appeals has so far

departed from the accepted and usual course of
judicial proceedings, or so far sanctioned such
departure by the lower court.[9]
We resolve to deny the petition.
A petition for certiorari under Rule 65 is not the
proper remedy against an order denying a motion to
quash. The accused should instead go to trial,
without prejudice on his part to present the special
defenses he had invoked in his motion and, if after
trial on the merits, an adverse decision is rendered,
to appeal therefrom in the manner authorized by
law.[10] Based on the findings of the investigating
prosecutor and of the trial judge, probable cause
exists to indict petitioner for the 3 offenses. Absent
any showing of arbitrariness on the part of the
investigating prosecutor or any other officer
authorized by law to conduct preliminary
investigation, courts as a rule must defer to said
officers finding and determination of probable
cause, since the determination of the existence of
probable cause is the function of the prosecutor.[11]

As to the allegation of petitioner that the RTC has

not acquired jurisdiction over his person, this issue
has been rendered moot and academic with
petitioners arraignment in the 3 cases and his
taking
part
in
the
proceedings
therein.

It is obvious to this Court that petitioners

insistent filing of numerous motions to inhibit the
judge hearing the 3 criminal cases and of motions
to quash is a ploy to delay the proceedings, a
reprehensible tactic that impedes the orderly
administration of justice. If he is truly innocent,
petitioner should bravely go to trial and prove his
defense. After all, the purpose of a preliminary
investigation is merely to determine whether a
crime has been committed and whether there is
probable cause to believe that the person accused
of the crime is probably guilty thereof and should be
held for trial. A finding of probable cause needs only

WHEREFORE, in view of the foregoing, the petition

is DENIED for lack of merit. Costs against the
petitioner.
SO ORDERED.

SPOUSES BERNYL BALANGAUAN & KATHERENE

BALANGAUAN
vs.
THE HONORABLE COURT OF APPEALS, SPECIAL
NINETEENTH (19TH) DIVISION, CEBU CITY &
THE HONGKONG AND SHANGHAI BANKING
CORPORATION, LTD.
G. R. No. 174350
August 13, 2008
x-------------------------------------------------x
DECISION
CHICO-NAZARIO, J.:
Before Us is a Petition for Certiorari under
Rule 65 of the Revised Rules of Court assailing the
28 April 2006 Decision[1] and 29 June 2006
Resolution[2] of the Court of Appeals in CA-G.R.
CEB-SP No. 00068, which annulled and set aside the
6 April 2004[3] and 30 August 2004[4] Resolutions
of the Department of Justice (DOJ) in I.S. No. 029230-I, entitled The Hongkong and Shanghai
Banking Corporation v. Katherine Balangauan, et
al. The twin resolutions of the DOJ affirmed, in
essence, the Resolution of the Office of the City
Prosecutor,[5] Cebu City, which dismissed for lack of
probable cause the criminal complaint for Estafa
and/or Qualified Estafa, filed against petitionerSpouses Bernyl Balangauan (Bernyl) and Katherene
Balangauan (Katherene) by respondent Hong Kong
and Shanghai Banking Corporation, Ltd. (HSBC).
In this Petition for Certiorari, petitioners
Bernyl and Katherene urge this Court to reverse
and set aside the Decision of the Court of Appeals,
Special nineteenth (sic) [19th] division (sic), Cebu

City (sic) and accordingly, dismiss the complaint

against the [petitioners Bernyl and Katherene] in
view of the absence of probable cause to warrant
the filing of an information before the Court and for
utter lack of merit.[6]
As culled from the records, the antecedents
of the present case are as follows:
Petitioner
Katherene
was
a
Premier
Customer Services Representative (PCSR) of
respondent bank, HSBC. As a PCSR, she managed
the accounts of HSBC depositors with Premier
Status. One such client and/or depositor handled by
her was Roger Dwayne York (York).
York maintained several accounts with
respondent HSBC. Sometime in April 2002, he went
to respondent HSBCs Cebu Branch to transact with
petitioner Katherene respecting his Dollar and Peso
Accounts. Petitioner Katherene being on vacation at
the time, York was attended to by another PCSR.
While at the bank, York inquired about the status of
his time deposit in the amount of P2,500,000.00.
The PCSR representative who attended to him,
however, could not find any record of said
placement in the banks data base.
York adamantly insisted, though, that
through petitioner Katherene, he made a placement
of the aforementioned amount in a higher-earning
time deposit. York further elaborated that petitioner
Katherene explained to him that the alleged higherearning time deposit scheme was supposedly being
offered to Premier clients only. Upon further
scrutiny and examination, respondent HSBCs bank
personnel discovered that: (1) on 18 January 2002,
York pre-terminated a P1,000,000.00 time deposit;
(2) there were cash movement tickets and
withdrawal slips all signed by York for the amount of
P1,000,000.00; and (3) there were regular
movements in Yorks accounts, i.e., beginning in the
month of January 2002, monthly deposits in the
amount of P12,500.00 and P8,333.33 were made,

which York denied ever making, but surmised were

the regular interest earnings from the placement of
the P2,500,000.00.
It was likewise discovered that the abovementioned
deposits
were
transacted
using
petitioner Katherenes computer and work station
using the code or personal password CEO8. The
significance of code CEO8, according to the bank
personnel of respondent HSBC, is that, [i]t is only
Ms. Balangauan who can transact from [the]
computer in the work station CEO-8, as she is
provided with a swipe card which she keeps sole
custody of and only she can use, and which she
utilizes
for
purposes
of
performing
bank
transactions from that computer.[7]
Bank personnel of respondent HSBC likewise
recounted in their affidavits that prior to the filing of
the complaint for estafa and/or qualified estafa,
they were in contact with petitioners Bernyl and
Katherene. Petitioner Bernyl supposedly met with
them on two occasions. At first he disavowed any
knowledge regarding the whereabouts of Yorks
money but later on admitted that he knew that his
wife invested the funds with Shell Company. He
likewise admitted that he made the phone banking
deposit to credit Yorks account with the P12,500.00
and the P8,333.33 using their landline telephone.
With respect to petitioner Katherene, she allegedly
spoke to the bank personnel and York on several
occasions and admitted that the funds were indeed
invested with Shell Company but that York knew
about this.
So as not to ruin its name and goodwill
among its clients, respondent HSBC reimbursed York
the P2,500,000.00.
Based
on
the
foregoing
factual
circumstances, respondent HSBC, through its
personnel, filed a criminal complaint for Estafa
and/or Qualified Estafa before the Office of the City
Prosecutor, Cebu City.

10
Petitioners Bernyl and Katherene submitted
their joint counter-affidavit basically denying the
allegations contained in the affidavits of the
aforenamed employees of respondent HSBC as well
as that made by York. They argued that the
allegations in the Complaint-Affidavits were pure
fabrications. Specifically, petitioner Katherene
denied 1) having spoken on the telephone with Dy
and York; and 2) having admitted to the personnel
of respondent HSBC and York that she took the
P2,500,000.00 of York and invested the same with
Shell Corporation. Petitioner Bernyl similarly denied
1) having met with Dy, Iigo, Cortes and Arcuri; and
2) having admitted to them that York knew about
petitioner Katherenes move of investing the
formers money with Shell Corporation.
Respecting the P12,500.00 and P8,333.33
regular monthly deposits to Yorks account made
using the code CEO8, petitioners Bernyl and
Katherene, in their defense, argued that since it was
a deposit, it was her duty to accept the funds for
deposit. As regards Yorks time deposit with
respondent HSBC, petitioners Bernyl and Katherene
insisted that the funds therein were never entrusted
to Katherene in the latters capacity as PCSR
Employee of the former because monies deposited
at any bank would not and will not be entrusted to
specific bank employee but to the bank as a whole.
Following
the
requisite
preliminary
investigation, Assistant City Prosecutor (ACP) Victor
C. Laborte, Prosecutor II of the OCP, Cebu City, in a
Resolution[8] dated 21 February 2003, found no
probable cause to hold petitioners Bernyl and
Katherene liable to stand trial for the criminal
complaint of estafa and/or qualified estafa,
particularly Article 315 of the Revised Penal Code.
Accordingly, the ACP recommended the dismissal
of respondent HSBCs complaint.
The ACP explained his finding, viz:

As in any other cases, we

may never know the ultimate truth of
this controversy. But on balance, the
evidence on record tend to be
supportive of respondents contention
rather than that of complaint.
xxxx
First of all, it is well to dwell on
what Mr. York said in his affidavit.
Thus:
`18.
For
purposes of opening
these
two
time
deposits (sic) accounts,
Ms. Balangauan asked
me to sign several
Bank documents on
several occasions, the
nature of which I was
unfamiliar with.
`20.
I
discovered later that
these were withdrawal
slips
and
cash
movement tickets, with
which documents Ms.
Balangauan apparently
was able to withdraw
the amount from my
accounts, and take the
same
from
the
premises of the Bank.
In determining the credibility
of an evidence, it is well to consider
the probability or improbability of
ones statements for it has been said
that there is no test of the truth of
human
testimony
except
its

conformity
to
our
knowledge,
observation and experience.
Mr. York could not have been
that
unwary
and
unknowingly
innocent to claim unfamiliarity with
withdrawal slips and cash movement
tickets which Ms. Balangauan made
him to sign on several occasions. He
is a premier client of HSBC
maintaining an account in millions of
pesos. A withdrawal slip and cash
movement tickets could not have had
such
intricate
wordings
or
terminology so as to render them
non-understandable even to an
ordinary account holder. Mr. York
admittedly is a long-standing client of
the bank. Within the period of longstanding he certainly must have
effected some withdrawals. It goes
without saying therefore that the
occasions
that
Ms.
Balangauan
caused him to sign withdrawal slips
are not his first encounter with such
kinds of documents.
The one ineluctable conclusion
therefore that can be drawn from the
premises is that Mr. York freely and
knowingly knew what was going on
with his money, who has in
possession of them and where it was
invested.
These
take
out
the
elements of deceit, fraud, abuse of
confidence and without the owners
consent in the crimes charged.
The other leg on which
complainants cause of action stands
rest on its claim for sum of money
against respondents allegedly after it
reimbursed Mr. York for his missing
account supposedly taken/withdrawn

11
by Ms. Balangauan. The banks action
against respondents would be a civil
suit against them which apparently it
already did after the bank steps into
the shoes of Mr. York and becomes
the creditor of Ms. Balangauan.[9]
The ACP then concluded that:
By and large, the evidence on
record do (sic) not engender enough
bases to establish a probable cause
against respondents.[10]
On 1 July 2003, respondent HSBC appealed
the
above-quoted
resolution
and
foregoing
comment to the Secretary of the DOJ by means of a
Petition for Review.
In a Resolution dated 6 April 2004, the Chief
State Prosecutor, Jovencito R. Zuo, for the
Secretary of the DOJ, dismissed the petition. In
denying respondent HSBCs recourse, the Chief
State Prosecutor held that:
Sec. 12 (c) of Department
Circular No. 70 dated July 2, 2000
provides that the Secretary of Justice
may, motu proprio, dismiss outright
the petition if there is no showing of
any reversible error in the questioned
resolution.
We carefully examined the
petition and its attachments and
found no reversible error that would
justify a reversal of the assailed
resolution which is in accord with the
law and evidence on the matter.

Respondent
HSBCs
Motion
for
Reconsideration was likewise denied with finality by
the DOJ in a lengthier Resolution dated 30 August
2004.
The DOJ justified its ruling in this wise:
A perusal of the motion
reveals no new matter or argument
which
was
not
taken
into
consideration in our review of the
case. Hence, we find no cogent
reason to reconsider our resolution.
Appellant failed to present any iota of
evidence
directly
showing
that
respondent Katherene Balangauan
took the money and invested it
somewhere else. All it tried to
establish
was
that
Katherene
unlawfully took the money and
fraudulently invested it somewhere
else x x x, because after the
withdrawals were made, the money
never
reached
Roger
York
as
appellant adopted hook, line and
sinker the latters declaration, despite
Yorks signatures on the withdrawal
slips covering the total amount of
P2,500,000.00 x x x. While appellant
has
every
reason
to
suspect
Katherene for the loss of the
P2,500,000.00 as per Yorks bank
statements, the cash deposits were
identified by the numerals CEO8
and it was only Katherene who could
transact from the computer in the
work station CEO-8, plus alleged
photographs
showing
Katherene
leaving her office at 5:28 p.m. with a
bulky
plastic
bag
presumably
containing cash since a portion of
the funds was withdrawn, we do not,
however,
dwell
on
possibilities,
suspicion and speculation. We rule
based on hard facts and solid
evidence.

Moreover, an examination of
the petition for review reveals that
appellant failed to append thereto all
annexes to respondents urgent
manifestations x x x together with
supplemental affidavits of Melanie de
Ocampo and Rex B. Balucan x x x,
which are
pertinent documents
required
under
Section
5
of
Department Circular No. 70 dated July
3, 2000.[11]
Respondent HSBC then went to the Court of
Appeals by means of a Petition for Certiorari under
Rule 65 of the Revised Rules of Court.
On 28 April 2006, the Court of Appeals
promulgated its Decision granting respondent
HSBCs petition, thereby annulling and setting aside
the twin resolutions of the DOJ.
The fallo of the assailed decision reads:
WHEREFORE, in view of the
foregoing premises, judgment is
hereby rendered by us GRANTING the
petition filed in this case. The assailed
Resolutions dated April 6, 2004 and
August 30, 2004 are ANNULLED and
SET ASIDE.
The City Prosecutor of Cebu
City is hereby ORDERED to file the
appropriate Information against the
private respondents.[12]
Petitioners Bernyl and Katherenes motion for
reconsideration proved futile, as it was denied by
the appellate court in a Resolution dated 29 June
2006.
Hence, this petition for certiorari filed under Rule 65
of the Revised Rules of Court.

12
Petitioners Bernyl and Katherene filed the
present petition on the argument that the Court of
Appeals committed grave abuse of discretion in
reversing and setting aside the resolutions of the
DOJ when: (1) [i]t reversed the resolution of the
Secretary of Justice, Manila dated August 30, 2004
and correspondingly, gave due course to the
Petition for Certiorari filed by HSBC on April 28,
2006 despite want of probable cause to warrant the
filing of an information against the herein
petitioners[13]; (2) [i]t appreciated the dubious
evidence adduced by HSBC albeit the absence of
legal standing or personality of the latter[14]; (3)
[i]t denied the motions for reconsideration on June
29, 2006 notwithstanding the glaring evidence
proving the innocence of the petitioners[15]; (4)
[i]t rebuffed the evidence of the herein petitioners
in spite of the fact that, examining such evidence
alone would establish that the money in question
was already withdrawn by Mr. Roger Dwayne
York[16]; and (5) [i]t failed to dismiss outright the
petition by HSBC considering that the required
affidavit of service was not made part or attached in
the said petition pursuant to Section 13, Rule 13 in
relation to Section 3, Rule 46, and Section 2, Rule
56 of the Rules of Court.[17]
Required to comment on the petition,
respondent HSBC remarked that the filing of the
present petition is improper and should be
dismissed. It argued that the correct remedy is an
appeal by certiorari under Rule 45 of the Revised
Rules of Court.
Petitioners Bernyl and Katherene, on the
other hand, asserted in their Reply[18] that the
petition filed under Rule 65 was rightfully filed
considering that not only questions of law were
raised but questions of fact and error of jurisdiction
as well. They insist that the Court of Appeals
clearly usurped into the jurisdiction and authority
of the Public Prosecutor/Secretary of justice (sic) x x
x.[19]

Given the foregoing arguments, there is

need to address, first, the issue of the mode of
appeal resorted to by petitioners Bernyl and
Katherene. The present petition is one for certiorari
under Rule 65 of the Revised Rules of Court. Notice
that what is being assailed in this recourse is the
decision and resolution of the Court of Appeals
dated 28 April 2006 and 29 June 2006, respectively.
The Revised Rules of Court, particularly Rule 45
thereof, specifically provides that an appeal by
certiorari from the judgments or final orders or
resolutions of the appellate court is by verified
petition for review on certiorari.[20]
In the present case, there is no question that
the 28 April 2006 Decision and 29 June 2006
Resolution of the Court of Appeals granting the
respondent HSBCs petition in CA-G.R. CEB. SP No.
00068 is already a disposition on the merits.
Therefore, both decision and resolution, issued by
the Court of Appeals, are in the nature of a final
disposition of the case set before it, and which,
under Rule 45, are appealable to this Court via a
Petition for Review on Certiorari, viz:
SECTION 1. Filing of petition
with Supreme Court. A party
desiring to appeal by certiorari from a
judgment or final order or resolution
of the Court of Appeals, the
Sandiganbayan, the Regional Trial
Court or other courts whenever
authorized by law, may file with the
Supreme Court a verified petition for
review on certiorari. The petition shall
raise only questions of law which
must
be
distinctly
set
forth.
(Emphasis supplied.)
It is elementary in remedial law that a writ of
certiorari will not issue where the remedy of appeal
is available to an aggrieved party. A remedy is
considered "plain, speedy and adequate" if it will
promptly relieve the petitioners from the injurious

effects of the judgment and the acts of the lower

court or agency.[21] In this case, appeal was not
only available but also a speedy and adequate
remedy.[22] And while it is true that in accordance
with the liberal spirit pervading the Rules of Court
and in the interest of substantial justice,[23] this
Court has, before,[24] treated a petition for
certiorari as a petition for review on certiorari,
particularly if the petition for certiorari was filed
within the reglementary period within which to file a
petition for review on certiorari;[25] this exception
is not applicable to the present factual milieu.
Pursuant to Sec. 2, Rule 45 of the Revised
Rules of Court:
SEC. 2. Time for filing;
extension. The petition shall be filed
within fifteen (15) days from notice of
the judgment or final order or
resolution appealed from, or of the
denial of the petitioners motion for
new trial or reconsideration filed in
due time after notice of the
judgment. x x x.
a party litigant wishing to file a petition for review
on certiorari must do so within 15 days from receipt
of the judgment, final order or resolution sought to
be appealed. In this case, petitioners Bernyl and
Katherenes motion for reconsideration of the
appellate courts Resolution was denied by the
Court of Appeals in its Resolution dated 29 June
2006, a copy of which was received by petitioners
on 4 July 2006. The present petition was filed on 1
September 2006; thus, at the time of the filing of
said petition, 59 days had elapsed, way beyond the
15-day period within which to file a petition for
review under Rule 45, and even beyond an
extended period of 30 days, the maximum period
for extension allowed by the rules had petitioners
sought to move for such extra time. As the facts

13
stand, petitioners Bernyl and Katherene had lost the
right to appeal via Rule 45.
Be that as it may, alternatively, if the
decision of the appellate court is attended by grave
abuse of discretion amounting to lack or excess of
jurisdiction, then such ruling is fatally defective on
jurisdictional ground and may be questioned even
after the lapse of the period of appeal under Rule
45[26] but still within the period for filing a petition
for certiorari under Rule 65.
We have previously ruled that grave abuse
of discretion may arise when a lower court or
tribunal violates and contravenes the Constitution,
the law or existing jurisprudence. By grave abuse
of discretion is meant such capricious and whimsical
exercise of judgment as is equivalent to lack of
jurisdiction. The abuse of discretion must be grave,
as where the power is exercised in an arbitrary or
despotic manner by reason of passion or personal
hostility and must be so patent and gross as to
amount to an evasion of positive duty or to a virtual
refusal to perform the duty enjoined by or to act at
all in contemplation of law.[27]
The word
capricious, usually used in tandem with the term
arbitrary, conveys the notion of willful and
unreasoning action. Thus, when seeking the
corrective hand of certiorari, a clear showing of
caprice and arbitrariness in the exercise of
discretion is imperative.[28]

against the private respondent without stating the

facts and the law upon which this conclusion was
made[29]; and 2) that the public respondent (DOJ)
made reference to the facts and circumstances of
the case leading to his finding that no probable
cause exists, x x x (the) very facts and
circumstances (which) show that there exists a
probable cause to believe that indeed the private
respondents committed the crimes x x x charged
against them.[30]
It explained that:

In reversing and setting aside the resolutions

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

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

The Court of Appeals, when it resolved to

grant the petition in CA-G.R. CEB. SP No. 00068, did
so on two grounds, i.e., 1) that the public
respondent (DOJ) gravely abused his discretion in
finding that there was no reversible error on the
part of the Cebu City Prosecutor dismissing the case

In this case, the petitioner had

amply established that it has a prima
facie case against the private
respondents. As observed by the
public respondent in his second
assailed resolution, petitioner was

able to present photographs of

private respondent Ms. Balangauan
leaving her office carrying a bulky
plastic bag. There was also the fact
that the transactions in Mr. Yorks
account used the code CEO8 which
presumably point to the private
respondent Ms. Balangauan as the
author thereof for she is the one
assigned to such work station.
Furthermore, petitioner was
able to establish that it was Ms.
Balangauan who handled Mr. Yorks
account and she was the one
authorized to make the placement of
the sum of P2,500,000.00. Since said
sum is nowhere to be found in the
records of the bank, then, apparently,
Ms. Balangauan must be made to
account for the same.[31]
The appellate court then concluded that:
These facts engender a wellfounded belief that that (sic) a crime
has been committed and that the
private respondents are probably
guilty thereof. In refusing to file the
corresponding information against the
private respondents despite the
presence
of
the
circumstances
making out a prima facie case against
them, the public respondent gravely
abused his discretion amounting to
an evasion of a positive duty or to a
virtual refusal either to perform the
duty enjoined or to act at all in
contemplation of law.[32]
The Court of Appeals found fault in the DOJs
failure to identify and discuss the issues raised by

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

no
purpose
except
that
of
determining whether a crime has
been committed and whether there is
probable cause to believe that the
accused is guilty thereof. While the
fiscal makes that determination, he
cannot be said to be acting as a
quasi-court, for it is the courts,
ultimately, that pass judgment on the
accused, not the fiscal.

Petitioners Bernyl and Katherene, joined by

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

Though some cases[35] describe the public

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

It must be remembered that a preliminary

investigation is not a quasi-judicial proceeding, and
that the DOJ is not a quasi-judicial agency exercising
a quasi-judicial function when it reviews the findings
of a public prosecutor regarding the presence of
probable cause. In Bautista v. Court of Appeals,[34]
this Court held that a preliminary investigation is
not a quasi-judicial proceeding, thus:
[T]he prosecutor in a preliminary
investigation does not determine the
guilt or innocence of the accused. He
does not exercise adjudication nor
rule-making functions. Preliminary
investigation is merely inquisitorial,
and is often the only means of
discovering the persons who may be
reasonably charged with a crime and
to enable the fiscal to prepare his
complaint or information. It is not a
trial of the case on the merits and has

Anent the substantial merit of the case,

whether or not the Court of Appeals decision and
resolution are tainted with grave abuse of discretion
in finding probable cause, this Court finds the
petition dismissible.

The Court of Appeals cannot be said to have

acted with grave abuse of discretion amounting to
lack or excess of jurisdiction in reversing and setting
aside the resolutions of the DOJ. In the resolutions
of the DOJ, it affirmed the recommendation of ACP
Laborte that no probable cause existed to warrant
the filing in court of an Information for estafa and/or
qualified estafa against petitioners Bernyl and
Katherene. It was the reasoning of the DOJ that
[w]hile appellant has every reason to suspect
Katherene for the loss of the P2,500,000.00 as per
Yorks bank statements, the cash deposits were
identified by the numerals CEO8 and it was only
Katherene who could transact from the computer in
the work station CEO-8, plus alleged photographs
showing Katherene leaving her office at 5:28 p.m.
with a bulky plastic bag presumably containing
cash since a portion of the funds was withdrawn,
we do not, however, dwell on possibilities, suspicion
and speculation. We rule based on hard facts and
solid evidence.[38]
We do not agree.
Probable cause has been defined as the
existence of such facts and circumstances as would
excite belief in a reasonable mind, acting on the
facts within the knowledge of the prosecutor, that
the person charged was guilty of the crime for
which he was prosecuted.[39] A finding of probable
cause merely binds over the suspect to stand trial.
It is not a pronouncement of guilt.[40]
The
executive
department
of
the
government is accountable for the prosecution of
crimes, its principal obligation being the faithful
execution of the laws of the land. A necessary
component of the power to execute the laws is the
right to prosecute their violators,[41] the
responsibility for which is thrust upon the DOJ.
Hence, the determination of whether or not
probable cause exists to warrant the prosecution in
court of an accused is consigned and entrusted to

15
the DOJ. And by the nature of his office, a public
prosecutor is under no compulsion to file a
particular criminal information where he is not
convinced that he has evidence to prop up the
averments thereof, or that the evidence at hand
points to a different conclusion.
But this is not to discount the possibility of
the commission of abuses on the part of the
prosecutor.
It is entirely possible that the
investigating prosecutor has erroneously exercised
the discretion lodged in him by law. This, however,
does not render his act amenable to correction and
annulment by the extraordinary remedy of
certiorari, absent any showing of grave abuse of
discretion amounting to excess of jurisdiction.[42]
And while it is this Courts general policy not
to interfere in the conduct of preliminary
investigations, leaving the investigating officers
sufficient discretion to determine probable cause,
[43] we have nonetheless made some exceptions to
the general rule, such as when the acts of the
officer are without or in excess of authority,[44]
resulting from a grave abuse of discretion.
Although there is no general formula or fixed rule
for the determination of probable cause, since the
same must be decided in the light of the conditions
obtaining in given situations and its existence
depends to a large degree upon the finding or
opinion of the judge conducting the examination,
such a finding should not disregard the facts before
the judge (public prosecutor) or run counter to the
clear dictates of reason.[45]
Applying the foregoing disquisition to the
present petition, the reasons of DOJ for affirming the
dismissal of the criminal complaints for estafa
and/or qualified estafa are determinative of whether
or not it committed grave abuse of discretion
amounting to lack or excess of jurisdiction. In
requiring hard facts and solid evidence as the
basis for a finding of probable cause to hold
petitioners Bernyl and Katherene liable to stand trial

for the crime complained of, the DOJ disregards the

definition of probable cause that it is a reasonable
ground of presumption that a matter is, or may be,
well-founded, such a state of facts in the mind of
the prosecutor as would lead a person of ordinary
caution and prudence to believe, or entertain an
honest or strong suspicion, that a thing is so.[46]
The term does not mean actual and positive
cause nor does it import absolute certainty.[47] It
is merely based on opinion and reasonable belief;
[48] that is, the belief that the act or omission
complained of constitutes the offense charged.
While probable cause demands more than bare
suspicion, it requires less than evidence which
would justify conviction. Herein, the DOJ reasoned
as if no evidence was actually presented by
respondent HSBC when in fact the records of the
case were teeming; or it discounted the value of
such substantiation when in fact the evidence
presented was adequate to excite in a reasonable
mind the probability that petitioners Bernyl and
Katherene committed the crime/s complained of. In
so doing, the DOJ whimsically and capriciously
exercised its discretion, amounting to grave abuse
of discretion, which rendered its resolutions
amenable to correction and annulment by the
extraordinary remedy of certiorari.
From the records of the case, it is clear that
a prima facie case for estafa/qualified estafa exists
against petitioners Bernyl and Katherene. A perusal
of the records, i.e., the affidavits of respondent
HSBCs witnesses, the documentary evidence
presented, as well as the analysis of the factual
milieu of the case, leads this Court to agree with the
Court of Appeals that, taken together, they are
enough to excite the belief, in a reasonable mind,
that the Spouses Bernyl Balangauan and Katherene
Balangauan are guilty of the crime complained of.
Whether or not they will be convicted by a trial
court based on the same evidence is not a
consideration. It is enough that acts or omissions
complained of by respondent HSBC constitute the
crime of estafa and/or qualified estafa.

Collectively, the photographs of petitioner

Katherene leaving the premises of respondent HSBC
carrying a bulky plastic bag and the affidavits of
respondent HSBCs witnesses sufficiently establish
acts adequate to constitute the crime of estafa
and/or qualified estafa. What the affidavits bear out
are the following: that York was a Premier Client of
respondent HSBC; that petitioner Katherene
handled all the accounts of York; that not one of
Yorks accounts reflect the P2,500,000.00 allegedly
deposited in a higher yielding account; that prior to
the discovery of her alleged acts and omissions,
petitioner Katherene supposedly persuaded York to
invest in a new product of respondent HSBC, i.e.,
a higher interest yielding time deposit; that York
made a total of P2,500,000.00 investment in the
new product by authorizing petitioner Balangauan
to transfer said funds to it; that petitioner Katherene
supposedly asked York to sign several transaction
documents in order to transfer the funds to the
new product; that said documents turned out to
be withdrawal slips and cash movement tickets;
that at no time did York receive the cash as a result
of signing the documents that turned out to be
withdrawal slips/cash movement tickets; that Yorks
account was regularly credited loose change in
the amounts of P12,500.00 and P8,333.33
beginning in the month after the alleged transfer
of Yorks funds to the new product; that the
regular deposits of loose change were transacted
with the use of petitioner Katherenes work terminal
accessed by her password CEO8; that the CEO8
password was keyed in with the use of a swipe card
always in the possession of petitioner Katherene;
that one of the loose-change deposits was
transacted via the phone banking feature of
respondent HSBC and that when traced, the phone
number used was the landline number of the house
of petitioners Bernyl and Katherene; that
respondent HSBCs bank personnel, as well as York,
supposedly a) talked with petitioner Katherene on
the phone, and that she allegedly admitted that the
missing funds were invested with Shell Company, of

16
which York approved, and that it was only for one
year; and b) met with petitioner Bernyl, and that the
latter at first denied having knowledge of his wifes
complicity, but later on admitted that he knew of
the investment with Shell Company, and that he
supposedly made the loose-change deposit via
phone banking; that after 23 April 2002, York was
told that respondent HSBC had no new product or
that it was promoting investment with Shell
Company; that York denied having any knowledge
that his money was invested outside of respondent
HSBC; and that petitioner Katherene would not have
been able to facilitate the alleged acts or omissions
without taking advantage of her position or office,
as a consequence of which, HSBC had to reimburse
York the missing P2,500,000.00.
From the above, the alleged circumstances
of the case at bar make up the elements of abuse of
confidence, deceit or fraudulent means, and
damage under Art. 315 of the Revised Penal Code
on estafa and/or qualified estafa. They give rise to
the presumption or reasonable belief that the
offense of estafa has been committed; and, thus,
the filing of an Information against petitioners
Bernyl and Katherene is warranted.
That
respondent HSBC is supposed to have no
personality to file any criminal complaint against
petitioners Bernyl and Katherene does not ipso
facto clear them of prima facie guilt. The same
goes for their basic denial of the acts or omissions
complained of; or their attempt at shifting the doubt
to the person of York; and their claim that witnesses
of respondent HSBC are guilty of fabricating the
whole scenario. These are matters of defense; their
validity needs to be tested in the crucible of a fullblown trial. Lest it be forgotten, the presence or
absence of the elements of the crime is evidentiary
in nature and is a matter of defense, the truth of
which can best be passed upon after a full-blown
trial on the merits. Litigation will prove petitioners
Bernyl and Katherenes innocence if their defense
be true.

In fine, the relaxation of procedural rules

may be allowed only when there are exceptional
circumstances to justify the same. Try as we might,
this Court cannot find grave abuse of discretion on
the part of the Court of Appeals, when it reversed
and set aside the resolutions of the DOJ. There is no
showing that the appellate court acted in an
arbitrary and despotic manner, so patent or gross
as to amount to an evasion or unilateral refusal to
perform its legally mandated duty. On the contrary,
we find the assailed decision and resolution of the
Court of Appeals to be more in accordance with the
evidence on record and relevant laws and
jurisprudence than the resolutions of the DOJ.
Considering the allegations, issues and
arguments adduced and our disquisition above, we
hereby dismiss the instant petition for being the
wrong remedy under the Revised Rules of Court, as
well as for petitioner Bernyl and Katherenes failure
to sufficiently show that the challenged Decision
and Resolution of the Court of Appeals were
rendered in grave abuse of discretion amounting to
lack or excess of jurisdiction.
WHEREFORE, premises considered, the
instant Petition for Certiorari is DISMISSED for lack
of merit. The 28 April 2006 Decision and the 29
June 2006 Resolution of the Court of Appeals in CAG.R. CEB- SP No. 00068, are hereby AFFIRMED.
With costs against petitioners -- Spouses Bernyl
Balangauan and Katherene Balangauan.
SO ORDERED.
ATTY. RODERICK M. SANTOS and ALEXANDER
ANDRES
vs
JUDGE LAURO BERNARDO, Municipal Trial
Court, Bocaue, Bulacan,
A.M. No. MTJ-07-1670
(Formerly OCA IPI No.
06-1822-MTJ)
July 23, 2008
DECISION
AZCUNA, J.:
This is an administrative case against
respondent MTC Judge Lauro Bernardo for his

alleged impropriety, manifest bias and partiality,

grave abuse of discretion, and gross ignorance of
the law/procedure relative to Criminal Case No. 06004 entitled People of the Philippines v. Atty.
Roderick M. Santos and Boyet Andres.
On February 9, 2006, Atty. Roderick M.
Santos and Alexander Andres filed a verified
Affidavit-Complaint charging respondent of:
Impropriety
Respondent is using government resources
in the discharge of his functions for his personal
pleasure and convenience. Specifically, he allows
his girlfriend, a certain Boots, to stay and use as
her lounge the judges chamber in violation of his
duty under Rule 2.01 of the Code of Judicial Conduct
to maintain proper decorum. On many occasions,
even when there is a hearing, his girlfriend stays in
the chamber, hindering the full performance of
respondents duties as he has to attend to her
whims and caprices, plus the fact that his girlfriend
is just cooling herself in the air-conditioned room
while litigants have to bear the cramped hot space
of the courtroom. This act also invites suspicion
since her mere presence therein is an indication of
who to talk to regarding a case. Following the case
of Presado v. Genova,[1] the act of respondent
constitutes serious misconduct.
Manifest Bias and Partiality
Respondent committed manifest bias and
partiality when he allowed the filing of Criminal
Case No. 06-004 for Grave Coercion against the
complainants because it was his chance to get back
at Atty. Santos against whom he is harboring a
grudge after the latter moved for his inhibition in
Criminal Case Nos. 04-430 and 04-572.
Instead
of
conducting
a
preliminary
investigation after the filing of the complaint to find
probable cause to hold complainants herein for trial,

17
respondent immediately signed the criminal
complaint upon its filing and ordered that the case
be set for preliminary hearing on January 12,
2006. His own branch clerk certified that the
complainant and her witnesses only subscribed
their statement before the presiding judge. Worse,
respondent allowed the criminal case to be filed
even if it is based on hearsay evidence, as the
complainant therein, one Dr. Elida D. Yanga, was not
in the place at the time the alleged offense
happened. From the documents gathered, the
undue haste by which respondent acted is very
evident because the complaint-affidavit, the
criminal complaint, and the subpoena have the
common date of January 4, 2006. More so, the
subpoena was immediately served on complainants
on January 5, 2006.
Grave Abuse of Discretion and Unfaithfulness to
the Law
Respondent committed grave abuse of
discretion when he did not conduct a preliminary
investigation in Crim. Case No. 06-004. Under
paragraph 2, Section 1, Rule 112 of the Revised
Rules on Criminal Procedure (Rules),[2] preliminary
investigation is required to be conducted before the
filing of a complaint or information for offenses
where the penalty prescribed by law is at least four
years, two months and one day. The maximum
imposable penalty for Grave Coercion is six years
imprisonment; hence, complainants should have
been accorded the right to preliminary investigation
whereby they could have demonstrated that the
complaint is worthless. Respondent, however,
chose to be ignorant of the basic provisions of the
Rules in order to exact revenge and cause them to
unduly stand trial. Despite the Motion to Quash
Complaint with Prayer for Voluntary Inhibition filed
by complainants to give him a chance to correct his
error by at least referring the case to the Office of
the Provincial Prosecutor of Bulacan for the conduct
of the requisite preliminary investigation, he
remained adamant by issuing an order referring the

case instead to the Executive Judge of Bulacan for

its raffle to another MTC judge. This act showed
respondents deliberate intent to make the
complainants accused persons in a criminal case.
By allowing the immediate filing of a
patently unmeritorious case, respondent tainted
Atty. Santos good reputation: he is a law
practitioner with companies in Makati, Pasig and
Manila as clients; he is a businessman and was also
a former chairman of the board and current board
director of St. Martin of Tours Credit and
Development Cooperative, the largest credit
cooperative in Region III; and he is a frequent
traveler, going abroad at least once a year. With
the worthless criminal case filed against him,
respondent puts a sore obstacle to Atty. Santos way
of life that is truly an undeserved inconvenience.
On April 11, 2006, respondent filed his
Comment arguing in the main that the charges
against him are hearsay, without factual and legal
basis, and are a malicious imputation upon his
person; and that the acts stated in the complaint
were based solely on the bare allegations of the
complainants as no corroborative statements of
witnesses were presented to prove the same. In
contradicting complainants representation, he
stated thus:
As to the charge of Impropriety:
Boots (whose maiden name was Ma.
Rosario M. Layuga) is now respondents lawful wife,
as proven by a marriage certificate showing their
civil union before a Caloocan City Regional Trial
Court (RTC) judge on March 14, 2006. There was no
occasion or intention on his part to make the
judges chamber a residential or dwelling place.
Instead, his wifes presence is actually dictated by
a moral duty in the exercise of marital
responsibility since he has been allergic to some
foods, particularly fish and some beans. In fact, last
October 2005, after eating fish, respondent nearly

lost his life due to a severe allergy had it not been

for the timely medical intervention administered at
a nearby hospital. Aside from this, he is suffering
from irregular heartbeat which causes constant rise
of his blood pressure and uric acid. Also, his wife is
not merely present in the chamber since, while in
there, she is also attending to some activities.
Being self-employed and with extensive exposure
to trading, she administers the family property
consisting of leased premises and landholdings in
Pandi, Bulacan.
Respondents relation to his wife is serious,
open and known to the public and that the
atmosphere prevailing in the courts chamber even
in the alleged presence of his wife is an
atmosphere of friendship, respect and decency. He
related that he and his wife are regular participants
of Marriage Encounter prayer meetings as well as in
the prayer assemblies conducted by the Couples for
Christ. Respondent is an active member of the
Rotary Club of Sta. Maria and Knights of Columbus,
Marian Council of Sta. Maria, Bulacan while his wife
is a member of the Inner Wheel Club of the
Philippines.
As members, they are active
participants in the clubs community projects and
other civic activities. On top of these, respondent
judge presented Resolution No. 06-03-025, dated 20
March 2006, of the Sangguniang Bayan of Bocaue,
Bulacan signifying its unilateral decree of support
and commendation to [respondent] in recognition of
his long years of commendable and meritorious
service in the dispensation of justice and the
Certificate of Commendation, dated 30 March 2006,
issued by the Mayor of the Municipality of Bocaue.
As to the charge of Manifest Bias and
Partiality:
Complainants
interpreted
that
when
respondent signed the criminal complaint as well as
subscribed the affidavits of the witnesses under
oath he already made a finding of probable cause.

18
This is not correct because his signature was only
for the purpose of administering an oath, as
evidenced by the certification issued by the clerk of
court. The fact is that the criminal case did not
reach the stage of preliminary investigation since
complainants filed a Motion for Inhibition which was
readily granted. Respondent conducted the court
proceedings in accordance with the provisions of
the Rules, particularly Sections 3 (a) and 8 (b) of
Rule 112.[3]
As to the charge of Grave Abuse
Discretion and Unfaithfulness to the Law:

of

Admittedly, preliminary investigation must

be conducted before the filing of a complaint or
information for an offense where the penalty
prescribed by law is at least four years, two months
and one day without regard to fine. In the case of
Grave Coercion, however, there is no need for a
preliminary investigation since prision correccional
(six months and one day to six years), which is the
imposable penalty for said crime, does not fall
within the required penalty of prision correccional
maximum (four years, two months and one day).
The criminal case against complainants should
proceed in accordance with Section 8 (b) of Rule
112.
When respondent issued a subpoena setting
the case for preliminary hearing it was taken as a
measure of damage control. Knowing that a
member of the Bar is being charged before the
court, it might have afforded the parties the chance
to thresh out their differences and possibly settle
amicably. Likewise, his order to forward the case to
the Office of the Executive Judge was but a result of
his voluntary inhibition from the case, which he had
chosen to definitely rule upon instead of further
quashing the criminal complaint since the Motion
filed by complainants prayed respondent to resolve
two judiciously irreconcilable issues.

As a background, the enmity between

respondent and Atty. Santos started in Criminal
Case Nos. 04-430 and 04-572 wherein the latter
appeared as private prosecutor in Criminal Case No.
04-430 for Reckless Imprudence Resulting to
Damage to Property. The accused in said case later
on filed a similar case (docketed as Criminal Case
No.
04-572) against Atty. Santos client.
Respondent found probable cause in both cases.
Atty. Santos questioned this ruling but, on appeal,
the RTC sustained the findings. Atty. Santos did not
elevate the matter to the appellate court until the
decision became final.
In order for liability to attach for ignorance of
the law, the assailed order, decision or actuation of
the judge in the performance of official duties must
not only be found erroneous but most importantly it
must be established that he was moved by bad
faith, dishonesty or some other like motive. In this
case, respondent has nothing to gain, material or
otherwise, from the outcome of the criminal action;
he met the parties only during the proceedings in
court, not before its filing, and he inhibited himself
promptly from the case. Atty. Santos instead is the
one who has animosity to respondent; he must
realize and understand that what he (respondent)
had done is just all in a days work and nothing
personal about it.
In their Reply, the complainants argued that
aside from converting the judges chamber into a
nursing home or convalescent center what is
more troubling is respondents own admission that
his wifes activities therein are not limited to the
[care] for the sick but also to her involvement in
trading, which is highly irregular and improper since
they are being conducted within the courts
premises. As regards the commendations received
by respondent, the complainants stated that it is
most likely that everybody working in the Municipal
Government of Bocaue got an award because it was
given during its 400th foundation day; that the proforma certificates do not show whether he

deserves it or not; and in any event, these awards

are totally irrelevant to the case. Incidentally,
complainants also mentioned that court sessions in
Bocaue usually start late almost at 2:00 p.m. or
later, instead of 1:30 p.m.
Likewise, complainants commented on the
disturbing procedure followed by respondent,
which is, allowing the criminal complaint to be
immediately entered in the criminal docket (thus,
converting it to a criminal case by a mere stroke of
the clerk of courts pen) and signing the criminal
complaint aside from the affidavit-complaint without
first finding probable case. This, according to them,
is contrary to the provision of Sec. 3 (a), Rule 112 of
the Rules which states that only the affidavits must
be subscribed and sworn to, a rule that respondent
must follow when he is to conduct his investigatory
functions under Sec. 3 or Sec. 9 (b), Rule 112.[4]
Complainants
also
dismissed
respondents
reasoning that his actuation was based on Sec. 3 (a)
and Sec. 9 (b), Rule 112 because, as proven by the
absence of any transcript of stenographic notes
(TSN), the latter did not conduct searching
questions and answers to Dr. Yanga and her
witnesses. He has to explain, therefore, why he
admitted a complaint based on hearsay evidence
since the person who was not the object of the
alleged coercive acts is the one who is the offended
party in the criminal case.
Complainants insisted that since the
maximum penalty imposable for the offense of
Grave Coercion is six years, a preliminary
investigation should have been held. Moreover,
they maintained that Rule 112 is a complete
procedure in itself; hence, as stated in Sec. 9 (b), it
is the duty of respondent to dismiss the complaint
or find probable cause within ten (10) days from its
filing and not to call for a preliminary hearing,
which is a non-existent procedure in the Rules.
Lastly, Atty. Santos denied that he was the
one who has hard feelings against respondent.
Instead, he claimed that it is a matter of record, in

19
the Order resolving the Motion for Voluntary
Inhibition in Crim. Case Nos. 04-430 and 04-572,
that the latter branded him as somebody he could
not co-exist with in the quest for a just and
equitable administration of justice. Atty. Santos
alleged that respondent even furnished the
Executive Judge of Bulacan with a copy of the Order
to broadcast that he is a difficult lawyer to deal
with. He emphasized that this administrative
complaint is not about his client in Crim. Case No.
04-572 but is concerned with the injustice
committed by respondent when he willingly and
deliberately violated established rules and legal
doctrines just so complainants would suffer undue
injury by being tried for a fabricated case of Grave
Coercion.
Parrying the supplementary allegations, on
the other hand, respondent countered in his
Rejoinder that it is unfair for complainants to
conclude, much more insinuate, that his wife has
something to do with any impropriety by her mere
presence in the chamber. He reiterated that her
company is necessitated by his health condition and
that, anyway, she also has her own business to
attend to that of managing the family inheritance
of leased premises in the nearby town of Pandi,
Bulacan, and actively engaging herself in an
independent business concern, held not in MTCBocaue, which is the large-scale trading of electric
transformers, metal scraps and heavy equipment
entrusted to her by her uncles and close relatives.
As to the charge of frequent delay of court
sessions, respondent stated that he has been
always present and ready to begin the proceedings
but it is the desire of most lawyers to start at 2:00
p.m., more or less, because most of them, including
the public prosecutor and the PAO lawyer, come
from RTC hearings and even all the way from
Malolos City. To compensate for the lost time,
however, he averred that court sessions adjourn
even up to 6:30 p.m. so that all cases may be
accommodated.

Respondent clarified that when he signed the

affidavits of Dr. Yanga and her witnesses it was only
for the purpose of administering the oath of the
person filing the criminal complaint. He posited
that the proper rule that must be applied is not Sec.
3 (a), Rule 112, which refers to the procedure in
preliminary investigation, but Sec. 3, Rule 110[5] on
the institution of criminal actions providing that the
complaint must be subscribed by the offended
party, any peace officer, or other public officer
charged with the enforcement of the law violated.
Further, while respondent conceded that there was
really no TSN available because no hearing was
held he asserted that under Sec. 9 (b) of Rule 112 a
judge is authorized to just personally evaluate the
evidence before him to find probable cause instead
of personally examining in writing and under oath
the complainant and his witnesses in the form of
searching
questions
and
answers.
Finally,
respondent firmly held on to his position that Grave
Coercion is not one of the crimes requiring
preliminary investigation since the minimum
penalty imposable for said offense is six months and
one day.
On February 20, 2007, the Office of the Court
Administrator
(OCA)
found
respondent
administratively liable for gross ignorance of the
law, and recommended the imposition of a fine in
the amount of P20,000 considering this is his first
time to be sanctioned for a serious charge. In its
Report, the OCA stated:
Whether of not there is a need
for preliminary investigation under
Section 1 in relation to Section 9 of
Rule 112 of the Revised Rules on
Criminal Procedure depends upon the
maximum imposable penalty for the
crime charged in the complaint filed
with the City Prosecutors Office and
not upon the imposable penalty for
the crime found to have been
committed by respondent.

held:

In San Agustin v. People, the Court

However, we do
not agree with the
ruling of the Court of
Appeals that there was
no need for the City
Prosecutor to conduct a
preliminary
investigation since the
crime charged under
the Information filed
with the MeTC was
arbitrary
detention
under
Article
124,
paragraph 1 of the
Revised Penal Code
punishable by arresto
mayor in its maximum
period
to
prision
correccional
in
its
minimum period, which
has a range of four
months and one day to
two years and four
months. Whether or
not there is a need
for
a
preliminary
investigation under
Section 1 in relation
to Section 9 [now
Section 8] of Rule
112 of the Revised
Rules
of
Criminal
Procedure depends
upon the imposable
penalty for the crime
charged
in
the
complaint filed with
the City or Provincial
Prosecutors
Office
and not upon the

20
imposable
penalty
for the crime found
to
have
been
committed by the
respondent after a
preliminary
investigation. In this
case,
the
crime
charged
in
the
complaint of the NBI
filed in the Department
of
Justice
was
kidnapping/serious
illegal detention, the
imposable penalty for
which
is
reclusion
perpetua to death.

Respondent Judge should

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

defective, but if there

were no preliminary
investigation and the
defendants,
before
entering
their plea,
invite the attention of
the court to their
absence,
the
court
instead of dismissing
the information, should
conduct
such
investigation, order the
fiscal to conduct it or
remand the case to the
inferior court so that
preliminary
investigation may be
conducted.
The
issue
raised
by
complainant does not pertain to an
error of judgment or to one pertaining
to the exercise of sound discretion by
respondent. Rather, the issue is
whether respondent complied with
the procedural rules so elementary
that to digress from them amounts to
ignorance of the law. Since the rules
on preliminary investigation are basic
and clearly expressed in the Revised
Rules
of
Criminal
Procedure,
respondents actuation in denying the
same is deemed to have been
attended by gross ignorance of the
law and procedure.

The absence of
preliminary
investigation does not
affect
the
courts
jurisdiction over the
case. Nor do they
impair the validity of
the
information
or
otherwise
render
it

[The Supreme] Court has

consistently held
that
lack of
conversance with legal principles
sufficiently basic and elementary
constitutes gross ignorance of the
law. As an advocate of justice and a
visible representation of the law, a
judge is expected to be proficient in
the interpretation of our laws.

The maximum imposable

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

Respondent clearly strayed

from the well-trodden path when he
grossly misapplied the Revised Rules
of Criminal Procedure. (Citations
omitted)
As regards the other charges, the OCA
dismissed them for complainants failure to adduce
sufficient evidence to substantiate the allegations.
The Report and Recommendation of the OCA
are sustained.
There is no merit in respondents supposition
that Grave Coercion is an offense not subject to
preliminary investigation because the minimum
penalty imposable for the said offense, which is six
months and one day, falls short of the minimum
penalty of four years, two months and one day
required by the Rules. The OCA correctly applied
San Agustin v. People.[6] Certainly, the need for a
preliminary investigation under Sec. 1 in relation to
Sec. 8 of Rule 112 of the Rules depends upon the
imposable penalty for the crime charged in
the complaint or information filed and not upon
the imposable penalty for the offense which may be
found to have been committed by the accused after
a preliminary investigation. In the case of Grave
Coercion, the Revised Penal Code provides a penalty
of prision correccional or anywhere between six
months and one day to six years; thus, a
preliminary investigation must still be held since
there is a possibility that the complainants would
stand to suffer the maximum penalty imposable for
the offense.
The purpose of a preliminary
investigation is to protect the innocent from hasty,
malicious and oppressive prosecutions, from an
unnecessary open and public accusation of a crime,
and from the trouble, expense and anxiety of a
trial. It also protects the State from a useless and
expensive litigation. Above all, it is a part of the
guarantees of freedom and fair play.[7]

21
Notably, however, by the time the criminal
complaint of Dr. Yanga against herein complainants
was filed on January 3, 2006, respondent was
already without authority to conduct preliminary
investigation since effective October 3, 2005,
judges of Municipal Trial Courts and Municipal
Circuit Trial Courts are no longer authorized to
conduct the same, pursuant to A.M. No. 05-8-26-SC
(Re: Amendment of Rules 112 and 114 of the
Revised Rules on Criminal Procedure by Removing
the Conduct of Preliminary Investigation from
Judges of the First Level Courts).[8] The appropriate
action of respondent, therefore, should have been
to immediately refer the complaint to the Office of
the Provincial Prosecutor of Bulacan so that a
preliminary investigation could proceed with
reasonable dispatch. His issuance of a subpoena
directing complainants to appear before the court
on January 12, 2006 for a preliminary hearing,
although the hearing did not materialize after his
voluntary inhibition from the case on January 10,
2006, was definitely out of order. At this point, it is
clear that respondent committed gross ignorance of
an existing procedure which is basic and
elementary.
Meanwhile, as to the impropriety purportedly
committed by respondent in his own chamber, the
OCA rightly found that complainants failed to
provide specific details that would validate any
misuse or abuse of government funds and/or
facilities. Nonetheless, it is opportune to remind
respondent as well as other trial court judges, who
are the front-liners in the promotion of the
people's faith in the judiciary, of the directives
embodied in the following administrative circulars:
1.
Administrative
Circular
(A.C.) No. 3-92 (Prohibition against
Use of Halls of Justice for Residential or
Commercial Purposes)[9] All judges
and court personnel are reminded that
the Halls of Justice may be used only

for purposes directly related to the

functioning and operation of the courts
of justice, and may not be devoted to
any other use, least of all as residential
quarters of the judges or court
personnel, or for carrying on therein
any trade or profession. Attention is
drawn to this Courts ruling in A.M. No.
RTJ-89-327 (Nellie Kelly Austria v. Judge
Singuat Guerra) whereby we declared
that the use of the courts premises
inevitably degrades the honor and
dignity of the court in addition to
exposing judicial records to danger of
loss or damage.
2.
A.C. No. 01-99 (Enhancing
the Dignity of Courts as Temples of
Justice and Promoting Respect for their
Official
and
Employees)[10]

Considering the courts as temples of

justice, their dignity and sanctity must,
at all times, be preserved and
enhanced. In inspiring public respect
for the justice system, court officials
and employees are directed, among
others, never to use their offices as a
residence or for any other purpose than
for court or judicial functions.
3.
A.C. No. 09-99 (Banning
Smoking and Selling of Goods within
Court Houses and Offices)[11]
Conformably with A.C. No. 01-99, this
circular disallowed, among others,
within
court houses and, more
specifically, session halls and offices of
court officials and personnel, the selling
of goods of any kind, especially by
persons who are not court employees.
In fine, as the New Code of Judicial Conduct
for the Philippine Judiciary[12] mandates, judges
should avoid impropriety and the appearance of

impropriety in all of their activities. They should not

use or lend the prestige of the judicial office to
advance their private interests, or those of a
member of their family or of anyone else, nor shall
they convey or permit others to convey the
impression that anyone is in a special position
improperly to influence them in the performance of
judicial duties.[13]
WHEREFORE, respondent Judge LAURO
BERNARDO, MTC, Bocaue, Bulacan, is found
GUILTY of gross ignorance of the law and basic
rules of procedure and is hereby FINED in the
amount of P20,000, with a STERN WARNING that a
repetition of the same or similar act in the future
shall be dealt with more severely.
Let a copy of this Decision be attached to the
personnel record of respondent in the Office of the
Administrative Services, Office of the Court
Administrator.
SO ORDERED.

22
DECISION
CARPIO, J.:
The Case
Before the Court is a petition for review on
certiorari1 assailing the Decision2 dated 9 July 2001
and Resolution3 dated 30 January 2002 of the Court
of Appeals in CA-G.R. CV No. 58139.
The Facts
Spouses Fernando and Fausta Alarma (respondents)
are the owners of an 11.7 hectare parcel of land
(land) located in Iba, Zambales. The land, identified
as Cadastral Lot No. 2087 of Iba Cadastre, was
posted as a property bond for the provisional liberty
of a certain Joselito Mayo, charged with illegal
possession of firearms in Criminal Case No. 1417-I,
entitled "People of the Philippines v. Gregorio
Cayan, et al."

WINSTON MENDOZA and FE MICLAT,

vs.
FERNANDO ALARMA and FAUSTA ALARMA,
G.R. No. 151970
May 7, 2008

When the accused failed to appear in court as

directed on 19 March 1984, the trial court ordered
his arrest and the confiscation of his bail bond in
favor of the government. It also directed the
bondsmen to produce within a period of 30 days the
person of the accused and to show cause why
judgment should not be entered against the bail
bond. However, without a judgment being rendered
against the bondsmen, the trial court issued a writ
of execution against the land in an Order dated 14
April 1986.4 The land was eventually sold at public
auction and petitioners Winston Mendoza and Fe
Miclat emerged as the highest bidders. Thus, the
land was awarded to petitioners and they
immediately took possession of the same.

Sometime thereafter, respondents filed a complaint

for recovery of property against petitioners with the
Regional Trial Court of Iba, Zambales, Branch 70, 5
grounded on the nullity of the entire proceedings
relating to the property bond. During the pre-trial
conducted on 3 May 1988, the parties agreed that
the property would be placed in the possession of
respondents. On 2 August 1989, the court rendered
its decision dismissing the complaint and declaring
that the Order dated 14 April 1986 was a judgment
on the bond.
On appeal, the appellate court reversed the
decision of the trial court and nullified the
proceedings on the execution, sale, and issuance of
the writ of possession.6 Thereafter, petitioners filed
a petition for review on certiorari with this Court,
docketed as G.R. No. 101103 and entitled "Winston
Mendoza, et al. v. Court of Appeals, et al." In a
Resolution dated 18 March 1992, this Court denied
the petition and ruled with finality that the assailed
14 April 1986 Order was not a judgment on the
bond.7
Meanwhile, petitioners applied for the registration of
the land with the Regional Trial Court of Iba,
Zambales, Branch 70.8 On 9 September 1987, the
trial court granted the registration and issued
Original Certificate of Title (OCT) No. O-7249 in the
name of petitioners.
The Trial Courts Ruling
Respondents then filed an action for the annulment
of title and reconveyance of ownership of the land
covered by OCT No. O-7249 with the Regional Trial
Court of Iba, Zambales, Branch 71.9 On 24
September 1997, the trial court dismissed the

23
action contending that it had no jurisdiction to annul
the judgment rendered by the Regional Trial Court
of Iba, Zambales, Branch 70, a co-equal court. 10 The
trial court declared further that since the issue of
the case was the validity of OCT No. O-7249, the
case should have been filed with the Court of
Appeals which has exclusive original jurisdiction
over annulment of judgments of a Regional Trial
Court.

issuance of title over it had already been declared

void by this Court in G.R. No. 101103. Thus,
petitioners cannot now claim good faith. With no
valid title to the land, petitioners must reconvey the
land to respondents.

The Ruling of the Court of Appeals

Section 21, Rule 114 of the Revised Rules on

Criminal Procedure states:

Respondents filed an appeal with the Court of

Appeals which reversed the findings of the trial
court and annulled OCT No. O-7249.11 The appellate
court also ordered that a new title over the property
be issued in the name of respondents. Petitioners
filed a Motion for Reconsideration which the
appellate court denied in a Resolution dated 30
January 2002.
Hence, this petition.
The Issue
The sole issue for our resolution is whether the
Court of Appeals erred in finding a defect in the
proceedings and in ordering the annulment of OCT
No. O-7249.
Petitioners contend that even if the execution
proceedings were nullified, they were not privy to
the irregularities of the auction sale. Thus, as
buyers in good faith, they must be protected by the
law.
Respondents, on the other hand, maintain that the
basis for the acquisition of the land and the

The Courts Ruling

The petition lacks merit.

SEC. 21. Forfeiture of bail. When the

presence of the accused is required by the
court or these Rules, his bondsmen shall be
notified to produce him before the court on a
given date and time. If the accused fails to
appear in person as required, his bail shall
be declared forfeited and the bondsmen
given thirty (30) days within which to
produce their principal and to show cause
why no judgment should be rendered against
them for the amount of their bail. Within the
said period, the bondsmen must:
(a) produce the body of their principal
or give the reason for his nonproduction; and
(b) explain why the accused did not
appear before the court when first
required to do so.
Failing in these two requisites, a judgment
shall be rendered against the bondsmen,
jointly and severally, for the amount of the
bail. The court shall not reduce or otherwise

mitigate the liability of the bondsmen, unless

the accused has been surrendered or is
acquitted.
The provision clearly provides for the procedure to
be followed before a bail bond may be forfeited and
a judgment on the bond rendered against the
surety. In Reliance Surety & Insurance Co., Inc. v.
Amante, Jr.,12 we outlined the two occasions upon
which the trial court judge may rule adversely
against the bondsmen in cases when the accused
fails to appear in court. First, the non-appearance by
the accused is cause for the judge to summarily
declare the bond as forfeited. Second, the
bondsmen, after the summary forfeiture of the
bond, are given 30 days within which to produce the
principal and to show cause why a judgment should
not be rendered against them for the amount of the
bond. It is only after this 30-day period, during
which the bondsmen are afforded the opportunity to
be heard by the trial court, that the trial court may
render a judgment on the bond against the
bondsmen. Judgment against the bondsmen cannot
be entered unless such judgment is preceded by the
order of forfeiture and an opportunity given to the
bondsmen to produce the accused or to adduce
satisfactory reason for their inability to do so. 13
In the present case, it is undisputed that the
accused failed to appear in person before the court
and that the trial court declared his bail forfeited.
The trial court gave the bondsmen, respondents in
this case, a 30-day period to produce the accused
or a reasonable explanation for their nonproduction. However, two years had passed from
the time the court ordered the forfeiture and still no
judgment had been rendered against the bondsmen
for the amount of the bail. Instead, an order of

24
execution was issued and the property was put up
for sale and awarded to petitioners, the highest
bidders.
These turn of events distinctly show that there was
a failure of due process of law. The execution was
issued, not on a judgment, because there was none,
but simply and solely on the declaration of
forfeiture.
An order of forfeiture of the bail bond is conditional
and interlocutory, there being something more to
be done such as the production of the accused
within 30 days. This process is also called
confiscation of bond. In People v. Dizon,14 we held
that an order of forfeiture is interlocutory and
merely requires appellant "to show cause why
judgment should not be rendered against it for the
amount of the bond." Such order is different from a
judgment on the bond which is issued if the accused
was not produced within the 30-day period. The
judgment on the bond is the one that ultimately
determines the liability of the surety, and when it
becomes final, execution may issue at once. 15
However, in this case, no such judgment was ever
issued and neither has an amount been fixed for
which the bondsmen may be held liable. The law
was not strictly observed and this violated
respondents right to procedural due process.
In addition, we find that the issue of good faith in
buying the property at the auction sale is no longer
material. This Court in a previous case had already
ruled upon the invalidity of the execution and sale
of the land. As a result, the basis for which title to
the land had been issued has no more leg to stand
on. The appellate court, therefore, was correct in
ordering the annulment of the title to the land as a

matter of course. There being no valid title nor any

right to possess the land, reconveyance to the
respondents
is
only
proper
under
the
circumstances.
WHEREFORE, we DENY the petition. We AFFIRM
the 9 July 2001 Decision and 30 January 2002
Resolution of the Court of Appeals in CA-G.R. CV No.
58139.
SO ORDERED.

SPS. CAROLINA and REYNALDO JOSE,

vs.
SPS. LAUREANO and PURITA SUAREZ
G.R. No. 176795
June 30, 2008
DECISION
TINGA, J.:
Petitioners filed this case assailing the Decision1 of
the Court of Appeals in CA-G.R. CEB SP No. 00397
dated 17 August 2006 which affirmed the Orders2
of the Regional Trial Court (RTC) of Cebu City,
Branch 19 restraining Branches 2 and 5 of the
Municipal Trial Court in Cities (MTCC) of Cebu City
from proceeding with the criminal cases for
violation of Batas Pambansa Bilang 22 (B.P. Blg. 22)
filed against respondent Purita Suarez.
The facts of the case follow.

Respondents, spouses Laureano and Purita Suarez,

had availed of petitioner Carolina Joses (Carolina)
offer to lend money at the daily interest rate of 1%
to 2%. However, Carolina and her husband,
petitioner Reynaldo Jose, later on increased the
interest to 5% per day, which respondents were
forced to accept because they allegedly had no
other option left. It then became a practice that
petitioners would give the loaned money to Purita
and the latter would deposit the same in her and
her husbands account to cover the maturing
postdated checks they had previously issued in
payment of their other loans. Purita would then
issue checks in favor of petitioners in payment of
the amount borrowed from them with the agreed
5% daily interest.
On 7 May 2004, respondents filed a Complaint3
against petitioners seeking the declaration of
"nullity of interest of 5% per day, fixing of interest,
recovery of interest payments"4 and the issuance of
a writ of preliminary injunction, alleging that the
interest rate of 5% a day is iniquitous, contrary to
morals, done under vitiated consent and imposed
using undue influence by taking improper
advantage of their financial distress. They claimed
that due to serious liquidity problems, they were
forced to rely on borrowings from banks and
individual lenders, including petitioners, and that
they had to scramble for funds to cover the
maturing postdated checks they issued to cover
their other borrowings. In their prayer, respondents
stated:
WHEREFORE, it is prayed that upon the filing of the
instant case and in accordance with the 1997 Rules
on Civil Procedure[,] a writ of preliminary injunction
or at least a temporary restraining order be issued
restraining defendant from enforcing the checks as
listed in Annex "E" including the filing of criminal
cases for violation of B.P. [Blg.] 22 and restraining
defendants from entering plaintiffs store and
premises to get cash sales and other items against

25
plaintiffs will [sic] under such terms and conditions
as this Court may affix.5
Thereafter, at the instance of Carolina, several
cases for violation of B.P. Blg. 226 were filed against
respondent Purita before the MTCC of Cebu City,
Branches 2 and 5. Purita, in turn filed motions to
suspend the criminal proceedings on the ground of
prejudicial question, on the theory that the checks
subject of the B.P. Blg. 22 cases are void for being
contra bonos mores or for having been issued in
payment of the iniquitous and unconscionable
interest imposed by petitioners. The motions were
denied.7
Respondents thereafter filed before the RTC a
"Motion for Writ of Preliminary Injunction with
Temporary Restraining Order"8 seeking to restrain
the MTCCs from further proceeding with the B.P. Blg.
22 cases on the ground of prejudicial question.
Petitioners opposed the motion. Nevertheless, the
RTC through its 20 December 2004 Order9 issued a
writ of preliminary injunction, thereby enjoining the
MTCCs from proceeding with the cases against
Purita. Petitioners sought reconsideration of the
order but their motion was denied due course in the
RTCs 3 February 2005 Order.10
Petitioners elevated the case to the Court of
Appeals11 and questioned the propriety of the
RTCs issuance of a preliminary injunction based on
a prejudicial question. The appellate court stated
that respondents had sought to annul the checks for
being void pursuant to Article 1422 of the Civil Code
which provides that "a contract which is the direct
result of a previous illegal contract, is also void and
inexistent." Accordingly, the appellate court
concluded that if the checks subject of the criminal
cases were later on declared null and void, then
said checks could not be made the bases of criminal
prosecutions under B.P. Blg. 22. In other words, the
outcome of the determination of the validity of the
said checks is determinative of guilt or innocence of
Purita in the criminal case.12

The appellate court also observed that respondents

resort to an application for preliminary injunction
could not be considered as forum shopping since it
is the only remedy available to them considering
the express proscription of filing a petition for
certiorari against interlocutory orders issued in
cases under B.P. Blg. 22 which are governed by the
rules on summary procedure.13
Before us, petitioners submit that because under
Section 6, Rule 111 of the Rules on Criminal
Procedure a petition to suspend proceedings on the
ground of prejudicial question should be filed in the
same criminal action, the RTC has no jurisdiction to
issue the writ of preliminary injunction as it is not
the court where the B.P. Blg. 22 cases were filed.
Moreover, they argue that respondents are guilty of
forum shopping because after the denial of their
motion to suspend the proceedings before Branches
2 and 5 of the MTCC, they resorted to the filing of a
motion for preliminary injunction before the RTC
also on the ground of prejudicial question;
therefore, they succeeded in getting the relief in
one forum (RTC) which they had failed to obtain in
the first forum (MTCCs). Likewise, petitioners claim
that the Court of Appeals erred in holding that the
civil case poses a prejudicial question to the B.P.
Blg. 22 cases, thus resulting in the erroneous
suspension of the proceedings the latter cases.
Finally, petitioners posit that the RTC erred in
issuing
the
preliminary
injunction
because
respondents have no clear and unmistakable right
to its issuance.14
Respondents, for their part, state that the possibility
of a ruling in the civil case to the effect that the
subject checks are contra bonos mores and hence
null and void constitutes a prejudicial question in
the B.P. Blg. 22 cases. Thus, proceeding with the
trial in the criminal cases without awaiting the
outcome of the civil case is fraught with
mischievous consequences.15 They cite the case of
Medel v. Court of Appeals,16 wherein the Court

nullified the interest rate of 5.5% per month for

being contra bonos mores under Article 1306 of the
Civil Code, and recomputed the interest due at the
rate of 1% per month.17 Thus, if their loans are
computed at 1% per month, it would mean that the
checks subject of the B.P. Blg. 22 cases are not only
fully paid but are also in fact overpaid. They also
invoke the case of Danao v. Court of Appeals18
wherein the Court allegedly ruled that there is no
violation of B.P. Blg. 22 if the dishonored checks
have been paid.19 They claim that since the 5%
interest per day was not contained in any written
agreement, per Article 195620 of the Civil Code,
petitioners are bound to return the total interest
they collected from respondents. Respondents point
out that they incorporated in their complaint an
application for preliminary injunction and temporary
restraining order to restrain Carolina from enforcing
the interest and from filing criminal cases for
violation of B.P. Blg. 22. Quoting the RTC,
respondents explain:
Since there was no proof at that time that plaintiff
sustain or are about to sustain damages or
prejudice if the acts complained of are not enjoined,
the application was not acted upon by the Court.
When the attention of the Court was invited by the
plaintiffs of the refusal of the MTC, Branches 2 and
5, to suspend the criminal proceedings despite
being appraised of the pendency of this case, the
Court has to act accordingly.21
Respondents maintain that they are not guilty of
forum shopping because after the denial by the
MTCCs of their motion to suspend proceedings, their
only available remedy was the filing of an
application for preliminary injunction in the existing
civil case filed earlier than the B.P. Blg. 22 cases. In
any case, respondents argue that the rule on forum
shopping is not intended to deprive a party to a
case of a legitimate remedy.22 Finally, they claim
that the case falls under the exceptions to the rule
that the prosecution of criminal cases may not be
enjoined by a writ of injunction, considering that in

26
this case there is a prejudicial question which is sub
judice, and that there is persecution rather than
prosecution.23
The case hinges on the determination of whether
there
exists
a
prejudicial
question
which
necessitates the suspension of the proceedings in
the MTCCs.
We find that there is none and thus we resolve to
grant the petition.
A prejudicial question generally comes into play in a
situation where a civil action and a criminal action
are both pending and there exists in the former an
issue which must be preemptively resolved before
the latter may proceed, because howsoever the
issue raised in the civil action is resolved would be
determinative juris et de jure of the guilt or
innocence of the accused in the criminal case. The
rationale behind the principle of prejudicial question
is to avoid two conflicting decisions. It has two
essential elements: (i) the civil action involves an
issue similar or intimately related to the issue raised
in the criminal action; and (ii) the resolution of such
issue determines whether or not the criminal action
may proceed.24
Now the prejudicial question posed by respondents
is simply this: whether the daily interest rate of 5%
is void, such that the checks issued by respondents
to cover said interest are likewise void for being
contra bonos mores, and thus the cases for B.P. Blg.
22 will no longer prosper.
The prejudicial question
respondents must fail.

theory

advanced

by

In the first place, the validity or invalidity of the

interest rate is not determinative of the guilt of
respondents in the criminal cases. The Court has
consistently declared that the cause or reason for
the issuance of a check is inconsequential in
determining criminal culpability under B.P. Blg.

22.25 In several instances, we have held that what

the law punishes is the issuance of a bouncing
check and not the purpose for which it was issued
or the terms and conditions relating to its issuance;
and that the mere act of issuing a worthless check
is malum prohibitum provided the other elements of
the offense are properly proved.26
The nature and policy of B.P. Blg. 22 were aptly
enunciated by the Court in Meriz v. People,27 when
it stated:
x x x. [B.P. Blg.] 22 does not appear to concern itself
with what might actually be envisioned by the
parties, its primordial intention being to instead
ensure the stability and commercial value of checks
as being virtual substitutes for currency. It is a
policy that can easily be eroded if one has yet to
determine the reason for which checks are issued,
or the terms and conditions for their issuance,
before an appropriate application of the legislative
enactment can be made. The gravamen of the
offense under [B.P. Blg.] 22 is the act of making or
issuing a worthless check or a check that is
dishonored upon presentment for payment. The act
effectively declares the offense to be one of malum
prohibitum. The only valid query then is whether
the law has been breached, i.e., by the mere act of
issuing a bad check, without so much regard as to
the criminal intent of the issuer.28
Thus, whether or not the interest rate imposed by
petitioners is eventually declared void for being
contra bonos mores will not affect the outcome of
the B.P. Blg. 22 cases because what will ultimately
be penalized is the mere issuance of bouncing
checks. In fact, the primordial question posed
before the court hearing the B.P. Blg. 22 cases is
whether the law has been breached, that is, if a
bouncing check has been issued.
The issue has in fact been correctly addressed by
the MTCCs when respondents motion to suspend
the criminal proceedings was denied upon the

finding that there exists no prejudicial question

which could be the basis for the suspension of the
proceedings. The reason for the denial of the motion
is that the "cases can very well proceed for the
prosecution of the accused in order to determine
her criminal propensity as a consequence of the
issuance of several checks which subsequently
bounced" for "what the law punishes is the issuance
and/or drawing of a check and upon presentment
for deposit or encashment, it was dishonored due to
insufficient funds [or] account closed." 29
There being no prejudicial question, the RTC and,
consequently, the Court of Appeals gravely erred
when they allowed the suspension of the
proceedings in the B.P. Blg. 22 cases.
Now, on to other matters.
We find that respondents are guilty of forum
shopping. There is forum shopping when a party
seeks to obtain remedies in an action in one court,
which had already been solicited, and in other
courts and other proceedings in other tribunals.
Forum shopping is the act of one party against
another, when an adverse judgment has been
rendered in one forum, of seeking another and
possibly favorable opinion in another forum other
than by appeal or by special civil action of
certiorari; or the institution of two or more acts or
proceedings grounded on the same cause on the
supposition that one or the other court would make
a favorable disposition.30
Respondents filed their motions to suspend
proceedings in the MTCCs hearing the B.P. Blg. 22
cases but unfortunately, the same were denied.
Failing to get the relief they wanted, respondents
sought before the RTC, the suspension of the
criminal
proceedings
which
was
granted.
Respondents tried to extricate themselves from the
charge of forum shopping by explaining that after
the denial of their motions to suspend, their only
remedy was the application for preliminary

27
injunction in the civil casea relief which they had
already asked for in their complaint and which was
also initially not granted to them. Any which way
the situation is viewed, respondents acts
constituted forum shopping since they sought a
possibly favorable opinion from one court after
another had issued an order unfavorable to them.
The Court notes that three cases, namely, Ras v.
Rasul,31 Medel v. CA32 and Danao v. Court of
Appeals33finding no application to the instant
casewere mentioned by the RTC, the Court of
Appeals and by respondents themselves in support
of their position.
Ras v. Rasul cropped up in the order of the RTC
which was quoted with approval by the Court of
Appeals. According to the RTC, the ruling in the said
case allegedly "can be squarely applied in this case
which nullified and set aside the conviction in a
criminal case because of a prejudicial question."34
We do not agree. The Ras case involves a petition
for nullification of a deed of sale on the ground of
forgery. While the civil case was pending, an
information for estafa was filed against the
respondent in the civil case. The Court ruled that
there were prejudicial questions considering that
the defense against the charge of forgery in the civil
case is based on the very same facts which would
be determinative of the guilt or innocence of the
respondent in the estafa case. The instant case is
different from Ras inasmuch as the determination of
whether the 5% daily interest is contra bonos mores
and therefore void, or that the total amount loaned
from petitioners has been sufficiently paid, will not
affect the guilt or innocence of Purita because the
material question in the B.P. Blg. 22 cases is
whether Purita had issued a bad check, regardless
of the purpose or condition of its issuance.
Medel v. CA is the case upon which respondents
anchor their claim that the interest due on their
loans is only 1% per month and thus they have
already overpaid their obligation to petitioners. In

Medel, the Court declared that the rate of 5.5%

interest per month on a P500,000.00 loan is
iniquitous, unconscionable and hence contrary to
morals, and must equitably be reduced to 12% per
annum. While the Medel case made a finding that
the stipulated interest rate is excessive and thus
may be equitably reduced by the courts, we do not
see how a reduction of the interest rate, should
there be any, or a subsequent declaration that the
amount due has been fully paid, will have an effect
on the determination of whether or not Purita had in
fact issued bouncing checks.
Meanwhile, respondents misunderstood our ruling in
Danao v. Court of Appeals, which they claim to have
ruled that there could be no violation of B.P. Blg. 22
if the dishonored checks have been paid. In Danao,
the accused was convicted by the trial court for
having issued two checks which eventually
bounced. The Court found that there was no proof of
receipt by the accused of any notice of nonpayment
of the checks, and thus there was no way of
determining when the five-day period prescribed in
Section 2 of B.P. Blg. 22 would start and end. Thus,
the presumption or prima facie evidence of
knowledge of the insufficiency of funds or credit at
the time of the issuance of the checks did not arise.
While there was a finding that the accused had
already paid her obligations prior to receipt of the
complainants demand letter,35 there was no
declaration from the Court that such payment
exonerated accused from liability for having issued
bouncing checks. Instead, accused was acquitted
due to insufficiency of evidence, and not because
she had paid the amount covered by the dishonored
checks36 or that the obligation was deemed paid.
WHEREFORE, the petition is GRANTED. The
impugned Decision of the Court of Appeals dated 17
August 2006 and its Resolution dated 27 February
2007, in CA-G.R. CEB-SP No. 00397, are SET ASIDE.
The preliminary injunction issued by the Regional
Trial Court of Cebu City, Branch 19 in its Order
dated 20 December 2004 in Civil Case No. CEB-

30278 enjoining the proceedings in the criminal

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

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

RESOLUTION
TINGA, J.:

28
This is a Petition for Review1 under Rule 45 of the
Rules of Court whereby petitioner Galo Monge
(petitioner) assails the Decision 2 of the Court of
Appeals dated 28 June 2005 which affirmed his
conviction as well as the discharge of accused
Edgar Potencio (Potencio) as a state witness.
The factual antecedents follow. On 20 July 1994,
petitioner and Potencio were found by barangay
tanods Serdan and Molina in possession of and
transporting three (3) pieces of mahogany lumber in
Barangay Santo Domingo, Iriga City. Right there and
then, the tanods demanded that they be shown the
requisite permit and/or authority from the
Department of Environment and Natural Resources
(DENR) but neither petitioner nor Potencio was able
to produce any.3 Petitioner fled the scene in that
instant whereas Potencio was brought to the police
station for interrogation, and thereafter, to the
DENR-Community
Environment
and
Natural
Resources Office (DENR-CENRO).4 The DENR-CENRO
issued a seizure receipt for the three pieces of
lumber indicating that the items, totaling 77 board
feet of mahogany valued at P1,925.00, had been
seized from Potencio.5 Later on, petitioner was
arrested, but Potencios whereabouts had been
unknown since the time of the seizure6 until he
surfaced on 3 January 1998.7
An information was filed with the Regional Trial
Court of Iriga City, Branch 35 charging petitioner
and Potencio with violation of Section 688 of
Presidential Decree (P.D.) No. 705, 9 as amended by
Executive Order (E.O.) No. 277, series of 1997. The
inculpatory portion of the information reads:
That on or about the 20th day of [July 1994],
at about 9:30 oclock in the morning, in

Barangay
Sto.
Domingo,
Iriga
City,
Philippines and within the jurisdiction of this
Honorable Court, the above-named accused,
conspiring, confederating with each other,
without any authority of law, nor armed with
necessary
permit/license
or
other
documents, with intent to gain, did then and
there willfully, unlawfully and feloniously,
transport and have in their possession three
(3) pieces of Mahogany of assorted
[dimension] with a[n] appropriate volume of
seventy-seven (77) board feet or point
eighteen (0.18) cubic meter with a total
market value of P1,925.00, Philippine
currency, to the damage and prejudice of the
DENR in the aforesaid amount.
CONTRARY TO LAW.10
At the 26 November 1996 arraignment, petitioner
entered a negative plea.11
Trial ensued. On 17 June 1997, Serdan testified on
the circumstances of the apprehension but for
failing to appear in court for cross examination, his
testimony was stricken out.12 On 16 January 1998,
Potencio was discharged to be used as a state
witness on motion of the prosecutor. 13 Accordingly,
he testified on the circumstances of the arrest but
claimed that for a promised fee he was merely
requested by petitioner, the owner of the log, to
assist him in hauling the same down from the
mountain. Potencios testimony was materially
corroborated by Molina.14 Petitioner did not contest
the allegations, except that it was not he but
Potencio who owned the lumber. He lamented that
contrary to what Potencio had stated in court, it was
the latter who hired him to bring the log from the

site to the sawmill where the same was to be sawn

into pieces.15
The trial court found petitioner guilty as charged.
Petitioner was imposed nine (9) years, four (4)
months and one (1) day to ten (10) years and eight
(8) months of prision mayor in its medium and
maximum periods and ordered to pay the costs.16
Aggrieved, petitioner elevated the case to the Court
of Appeals where he challenged the discharge of
Potencio as a state witness on the ground that the
latter was not the least guilty of the offense and
that there was no absolute necessity for his
testimony.17 The appellate court dismissed this
challenge and affirmed the findings of the trial
court. However, it modified the penalty to an
indeterminate prison sentence of six (6) years of
prision correccional as minimum to ten (10) years
and eight (8) months of prision mayor as
maximum.18 His motion for reconsideration was
denied, hence the present appeal whereby
petitioner reiterates his challenge against the
discharge of Potencio.
The petition is utterly unmeritorious.
Petitioner and Potencio were caught in flagrante
delicto transporting, and thus in possession of,
processed mahogany lumber without proper
authority from the DENR. Petitioner has never
denied this fact. But in his attempt to exonerate
himself from liability, he claims that it was Potencio,
the owner of the lumber, who requested his
assistance in hauling the log down from the
mountain and in transporting the same to the
sawmill for processing. The contention is unavailing.

29
Section 68 of P.D. No. 705, as amended by E.O. No.
277, criminalizes two distinct and separate
offenses, namely: (a) the cutting, gathering,
collecting and removing of timber or other forest
products from any forest land, or timber from
alienable or disposable public land, or from private
land without any authority; and (b) the possession
of timber or other forest products without the legal
documents required under existing laws and
regulations.19 DENR Administrative Order No. 59
series of 1993 specifies the documents required for
the transport of timber and other forest products.
Section 3 thereof materially requires that the
transport of lumber be accompanied by a certificate
of lumber origin duly issued by the DENR-CENRO. In
the first offense, the legality of the acts of cutting,
gathering, collecting or removing timber or other
forest products may be proven by the authorization
duly issued by the DENR. In the second offense,
however, it is immaterial whether or not the cutting,
gathering, collecting and removal of forest products
are legal precisely because mere possession of
forest products without the requisite documents
consummates the crime.20
It is thus clear that the fact of possession by
petitioner and Potencio of the subject mahogany
lumber and their subsequent failure to produce the
requisite legal documents, taken together, has
already given rise to criminal liability under Section
68 of P.D. No. 705, particularly the second act
punished thereunder. The direct and affirmative
testimony of Molina and Potencio as a state witness
on the circumstances surrounding the apprehension
well establishes petitioners liability. Petitioner
cannot take refuge in his denial of ownership over
the pieces of lumber found in his possession nor in
his claim that his help was merely solicited by

Potencio to provide the latter assistance in

transporting the said lumber. P.D. No. 705 is a
special penal statute that punishes acts essentially
malum prohibitum. As such, in prosecutions under
its provisions, claims of good faith are by no means
reliable as defenses because the offense is
complete and criminal liability attaches once the
prohibited acts are committed.21 In other words,
mere possession of timber or other forest products
without the proper legal documents, even absent
malice or criminal intent, is illegal. 22 It would
therefore make no difference at all whether it was
petitioner himself or Potencio who owned the
subject pieces of lumber.
Considering the overwhelming body of evidence
pointing to nothing less than petitioners guilt of the
offense charged, there is no cogent reason to
reverse his conviction.
Petitioners challenge against Potencios discharge
as a state witness must also fail. Not a few cases
established the doctrine that the discharge of an
accused so he may turn state witness is left to the
exercise of the trial courts sound discretion 23
limited only by the requirements set forth in Section
17,24 Rule 119 of the Rules of Court. Thus, whether
the accused offered to be discharged appears to be
the least guilty and whether there is objectively an
absolute necessity for his testimony are questions
that lie within the domain of the trial court, it being
competent to resolve issues of fact. The
discretionary judgment of the trial court with
respect this highly factual issue is not to be
interfered with by the appellate courts except in
case of grave abuse of discretion. 25 No such grave
abuse is present in this case. Suffice it to say that
issues relative to the discharge of an accused must

be raised in the trial court as they cannot be

addressed for the first time on appeal.26
Moreover and more importantly, an order
discharging an accused from the information in
order that he may testify for the prosecution has
the effect of an acquittal.27 Once the discharge is
ordered by the trial court, any future development
showing that any or all of the conditions provided in
Section 17, Rule 119 have not actually been fulfilled
will not affect the legal consequence of an
acquittal.28 Any witting or unwitting error of the
prosecution, therefore, in moving for the discharge
and of the court in granting the motionno
question of jurisdiction being involvedwill not
deprive the discharged accused of the benefit of
acquittal and of his right against double jeopardy. A
contrary rule would certainly be unfair to the
discharged accused because he would then be
faulted for a failure attributable to the prosecutor. It
is inconceivable that the rule has adopted the
abhorrent legal policy of placing the fate of the
discharged accused at the mercy of anyone who
may handle the prosecution.29 Indeed, the only
instance where the testimony of a discharged
accused may be disregarded is when he
deliberately fails to testify truthfully in court in
accordance with his commitment,30 as provided for
in Section 18, Rule 119. Potencio lived up to his
commitment and for that reason, petitioners
challenge against his discharge must be dismissed.
WHEREFORE, the petition is DENIED and the
assailed decision of the Court of Appeals is
AFFIRMED.
SO ORDERED.

30
Carpio, Acting Chairperson, Carpio-Morales, Azcuna,
Velasco, Jr., JJ., concur

FERDINAND A. CRUZ VS. THE PEOPLE OF THE

PHILIPPINES
G.R. No. 176504,
September 03, 2008
DECISION
CHICO-NAZARIO, J.:
Before Us is a Petition for Review on Certiorari under
Rule 45 of the Rules of Court which assails the
Decision[1] dated 27 April 2006 of the Court of
Appeals in CA-G.R. CR No. 27661 which affirmed the
Decision[2] and the Order[3] of the Regional Trial
Court (RTC) of Makati City, Branch 140, finding
petitioner Ferdinand A. Cruz (Ferdinand) guilty
beyond reasonable doubt of the crime of Qualified
Theft.
On 10 July 1997, an Information was filed before the

RTC of Makati City charging Ferdinand with Qualified

Theft. The accusatory portion of the Information
reads:
That on or about the 25 th day of October 1996, in
the City of Makati, Metro Manila, Philippines, a place
within the jurisdiction of this Honorable Court, the
above-named accused, being then employed as
Marketing Manager of Porta-Phone Rentals, Inc. with
office address located at 3/F ENZO Bldg., Sen. Gil
Puyat Avenue, Makati City, herein represented by
Juanito M. Tan, Jr. and had access to the funds of the
said corporation, with intent to gain and without the
knowledge and consent of said corporation, with
grave abuse of confidence, did then and there
willfully, unlawfully and feloniously take, steal and
carry away the amount of P15,000.00 belonging to
said Porta-Phone Rentals, Inc., to the damage and
prejudice of the latter in the aforesaid amount of
P15,000.00.[4]
The case was docketed as Criminal Case No. 97945. During the arraignment on 22 August 1997,
Ferdinand, with the assistance of counsel de parte,
entered a plea of not guilty. [5] Thereafter, trial on the
merits
ensued.
At the trial, the prosecution presented the following
witnesses: (1) Juanito M. Tan, Jr., the General
Manager of Porta-Phone Rentals, Inc. (Porta Phone)
when the incident in question took place. He
testified that Ferdinand appropriated for himself the
amount of P15,000.00, an amount which should
have been remitted to the company; (2) Catherine
Villamar (Catherine), the Credit and Collection
Officer of Porta-Phone, who discovered that
Ferdinand issued a receipt for P15,000.00 from
Hemisphere-Leo Burnett (Hemisphere), and who
also testified that Ferdinand misappropriated the
amount for his own benefit and, when she
confronted him, said he had unpaid reimbursements
from the company; (3) Luningning Morando, the
accounting supervisor of Porta-Phone, corroborated
the alleged fact that Ferdinand received the amount
and did not turn over the same to the company; and

(4) Wilson J. So, Chief Executive Officer of PortaPhone, who testified that meetings were held to
demand from Ferdinand the subject sum of money.
As documentary evidence, the prosecution offered
the following: Exhibit "A" - Official Receipt No. 2242,
the receipt in which Ferdinand acknowledged that
he received the amount of P15,000.00 from
Hemisphere; Exhibit "B" - the Minutes of the
Meeting held on 30 October 1996 attended by
Wilson So, Juanito Tan, Luningning Morando and
Ferdinand, wherein Wilson So asked Ferdinand the
reason for the former's refusal to remit the
P15,000.00 to the company, and Ferdinand
answered that there was no need to turn over the
said amount because he had outstanding
reimbursements from the company in the amount of
P8,518.08; Exhibit "C" - the Resignation Letter of
Ferdinand; Exhibit "D" - the Inter-Office Demand
Letter dated 7 November 1996, addressed to
Ferdinand from Juanito M. Tan, Jr. requiring the
former to return the amount of P15,000.00; Exhibit
"E" - the Handwritten Explanation of Ferdinand
dated 8 December 1996, that he remitted the
amount to Luningning Morando; Exhibit "F"- InterOffice Memorandum dated 8 November 1996,
issued by Juanito Tan and addressed to Luningning
Morando to explain her side regarding the allegation
of Ferdinand that she received the P15,000.00;
Exhibit "G"- Inter-Office Memorandum prepared by
Luningning Morando dated 9 November 1996,
denying the allegation that she received the
amount of P15,000.00 from Ferdinand; Exhibit "H"Inter-Office Memorandum dated 11 November 1996,
issued by Juanito Tan for Ferdinand to further
explain his side in light of Luningning Morando's
denial that she received the amount. It also advised
Ferdinand to wait for the verification and
computation of his claim for reimbursements;
Exhibit "I"- Formal Demand Letter dated 25
November 1996, addressed to Ferdinand and issued
by the legal counsel of Porta-Phone Rentals, Inc.,
asking the former to return to the company the
subject amount; Exhibit "J"- the Affidavit of

31
Complaint executed by Juanito Tan against
Ferdinand; Exhibit "K"- the Collection List dated 30
October 1996, showing that Ferdinand received
from Hemisphere the amount of P15,000.00, and
the same was not turned over to Catherine; Exhibit
"L"- Reply-Affidavit dated 5 February 1997,
executed by Juanito M. Tan, Jr.; Exhibit "M"- the SurRejoinder Affidavit of Juanito M. Tan, Jr. dated 21
February 1997.
The collective evidence adduced by the prosecution
shows that at around 5:30 p.m. of 25 October 1996,
in the City of Makati, Ferdinand, who is a Marketing
Manager of Porta-Phone, a domestic corporation
engaged in the lease of cellular phones and other
communication equipment, went to the office of
Porta-Phone located on the third floor of Enzo
Building, Senator Gil Puyat Avenue, and took hold of
a pad of official receipts from the desk of Catherine,
Porta-Phone's collection officer. With the pad of
official receipts in his hands, Ferdinand proceeded
to his client, Hemisphere, and delivered articles of
communication equipment. Although he was not an
authorized person to receive cash and issue
receipts for Porta-Phone, Ferdinand received from
Hemisphere the amount of P15,000.00 as
refundable deposit for the aforesaid equipment. On
26 October 1996, Ferdinand went to Porta-Phone
and returned the pad of receipts, but failed to
deliver the cash he received from Hemisphere. On
28 October 1996, the next working day, Catherine
checked the booklet of official receipts and found
that one of the official receipts was missing. The
green duplicate of the missing official receipt,
however, showed that Ferdinand received the
amount of P15,000.00 from Hemisphere. Upon
learning of Ferdinand's receipt of the said amount,
Catherine confronted Ferdinand, who answered that
he deposited the amount to his personal bank
account. Catherine then instructed Ferdinand to
remit the amount the next day.[6] Catherine reported
the incident to the accounting supervisor,
Luningning Morando, who, in turn, reported the
same to the General Manager, Junito Tan. The

following day, Ferdinand went to the office but did

not deliver the amount to Catherine, reasoning that
Porta-Phone still owed him unpaid reimbursements.
[7]
This incident came to the knowledge of Chief
Executive Officer Wilson So. Thus, on 30 October
1996, Wilson So invited Ferdinand, Juanito and
Luningning to a meeting. In the meeting, Wilson So
demanded that Ferdinand return the collection.
Ferdinand refused to turn over the amount to the
company. He would return the amount only upon his
receipt of his reimbursements from the company.
Since Ferdinand adamantly withheld the collected
amount, Juanito issued a demand letter dated 7
November 1996, ordering the former to deliver the
amount to the company. Ferdinand answered, this
time claiming that he had already remitted the
amount to Luningning. With this, Juanito issued a
memorandum dated 8 November 1996, addressed
to Luningning asking her to explain her side
regarding the allegation of Ferdinand that she
received the P15,000.00. Luningning completely
denied having received the amount from Ferdinand.
Juanito then issued another letter to Ferdinand to
further explain his side in view of Luningning's
denial that she received the amount. In the letter,
Juanito also advised Ferdinand to wait for the
verification and computation of his claim for
reimbursements. With the conflicting claims of
Luningning and Ferdinand, another meeting was set
on 14 November 1996. In that meeting Luningning
again denied having received the amount.
Ferdinand did not appear in the meeting. Later, a
formal demand letter was issued to Ferdinand by
Porta-Phone's legal counsel, which letter went
unheeded. Several attempts to reach Ferdinand
proved to be futile. This prompted the company to
file a criminal complaint against Ferdinand.
The defense alleged that the amount involved was
already turned over to the company through
Luningning. To substantiate this, the defense
presented Ferdinand as its only witness.
Ferdinand testified that on 25 October 1996, he

delivered to Hemisphere several communication

gadgets and received from the same the amount of
P15,000.00 as refundable deposit (the amount
required by Porta-Phone from its lessor-client to
answer for the damage that may befall the items
leased) for the delivered items. Since he did not
bring with him the official receipt of Porta-Phone, he
merely acknowledged having received the amount
in an Acknowledgement Receipt issued by
Hemisphere. Considering that it was already late in
the afternoon when he delivered the communication
items, Ferdinand brought the said amount home.
The following day, he went to the company's
accounting supervisor, Luningning, to turn over to
her the amount. Luningning received the money
and instructed Ferdinand to fill up the details of the
transaction in Official Receipt No. 2242. When
Ferdinand asked Luningning to affix her signature to
the official receipt to acknowledge that she received
the amount, the latter declined and instead asked
the former to affix his signature, since it was he who
closed the deal.
Later, on 28 October 1996, Catherine approached
him and asked him to affix his signature to the
triplicate copy of Official Receipt No. 2242.
Ferdinand admitted that he attended the meeting of
30 October 1996 with Juanito, Luningning and
Wilson So. He, however, claimed that the discussion
centered on his entitlement to reimbursements from
the company. Thereupon, Wilson So got angry with
him and asked him to resign, owing to his persistent
claim for reimbursement. After this, the company
withheld his salary, prompting him to file a labor
case against the same on 4 November 1996.
On 30 June 2001, the RTC rendered a decision
finding Ferdinand guilty beyond reasonable doubt of
the crime charged. The decretal portion of the RTC
decision reads:
WHEREFORE, finding the accused FERDINAND A.
CRUZ, GUILTY beyond reasonable doubt for the

32
crime of QUALIFIED THEFT, he is hereby sentenced
to suffer imprisonment of TEN (10) YEARS and ONE
(1) DAY of prision mayor as minimum to FOURTEEN
(14) YEARS, EIGHT (8) MONTHS and ONE (1) DAY of
reclusion temporal, as maximum; to indemnify the
offended party in the amount of FIFTEEN
THOUSAND (P15,000.00) PESOS and to pay the
costs.[8]
On 2 August 2001, Ferdinand filed a Motion for New
Trial on two grounds: (1) absence of a preliminary
investigation for the crime of qualified theft; and (2)
newly discovered evidence. Anent the first ground,
it must be noted that in the beginning, Ferdinand
was being indicted for Estafa/Falsification of Private
Document. The prosecutor later found that the
proper charge should be for Qualified Theft.
Ferdinand argued that since his counter-affidavits
were for the charge Estafa/Falsification of Private
Document,
he
claimed
that
preliminary
investigation for Qualified Theft was absent. With
regard to the second ground, Ferdinand argued that
newly discovered evidence, i.e., the testimony of a
certain Marilen Viduya, could change the judgment
on the case. The RTC granted the motion based on
the second ground, and set aside its 30 June 2001
decision.
Marilen Viduya, a former employee of Hemisphere,
testified that she asked Ferdinand to affix his
signature to an acknowledgement receipt for the
amount of P15,000.00, which was the refundable
deposit of Hemisphere for the equipment delivered,
because Ferdinand did not bring with him the
official receipt of Porta-Phone. She also averred that
Luningning went to Hemisphere and conducted an
inventory of the delivered communication items.
Luningning admitted to her that the P15,000.00 was
already remitted to Porta-Phone.
In an Order[9] dated 15 July 2003, the RTC declared
that it did not find the testimony of Marilen Viduya
persuasive. It revived and reinstated its 30 June
2001 decision convicting Ferdinand of the crime

charged.
Dissatisfied, Ferdinand appealed the judgment to
the Court of Appeals.
The Court of Appeals, on 27 April 2006,
promulgated its Decision affirming the decision of
the RTC, thus:
WHEREFORE, the present appeal is DENIED. The 30
June 2001 Decision of the Regional Trial Court,
Branch 140, in Makati City, is hereby AFFIRMED.[10]
Ferdinand filed a Motion for Reconsideration which
was denied by the Court of Appeals in a Resolution
dated 4 October 2006.
Hence, the instant petition.
Ferdinand contends that he was denied due process
as his trial was pursued without prior clearance
from the Department of Labor pursuant to
Department of Justice (DOJ) Circular No. 16 which
allegedly states that "clearance must be sought
from the Ministry of Labor and /or the Office of the
President before taking cognizance of complaints
for preliminary investigation and the filing in court
of the corresponding information of cases arising
out of, or related to, a labor dispute." He avers that
this circular is designed to avoid undue harassment
that the employer may use to cow employees from
pursuing money claims against the former.
He also argues that due process was not accorded
since he was indicted for qualified theft, even as he
was initially investigated for estafa/falsification of
private documents. It must be noted that the
original indictment was for estafa/falsification of
private documents but later the prosecutor found it
proper to charge him with qualified theft. According
to him although he was given the chance to file
counter-affidavits
on
the
charge
of
estafa/falsification of private documents, he was not
given the opportunity to answer during the

preliminary investigation of the crime of qualified

theft.
Finally, Ferdinand maintains that his guilt was not
established beyond reasonable doubt, absent
evidence of the presence of the elements of the
crime charged and given the weakness of the
evidence
proffered
by
the
prosecution.
Ferdinand's arguments are not meritorious.
The settled rule is that when an accused pleads to
the charge, he is deemed to have waived the right
to preliminary investigation and the right to
question any irregularity that surrounds it. [11] In the
instant case, Ferdinand did not present evidence
that arraignment was forced upon him. On the
contrary, he voluntarily pleaded to the charge and
actively participated in the trial of the case.
Besides, the prior clearance requirement before
taking cognizance of complaints under the cited DOJ
circular is not applicable to the case of Ferdinand.
The RTC found that the money claim which the
Labor Arbiter awarded to Ferdinand covered only his
salary during the month of November 1996. It must
be noted that the crime attributed to Ferdinand was
committed on 25 October 1996 before Ferdinand
was entitled to the money claim. In other words, the
crime was first committed before the accrual of the
money claim. This being the case, it is not remote
that it was Ferdinand who used the labor case,
which he filed before the Labor Arbiter, to have
leverage against the company in the criminal case.
It is not correct for Ferdinand to claim that
preliminary investigation on the charge of qualified
theft was not accorded him. The truth is, Ferdinand
was able to answer the initial charge of
estafa/falsification of private documents through his
counter-affidavits. Based on the same complaint
affidavit and the same sets of evidence presented
by the complainant, the prosecutor deemed it
proper to charge Ferdinand with qualified theft.

33
Since the same allegations and evidence were
proffered by the complainant in the qualified theft,
there is no need for Ferdinand to be given the
opportunity to submit counter-affidavits anew, as he
had already answered said allegations when he
submitted counter-affidavits for the original
indictment
of
estafa/falsification
of
private
documents.
The RTC correctly convicted Ferdinand of the crime
of qualified theft.

specious is Ferdinand's argument that he would not

have had in his possession a copy of Official Receipt
No. 2242, had he not delivered the amount to
Luningning. Ferdinand acquired the receipt, not
because he remitted the amount, but because he
took a sheet from a booklet of receipts containing
Official Receipt number 2242 and issued the same
to Hemisphere despite his lack of authority to do so,
to maliciously induce the client into believing that
he would remit the amount to Porta-Phone.

The elements of the crime of theft are the following:

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

The collected amount belonged to Porta-Phone and

not to Ferdinand. When he received the same, he
was obliged to turn it over to the company since he
had no right to retain it or to use it for his own
benefit, because the amount was a refundable
deposit for the communication items leased out by
Porta-Phone to Hemisphere. As he had kept it for
himself while knowing that the amount was not his,
the presence of the element of unlawful taking is
settled.

ART. 310. Qualified theft. - The crime of theft shall

be punished by the penalties next higher by two
degrees than those respectively specified in the
next preceding article, if committed x x x with grave
abuse of confidence x x x.

Intent to gain (animus lucrandi) is presumed to be

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

The prosecution established, beyond the shadow of

doubt that Ferdinand took and kept the fifteen
thousand peso-collection from the company's client.
Although Ferdinand insists he remitted the amount
personally to Luningning, this claim is self-serving. If
indeed he personally delivered the P15,000.00, he
would have at least required Luningning to
acknowledge the receipt thereof before he parted
with the same. The Court of Appeals incisively
pointed out that it was implausible for Ferdinand to
have acceded to executing an acknowledgment
receipt in favor of Hemisphere so as to give the
latter protection from his company, and yet he did
not ask for some kind of receipt when he allegedly
turned over the money to Luningning. Quite

is because the company owes the accused more

than P20,000.00.[14]
In the course of his testimony, Ferdinand claimed
that he had remitted the amount to Luningning. This
insistent claim for reimbursements by Ferdinand
would in fact show that he had the intention to take
the subject money; hence, intent to gain is made
more manifest.
Ferdinand's lack of authority to receive the amount
is apparent, because he is not one of the collection
officers authorized to collect and receive payment,
thus:
Atty.
You made mention of collectibles, who is
Salvad authorized by the company to collect the
or:
collectibles?
Witness My accounting group is the only group
:
authorized to make collections for and on
behalf of the company.
Atty.
Can you give the names of this accounting
Salvad group that you have mentioned?
or:
Witness Yes sir, the group is composed of : Cathy
:
Villamar; Dull Abular; and Evic Besa.
Atty.
Is the accused part of the group?
Salvad
or:
Witness No sir.[15]
:

xxxx

The lack of consent by the owner of the asported

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

Atty. Dizon: Denial your honor. Denial. While it is

true that he did not return that P15,000.00 pesos, it

As a marketing manager of Porta-Phone, Ferdinand

made use of his position to obtain the refundable
deposit due to Porta-Phone and appropriate it for

Court: By the way paero, what is the defense of

the accused?

34
himself. He could not have taken the amount had he
not been an officer of the said company. Clearly, the
taking was done with grave abuse of confidence.
Ferdinand likewise assails the testimony of
prosecution witness Juanito, who retracted his
affidavit of desistance in favor of the former and
explained on the witness stand that he had agreed
to execute the same due to personal favors
bestowed on him by Ferdinand. Ferdinand asserts
that Juanito's retraction should not be given
credence. This contention is unconvincing. As aptly
discussed by the Court of Appeals:
[W]hile his desistance may cast doubt on his
subsequent testimony, We are not unmindful that
he was in fact grilled by the defense regarding his
motives in revoking his earlier desistance and he
remained
steadfast
in
his
testimony
that
[Ferdinand] was never authorized by Porta-Phone to
collect payments and that during the meeting of 30
October 1996, [Ferdinand] refused to return the
money. Rather than destroy his credibility, the
defense's grilling regarding the reasons for his filing
his earlier desistance even strengthened the value
of his testimony for he only executed the same
because of some personal favors from [Ferdinand].
And while [Ferdinand] suggests that subsequent
revocation of his desistance in open court may be
due this time to favors extended by Porta-Phone
cannot be sustained when taken together with the
fact that [Juanito] was long been separted from
Porta-Phone when he testified. In fact Porta-Phone's
CEO did not even have kind words for [Juanito]
when the former testified. x x x.[16]
In sum, this Court, yields to the factual findings of
the trial court which were affirmed by the Court of
Appeals, there being no compelling reason to veer
away from the same. This is in line with the precept
stating that when the trial court's findings have
been affirmed by the appellate court, said findings
are generally conclusive and binding upon this
Court.
The RTC imposed on petitioner the indeterminate

penalty of Ten (10) Years and One (1) Day of prision

mayor as minimum to Fourteen (14) Years, Eight (8)
Months and One (1) Day of reclusion temporal, as
maximum. Under Article 310 of the Revised Penal
Code, the penalty for Qualified Theft is two degrees
higher than that specified in Article 309. Paragraph
1 of Article 309 provides that if the value of the
thing stolen is more than P12,000.00 but does not
exceed P22,000.00, the penalty shall be prision
mayor in its minimum and medium periods. In this
case, the amount stolen was P15,000.00. Two
degrees higher than prision mayor minimum and
medium is reclusion temporal in its medium and
maximum periods. Applying the Indeterminate
Sentence Law, the minimum shall be prision mayor
in its maximum period to reclusion temporal in its
minimum period or within the range of 10 years and
1 day to 14 years and 8 months. There being
neither aggravating nor mitigating circumstance in
the commission of the offense, the maximum period
of the indeterminate sentence shall be within the
range of 16 years, 5 months and 11 days to 18
years, 2 months and 20 days. The minimum penalty
imposed by the RTC is correct. However, the
maximum period imposed by RTC should be
increased to 16 years, 5 months and 11 days.
WHEREFORE, the Decision of the Court of Appeals
dated 27 April 2006 in CA-G.R. CR No. 27661 finding
Ferdinand A. Cruz GUILTY of the crime of Qualified
Theft is hereby AFFIRMED with MODIFICATION.
Ferdinand A. Cruz is hereby sentenced to suffer the
indeterminate penalty of 10 years and 1 day of
prision mayor, as minimum, to 16 years, 5 months
and 11 days of reclusion temporal, as maximum.

PEOPLE OF THE PHILIPPINES

vs.
RENE ROSAS
G.R. No. 177825
October 24, 2008

DECISION

SO ORDERED.
LEONARDO-DE CASTRO, J.:

35
Assailed before this Court is the decision[1]
dated November 29, 2006 of the Court of Appeals in
CA-G.R. CR-HC No. 00301 which affirmed the
decision of the Regional Trial Court (RTC) of
Kabacan, Cotabato, Branch 22, in Criminal Case No.
98-105, finding accused-appellant Rene Rosas guilty
beyond reasonable doubt of the crime of Murder
and sentencing him to suffer the penalty of
reclusion perpetua.

When arraigned on January 5, 1999, accusedappellant, assisted by counsel de oficio, pleaded not
guilty to the crime charged. Thereafter, trial on the
merits ensued, in the course of which the
prosecution presented the testimonies of Dr.
Crisostomo Necessario, Jr., Municipal Health Officer
of Kabacan, Cotabato; Wilfredo Bataga, mayor of
Kabacan, Cotabato; Antonio Palomar Bataga, Jr.; and
Arceli Estacio, widow of the victim.

In the court of origin, accused-appellant was

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

For its part, the defense presented accusedappellant himself and his girlfriend, Karen Nayona.

That on September 15, 1995,

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

The prosecutions version of the incident is

succinctly summarized by the Office of the Solicitor
General in its Appellees Brief,[3] to wit:

CONTRARY TO LAW.

On September 15,
1995 , around eleven oclock in the
morning, Antonio Palomar Bataga, Jr.
was outside the billiard hall along
Aglipay Street near the public
terminal and market of Kabacan,
Poblacion,
Kabacan,
Cotabato.
Around 15 meters away, he saw
appellant Rene Rosas standing beside
the post near a store across the
street. Palomar knew appellant long
before, as they were both into
gambling. Thereafter, the victim,
Nestor Estacio, arrived alone on
board his motorcycle. He stopped in

front of the Salcedo Newsstand to buy

a newspaper without switching off his
motorcycles engine. Before he could
drive off, a Weena bus, which was
leaving the Bus Terminal about that
time,
blocked his way.
Then,
appellant, who was coming from the
left side behind the victim, shot the
latter with a pistol at close range.
After the victim fell on the ground,
more gunshots were heard, which
gunshots were fired at him to make
sure that he was dead. After the
shooting, appellant jumped into a
motorcycle and escaped.

Meanwhile, around
that same time and fifteen (15)
meters away, in a carinderia located
at the Bus Terminal in Poblacion,
Kabacan, Cotabato, several gunshots
were heard. Wilfredo Bataga, who
was the owner of the said carinderia
and also the commanding officer of
the 39th Infantry Batallion assigned in
Kabacan,
Cotabato,
immediately
proceeded to where the gunshots
came from. He saw appellant about
to run and a dead body being carried
by four persons into a tricycle.
Wilfredo upon seeing that appellant
was armed with a 45-caliber pistol,
ran after the latter but lost him in the
crowd.

36
On October 27, 1995 ,
Wilfredo
was
handed
with
a
cartographic sketch of the suspect
made by the National Bureau of
Investigation.
He
indorsed
the
cartographic sketch to the police of
the Poblacion and reported the
incident.

On August 5, 1998 ,
around 5:30 in the afternoon,
appellant was spotted a meter away
in front of Wilfredos house. Wilfredo
upon seeing appellant took out his
copy of the cartographic sketch and
confronted appellant that it was his
picture. Appellant answered Siguro
ako nga. Appellant was then
immediately arrested.

The
post-mortem
examination
conducted
by
Dr.
Crisostomo
Necessario,
Municipal
Health Officer of Kabacan, Cotabato
revealed that the victim sustained
multiple gunshot wounds in the
lumbar region (lower back area), a
gunshot wound in the epigastric area
(upper mid-portion of the abdomen
near the chest) and the mid-left
portion of the hypogastric area (left
abdomen). Thereafter, Dr. Necessario
issued a Medical Report attributing

the victims death to hypovolemic

shock caused by gunshot wounds.

In a decision[4] dated February 1, 2001, the

trial court rendered its decision convicting accusedappellant of the crime of murder, the dispositive
portion of which reads:

On the other hand, accused-appellants

version is hinged mainly on denial and alibi. He
testified that in the morning of September 15, 1995,
he was at his boarding house located along USM
Avenue, Kabacan, Cotabato. The following day, he
went home to Mintal Relocation in Davao City and
came back to Kabacan, Cotabato on August 5,
1998. On that day, while accused-appellant was in
a public market, a certain Dodong Rivera
approached and informed him that he should talk to
Mayor Wilfredo Bataga because a group of men was
out to kill him. So, accused-appellant proceeded to
the house of Mayor Bataga who showed him a
cartographic sketch. When accused-appellant was
asked if it was him on the sketch, he replied,
Siguro, ako nga. He was then taken to the
Kabacan Police Station where he was detained.

WHEREFORE, in view of all the

foregoing and finding the accused
Rene Rosas alias Boy Rosal guilty
beyond reasonable doubt of the crime
of murder qualified by treachery,
judgment
is
hereby
rendered
sentencing the accused with penalty
of Reclusion Perpetua and to pay the
heirs of Nestor Estacio the sum of
P50,000.00 for his death, P40,000.00
for funeral and burial expenses and
P50,000.00 for moral damages.

Karen Nayona, accused-appellants girlfriend,

merely corroborated his testimony that he was in
the boarding house at USM Avenue, Kabacan,
Cotabato in the morning of September 15, 1995.
Then, at around 11 oclock in the morning, they met
and went to a fastfood restaurant located along
USM Avenue. There, she told accused-appellant
that she was two months pregnant with his baby.

SO ORDERED.

Pursuant to Section 3(c) of Rule

122 of the Revised Rules of Criminal
Procedure,[5]
accused-appellant
appealed his conviction to the
Supreme Court via a notice of appeal.
[6]

37
On February 4, 2002, this Court accepted the
appeal and docketed the same as G.R. No. 148879.
[7]

SO ORDERED.

On September 22, 2004, conformably with

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

From the Court of Appeals, the case was then

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

In its decision dated November 29, 2006, the

Court of Appeals upheld the conviction of accusedappellant. The decretal portion of the decision
reads:

In this appeal, accused-appellant assigns the

following errors:

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

THE LOWER COURT ERRED IN

CONVICTING
THE
ACCUSEDAPPELLANT OF MURDER WHEN THE
LATTERS GUILT WAS NOT PROVEN
BEYOND REASONABLE DOUBT.

II

THE LOWER COURT ERRED IN

CONVICTING
THE
ACCUSEDAPPELLANT WITH MURDER WHEN THE
QUALIFYING
CIRCUMSTANCE
OF
TREACHERY WAS NOT ALLEGED WITH
SPECIFICITY IN THE INFROMATION
PURSUANT TO SECTION 8, RULE 110
OF THE REVISED RULES ON CRIMINAL
PROCEDURE.[12]
Accused-appellant insists that the prosecution
failed to prove his guilt beyond reasonable doubt.
He assails the credibility of the prosecution
witnesses whose testimonies he pictured as
inconsistent and fabricated. He also avers that the
prosecution failed to establish his identity as the
perpetrator of the crime as nobody actually saw him
shoot the victim.

After a careful consideration of the evidence

of this case, we find no reason to reverse the
decision of the Court of Appeals which affirmed the
RTC decision in Criminal Case No. 98-105.

Accused-appellant cites an inconsistency in

the testimonies of prosecution witnesses Wilfredo
Bataga and Antonio Palomar Bataga, Jr. While
Wilfredo testified that he saw accused-appellant
about to run from the crime scene after the
shooting, Antonio, on the other hand, testified that
accused-appellant jumped into a motorcycle and
escaped after the incident. According to accused-

38
appellant, their contradicting testimonies should not
be accorded any weight and credence.

Q.
Rosas?
A

To our mind, the alleged inconsistency in the

testimonies of the aforesaid prosecution witnesses
is not sufficient to adversely affect the credibility of
the prosecution witnesses. It merely pertains to
accused-appellants mode of escape, which cannot
overcome the categorical and positive identification
of accused-appellant by both witnesses as the
person who shot the victim. It is perfectly natural
for different witnesses testifying on the occurrence
of a crime to give varying details as there may be
some details which one witness may notice while
the other may not observe or remember. In fact,
jurisprudence even warns against a perfect
dovetailing of narration by different witnesses as it
could mean that their testimonies were fabricated
and rehearsed.[13] In the instant case, while
prosecution witnesses Antonio and Wilfredo differ in
their narration of minor details, they identified
without equivocation the accused-appellant as the
perpetrator of the crime. Antonio declared on the
witness stand:

Q.
By the way, do
you know the accused in this
case?
A.

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

Yes, sir.

Q.
Tell the Court what is the other
name or the alias of Rene Rosas?
A.

Yes, sir.

A.

Yes, sir.

Q.

How come you know him?

Yes, sir.
A.
Because he was an employee
of the Municipal Hall, sir.
Q.
You said you were outside the
Billiard Hall at 11:00 oclock in the
morning, now while you were
there on September 15, 1995, was
there any unusual incident that
happened?

Boy Rosal, sir.

A.

Q.
Now, prior to 1995 have you
known Rene Rosas?
A.

Yes, there was, sir.

Q.
Tell the Court, what was that
unusual incident that happened?

Yes, sir.

Q.
For how long did you know
Rene Rosas prior to 1995?

A.
sir.

The killing of Nestor Estacio,

A.

Long time ago, sir.

Q.
Now, did you see the killing of
Nestor Estacio?

Q.

How come you know him?

A.

Yes, sir.

Q.

By the way, do you gamble?

Q.
Now, you said you saw the
killing of Nestor Estacio, what was the
weapon used in the killing of Mr.
Estacio?

A.

Yes, sir.

A.

Pistol, sir.

Q.

How long was that?

A.

Just a short pistol, sir.

A.
Because
activities.

PROS. DIZON, JR.:

Do you know Rene

of

our

gambling

Q.
Now, how about the victim
here, Mr. Estacio, do you know him?

39
Q.
Now, you said that Nestor
Estacio was killed, did you see who
killed Nestor Estacio?

that person who you said is

dead?
PROS. DIZON, JR.:

ATTY. BALAGOT:

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

Your Honor please, leading,

Your Honor.
PROS. DIZON, JR.:
He testified already,
Honor please, that he saw.

Your

COURT:

A.
sir.
Q.
do upon
body?

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

Estacio,

Now, what did you

seeing the dead

A.
He was carried
upon by four persons inside
the tricycle for immediate
medication, sir.
Q.
Now, you said you
saw the accused Rene Rosas,
what did you do when you saw
him?

Yes, he may answer.

A.

Nestor

Yes, sir.
xxx

Q.

Please name him.

A.

Rene Rosas, sir.[14]

Antonio Bataga, Jr. could not have made a

mistake with respect to accused-appellants identity
considering that he knew accused-appellant long
before he witnessed the shooting incident in 1995.
Antonio who was in the vicinity of the crime scene
would thus be able to unmistakably recognize
accused-appellant when the incident happened at
around 11 oclock in the morning.

Antonios testimony corroborated that of

Wilfredo Bataga, thus:

xxx

xxx

A.
I chased him, sir. I
was not able to arrest him due
to the thickness of the civilians
running together with him, sir.

Q.
Now, you said you saw
Rene Rosas, what was he doing
when you
saw him?
xxx
A.
When I saw him,
he
was
already
running
together
with
innocent
civilians towards the market,
sir.
Q.
Now, you said you
also saw the dead body of a
person, what is the name of

xxx

xxx

ATTY. BALAGOT:
Q.
You said that on
September
15,
1995,
at
around 11:00 oclock you were

40
at your
right?
A.

carinderia,

is

that

Yes, sir.

Q.
Now,
your
carinderia was located that
time at the old bus terminal
building, is that right?
A.

Yes, sir.

Q.
And you said
while you were there you
heard gunshots?
A.

Yes, sir.

Q.
And you went to
the site from where the
gunshots were heard?
A.

Yes, sir.

Q.
How far was your
carinderia from the site where
you heard those gunshots?
A.
That was more or
less 15 meters, sir.
Q
Fifteen (15) if you will pass
through the terminal going to that
site?
A
sir.

In the middle of the terminal,

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

A
I was not able to see
him but when I arrived at the
scene of the crime I saw him
personally and I chased him
but could not arrest him due
to the thickness of the civilians
running together with him.
Q
Now, you claimed that
you saw Rene Rosas the
accused personally, he was
running at the time when you
saw him, is that right?
A
About to run when I
reached the scene of the
crime, sir.
Q
Also there were other
persons who were about to
run at that time, is that right?
A
Yes, sir, when I reached
the scene to chase him he ran
already.
Q
That you choose Rene
Rosas because that time he
was the bodyguard of Mr.
Karutin, is that right?
A
I was able to identify
him when the cartographic
sketch of the suspect coming
from the NBI expert and Dr.
Sevilla was given to me, sir.

41
Q
Mr.
Witness,
on
September 15, 1995, why did
you chase Rene Rosas?
A
Because I saw in his
arm a pistol caliber 45, sir.[15]

Clearly,
Wilfredo
positively
identified
appellant as the person running away from the
crime scene towards the public market after
shooting the victim. Just like Antonio, Wilfredo
could also not have been mistaken as to accusedappellants identity considering that he was just 15
meters away from the crime scene and the crime
was committed in broad daylight.

Verily, the testimonies of Wilfredo and

Antonio on material details are coherent,
unequivocal and consistent with each other.
Antonio, who was standing just a few meters away,
saw accused-appellant shoot the victim from
behind, then board a motorcycle. On the other
hand, Wilfredo saw accused-appellant immediately
after the shooting fleeing from the scene of the
crime carrying a 45-caliber pistol. Clearly, both
witnesses personally saw accused-appellant at the
scene of the crime at the time it was committed.
Contrary to accused-appellants assertion, the
declarations and testimonies of Antonio and
Wilfredo established beyond reasonable doubt his
identity as the author of the crime.

The trial court gave full faith and credence to

the testimonies of Wilfredo and Antonio. The timetested doctrine is that a trial courts assessment of
the credibility of a witness is entitled to great
weight, and is even conclusive and binding on this
Court. The reason is obvious. The trial court has
the unique opportunity to observe at firsthand the
witnesses, particularly their demeanor, conduct and
attitude in the course of the trial.[16]

Accused-appellant has not shown any

evidence of improper motive on the part of Wilfredo
and Antonio that would have driven them to falsely
testify against him. Where there is nothing to
indicate that the witnesses for the prosecution were
actuated by improper motive, their positive and
categorical declarations on the witness stand under
the solemnity of an oath deserve full faith and
credence.[17]

There being no fact or circumstance of weight

and substance that would otherwise warrant a
different conclusion, the trial courts evaluation of
the credibility of the prosecution witnesses must be
sustained.

Accused-appellant relies on his alibi that he

was in his boarding house located along USM
Avenue, Kabacan, Cotabato the whole morning of
September 15, 1995. For alibi to prosper, however,

the accused must establish by clear and convincing

evidence (a) his presence at another place at the
time of the perpetration of the offense and (b) the
physical impossibility of his presence at the scene
of the crime.[18] Where there is even the least
chance for the accused to be present at the crime
scene, the defense of alibi will not hold water.[19]

Here, the evidence shows that USM Avenue,

Kabacan,
Cotabato
where
accused-appellant
allegedly was on September 15, 1995 is only 1.5
kilometers away from the public market and
terminal in Poblacion, Kabacan, Cotabato where the
crime was committed.[20] According to the trial
court, this distance between the crime scene and
the whereabouts of accused-appellant can easily be
negotiated by foot within 10 to 15 minutes.[21] In
short, accused-appellant failed to establish by clear
and convincing evidence the physical impossibility
of his presence at the scene of the crime on the
date and time of its commission. Moreover, the
defense of alibi crumbles in the face of the positive
identification of accused-appellant by the aforesaid
prosecution witnesses as the perpetrator of the
crime.[22]

In his last-ditch effort to relieve him of liability

for the crime charged, accused-appellant argues
that he cannot be convicted of murder because the
Information failed to state that treachery was a
qualifying circumstance.

42
Accused-appellants argument deserves scant
consideration. The recent case of People v.
Sayaboc[23] reiterated the pronouncement in
People v. Aquino[24] that even after the recent
amendments to the Rules of Criminal Procedure,
qualifying circumstances need not be preceded by
descriptive words such as qualifying or qualified
by to properly qualify an offense. Section 8 of the
Rules of Criminal Procedure[25] does not require the
use of such words to refer to the circumstances
which raise the category of an offense. It is not the
use of the words qualifying or qualified by that
raises a crime to a higher category, but the specific
allegation of an attendant circumstance which adds
the essential element raising the crime to a higher
category. It is sufficient that the qualifying
circumstances be specified in the Information to
apprise the accused of the charges against him to
enable him to prepare fully for his defense, thus
precluding surprises during trial.

The Information in this case sufficiently

alleged the qualifying circumstance of treachery,
thus:

xxx, accused armed with a

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

Not only was treachery sufficiently alleged, it

was likewise proven beyond reasonable doubt by
the evidence on record. It is a well-entrenched rule
that treachery is present when the offender
commits any of the crimes against persons,
employing means, methods or forms in the
execution thereof which tend directly and specially
to insure its execution, without risk to himself
arising from the defense which the offended party
might make. The essence of treachery is that the
attack is deliberate and without warning, done in a
swift and unexpected attack, affording the hapless,
unarmed and unsuspecting victim no chance to
resist or escape.[26]

We, thus, sustain the conviction of Rene

Rosas for the crime of murder as well as the penalty
imposed upon him. Under Article 248 of the
Revised Penal Code, the penalty for the crime of
murder is reclusion perpetua to death. Accusedappellant was correctly sentenced to suffer
reclusion perpetua, the lower of the two indivisible
penalties, since there was no other aggravating
circumstance attending the commission of the
crime.[27]

In the instant case, Nestor Estacio was

attacked from behind and assaulted without
warning and provocation. Even when the already
wounded Nestor fell on the ground, accusedappellant mercilessly fired several more shots at
him. He obviously wanted to ensure the execution
of the killing, without risk to himself, and deprive
Nestor of any opportunity to retaliate or defend
himself. The fact that accused-appellant brought a
gun with him indicated that he made a deliberate
and conscious adoption of the means to kill Nestor.
Further, the autopsy conducted by Dr. Necessario
revealed multiple gunshot wounds at the lower back
area of the lumbar region of Nestor. This autopsy
indubitably indicates that the shots were fired from
behind on the unsuspecting victim. Clearly then,
treachery or alevosia has been sufficiently
established.

Conformably with existing jurisprudence, the

heirs of Rene Rosas are entitled to civil indemnity in
the amount of P50,000.00, which is mandatory and
is granted to the heirs of the victim without need of
proof other than the commission of the crime.[28]
Likewise, moral damages in the amount of
P50,000.00 shall be awarded in favor of the heirs of
the victim. Moral damages are awarded despite the
absence of proof of mental and emotional suffering
of the victims heirs. As borne out by human nature
and experience, a violent death invariably and
necessarily brings about emotional pain and
anguish on the part of the victims family.[29]
Accused-appellant is also liable to pay exemplary
damages in the sum of P25,000.00 in view of the
presence
of
the
qualifying
aggravating
circumstance of treachery.[30]

We now come to the award of damages.

43
With respect to actual damages, the victims
widow, Arceli Estacio, testified that she spent a total
of P40,000.00 as burial and funeral expenses but
she failed to present receipts to substantiate her
claim. In People v. Abrazaldo,[31] we laid down
the doctrine that where the amount of actual
damages for funeral
expenses cannot be
determined because of the absence of receipts to
prove them, temperate damages may be awarded
in the amount of P25,000.00. Thus, in lieu of actual
damages, temperate damages in the amount of
P25,000.00 must be awarded to the heirs of Rene
Rosas because although the exact amount was not
proved with certainty, it was reasonable to expect
that they incurred expenses for the coffin and burial
of the victim.

WHEREFORE, the decision dated November

29, 2006 of the Court of Appeals in CA-G.R. CR-HC
No. 00301 is hereby AFFIRMED.
Accusedappellant Rene Rosas is found GUILTY beyond
reasonable doubt of the crime of Murder and
sentenced to suffer the penalty of reclusion
perpetua. He is hereby ordered to indemnify the
heirs of Nestor Estacio the following: (a) P50,000.00
as civil indemnity; (b) P50,000.00 as moral
damages, (c) P25,000.00 as exemplary damages;
and (d) P25,000.00 as temperate damages.

SO ORDERED.

Criminal Procedure: An absolution from a criminal

charge is not a bar to an administrative prosecution
or vice versa
Dominador C. Ferrer, Jr., vs. Sandiganbayan
G.R. No. 161067
March 14, 2008
Austria-Martinez, J.
Synopsis:
Before the Court is a Petition for Certiorari under
rule 65 of the RRC, seeking to annul the Resolutions
of the Sandiganbayan. The Resolution of July 2,
2003 denied the Motion for re-determination of
Probable Cause filed by accused Dominador Ferrer
(petitioner), while the Resolution of October 22,
2003 denied petitioner's Motion for Reconsideration
and Motion to Quash.
Antecedent
Facts:
On Jan. 29, 2001, an information for violation of R.A.
No. 3019 was filed against petitioner. Petitioner filed
a Motion for Reconsideration alleging that the Office
of the Ombudsman disregarded certain factual
matters which could negate the finding of probable
cause.
Public respondent issued a Resolution denying
petitioner's Motion for Reinvestigation. It held that
petitioner's contentions are all evidentiary in nature
and may be properly considered only in a full-blown
trial.
Petitioner filed a Motion for Reconsideration. Shortly
thereafter, he filed Supplemental Motion for
reconsideration asserting that the complainants
were guilty of forum shopping, due to the earlier
dismissal of the administrative case against him.

Public respondent issued a Resolution denying the

motion for Reconsideration.
Petitioner files a Motion for Leave to File a Second
Motion for Reconsideration. Again, he cited as his
ground the alleged forum shopping of the private
complainants.
On April 29, 2002, public respondent issued a
Resolution denying the Motion for Leave to File a
second Motion for Reconsideration. It held that
there was no forum shopping since the
administrative and criminal cases are two different
actions, so neither resolution on the same would
have the effect of res judicata on the other. The
public respondent dismissed the second motion for
reconsideration as pro forma and prohibited motion.
Petitioner then filed a Petition for Certiorari with this
Court, docketed as G.R. No. 153592, which assailed
the Resolution of public respondent dated April 29,
2002 as having been issued with grave abuse of
discretion amounting to lack of jurisdiction. On July
1, 2002, the Court dismissed the petition for having
been filed out of time and for failure to pay the
required docket fees.
On May 19, 2003, before he can be arraigned,
petitioner filed yet another motion with public
respondent, this time a Motion for Re-determination
of Probable Cause, invoking the ruling of the Office
of the President (OP), dated February 29, 2000,
which absolved petitioner of the administrative
liability.
The
OP
reviewed
the
administrative case filed against petitioner with the
Presidential
Commission
Against
Graft
and
Corruption (PCAGC) and held petitioner acted in
good faith and within the scope of his authority.
On July 2, 2003, the Sandiganbayan issued herein
assailed resolution denying the Motion for Redetermination of Probable cause.
Ruling:
(1) The established rule is that an absolution from a
criminal charge is not a bar to an administrative
prosecution, or vice versa. The dismissal of an

44
administrative case does not necessarily bar the
filing of the criminal prosecution for the same or
similar acts which were the subject of the
administrative
complaint.
(2) The independent nature of a criminal
prosecution dictates that the Sandiganbayan must
determine petitioner's criminal liability without its
hands being tied with what transpired in the
administrative
case.
- The Court finds no cogent reason to depart from
these rules.
Petitioner argues that the criminal case against him
requires a higher quantum of proof for conviction that is proof beyond reasonable doubt - that the
administrative case, which needs only substantial
evidence. He claims that from this circumstance, it
follows that the dismissal of the administrative case
should carry with it the dismissal of the criminal
case.
This argument has however been addressed in
jurisprudence. In Valencia v. Sandiganbayan, the
Administrative case against the accused was
dismissed by the Ombudsman on a finding that the
contract of loan entered into in pursuance of the
police power of the accused as local chief executive,
and that the accused had been re-elected to office.
The Ombudsman however, still found probable
cause to criminally charge the accused in court.
When the accused filed a petition with the Supreme
Court to dismiss the criminal case before the
Sandiganbayan, the Court denied the petition.
To sustain petitioner's arguments will be to require
the Sandiganbayan and the Ombudsman to merely
adopt the results of administrative investigations
which would not only diminish the powers and

duties of these constitutional offices but, also

violate the independent nature of criminal and
administrative cases against public officials. This
will also amount to untold delays in criminal
proceedings before the Sandiganbayan and
Ombudsman,
as
every
criminal
trial
and
investigations will be made to await the results of
pending
administrative investigations, Such is not the intent
of the framers of the Constitution and the laws
governing public officers.
Petitioner cites Larin vs. Executive Secretary to
support his arguments. That case however, is not on
all fours with the present case.
In Larin, the accused was first convicted by the
Sandiganbayan for violation of the National Internal
Revenue Code and Sec. 3 (e) of Republic Act 3019.
On the basis of this conviction to the Supreme
Court, however, he was acquitted upon a finding
that the acts he had committed were neither illegal
nor irregular. When the accused sought a similar
dismissal of the administrative case, the Supreme
Court sustained him and ruled that since the same
acts for which he was administratively charged had
been
found
neither
illegal
nor
irregular,
his acquittal in the criminal case should entail the
dismissal
of
the
administrative
case.
The present case differs from Larin because here,
the administrative case was filed independently of
the criminal case. The administrative case was not
filed on the basis of a criminal conviction, as in fact,
the administrative case was dismissed without
regard for the results of the criminal case. This is in
contrast with Larin, where the administrative case
was dismissed only after its basis, the criminal
conviction
was
overturned
on
appeal.

We cannot reverse Larin by ruling that petitioner's

discharge from the administrative action should
result in the dismissal of the criminal case. The
argument cannot be sustained without violating
settled principles. The rule is that administrative
liability is separate and distinct from penal and ciliv
liabilities.
In
Larin,
no
less
than
the
Supreme Court acquitted the accused of charges of
wrongdoing; in the case at bar, no court of justice
has yet declared petitioner not guilty of committing
illegal or irregular acts.
The independent nature of the criminal prosecution
dictates that the Sandiganbayan must determine
petitioner's criminal liability without its hands being
tied by what transpired in the administrative case.
The court is duty-bound to exercise its independent
judgement. It is not ousted of its jurisdiction by the
ruling in the administrative proceeding. It is
axiomatic that when the court obtains jurisdiction
over the case, it continues to retain it until the case
is terminated.
Under the Rules of Court, petitioner's absolution
from administrative liability is not even one of the
grounds for Motion to Quash.
3.) Moreover, petitioner lacked the right to file the
instant petition as he already raised the issue of his
discharge from administrative liability in his
supplemental motion for recommendation SB Reso
dated
7/13/01.