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EN BANC G.R. No.

168168 September 14, 2005

PEOPLE OF THE PHILIPPINES, Appellee, vs. EDGARDO DIMAANO, Appellant. DECISION PER CURIAM: On January 26, 1996, Maricar Dimaano charged her father, Edgardo Dimaano with two (2) counts of rape and one (1) count of attempted rape in the complaints which read as follows: Criminal Case No. 96-125 That sometime in the year 1993 in the Municipality of Paraaque, Metro Manila, Philippines and within the jurisdiction of this Honorable Court, the above-named accused, by means of force and intimidation, did then and there willfully, unlawfully and feloniously have carnal knowledge of the undersigned complainant Maricar Dimaano y Victoria, who is his own daughter, a minor 10 years of age, against her will and consent. CONTRARY TO LAW.1 Criminal Case No. 96-150 That on or about the 29th day of December 1995, in the Municipality of Paraaque, Metro Manila, Philippines and within the jurisdiction of this Honorable Court, the above-named accused, by means of force and intimidation, did then and there willfully, unlawfully and feloniously have carnal knowledge of the undersigned complainant Maricar Dimaano y Victoria, who is his own daughter, a minor 12 years of age, against her will and consent. CONTRARY TO LAW.2 Criminal Case No. 96-151 That on or about the 1st day of January 1996, in the Municipality of Paraaque, Metro Manila, Philippines and within the jurisdiction of this Honorable Court, the above-named accused, try and attempt to rape one Maricar Dimaano y Victoria, thus commencing the commission of the crime of Rape, directly by overt acts, but nevertheless did not perform all the acts of execution which would produce it, as a consequence by reason of cause other than his spontaneous desistance that is due to the timely arrival of the complainant's mother. CONTRARY TO LAW.3 Appellant pleaded not guilty to the charges.4 Thereafter, trial on the merits ensued. Complainant was born on August 26, 1983, and was 10 years old when she was first sexually abused in the morning of September 1993. While inside their house in Sucat, Paraaque, appellant entered her room and laid down beside her. He removed her clothes and asked her to lie face down then inserted his penis into her anus. Complainant cried and felt so much pain, but she kept the incident to herself as her father might hurt her.5 A few days later, appellant again ravished her. After removing his clothes, he asked her to lie on her side facing him and to place her thigh over his. While in that position, appellant inserted his penis into her vagina which caused tremendous pain.6 As in the first incident, complainant kept the ordeal to herself. It was only in November 1995 that she confided the sexual abuses to her mother. On December 29, 1995, appellant again assaulted her daughter. While leaning on the kitchen sink, he raised her t-shirt, fondled and kissed her breasts. He then removed their shorts, fondled her vagina and inserted his penis, but when her brother Edwin went out of his room, appellant immediately asked her to dress up.7 The last sexual assault happened in the afternoon of January 1, 1996. Appellant laid complainant down on the sofa then placed himself on top of her and made pumping motion even with their shorts on. Appellant stopped only when he heard the arrival of his wife. 8 On January 3, 1996, complainant and her mother visited a relative in Cainta, Rizal, who upon learning of the abuses done by the appellant, advised them to go to Camp Crame where they filed a complaint.9 The Medico-Legal Officer at the PNP Crime Laboratory examined complainant and found her to have suffered deep healed hymenal lacerations and was in a non-virgin state.10 Appellant denied the accusations against him. He testified that he married Maria Loreto V. Dimaano on December 25, 1976 and begot three children with her, namely, Edwin, Eric, and Maricar. He alleged that he worked in several companies abroad11 but admitted that he was in the Philippines in September 1993. He contended though that he could not have raped complainant because he was always in the office from 7:00 a.m. until 9:00 p.m. waiting to be dispatched to another assignment overseas.12 He claimed it was impossible for him to rape his daughter on December 29, 1995 or January 1, 1996 because there were other people in the house. He argued that had he raped complainant, then she would not have accompanied him to the Paraaque Police Station and Barangay Hall of San Antonio to apply for police clearance and barangay I.D., and to Uniwide Shopping Center at Sucat, Paraaque, where they applied for membership at the Video City Club.13 He also maintained that the fact that his daughter was in a non-virgin state did not conclusively prove that he was responsible for it because it is also possible that his daughter had sexual intercourse with another man her age. 14 The trial court found the testimony of complainant to be spontaneous and credible. She narrated the obscene details of her harrowing experience which no girl of tender age would have known unless she herself had experienced it. It found the delay in reporting the rape understandable due to the fear complainant had of her father who had moral ascendancy over her. Also, the quarrel between complainant's parents was not sufficient motive for the wife to lodge a serious charge of rape against appellant. It disregarded the Compromise Agreement and the Salaysay sa Pag-uurong ng Sumbong since complainant was not assisted by a lawyer when she signed the same. Besides, she testified in open court that she was pursuing the case against her father. The dispositive portion of the decision reads: WHEREFORE, the accused Edgardo Dimaano is found guilty beyond reasonable doubt of the crimes of rape (2 counts) and the crime of attempted rape. For the rape committed in September 1993, he is sentenced to a penalty of reclusion perpetua. For the rape on December 29, 1995, he is imposed the supreme penalty of death. And for the crime of attempted rape, applying the Indeterminate Sentence Law (Act No. 4103 as amended), he is sentenced to a penalty of 4 years and 2 months of prision correccional medium to 10 years and 1 day to 12 years of prision mayor maximum. He is ordered to indemnify the victim the amount of P50,000.00 and to pay exemplary damages in the amount of P50,000.00. SO ORDERED.15
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The Court of Appeals affirmed with modifications the decision of the trial court, thus: WHEREFORE, premises considered, the Decision dated 31 May 2000 of the Regional Trial Court of Paraaque City, Branch 257 convicting accusedappellant Edgardo Dimaano of the crime of rape is AFFIRMED with the following MODIFICATIONS: In Criminal Case No. 96-125, the accused-appellant EDGARDO DIMAANO as found guilty of rape under Article 335 of the Revised Penal Code and sentenced to a penalty of reclusion perpetua is also ordered to pay the victim MARICAR DIMAANO Php50,000.00 as civil indemnity; Php50,000.00 as moral damages and Php25,0000.00 as exemplary damages. In Criminal Case No. 96-150, the accused-appellant EDGARDO DIMAANO, as found guilty of qualified rape under Article 335 of the Revised Penal Code, as amended by Section 11 of Republic Act 7659, and sentenced to death penalty, is also ordered to pay the victim MARICAR DIMAANO Php75,000.00 as civil indemnity; Php75,000.00 as moral damages and Php25,000.00 as exemplary damages. In Criminal Case No. 96-151, the accused-appellant EDGARDO DIMAANO as found guilty of attempted rape under Article 335 of the Revised Penal Code, as amended by Section 11 of Republic Act 7659, is hereby sentenced to an indeterminate penalty of 4 years, 2 months and 1 day to 6 years of prision correccional as minimum to 8 years and 1 day to 10 years of prision mayor as maximum. Accused-appellant is also ordered to pay the victim MARICAR DIMAANO Php30,000.00 as civil indemnity, Php25,000.00 as moral damages, and Php10,000.00 as exemplary damages. In accordance with Sec. 13, Rule 124 of the Amended Rules to Govern Review of Death Penalty Cases (A.M. No. 00-5-03-SC, effective 15 October 2004), this case is CERTIFIED to the Supreme Court for review. Let the entire record of this case be elevated to the Supreme Court. SO ORDERED.16 In his Brief, appellant raises the following issues: I. WHETHER OR NOT THE EVIDENCE ADDUCED BY THE PROSECUTION HAS OVERCOME THE PRESUMPTION OF INNOCENCE OF THE ACCUSED. II. WHETHER OR NOR THE VOLUNTARY AND DUE EXECUTION OF THE AFFIDAVIT OF DESISTANCE BY THE PRIVATE COMPLAINANT SHOULD HAVE BEEN DULY CONSIDERED AS A FACTOR WHICH PUT TO DOUBT THE REASONS BEHIND THE FILING OF THE CRIMINAL CHARGES OF RAPE AGAINST HEREIN ACCUSED.17 Appellant contends that if complainant's accusations were true, then she could have reported them to the authorities when she accompanied him to Paraaque Police Station and the Barangay Hall of San Antonio or to their relatives when she had the opportunity to do so. He also argues that had the trial court considered the Compromise Agreement and Sinumpaang Salaysay ng Pag-uurong ng Sumbong, it would have known that complainant was only pressured by her mother into filing the complaint. We are not persuaded. This credibility given by the trial court to the rape victim is an important aspect of evidence which appellate courts can rely on because of its unique opportunity to observe the witnesses, particularly their demeanor, conduct and attitude during direct and cross-examination by counsel.18 Absent any showing that the trial judge overlooked, misunderstood, or misapplied some facts or circumstances of weight which would affect the result of the case, his assessment of credibility deserves the appellate court's highest respect. 19 It is likewise well established that the testimony of a rape victim is generally given full weight and credit, more so if she is a minor. The revelation of an innocent child whose chastity has been abused deserves full credit, as her willingness to undergo the trouble and the humiliation of a public trial is an eloquent testament to the truth of her complaint. In so testifying, she could only have been impelled to tell the truth, especially in the absence of proof of ill motive.20 In the case at bar, the trial court and the Court of Appeals gave credence to the testimony of the complainant who was only 12 years old when she narrated to the court the violations of her person as follows: For rape committed in September 1993: ATTY. AMBROSIO: When was the first time that he committed sexual assault upon you? A: September 1993. COURT: No specific date? A: I cannot remember, Maam. ATTY. AMBROSIO: Can you remember how old were you at that time? A: 10 years old, Maam. Q: So, after he removed your T-shirt, bra and pan(t)y and shorts, what happened next, if anything happened? A: He asked me to lie face down. Pinadapa po niya ako. Q: After he asked you to lie face down, what happened next? RECORD: The witness is crying. A: He inserted in my anus ' ipinasok niya ang titi niya sa puwet ko. Q: Did you tell anybody about what happened to you? A: No, Maam. Q: Why not? A: Because I was afraid of my father. Q: Why are you afraid of your father? A: Because he might hurt me. Q: After that incident in September 1993, do you recall any other incident that occurred? A: There is, Maam. Q: When was it? A: After a few days after the first incident. Q: After he entered your room, what happened next? A: He laid beside me and he removed my clothes. Q: What did your father do with the clothes he was wearing? A: He removed his clothes.
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Q: After removing his clothes, what happened next, if any? A: We were lying in my bed and he asked me to lie on my side ' pinatagilid niya ako. Q: After he asked you to lie down on your side, what happened next, if any? A: He asked me to raise my right leg and placed it on his side because he was then lying on his side. Q: After he asked you to place your right thigh over his left thigh, what happened next, if any? A: He inserted his penis into my organ.21 For rape committed on December 29, 1995: Q: On December 29, 1995, do you remember of any unusual incident that happened? A: There was, Maam. Q: What is that incident? A: I was raped by my father on that day. Q: Where were you on that day when you said he raped you? A: I was then at the kitchen of our house. Q: What were you doing at the kitchen at that time? A: I was then sitting at our dining set. Q: What about your father, what he doing? A: He was cooking. Q: What happened while sitting at the dining set, if any? A: He told me to approach him. Q: After you approached him, what happened next? A: I was leaning then at the kitchen sink and he asked me to embrace him. Q: What happened after you embraced him? A: After that, he raised my T-shirt. Q: After raising your T-shirt, what happened next? A: He held my breast. Q: After that, what happened next? A: He kept kissing my breast. Q: How many times did he kiss your breast? A: Many times. Q: What happened next after he kissed you breast? A: He put my shorts down. Q: After putting your shorts down, what happened next, if any? A: He also put down my panty. Q: After putting down your panty, what happened next, if any? A: He held my organ. ATTY. MALLARES: At this juncture, Your Honor, may we request witness to be more specific with respect to organ. ATTY. AMBROSIO: When you say organ', what do you mean? A: Pekpek. COURT: Proceed. ANSWER: After he held my vagina, he also put down his shorts and brief. Q: After putting down his shorts and brief, what happened next? A: He inserted his penis into my vagina.22 For Attempted rape committed on January 1, 1996: Q: Do you recall of any incident that happened on Jan 1, 199[6] 3:00 to 4:00 P.M.? A: We were in our sala on the sofa. Q: When you say 'we', who are those you are referring to? A: Me and my father. Q: While you and your father were in the living room and on the sofa, what happened? A: While we were on the sofa, my father was then raising my T-shirt and kissing my breast. Q: What were you wearing at that time? A: Shorts, T-shirt, bra and panty. Q: What did your father do with your shorts, T-shirt and bra? A: He raised them. Q: What about your father, how was he dressed at that time? A: Shorts and T-shirt. Q: After raising your bra and T-shirt, what happened next? A: While he was kissing my breast, we were already lying on the sofa, then he went on top of me. Q: After he went on top of you, what happened next, if any? A: He was forcing to insert his penis while we were still wearing shorts. Q: So, you mean to say, you were still wearing shorts at that time? A: Yes, Maam. Q: What happened next when he was forcing to push his penis into your vagina? A: It did not push through because my mother suddenly arrived.23 The trial court believed the complainant and held that: The testimony of Maricar of her ignominious experience contains all the indicia of truth. It is spontaneous, direct and clear. It is vivid and complete with details. Her testimony is truthful and convincing. Her credibility is beyond question.

The Court believes that at her tender age, Maricar could not make public the offense, undergo the troubles and humiliation of public trial and endure the ordeal of testifying to all its gory details if she has not in fact been raped. The Court believes that a girl who is only twelve (12) years old would not ordinarily file a rape complaint against anybody, much less her own father, if it is not true.24 We have painstakingly reviewed the evidence on record and found no cogent reason to disturb the findings of the trial court and the appellate court. Contrary to appellant's assertion, complainant's credibility was not diminished by her failure to report the sexual abuses to the authorities and her relatives despite opportunities to do so. Delay in reporting the rape incidents, especially in the face of threats of physical violence, cannot be taken against the victim, more so when the lecherous attacker is her own father. Strong apprehensions brought about by fear, stress, or anxiety can easily put the offended party to doubt or even distrust what should otherwise be a positive attitude of bringing the culprit to justice. The Court has thus considered justified the filing of complaints for rape months, even years, after the commission of the offense. 25 In the case at bar, the delay of more than two years is not an indication that the charges were fabricated for complainant's reactions were consistent with reason. Her complete obedience to appellant, her lack of struggle and the studied silence she kept about her ordeal were all brought about by genuine fear posed by her own father against her. Appellant's reliance on complainant's affidavit of desistance deserves scant consideration. A survey of our jurisprudence reveals that the court attaches no persuasive value to a desistance, especially when executed as an afterthought. The unreliable character of this document is shown by the fact that it is quite incredible that a victim, after going through the trouble of having the appellant arrested by the police, positively identifying him as the person who raped her, enduring the humiliation of a physical examination of her private parts, repeating her accusations in open court and recounting her anguish in detail, will suddenly turn around and declare that she is no longer interested in pursuing the case. 26 Too, complainant repudiated the affidavit of desistance in open court by stating that no lawyer assisted her when she affixed her signature 27 and had shown her resolve to continue with the prosecution of the cases.28 Besides, the trial court is not bound to dismiss the cases, as it is still within its discretion whether or not to proceed with the prosecution,29 considering that the compromise agreement and the affidavit of desistance were executed long after the cases have been filed in court. Moreover, a criminal offense is an outrage to the sovereign State and to the State belongs the power to prosecute and punish crimes.30 By itself, an affidavit of desistance is not a ground for the dismissal of an action, once it has been instituted in court. A private complainant loses the right or absolute privilege to decide whether the rape charge should proceed, because the case was already filed and must therefore continue to be heard by the trial court.31 In addition, a careful scrutiny of the affidavit of desistance reveals that complainant never retracted her allegation that she was raped by her father. Neither did she give any exculpatory fact that would raise doubts about the rape. All she stated in the affidavit was that she had decided to withdraw the complaints after the appellant agreed not to disturb the complainant; to consent to annul his marriage; allow his wife to solely manage the conjugal properties; and entrust the custody of his children to his wife. Rather than contradict, this affidavit reinforces complainant's testimony that appellant raped her on several occasions. The gravamen of the offense of rape is sexual congress with a woman by force and without consent.1wphi1 If the woman is under 12 years of age, proof of force and consent becomes immaterial not only because force is not an element of statutory rape, but the absence of a free consent is presumed. Conviction will therefore lie, provided sexual intercourse is proven. But if the woman is 12 years of age or over at the time she was violated, sexual intercourse must be proven and also that it was done through force, violence, intimidation or threat.32 We have ruled that in incestuous rape of a minor, actual force or intimidation need not even be employed where the overpowering moral influence of appellant, who is private complainant's father, would suffice. The moral and physical dominion of the father is sufficient to cow the victim into submission to his beastly desires.33 The instant case is no exception. Appellant took advantage of his moral and physical ascendancy to unleash his lechery upon his daughter. Hence, under the above circumstances, we affirm the trial court's conviction in Criminal Case Nos. 96-125 and 96-150 for the crimes of rape committed in September 1993 and on December 29, 1995. However, we acquit appellant in Criminal Case No. 96-151 for the crime of attempted rape for failure to allege in the complaint the specific acts constitutive of attempted rape. The complaint for attempted rape in Criminal Case No. 96-151 is again quoted as follows: That on or about the 1st day of January 1996, in the Municipality of Paraaque, Metro Manila, Philippines and within the jurisdiction of this Honorable Court, the above-named accused, try and attempt to rape one Maricar Dimaano y Victoria, thus commencing the commission of the crime of Rape, directly by overt acts, but nevertheless did not perform all the acts of execution which would produce it, as a consequence by reason of cause other than his spontaneous desistance that is due to the timely arrival of the complainant's mother. CONTRARY TO LAW.34 For complaint or information to be sufficient, it must state the name of the accused; the designation of the offense given by the statute; the acts or omissions complained of as constituting the offense; the name of the offended party; the approximate time of the commission of the offense, and the place wherein the offense was committed.35 What is controlling is not the title of the complaint, nor the designation of the offense charged or the particular law or part thereof allegedly violated, these being mere conclusions of law made by the prosecutor, but the description of the crime charged and the particular facts therein recited.36 The acts or omissions complained of must be alleged in such form as is sufficient to enable a person of common understanding to know what offense is intended to be charged, and enable the court to pronounce proper judgment. No information for a crime will be sufficient if it does not accurately and clearly allege the elements of the crime charged. Every element of the offense must be stated in the information. What facts and circumstances are necessary to be included therein must be determined by reference to the definitions and essentials of the specified crimes. The requirement of alleging the elements of a crime in the information is to inform the accused of the nature of the accusation against him so as to enable him to suitably prepare his defense. The presumption is that the accused has no independent knowledge of the facts that constitute the offense.37 Notably, the above-cited complaint upon which the appellant was arraigned does not allege specific acts or omission constituting the elements of the crime of rape. Neither does it constitute sufficient allegation of elements for crimes other than rape, i.e., Acts of Lasciviousness. The allegation therein that the appellant 'tr[ied] and attempt[ed] to rape the complainant does not satisfy the test of sufficiency of a complaint or information, but is merely a conclusion of law by the one who drafted the complaint. This insufficiency therefore prevents this Court from rendering a judgment of conviction; otherwise we would be violating the right of the appellant to be informed of the nature of the accusation against him. The trial court correctly imposed the penalty of reclusion perpetua in Criminal Case No. 96-125 as the rape was committed in September 1993 prior to the effectivity of R.A. No. 7659, otherwise known as the Death Penalty Law, on December 31, 1993. Prior to R.A. No. 7659, Article 335 of the Revised Penal Code imposes the penalty ofreclusion perpetua for the the crime of rape, when committed against a woman who is under 12 years old or is
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demented. Anent the rape in Criminal Case No. 96-150 which was committed on December 29, 1995, Article 335, as amended by R.A. No. 7659, thus applies. It provides: ART. 335. When and how rape is committed. - Rape is committed by having carnal knowledge of a woman under any of the following circumstances: 1. By using force or intimidation; 2. When the woman is deprived of reason or otherwise unconscious; and 3. When the woman is under twelve years of age or is demented. The crime of rape shall be punished by reclusion perpetua. The death penalty shall also be imposed if the crime of rape is committed with any of the following attendant circumstances: 1. When the victim is under eighteen (18) years of age and the offender is a parent, ascendant, step-parent, guardian, relative by consanguinity or affinity within the third civil degree, or the common-law spouse of the parent of the victim. In Criminal Case No. 96-150, appellant was correctly sentenced to death as the special qualifying circumstances of minority and relationship were properly alleged in the information and proved during trial by the testimonies of the complainant, her mother and the appellant himself; they were also supported by the photocopy of the marriage certificate and birth certificate, respectively. In the case of People v. Cayabyab,38 this Court, in affirming the death penalty, held that a photocopy of the birth certificate is admissible to prove the age of the victim, as the original thereof is a public record in the custody of a public officer. The admission of this secondary evidence is one of the exceptions to the 'best evidence rule under Section 3, Rule 130 of the Revised Rules on Evidence. Further, we held that production of the original may be dispensed with, in the trial court's discretion, whenever the opponent does not bona fide dispute the contents of the document and no other useful purpose will be served by requiring its production. Indubitably, the marriage and birth certificates are public records in the custody of the local civil registrar who is a public officer. The presentation, therefore of their photocopies is admissible as secondary evidence to prove their contents. It is also well to note that appellant did not dispute their contents when offered as evidence to prove relationship and minority. Having failed to raise a valid and timely objection against the presentation of this secondary evidence the same became a primary evidence, and deemed admitted and the other party is bound thereby.39 Anent the awards of damages, the Court of Appeals correctly modified the awards of civil indemnity and exemplary damages, which the trial court lumped together for all the crimes committed, by separately awarding the sums of P50,000.0040 and P75,000.0041 as civil indemnity in Criminal Case Nos. 96-125 and 96-150, respectively, and P25,000.0042 as exemplary damages, for each count of rape, in line with the prevailing jurisprudence. The award of civil indemnity, which is in the nature of actual or compensatory damages, is mandatory upon a conviction for rape.43 On the other hand, exemplary damages is awarded when the commission of the offense is attended by an aggravating circumstance, whether ordinary or qualifying.44 Finally, the awards of P50,000.0045 and P75,000.0046 as moral damages in Criminal Case Nos. 96-125 and 96-150, respectively, by the Court of Appeals are also sustained in line with the prevailing jurisprudence. The award of moral damages is automatically granted in rape cases without need of further proof other than the commission of the crime because it is assumed that a rape victim has actually suffered moral injuries entitling her to such award. 47 WHEREFORE , the decision of the Court of Appeals in CA-G.R. CR No.00263 affirming the decision of the Regional Trial Court of Paraaque City, Branch 257, in Criminal Cases Nos. 96-125 and 96-150, finding appellant Edgardo Dimaano GUILTY beyond reasonable doubt of the crime of rape committed against his own daughter, Maricar Dimaano, and sentencing him to reclusion perpetua and DEATH, respectively; and ordering him to pay the complainant in Criminal Case No. 96-125 the amounts of P50,000.00 as civil indemnity, P50,000.00 as moral damages, and P25,000.00 as exemplary damages, and in Criminal Case No. 96-150 the amounts of 75,000.00 as civil indemnity, P75,000.00 as moral damages, and P25,000.00 as exemplary damages, is AFFIRMED. Appellant is however ACQUITTED for the crime of attempted rape in Criminal Case No. 96-151 for failure of the complaint to allege the specific acts or omissions constituting the offense. SO ORDERED.

SECOND DIVISION G.R. No. 143193 June 29, 2005

MELBAROSE R. SASOT and ALLANDALE R. SASOT, petitioners, vs. PEOPLE OF THE PHILIPPINES, The Honorable court of of appeals, and REBECCA G. SALVADOR, Presiding Judge, RTC, Branch 1, Manila, respondents. DECISION AUSTRIA-MARTINEZ, J.: The case subject of the present special civil action for certiorari is a criminal prosecution against petitioners for unfair competition under Article 189 of the Revised Penal Code, filed before the Regional Trial Court (RTC) of Manila (Branch 1), and docketed as Criminal Case No. 98-166147.1 Some time in May 1997, the National Bureau of Investigation (NBI) conducted an investigation pursuant to a complaint by the NBA Properties, Inc., against petitioners for possible violation of Article 189 of the Revised Penal Code on unfair competition. In its Report dated June 4, 1997, the NBI stated that NBA Properties, Inc., is a foreign corporation organized under the laws of the United States of America, and is the registered owner of NBA trademarks and names of NBA basketball teams such as "USA Basketball," "Chicago Bulls," "Orlando Magic," "Los Angeles Lakers," "Rockets," "Phoenix Suns," "Bullets," "Pacers," "Charlotte Hornets," "Blazers," "Denver Nuggets," "Sacramento Kings," "Miami Heat," Utah Jazz," "Detroit Pistons," "Milwaukee Bucks," "Seattle Sonics," "Toronto Raptors," "Atlanta Hawks," "Cavs," "Dallas Mavericks," "Minnesota Timberwolves," and "Los Angeles Clippers." These names are used on hosiery, footwear, t-shirts, sweatshirts, tank tops, pajamas, sport shirts, and other garment products, which are allegedly registered with the Bureau of Patents, Trademarks and Technology Transfer. The Report further stated that during the investigation, it was discovered that petitioners are engaged in the manufacture, printing, sale, and distribution of counterfeit "NBA" garment products. Hence, it recommended petitioners prosecution for unfair competition under Article 189 of the Revised Penal Code. 2 In a Special Power of Attorney dated October 7, 1997, Rick Welts, as President of NBA Properties, Inc., constituted the law firm of Ortega, Del Castillo, Bacorro, Odulio, Calma & Carbonell, as the companys attorney-in-fact, and to act for and on behalf of the company, in the filing of criminal, civil and administrative complaints, among others.3The Special Power of Attorney was notarized by Nicole Brown of New York County and certified by Norman Goodman, County Clerk and Clerk of the Supreme Court of the State of New York. Consul Cecilia B. Rebong of the Consulate General of the Philippines, New York, authenticated the certification.4 Welts also executed a Complaint-Affidavit on February 12, 1998, before Notary Public Nicole J. Brown of the State of New York.5 Thereafter, in a Resolution dated July 15, 1998, Prosecution Attorney Aileen Marie S. Gutierrez recommended the filing of an Information against petitioners for violation of Article 189 of the Revised Penal Code.6 The accusatory portion of the Information reads: That on or about May 9, 1997 and on dates prior thereto, in the City of Manila, Philippines, and within the jurisdiction of this Honorable Court, above named accused ALLANDALE SASOT and MELBAROSE SASOT of Allandale Sportslines, Inc., did then and there willfully, unlawfully and feloniously manufacture and sell various garment products bearing the appearance of "NBA" names, symbols and trademarks, inducing the public to believe that the goods offered by them are those of "NBA" to the damage and prejudice of the NBA Properties, Inc., the trademark owner of the "NBA". CONTRARY TO LAW.7 Before arraignment, petitioners filed a Motion to Quash the Information on the following grounds: I. THAT THE FACTS CHARGED DO NOT CONSTITUTE AN OFFENSE II. AND THIS HONORABLE COURT HAD NO JURISDICTION OVER THE OFFENSE CHARGED OR THE PERSON OF THE ACCUSED 8 In support of the foregoing, petitioners argue that the fiscal should have dismissed Weltss complaint because under the rule s, the complaint must be sworn to before the prosecutor and the copy on record appears to be only a fax transmittal.9 They also contend that complainant is a foreign corporation not doing business in the Philippines, and cannot be protected by Philippine patent laws since it is not a registered patentee. Petitioners aver that they have been using the business name "ALLANDALE SPORTSLINE, INC." since 1972, and their designs are original and do not appear to be similar to complainants, and they do not use complainants logo or design.10 The trial prosecutor of the RTC-Manila (Branch 1), Jaime M. Guray, filed his Comment/Opposition to the motion to quash, stating that he has the original copy of the complaint, and that complainant has an attorney-in-fact to represent it. Prosecutor Guray also contended that the State is entitled to prosecute the offense even without the participation of the private offended party, as the crime charged is a public crime.11 The trial court sustained the prosecutions arguments and denied petitioners motio n to quash in its Order dated March 5, 1999.12 Petitioners filed a special civil action for certiorari with the Court of Appeals (CA) docketed as CA-G.R. SP No. 52151 which was dismissed per its Decision dated January 26, 2000.13 According to the CA, the petition is not the proper remedy in assailing a denial of a motion to quash, and that the grounds raised therein should be raised during the trial of the case on the merits. 14 The dispositive portion of the assailed Decision reads: WHEREFORE, premises considered, the petition for certiorari is hereby DISMISSED. Respondent court is hereby ordered to conduct further proceedings with dispatch in Criminal Case No. 98-166147. SO ORDERED.15 Petitioners sought reconsideration of the Decision but this was denied by the CA. 16 Hence, the present petition for review on certiorari under Rule 45 of the Rules of Court, with issues raised as follows: 1. WHETHER A FOREIGN CORPORATION NOT ENGAGED AND LICENSE (sic) TO DO BUSINESS IN THE PHILIPPINES MAY MAINTAIN A CAUSE OF ACTION FOR UNFAIR COMPETITION. 2. WHETHER AN OFFICER OF A FOREIGN CORPORATION MAY ACT IN BEHALF OF A CORPORATION WITHOUT AUTHORITY FROM ITS BOARD OF DIRECTORS. 3. WHETHER A FOREIGN CORPORATION NOT ENGAGED IN BUSINESS AND WHOSE EMBLEM IT SOUGHT TO PROTECT IS NOT IN ACTUAL USE IS ENTITLED TO THE PROTECTION OF THE PHILIPPINE LAW. 4. WHETHER THE RESPONDENT REGIONAL TRIAL COURT CORRECTLY ASSUMED JURISDICTION OVER THE CASE AND THE PERSONS OF THE ACCUSED. 5. WHETHER THE COURT OF APPEALS COMMITTED GRAVE ABUSE OF DISCRETION AMOUNTING TO LACK OF JURISDICTION WHEN IT DISMISSED THE PETITION.17
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Petitioners reiterate the argument that the complaint filed by Rick Welts of the NBA Properties, Inc., is defective and should have been dismissed by the fiscal because it should have been personally sworn to by the complainant before the investigating prosecutor. They also reiterate the claim that Welts failed to show any board resolution showing his authority to institute any action in behalf of the company, and that the NBAs trademarks are not being actually used in the Philippines, hence, they are of public dominion and cannot be protected by Philippine patent laws. Petitioners further contend that they have not committed acts amounting to unfair competition.18 The Office of the Solicitor General appeared in behalf of the People, and filed its Amended Comment to the petition, praying for its dismissal, arguing that the CA did not commit any grave abuse of discretion in dismissing the petition for reasons stated in its Decision dated January 26, 2000.19 The petition must be denied. The Court has consistently held that a special civil action for certiorari is not the proper remedy to assail the denial of a motion to quash an information.20 The proper procedure in such a case is for the accused to enter a plea, go to trial without prejudice on his part to present the special defenses he had invoked in his motion to quash and, if after trial on the merits, an adverse decision is rendered, to appeal therefrom in the manner authorized by law.21Thus, petitioners should not have forthwith filed a special civil action for certiorari with the CA and instead, they should have gone to trial and reiterate the special defenses contained in their motion to quash. There are no special or exceptional circumstances22 in the present case such that immediate resort to a filing of a petition forcertiorari should be permitted. Clearly, the CA did not commit any grave abuse of discretion in dismissing the petition. Moreover, the Court does not find any justification for the quashal of the Information filed against petitioners. For one, while petitioners raise in their motion to quash the grounds that the facts charged do not constitute an offense and that the trial court has no jurisdiction over the offense charged or the person of the accused,23 their arguments focused on an alleged defect in the complaint filed before the fiscal, complainants capacity to sue and petitioners exculpatory defenses against the crime of unfair competition. Section 3, Rule 117 of the 1985 Rules of Criminal Procedure, which was then in force at the time the alleged criminal acts were committed, enumerates the grounds for quashing an information, to wit: a) That the facts charged do not constitute an offense; b) That the court trying the case has no jurisdiction over the offense charged or the person of the accused; c) That the officer who filed the information had no authority to do so; d) That it does not conform substantially to the prescribed form; e) That more than one offense is charged except in those cases in which existing laws prescribe a single punishment for various offenses; f) That the criminal action or liability has been extinguished; g) That it contains averments which, if true, would constitute a legal excuse or justification; and h) That the accused has been previously convicted or in jeopardy of being convicted, or acquitted of the offense charged. Nowhere in the foregoing provision is there any mention of the defect in the complaint filed before the fiscal and the compla inants capacity to sue as grounds for a motion to quash. For another, under Section 3, Rule 112 of the 1985 Rules of Criminal Procedure, a complaint is substantially sufficient if it states the known address of the respondent, it is accompanied by complainants affidavit and his witnesses and supporting documents, and the aff idavits are sworn to before any fiscal, state prosecutor or government official authorized to administer oath, or in their absence or unavailability, a notary public who must certify that he personally examined the affiants and that he is satisfied that they voluntarily executed and understood their affidavits. All these have been duly satisfied in the complaint filed before Prosecution Attorney Aileen Marie S. Gutierrez. It must be noted that even the absence of an oath in the complaint does not necessarily render it invalid.24 Want of oath is a mere defect of form, which does not affect the substantial rights of the defendant on the merits.25 In this case, Weltss Complaint-Affidavit contains an acknowledgement by Notary Public Nicole Brown of the State of New York that the same has been subscribed and sworn to before her on February 12, 1998,26 duly authenticated by the Philippine Consulate. While the copy on record of the complaintaffidavit appears to be merely a photocopy thereof, Prosecution Attorney Gutierrez stated that complainants representative will present the authenticated notarized original in court,27 and Prosecutor Guray manifested that the original copy is already on hand. 28 It is apt to state at this point that the prosecutor enjoys the legal presumption of regularity in the performance of his duties and functions, which in turn gives his report the presumption of accuracy.29 Moreover, records show that there are other supporting documents from which the prosecutor based his recommendation, to wit: (1) The NBI Report dated June 4, 1997, containing an account of the investigation conducted from April 30, 1997 to May 9, 1997, and the subsequent search and seizure of several items from petitioners establishment;30 (2) The letter dated May 8, 1997 from the law firm of Ortega, Del Castillo, Bacorro, Odulio, Calma & Carbonell to the NBI, seeking assistance in stopping the illegal manufacture, distribution and sale of "fake products bearing the NBA trademark, and in prosecuting the proprietors of aforesaid factory;"31 and (3) The Joint Affidavit executed by Rechie D. Malicse and Dalisay P. Bal-ot of the Pinkerton Consulting Services (Phils.) Inc., which was certified to by Prosecution Attorney Gutierrez, attesting to their findings that petitioners were found to be manufacturing, printing, selling, and distributing counterfeit "NBA" garment products.32 Consequently, if the information is valid on its face, and there is no showing of manifest error, grave abuse of discretion and prejudice on the part of public prosecutor, as in the present case, the trial court should respect such determination. 33 More importantly, the crime of Unfair Competition punishable under Article 189 of the Revised Penal Code 34 is a public crime. It is essentially an act against the State and it is the latter which principally stands as the injured party. The complainants capacity to sue in su ch case becomes immaterial. In La Chemise Lacoste, S.A. vs. Fernandez,35 a case akin to the present dispute, as it involved the crime of Unfair Competition under Article 189 of the Revised Penal Code, and the quashal of search warrants issued against manufacturers of garments bearing the same trademark as that of the petitioner, the Court succinctly ruled that: More important is the nature of the case which led to this petition. What preceded this petition for certiorari was a letter-complaint filed before the NBI charging Hemandas with a criminal offense, i.e., violation of Article 189 of the Revised Penal Code. If prosecution follows after the completion of
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the preliminary investigation being conducted by the Special Prosecutor the information shall be in the name of the People of the Philippines and no longer the petitioner which is only an aggrieved party since a criminal offense is essentially an act against the State. It is the latter which is principally the injured party although there is a private right violated. Petitioner's capacity to sue would become, therefore, of not much significance in the main case. We cannot allow a possible violator of our criminal statutes to escape prosecution upon a far-fetched contention that the aggrieved party or victim of a crime has no standing to sue. In upholding the right of the petitioner to maintain the present suit before our courts for unfair competition or infringement of trademarks of a foreign corporation, we are moreover recognizing our duties and the rights of foreign states under the Paris Convention for the Protection of Industrial Property to which the Philippines and France are parties. We are simply interpreting and enforcing a solemn international commitment of the Philippines embodied in a multilateral treaty to which we are a party and which we entered into because it is in our national interest to do so.36 (Emphasis supplied) Lastly, with regard to petitioners arguments that the NBA Properties, Inc., is not entitled to protection under Philippine patent laws since it is not a registered patentee, that they have not committed acts amounting to unfair competition for the reason that their designs are original and do not appear to be similar to complainants, and they do not use complainants logo or design, the Court finds that these are matte rs of defense that are better ventilated and resolved during trial on the merits of the case. WHERFORE, the petition is DENIED for lack of merit. Let the records of this case be REMANDED to the Regional Trial Court of Manila (Branch 24) where Criminal Case No. 98-166147 is presently assigned, for further proceedings with reasonable dispatch. SO ORDERED.

SECOND DIVISION G.R. No. 129472. April 12, 2005 MARCELO LASOY and FELIX BANISA, Petitioners, vs. HON. MONINA A. ZENAROSA, PRESIDING JUDGE, RTC, BR. 76, QUEZON CITY, and THE PEOPLE OF THE PHILIPPINES, Respondents. DECISION CHICO-NAZARIO, J.: After an information has been filed and the accused had been arraigned, pleaded guilty and were convicted and after they had applied for probation, may the information be amended and the accused arraigned anew on the ground that the information was allegedly altered/tampered with? In an Information filed by Assistant City Prosecutor Evelyn Dimaculangan-Querijero dated 03 July 1996,1 accused Marcelo Lasoy and Felix Banisa were charged as follows: That on or about the 2nd day of July, 1996, in Quezon City, Philippines, the above-named accused, conspiring together, confederating with and mutually helping each other, not having been authorized by law to sell, dispense, deliver, transport or distribute any prohibited drug, did, then and there, willfully, unlawfully sell or offer for sale a total of 42.410 grams of dried marijuana fruiting tops, a prohibited drug, in violation of said law. The case docketed as Criminal Case No. 96-66788 was assigned and raffled to Branch 103 of the Regional Trial Court (RTC) of Quezon City, presided by Judge Jaime N. Salazar, Jr. Upon arraignment, both accused pleaded guilty and were sentenced on 16 July 1996 in this wise:2 On arraignment accused MARCELO LASOY and FELIX BANISA with the assistance of [their] counsel Atty. Diosdado Savellano entered a plea of GUILTY to the crime charged against them in the information. ACCORDINGLY, the court hereby find[s] accused MARCELO LASOY and FELIX BANISA, GUILTY of Violation of Section 4, Republic Act 6425 and they are hereby sentenced to suffer a jail term of SIX (6) MONTHS and ONE (1) DAY and the period during which said accused are under detention is hereby deducted pursuant to the provisions of Republic Act 5127. The evidence in this case which is the 42.410 grams of dried marijuana fruiting tops is hereby ordered confiscated in favor of the government. The Property Custodian is ordered to turn over said evidences to the Dangerous Drugs Board for proper disposition. On the same date, both accused applied for probation under Presidential Decree No. 968, as amended. 3 On 28 August 1996, plaintiff People of the Philippines, thru Assistant City Prosecutor Ma. Aurora Escasa-Ramos, filed two separate motions, first, to admit amended Information,4 and second, to set aside the arraignment of the accused, as well as the decision of the trial court dated 16 July 1996. 5 In plaintiffs motion to admit amended information, it alleged: 1. That for some unknown reason both accused herein were charged of (sic) Violation of Sec. 4, Art. II, R.P. 6425. That on or about the 2nd day of July, 1996, in Quezon City, Philippines, the above-named accused, conspiring together, confederating with and mutually helping each other, not having been authorized by law to sell, dispense, deliver, transport or distribute any prohibited drug, did, then and there, willfully, unlawfully sell, or offer for sale a total of 42.410 grams of dried marijuana fruiting tops, a prohibited drug, in violation of said law. When in truth and in fact the said accused should be charged for transportation and delivery, with intent to sell and to gain, of Forty-Five (45) pieces of dried marijuana fruiting tops weighing 42.410 kilos from La Trinidad to Metro Manila. 2. That it is imperative to file an amended information in order to make it conformable to the evidence on hand. WHEREFORE, in view of the foregoing it is most respectfully prayed that the herewith attached Amended Information against both accused be admitted and subsequently set for arraignment and trial.6 (Emphasis supplied) Resolving the motions, the trial court, in its Order dated 03 September 1996, 7 held: The Motion to Admit Amended Information is hereby DENIED, as this court has already decided this case on the basis that the accused was arrested in possession of 42.410 grams of marijuana and it is too late at this stage to amend the information. Another Order8 of the same date issued by the trial court resolved the second motion in the following manner: The Motion to Set Aside the Arraignment of the Accused as well as the Decision dated July 16, 1996, filed by the Public Prosecutor is hereby GRANTED, it appearing from the published resolution of the Supreme Court dated October 18, 1995, in G.R. No. 119131 Inaki Gulhoran and Galo Stephen Bobares vs. Hon. FRANCISCO H. ESCANO, JR. in his capacity as Presiding Judge of Regional Trial Court, Leyte Branch 12, Ormoc City which was dismissed by this court on August 20, 1996, the jurisdiction over drug of small quantity as in the case at bar should be tried by the Metropolitan Trial Court, although under the statute of R.A. 7659 which took effect on December 31, 1993 the penalty for possession or use of prohibited or regulated drugs is from prision [correccional] to reclusion temporal which indeterminate penalty and under the rule on jurisdiction the court which has jurisdiction over a criminal case is dependent on the maximum penalty attached by the statute to the crime. The amended Information reads: That on or about the 2nd day of July, 1996, in Quezon City, Philippines, the above-named accused, conspiring together, confederating with and mutually helping each other, not having been authorized by law to sell, dispense, deliver, transport or distribute any prohibited drug, did, then and there, willfully unlawfully sell or offer for sale a total of 42.410 kilos of dried marijuana fruiting tops, a prohibited drug, in violation of said law.9 This second information was assigned to Branch 76 of the RTC of Quezon City presided by Judge Monina A. Zenarosa,10 docketed as Criminal Case No. Q-96-67572. Both accused filed a Motion to Quash11 which was opposed12 by the People in its Comment/Opposition filed before the trial court. Subsequently, while the motion to quash before the RTC was as yet unresolved, both accused filed before the Court of Appeals a Petition for Certiorari13 which they later moved to withdraw "to pave the way for Branch 76 of the RTC of Quezon City to act judiciously on their motion to quash. 14 The Court of Appeals in its Resolution dated 15 November 199615 noted the motion and considered the petition withdrawn. In its now assailed resolution dated 14 February 1997,16 the trial court denied accuseds motion to quash, and scheduled the arraignment of the accused under the amended information. Accuseds Motion for Reconsideration, 17 duly opposed by the prosecution,18 was denied by the trial court in
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its Order dated 16 April 1997.19 Hence, the instant Petition for Certiorari with prayer for injunction and temporary restraining order20based on the following grounds:21 A) WITH DUE RESPECT, THE HONORABLE RESPONDENT COURT ERRED IN HOLDING THAT THERE IS NO VALID INFORMATION AND, THEREFORE, THE ACCUSED CANNOT CLAIM THE RIGHT AGAINST DOUBLE JEOPARDY; and B) WITH DUE RESPECT, THE HONORABLE COURT ERRED IN FAILING TO RECOGNIZE THAT THE RTC, BRANCH 103, HAD JURISDICTION OVER the case, docketed as Criminal CASE NO. Q-96-66799.22 In this Courts resolution dated 23 July 1997,23 respondents were required to comment on the Petition. They submitted their Comment on 18 November 1998.24 Accused filed their Reply25 on 02 March 2000. In compliance with the Courts resolution dated 29 March 2000,26 accused and respondents submitted their memoranda, respectively, on 26 May 200027 and 26 July 2000.28 To invoke the defense of double jeopardy, the following requisites must be present: (1) a valid complaint or information; (2) the court has jurisdiction to try the case; (3) the accused has pleaded to the charge; and (4) he has been convicted or acquitted or the case against him dismissed or otherwise terminated without his express consent. 29 The issues boil down to whether or not the first information is valid and whether or not the RTC, Branch 103, where the first information was filed and under which Criminal Case No. Q-96-66788 was tried, had jurisdiction to try the case. On the issue of validity of the information, accused and respondents submitted opposing views -- accused insisting on its validity, whereas respondents asserted that the accused were arraigned under an invalid information. Alleging that there being an alteration on the first information, hence it failed to reflect the true quantity of drugs caught in possession of the accused, the prosecution insisted that the first information under which accused were arraigned is invalid. In accord with the view of the prosecution, the trial court denied the accuseds motion to quash, stating: 30 . . . [I]n the instant case, it must be recalled that the earlier information filed against the accused appeared to be sufficient in form. It was discovered, however, that an alteration was made as to the weight of the marijuana fruiting tops which was placed at only 42.410 grams when the correct amount should have been in kilos. This fraudulent alteration necessarily vitiated the integrity of the proceedings such that despite the plea of guilt made by the accused it would not bar a subsequent prosecution for the correct offense. Generally speaking to entitle accused to the plea of former jeopardy, the prior proceedings must have been valid, and the lack of any fundamental requisite which would render void the judgment would also make ineffective a plea of jeopardy based on such proceedings. Fraudulent or collusive prosecution. A verdict of acquittal procured by accused by fraud and collusion is a nullity and does not put him in jeopardy; and consequently it is no bar to a second trial for the same offense. Similarly, a conviction of a criminal offense procured fraudulently or by collusion of the offender, for the purpose of protecting himself from further prosecution and adequate punishment, is no bar to a subsequent prosecution for the same offense, either on the ground that the conviction is void because of the fraud practiced, or that the state is not in any sense a party to it and therefore not bound by it. (22 Corpus Juris Secundum, pp. 244-245) It is impossible to believe that the accused were not aware of the deceitful maneuvering which led to the erasure of the true weight of the marijuana fruiting tops as alleged in the information. They cannot pretend not to know the exact amount of prohibited stuff for which they were charged before the information was tampered with. They could not feign innocence when they participated in that charade when they pleaded guilty upon arraignment. Consequently, their plea to the lesser offense considering the decreased weight in the now altered information which merited a much lighter penalty was irregularly obtained. Hence, they cannot be considered as put in jeopardy by the proceedings in court which was tainted with fraud. The accused should not be allowed to make a mockery of justice or to trifle with the courts by participating in a grand deception of pleading guilty to a lesser offense knowing that they participated/acquiesced to such tampering and then tell the court that they would be placed in jeopardy for the second time. We do not agree with the trial court. FIRST, it cannot be denied that the request for appropriate inquest proceedings dated 03 July 1996 addressed to the City Prosecutor of Quezon City and received by Prosecutor Querijero, stated that the accused were apprehended "for conspiring, confederating and mutually helping with each other in facilitating and effecting the transportation and delivery . . . of fortyfive pieces of dried marijuana leaves (already in bricks) and weighing approximately forty-five kilos.31 In the joint affidavit of the poseur-buyer, PO3 Ernesto Jimenez Viray, Jr., and arresting officer SPOI Inadio U. Ibay, Jr., it is stated that the accused were caught with approximately 45 kilos of dried marijuana fruiting tops.32 For some unknown reasons, however, the Information filed against the accused reflected a much lesser quantity, i.e., 42.410 grams. The question is whether this is sufficient to consider the first Information under which the accused were arraigned invalid. Pertinent provisions of the Rules of Court under Rule 110 are hereunder quoted: Section 4. Information defined. An information is an accusation in writing charging a person with an offense subscribed by the fiscal and filed with the court. In Alvizo v. Sandiganbayan,33 this Court citing People v. Marquez affirmed:34 It should be observed that section 3 of Rule 110 defines an information as nothing more than "an accusation in writing charging a person with an offense subscribed by the fiscal and filed with the court." An information is valid as long as it distinctly states the statutory designation of the offense and the acts or omissions constitutive thereof.35 In other words, if the offense is stated in such a way that a person of ordinary intelligence may immediately know what is meant, and the court can decide the matter according to law, the inevitable conclusion is that the information is valid. It is not necessary to follow the language of the statute in the information. The information will be sufficient if it describes the crime defined by law. 36 Applying the foregoing, the inescapable conclusion is that the first information is valid inasmuch as it sufficiently alleges the manner by which the crime was committed. Verily the purpose of the law, that is, to apprise the accused of the nature of the charge against them, is reasonably complied with.
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Furthermore, the first information, applying Rule 110,37 Section 6, shows on its face that it is valid. Section 6. Sufficiency of complaint or information. A complaint or information is sufficient if it states the name of the accused; the designation of the offense by the statute; the acts or omissions complained of as constituting the offense; the name of the offended party; the approximate time of the commission of the offense, and the place wherein the offense was committed. SECOND, and with respect specifically to the trial courts point of view that the accused cannot claim their right against double jeopardy because they "participated/acquiesced to the tampering," we hold that while this may not be far-fetched, there is actually no hard evidence thereof.38 Worse, we cannot overlook the fact that accused were arraigned, entered a plea of guilty and convicted under the first information. Granting that alteration/tampering took place and the accused had a hand in it, this does not justify the setting aside of the decision dated 16 July 1996. The alleged tampering/alteration allegedly participated in by the accused may well be the subject of another inquiry. In Philippine Rabbit Bus Lines v. People,39 the Court affirming the finality of a decision in a criminal case, citing Section 7, Rule 120 of the 2000 Rules on Criminal Procedure, stated: A judgment of conviction may, upon motion of the accused, be modified or set aside before it becomes final or before appeal is perfected. Except where the death penalty is imposed a judgment [of conviction] becomes final after the lapse of the period for perfecting an appeal, or when the sentence has been partially or totally satisfied or served, or when the accused has waived in writing his right to appeal, or has applied for probation. Indeed, the belated move on the part of the prosecution to have the information amended defies procedural rules, the decision having attained finality after the accused applied for probation and the fact that amendment is no longer allowed at that stage. Rule 110 of the Rules on Criminal Procedure is emphatic: Sec. 14. Amendment. The information or complaint may be amended, in substance or form, without leave of court, at any time before the accused pleads; and thereafter and during the trial as to all matters of form, by leave and at the discretion of the court, when the same can be done without prejudice to the rights of the accused. If it appears at any time before judgment that a mistake has been made in charging the proper offense, the court shall dismiss the original complaint or information upon the filing of a new one charging the proper offense in accordance with Rule 119, Section 11, provided the accused would not be placed thereby in double jeopardy, and may also require the witnesses to give bail for their appearance at the trial. In Sanvicente v. People,40 this Court held that given the far-reaching scope of an accuseds right against double jeopardy, even an appeal based on an alleged misappreciation of evidence will not lie. The only instance when double jeopardy will not attach is when the trial court acted with grave abuse of discretion amounting to lack or excess of jurisdiction, such as where the prosecution was denied the opportunity to present its case or where the trial was a sham. Respondent People of the Philippines argues, citing the case of Galman v. Sandiganbayan41that the trial was a sham. We do not agree with the respondent as the trial in the Galman case was considered a mock trial owing to the act of a then authoritarian president who ordered the therein respondents Sandiganbayan and Tanodbayan to rig the trial and who closely monitored the entire proceedings to assure a predetermined final outcome of acquittal and total absolution of the respondents-accused therein of all the charges.42 The Constitution is very explicit. Article III, Section 21, mandates that no person shall be twice put in jeopardy of punishment for the same offense. In this case, it bears repeating that the accused had been arraigned and convicted. In fact, they were already in the stage where they were applying for probation. It is too late in the day for the prosecution to ask for the amendment of the information and seek to try again accused for the same offense without violating their rights guaranteed under the Constitution. There is, therefore, no question that the amendment of an information by motion of the prosecution and at the time when the accused had already been convicted is contrary to procedural rules and violative of the rights of the accused. FINALLY, on the issue of jurisdiction, the case of Gulhoran and Bobares v. Escano, Jr.,43 upon which both trial courts justified their claim of jurisdiction, was actually based on this Courts resolution dated 18 October 1995 where this Court held: The criminal jurisdiction of the Metropolitan Trial Courts, Municipal Trial Courts, and Municipal Circuit Trial Courts under Section 32 (2) of B. P. 129, as amended by Rep. Act 7691 has been increased to cover offenses punishable with imprisonment not exceeding six (6) years irrespective of the amount of the fine (Administrative Cir. No. 09-94, June 14, 1994). It appears that the imposable penalties applicable to the subject cases are within the range of prision correccional, a penalty not exceeding six years, thus falling within the exclusive original jurisdiction of the MTC. It follows that the RTC has no jurisdiction to take cognizance of the charges against petitioners. If we apply the resolution of this Court quoted above, it would seem that the Metropolitan Trial Court has jurisdiction over the case under the first Information. Following that argument, the decision dated 16 July 1996 of the RTC Branch 103 was rendered without jurisdiction, thus, accused may not invoke the right against double jeopardy. Nonetheless, we cannot uphold this view owing to the fact that a later resolution superseding the resolution cited by the trial courts, specifically Administrative Order No. 51-96 dated 03 May 1996, vests the RTC with jurisdiction to try Criminal Case No. Q-96-67572. The resolution provides: RE: SPECIAL COURTS FOR KIDNAPPING, ROBBERY, DANGEROUS DRUGS, CARNAPPING AND OTHER HEINOUS CRIMES UNDER R.A. NO. 7659 Pursuant to Sec. 23 of Batas Pambansa Blg. 129, in the interest of speedy and efficient administration of justice and subject to the guidelines hereinafter set forth, the following Regional Trial Court branches are hereby designated to exclusively try and decide cases of KIDNAPPING FOR RANSOM, ROBBERY IN BAND, ROBBERY COMMITTED AGAINST A BANKING OR FINANCIAL INSTITUTION, VIOLATION OF THE DANGEROUS DRUGS ACT OF 1972, AS AMENDED, AND VIOLATION OF THE ANTI-CARNAPPING ACT OF 1972, AS AMENDED, AND OTHER HEINOUS CRIMES defined and penalized under Rep. Act No. 7659, committed within their respective territorial jurisdictions: ... 11. Branch 103, Quezon City, presided over by RTC JUDGE JAIME N. SALAZAR, JR. Subsequently, A.M. No. 96-8-282-RTC dated 27 August 1996, Re: Clarification on the applicability of Supreme Court Administrative Order No. 51-96 in relation to Section 20 of R.A. No. 6425, as amended, declared: . . . [T]he Court Resolved to AMEND the prefatory paragraph in Administrative Order No. 5-96, to read: Pursuant to Section 23 of Batas Pambansa Blg. 129 in the interest of speedy administration of justice and subject to the guidelines hereinafter set forth, the following Regional Trial Court branches are hereby designated to exclusively try and decide cases of KIDNAPPING AND/OR KIDNAPPING FOR RANSOM, ROBBERY IN BAND, ROBBERY COMMITTED AGAINST A BANKING OR FINANCIAL INSTITUTION, VIOLATION OF THE DANGEROUS DRUGS ACT OF 1972, AS AMENDED, regardless of the quantity of the drugs involved.
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This issue is further settled by the concurring opinion of Chief Justice Hilario G. Davide, Jr., in People v. Velasco:44 . . . [A]ll drug-related cases, regardless of the quantity involved and the penalty imposable pursuant to R.A. No. 7659, as applied/interpreted in People vs. Simon (G.R. No. 93028, 29 July 1994; 234 SCRA 555), and of the provisions of R.A. No. 7691 expanding the jurisdiction of the Metropolitan Trial Courts and Municipal Circuit Trial Courts, still fall within the exclusive original jurisdiction of Regional Trial Courts, in view of Section 39 of R.A. No. 6425 (the Dangerous Drugs Act of 1972). R.A. No. 7659 and R.A. No. 7691 have neither amended nor modified this Section. Wherefore, premises considered, the instant petition is Granted. The Orders dated 14 February 1997 and 16 April 1997 issued by the Regional Trial Court of Quezon City, Branch 76, are set aside. Criminal Case No. Q-96-67572 is ordered Dismissed. Accused Marcelo Lasoy and Felix Banisa are forthwith ordered released from detention45 unless there may be valid reasons for their further detention. SO ORDERED.

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THIRD DIVISION G.R. NO. 184537 April 23, 2010

QUINTIN B. SALUDAGA and SPO2 FIEL E. GENIO, Petitioners, vs. The HONORABLE SANDIGANBAYAN, 4th DIVISION and the PEOPLE OF THE PHILIPPINES, Respondents. DECISION MENDOZA, J.: This is a petition for certiorari, prohibition and mandamus under Rule 65 of the 1997 Rules on Civil Procedure with a prayer for the issuance of a writ of preliminary injunction and temporary restraining order assailing the July 14, 2008 Resolution1 of the Sandiganbayan in Criminal Case No. SB-08 CRM 0263, denying the Motion for Preliminary Investigation filed by the petitioners who were charged with a violation of Section 3(e) of Republic Act No. 3019, and the denial of their Motion for Reconsideration done in open court on August 13, 2008. An Information2 dated September 13, 2000 charging both petitioners with having violated Section 3(e) of Republic Act No. 3019, by causing undue injury to the government, reads: The undersigned Graft Investigation Officer of the Office of the Ombudsman-Visayas, accuses QUINTIN B. SALUDAGA and SPO2 FIEL E. GENIO, for VIOLATION OF SECTION 3(e) OF REPUBLIC ACT NO. 3019, AS AMENDED (THE ANTI-GRAFT AND CORRUPT PRACTICES ACT), committed as follows: That in or about the months of November and December, 1997, at the Municipality of Lavezares, Province of Northern Samar, Philippines, and within the jurisdiction of this Honorable Court, above-named accused, public officials, being the Municipal Mayor and PNP Member of Lavezares, Northern Samar in such capacity and committing the offense in relation to office, conniving, confederating and mutually helping with one another, and with the late Limpio Legua, a private individual, with deliberate intent, with evident bad faith and manifest partiality, did then and there willfully, unlawfully and feloniously enter into a Pakyaw Contract for the Construction of Barangay Day Care Centers for Barangays Mac-arthur and Urdaneta, Lavezares, Northern Samar, each in the amount of FORTY-EIGHT THOUSAND FIVE HUNDRED PESOS (P48,500.00), Philippine Currency, or a total amount of NINETY-SEVEN THOUSAND PESOS (P97,000.00), Philippine Currency, without conducting a competitive public bidding, thus depriving the government the chance to obtain the best, if not, the most reasonable price, and thereby awarding said contracts to Olimpio Legua, a non-license contractor and non-accredited NGO, in violation of Sec. 356 of Republic Act No. 7160 (The Local Government Code) and COA Circular No. 91-368, to the damage and prejudice of the government. CONTRARY TO LAW. This case was initially raffled to the Third Division of Sandiganbayan and was docketed as Criminal Case No. 26319. In a Resolution3 promulgated on June 14, 2002, the Third Division granted petitioners Motion to Quash and dismissed the information "for fail ure of the prosecution to allege and prove the amount of actual damages caused the government, an essential element of the crime charged." In a Memorandum4 dated July 1, 2003, the Ombudsman directed the Office of the Special Prosecutor (OSP) to study the possibility of having the information amended and re-filed with the Sandiganbayan. Thus, the OSP re-filed the Information5 dated August 17, 2007, this time, docketed as Criminal Case No. SB-08 CRM 0263, with the Fourth Division of the Sandiganbayan, charging the petitioners for violation of Section 3(e) of R.A. No. 3019, by giving unwarranted benefit to a private person, to the prejudice of the government. The information, subject of the petition, now reads: The undersigned Prosecutor of the Office of the Special Prosecutor/Office of the Ombudsman, hereby accuses, MAYOR QUINTIN B. SALUDAGA and SPO2 FIEL E. GENIO, for the violation of Section 3(e) of Republic Act 3019, as amended, otherwise known as the Anti-Graft and Corrupt Practices Act, committed as follows: That in or about the months of November and December, 1997 at the Municipality of Lavezares, Province of Northern Samar, Philippines, and within the jurisdiction of this Honorable Court, accused QUINTIN B. SALUDAGA, a high ranking public official being then the Mayor of Lavezares, Northern Samar, and committing the crime herein charged while in the discharge of his official administrative function, conspiring and conniving with accused SPO2 FIEL B. GENIO, a member of Lavezares Police Force (PNP) and with the late OLIMPIO LEGUA, a private individual, with deliberate intent, did then and there willfully, unlawfully and criminally give unwarranted benefit or advantage to the late Olimpio Legua, a non-license contractor and nonaccredited NGO, through evident bad faith and manifest partiality by then and there entering into a Pakyaw Contract with the latter for the Construction of Barangay Day Care Centers for barangays Mac-Arthur and Urdaneta, Lavezares, Northern Samar, in the amount of FORTY EIGHT THOUSAND FIVE HUNDRED PESOS (P48,500.00) each or a total of NINETY SEVEN THOUSAND PESOS (P97,000.00) Philippine Currency, without the benefit of a competitive public bidding to the prejudice of the Government and public interest. CONTRARY TO LAW. Petitioners filed a Motion for Preliminary Investigation6 dated June 4, 2008 which was strongly opposed by the prosecution in its Opposition7 dated June 18, 2008. Petitioners contend that the failure of the prosecution to conduct a new preliminary investigation before the filing of the second Information constituted a violation of the law because the latter charged a different offensethat is, violation of Section 3(e) by giving unwarranted benefit to private parties. Hence, there was a substitution of the first Information. They argue that assuming that no substitution took place, at the very least, there was a substantial amendment in the new information and that its submission should have been preceded by a new preliminary investigation. Further, they claim that newly discovered evidence mandates re-examination of the finding of a prima facie cause to file the case. On July 14, 2008, the Sandiganbayan Fourth Division issued the assailed Resolution denying the petitioners motion for preliminary investigation. The graft court found that there is no substituted information or substantial amendment that would warrant the conduct of a new preliminary investigation. It gave the following ratiocination: The re-filed information did not change the nature of the offense charged, but merely modified the mode by which accused committed the offense. The substance of such modification is not such as to necessitate the conduct of another preliminary investigation. Moreover, no new allegations were made, nor was the criminal liability of the accused upgraded in the re-filed information. Thus, new preliminary investigation is not in order.
13

The dispositive portion of the Resolution states: Finding the arguments of accused-movants indefensible, the sufficiency of the information must be sustained. WHEREFORE, having established the sufficiency of the Information, the motion under consideration is hereby DENIED for lack of merit. Accordingly, the arraignment of both accused shall proceed as scheduled.8 Petitioners filed a Motion for Reconsideration9 dated August 6, 2008, submitting that the two Informations substantially charged different offenses, such that the present information constituted a substitution that should have been preceded by a new preliminary investigation. On August 13, 2008, in a hearing for the arraignment of petitioners, the Sandiganbayan denied the Motion 10 in open court. Hence, petitioners interpose the present petition for certiorari, prohibition and mandamus with prayer for the issuance of a writ of preliminary injunction and temporary restraining order under Rule 65 of the Rules of Court anchored on the following grounds: I The Honorable Sandiganbayan acted with grave abuse of discretion amounting to lack or excess of jurisdiction when it refused to order the preliminary investigation of the case a quo, when the second Information in the instant case constituted substituted Information whose submission required the conduct of preliminary investigation. II The Honorable Sandiganbayan acted with grave abuse of discretion amounting to lack or excess of jurisdiction when it refused to order the conduct of a preliminary investigation of the case a quo, since the second Information therein contained substantial amendments whose submission required the conduct of preliminary investigation. III The Honorable Sandiganbayan acted with grave abuse of discretion amounting to lack or excess of jurisdiction when it refused to order the preliminary investigation of the case a quo, although the newly discovered evidence mandates due re-examination of the finding that prima facie cause existed to file the case a quo.11 From the arguments raised by petitioners, the core issue is whether or not the two (2) ways of violating section 3(e) of Republic Act 3019, namely: (a) by causing undue injury to any party, including the Government; or (b) by giving any private party any unwarranted benefit, advantage or preference constitute two distinct and separate offenses that would warrant a new or another preliminary investigation. In its Comment12 dated January 12, 2009, respondent People of the Philippines, represented by the Office of the Special Prosecutor, counters that there is no substituted information in contemplation of law and jurisprudence that would require the conduct of another preliminary investigation. There is no newly-discovered evidence that would lead to a different determination should there be another preliminary investigation conducted. In their Reply,13 dated April 24, 2009, petitioners insist that the offenses charged in the first and second Information are not the same, and what transpired was a substitution of Information that required prior conduct of preliminary investigation. Even assuming there was no substitution, substantial amendments were made in the second Information, and that its submission should have been preceded by a new preliminary investigation. We find no merit in this petition. Petitioners were charged with a violation of Section 3(e) of R.A. No. 3019 or the Anti-Graft and Corrupt Practices Act which reads: Section 3. Corrupt practices of public officers.- In addition to acts or omissions of public officers already penalized by existing law, the following shall constitute corrupt practices of any public officer and are hereby declared to be 0unlawful: xxx (e) Causing any undue injury to any party, including the Government, or giving any private party any unwarranted benefits, advantage or preference in the discharge of his official, administrative or judicial functions through manifest partiality, evident bad faith or gross inexcusable negligence. This provision shall apply to officers and employees charged with the grant of licenses or permits or other concessions. The essential elements of the offense are as follows: 1. The accused must be a public officer discharging administrative, judicial or official functions; 2. He must have acted with manifest partiality, evident bad faith or inexcusable negligence; and 3. That his action caused any undue injury to any party, including the government, or giving any private party unwarranted benefits, advantage or preference in the discharge of his functions.14 In a string of decisions, the Court has consistently ruled: R.A. 3019, Section 3, paragraph (e), as amended, provides as one of its elements that the public officer should have acted by causing any undue injury to any party, including the Government, or by giving any private party unwarranted benefits, advantage or preference in the discharge of his functions. The use of the disjunctive term "or" connotes that either act qualifies as a violation of Section 3 paragraph (e), or as aptly held in Santiago, as two (2) different modes of committing the offense. This does not however indicate that each mode constitutes a distinct offense, but rather, that an accused may be charged under either mode or under both.15 The afore-stated ruling is consistent with the well-entrenched principle of statutory construction that "The word or is a disjunctive term signifying disassociation and independence of one thing from the other things enumerated; it should, as a rule, be construed in the sense in which it ordinarily implies, as a disjunctive word."16 Contrary to the argument of petitioners, there is no substituted information. The Information dated August 17, 2007 filed in Criminal Case No. SB-08 CRM 0263 charged the same offense, that is, violation of Section 3(e) of Republic Act No. 3019. Only the mode of commission was modified. While jurisprudence, the most recent being Talaga, Jr. v. Sandiganbayan,17 provides that there are two (2) acts or modes of committing the offense, thus: a) by causing any undue injury to any party, including the government; or b) by giving any private party any unwarranted benefit, advantage or preference, it does not mean that each act or mode constitutes a distinct offense. An accused may be charged under either mode 18 or under both should both modes concur.19

14

Petitioners reliance on the Teehankee v. Madayag,20 ruling that, "in substitution of information another preliminary investigation is entailed and that the accused has to plead anew to the new information" is not applicable to the present case because, as already stated, there is no substitution of information there being no change in the nature of the offense charged. Consequently, petitioners cannot invoke the principle enunciated in Villaflor v. Vivar, 21 that failure to conduct a new preliminary investigation is tantamount to a violation of their rights. While it is true that preliminary investigation is a statutory and substantive right accorded to the accused before trial, the denial of petitioners claim for a new investigation, however, did not deprive them of their right to due process. An examination of the records of the case discloses that there was a full-blown preliminary investigation wherein both petitioners actively participated. Anent the contention of petitioners that the information contained substantial amendments warranting a new preliminary investigation, the same must likewise fail.1avvphi1 Petitioners erroneously concluded that giving undue injury, as alleged in the first Information, and conferring unwarranted benefits, alleged in the second Information, are two distinct violations of, or two distinct ways of violating Section 3(e) of Republic Act No. 3019, and that such shift from giving undue injury to conferring unwarranted benefit constituted, at the very least, a substantial amendment. It should be noted that the Information is founded on the same transaction as the first Information, that of entering into a Pakyaw Contract for the construction of barangay day care centers for barangays Mac-Arthur and Urdaneta, Lavezares, Northern Samar. Thus, the evidentiary requirements for the prosecution and defense remain the same. To bolster their claim for a reinvestigation of the offense, petitioners cited the case of Matalam v. Sandiganbayan. 22 The same is inapplicable to petitioners case. In Matalam, there was indeed a substantial amendment which entitled the accused to another preliminary inv estigation. The recital of facts constituting the offense charged therein was definitely altered. In the original information, the prohibited act allegedly committed by the petitioner was the illegal and unjustifiable refusal to pay the monetary claims of the private complainants, whereas in the amended information, it is the illegal dismissal from the service of the private complainants. In the case at bar, there is no substantial amendment to speak of. As discussed previously, the Information in Criminal Case No. 26319 was already dismissed by the Third Division of the Sandiganbayan in view of the petitioners Motion to Quash. As such, there is nothing more to be amended. The Court is not unaware of the case of People v. Lacson,23 where it was written: The case may be revived by the State within the time-bar either by the refiling of the Information or by the filing of a new Information for the same offense or an offense necessarily included therein. There would be no need of a new preliminary investigation. However, in a case wherein after the provisional dismissal of a criminal case, the original witnesses of the prosecution or some of them may have recanted their testimonies or may have died or may no longer be available and new witnesses for the State have emerged, a new preliminary investigation must be conducted before an Information is refiled or a new Information is filed. A new preliminary investigation is also required if aside from the original accused, other persons are charged under a new criminal complaint for the same offense or necessarily included therein; or if under a new criminal complaint, the original charge has been upgraded; or if under a new criminal complaint, the criminal liability of the accused is upgraded from that as an accessory to that as a principal. The accused must be accorded the right to submit counter-affidavits and evidence. No such circumstance is obtaining in this case, because there was no modification in the nature of the charged offense.1avvphi1 Consequently, a new preliminary investigation is unnecessary and cannot be demanded by the petitioners. Finally, the third assigned error, that newly discovered evidence mandates due re-examination of the finding of prima facie cause to file the case, deserves scant consideration. For petitioners, it is necessary that a new investigation be conducted to consider newly discovered evidence, in particular, the Affidavit of COA Auditor Carlos G. Pornelos, author of the audit report. We are not convinced. Under Section 2, Rule 121 of the Rules of Court, the requisites for newly discovered evidence are: (a) the evidence was discovered after trial (in this case, after investigation); (b) such evidence could not have been discovered and produced at the trial with reasonable diligence; and (c) that it is material, not merely cumulative, corroborative or impeaching, and is of such weight that, if admitted, will probably change the judgment.24 The Pornelos affidavit, which petitioners claim as newly-discovered, was executed by affiant way back in November 29, 2000, as correctly found by the Sandiganbayan. Clearly, it cannot be considered as newly found evidence because it was already in existence prior to the re-filing of the case. In fact, such sworn affidavit was among the documents considered during the preliminary investigation. It was the sole annexed document to petitioners Supplement to Motion for Reinvestigation,25 offered to dispute the charge that no public bidding was conducted prior to the execution of the subject project. More important is the prosecutions statement in its Memorandum that, "after a careful re -evaluation of the documentary evidence available to the prosecution at the time of the filing of the initial Information, and at the time of the re-filing of the Information, the prosecution insists on the finding of probable cause, an exercise within the exclusive province of the Office of the Ombudsman."26 Worthy of note is the case of Soriano v. Marcelo,27 viz: Case law has it that the determination of probable cause against those in public office during a preliminary investigation is a function that belongs to the Office of the Ombudsman. The Ombudsman has the discretion to determine whether a criminal case, given its attendant facts and circumstances, should be filed or not. It is basically his call. Without good and compelling reasons, the Court cannot interfere in the exercise by the Office of the Ombudsman of its investigatory and prosecutory powers.28 The only ground upon which it may entertain a review of the Office of the Ombudsmans action is grave abuse of discretion. 29 Grave abuse of discretion is an evasion of a positive duty or a virtual refusal to perform a duty enjoined by law or to act in contemplation of law as when the judgment rendered is not based on law and evidence but on caprice, whim and despotism. 30 The special civil action for certiorari under Rule 65 of the Rules of Court is intended to correct errors of jurisdiction or grave abuse of discretion amounting to lack or excess of jurisdiction. The writ of certiorari is directed against a tribunal, board or officer exercising judicial or quasi-judicial function that acted without or in excess of its or his jurisdiction or with grave abuse of discretion. Grave abuse of discretion means such capricious or whimsical exercise of judgment which is equivalent to lack of jurisdiction. To justify the issuance of the writ of certiorari, the abuse of discretion must be grave, as when the power is exercised in an arbitrary or despotic manner by reason of passion or personal hostility, and it must be so patent and gross as to amount to an evasion of a positive duty or to a virtual refusal to perform the duty enjoined, or to act at all, in contemplation of law, as to be equivalent to having acted without jurisdiction.31 The case at bench discloses no evident indication that respondent Sandiganbayan acted with arbitrariness, whim or caprice. It committed no error in refusing to order the conduct of another preliminary investigation. As sufficiently explained by the prosecution, a new preliminary investigation is not necessary as there was neither a modification of the nature of the offense charged nor a new allegation. Such conduct of preliminary investigation
15

anew will only delay the resolution of the case and would be an exercise in futility in as much as there was a complete preliminary investigation actively participated by both petitioners. In view of the foregoing, we hold that the public respondent committed no grave abuse of discretion in issuing its Resolution of July 14, 2008, denying petitioners motion for preliminary investigation in Criminal Case No. SB -08 CRM 0263. WHEREFORE, the petition is DENIED. SO ORDERED.

16

FIRST DIVISION G.R. No. 184800 May 5, 2010 WONINA M. BONIFACIO, JOCELYN UPANO, VICENTE ORTUOSTE AND JOVENCIO PERECHE, SR.,Petitioners, vs. REGIONAL TRIAL COURT OF MAKATI, BRANCH 149, and JESSIE JOHN P. GIMENEZ, Respondents. DECISION CARPIO MORALES, J.: Via a petition for Certiorari and Prohibition, petitioners Wonina M. Bonifacio, et al. assail the issuances of Branch 149 of the Regional Trial Court (RTC) of Makati (public respondent) Order1 of April 22, 2008 which denied their motion to quash the Amended Information indicting them for libel, and Joint Resolution2 of August 12, 2008 denying reconsideration of the first issuance. Private respondent Jessie John P. Gimenez3 (Gimenez) filed on October 18, 2005, on behalf of the Yuchengco Family ("in particular," former Ambassador Alfonso Yuchengco and Helen Y. Dee (Helen) and of the Malayan Insurance Co., Inc. (Malayan), 4 a criminal complaint,5 before the Makati City Prosecutors Office, for thirteen (13) counts of libel under Article 355 in relation to Article 353 of the Revised Penal Code (RPC) against Philip Piccio, Mia Gatmaytan and Ma. Anabella Relova Santos, who are officers of Parents Enabling Parents Coalition, Inc. (PEPCI), John Joseph Gutierrez, Jeselyn Upano, Jose Dizon, Rolanda Pareja, Wonina Bonifacio, Elvira Cruz, Cornelio Zafra, Vicente Ortueste, Victoria Gomez Jacinto, Jurencio Pereche, Ricardo Loyares and Peter Suchianco, who are trustees of PEPCI, Trennie Monsod, a member of PEPCI (collectively, the accused), and a certain John Doe, the administrator of the website www.pepcoalition.com. PEPCI appears to have been formed by a large group of disgruntled planholders of Pacific Plans, Inc. (PPI) - a wholly owned subsidiary of Great Pacific Life Assurance Corporation, also owned by the Yuchengco Group of Companies (YGC) - who had previously purchased traditional pre-need educational plans but were unable to collect thereon or avail of the benefits thereunder after PPI, due to liquidity concerns, filed for corporate rehabilitation with prayer for suspension of payments before the Makati RTC. Decrying PPIs refusal/inability to honor its obligations under the educational pre-need plans, PEPCI sought to provide a forum by which the planholders could seek redress for their pecuniary loss under their policies by maintaining a website on the internet under the address of www.pepcoalition.com. Gimenez alleged that PEPCI also owned, controlled and moderated on the internet a blogspot6 under the website address www.pacificnoplan.blogspot.com, as well as a yahoo e-group7 at no2pep2010@yahoogroups.com. These websites are easily accessible to the public or by anyone logged on to the internet. Gimenez further alleged that upon accessing the above-stated websites in Makati on various dates from August 25 to October 2, 2005, he "was appalled to read numerous articles [numbering 13], maliciously and recklessly caused to be published by [the accused] containing highly derogatory statements and false accusations, relentlessly attacking the Yuchengco Family, YGC, and particularly, Malayan." 8 He cited an article which was posted/published on www.pepcoalition.com on August 25, 2005 which stated: Talagang naisahan na naman tayo ng mga Yuchengcos. Nangyari na ang mga kinatatakutan kong pagbagsak ng negotiation because it was done prematurely since we had not file any criminal aspect of our case. What is worse is that Yuchengcos benefited much from the nego. x x x . That is the fact na talagang hindi dapat pagtiwalaan ang mga Yuchengcos. LETS MOVE TO THE BATTLEFIELD. FILE THE CRIMINAL CASES IN COURT, BSP AND AMLC AND WHEREVER. Pumunta tayong muli sa senado, congreso, RCBC Plaza, and other venues to air our grievances and call for boycott ng YGC. Let us start within ourselves. Alisin natin ang mga investments and deposits natin sa lahat ng YGC and I mean lahat and again convince friends to do the same. Yung mga nanonood lang noon ay dapat makisali na talaga ngayon specially those who joined only after knowing that there was a negotiation for amicable settlements. FOR SURE MAY TACTICS PA SILANG NAKABASTA SA ATIN. LET US BE READY FOR IT BECAUSE THEY HAD SUCCESSFULLY LULL US AND THE NEXT TIME THEY WILL TRY TO KILL US NA. x x x 9(emphasis in the original) By Resolution of May 5, 2006,10 the Makati City Prosecutors Office, finding probable cause to indict the accused, filed thirteen (13) separate Informations11 charging them with libel. The accusatory portion of one Information, docketed as Criminal Case No. 06-876, which was raffled off to public respondent reads: That on or about the 25th day of August 2005 in Makati City, Metro Manila, Philippines, a place within the jurisdiction of the Honorable Court, the above-named accused, being then the trustees of Parents Enabling Parents Coalition and as such trustees they hold the legal title to the website www.pepcoalition.com which is of general circulation, and publication to the public conspiring, confederating and mutually helping with one another together with John Does, did then and there willfully, unlawfully and feloniously and publicly and maliciously with intention of attacking the honesty, virtue, honor and integrity, character and reputation of complainant Malayan Insurance Co. Inc., Yuchengco Family particularly Ambassador Alfonso Yuchengco and Helen Dee and for further purpose exposing the complainant to public hatred and contempt published an article imputing a vice or defect to the complainant and caused to be composed, posted and published in the said website www.pepcoalition.com and injurious and defamatory article as follows: Talagang naisahan na naman tayo ng mga Yuchengcos. Nangyari na ang mga kinatatakutan kong pagbagsak ng negotiation. x x x x x x x x x For sure may tactics pa silang nakabasta sa atin. Let us be ready for it because they had successfully lull us and the next time they will try to kill us na. x xx A copy of the full text of the foregoing article as published/posted in www.pepcoalition.com is attached as Annex "F" of the complaint. That the keyword and password to be used in order to post and publish the above defamatory article are known to the accused as trustees holding legal title to the above-cited website and that the accused are the ones responsible for the posting and publication of the defamatory articles that the article in question was posted and published with the object of the discrediting and ridiculing the complainant before the public. CONTRARY TO LAW.12 Several of the accused appealed the Makati City Prosecutors Resolution by a petition for revie w to the Secretary of Justice who, by Resolution of June 20, 2007,13 reversed the finding of probable cause and accordingly directed the withdrawal of the Informations for libel filed in court. The Justice Secretary opined that the crime of "internet libel" was non-existent, hence, the accused could not be charged with libel under Article 353 of the RPC. 14 Petitioners, as co-accused,15 thereupon filed on June 6, 2006, before the public respondent, a Motion to Quash16the Information in Criminal Case No. 06-876 on the grounds that it failed to vest jurisdiction on the Makati RTC; the acts complained of in the Information are not punishable by law since internet libel is not covered by Article 353 of the RPC; and the Information is fatally defective for failure to designate the offense charged and the acts or omissions complained of as constituting the offense of libel.
17

Citing Macasaet v. People,17 petitioners maintained that the Information failed to allege a particular place within the trial courts jurisdiction where t he subject article was printed and first published or that the offended parties resided in Makati at the time the alleged defamatory material was printed and first published. By Order of October 3, 2006,18 the public respondent, albeit finding that probable cause existed, quashed the Information, citing Agustin v. Pamintuan.19 It found that the Information lacked any allegations that the offended parties were actually residing in Makati at the time of the commission of the offense as in fact they listed their address in the complaint-affidavit at Yuchengco Tower in Binondo, Manila; or that the alleged libelous article was printed and first published in Makati. The prosecution moved to reconsider the quashal of the Information,20 insisting that the Information sufficiently conferred jurisdiction on the public respondent. It cited Banal III v. Panganiban21 which held that the Information need not allege verbatim that the libelous publication was "printed and first published" in the appropriate venue. And it pointed out that Malayan has an office in Makati of which Helen is a resident. Moreover, the prosecution alleged that even assuming that the Information was deficient, it merely needed a formal amendment. Petitioners opposed the prosecutions motion for reconsideration, contending, inter alia, that since venue is jurisdictional in criminal cases, any defect in an information for libel pertaining to jurisdiction is not a mere matter of form that may be cured by amendment.22 By Order of March 8, 2007,23 the public respondent granted the prosecutions motion for reconsideration and accordingly ordered the public prosecutor to "amend the Information to cure the defect of want of venue." The prosecution thereupon moved to admit the Amended Information dated March 20, 2007,24 the accusatory portion of which reads: That on or about the 25th day of August 2005 in Makati City, Metro Manila, Philippines, a place within the jurisdiction of the Honorable Court, the above-named accused, being then the trustees of Parents Enabling Parents Coalition and as such trustees they hold the legal title to the website www.pepcoalition.com which is of general circulation, and publication to the public conspiring, confederating together with John Does, whose true names, identities and present whereabouts are still unknown and all of them mutually helping and aiding one another, did then and there willfully, unlawfully and feloniously and publicly and maliciously with intention of attacking the honesty, virtue, honor and integrity, character and reputation of complainant Malayan Insurance Co. Inc., Yuchengco Family particularly Ambassador Alfonso Yuchengco and Helen Dee and for further purpose exposing the complainant to public hatred and contempt published an article imputing a vice or defect to the complainant and caused to be composed, posted and published in the said website www.pepcoalition.com, a website accessible in Makati City, an injurious and defamatory article, which was first published and accessed by the private complainant in Makati City, as follows: x x x x (emphasis and underscoring in the original; italics supplied) Petitioners moved to quash the Amended Information25 which, they alleged, still failed to vest jurisdiction upon the public respondent because it failed to allege that the libelous articles were "printed and first published" by the accused in Makati; and the prosecution erroneously laid the venue of the case in the place where the offended party accessed the internet-published article. By the assailed Order of April 22, 2008, the public respondent, applying Banal III, found the Amended Information to be sufficient in form. Petitioners motion for reconsideration26 having been denied by the public respondent by Joint Resolution of August 12, 2008, they filed the present petition for Certiorari and Prohibition faulting the public respondent for: 1. NOT FINDING THAT THE ACTS ALLEGED IN THE INFORMATION ARE NOT PUNISHABLE BY LAW; 2. ADMITTING AN AMENDED INFORMATION WHOSE JURISDICTIONAL ALLEGATIONS CONTINUES TO BE DEFICIENT; and 3. NOT RULING THAT AN AMENDMENT IN THE INFORMATION FOR THE PURPOSE OF CURING JURISDICTIONAL DEFECTS IS ILLEGAL. 27 With the filing of Gimenezs Comment28 to the petition, the issues are: (1) whether petitioners violated the rule on hierarchy of courts to thus render the petition dismissible; and (2) whether grave abuse of discretion attended the public respondents a dmission of the Amended Information. The established policy of strict observance of the judicial hierarchy of courts, 29 as a rule, requires that recourse must first be made to the lower-ranked court exercising concurrent jurisdiction with a higher court.30 A regard for judicial hierarchy clearly indicates that petitions for the issuance of extraordinary writs against first level courts should be filed in the RTC and those against the latter should be filed in the Court of Appeals.31 The rule is not iron-clad, however, as it admits of certain exceptions. Thus, a strict application of the rule is unnecessary when cases brought before the appellate courts do not involve factual but purely legal questions.32 In the present case, the substantive issue calls for the Courts exercise of its discretionar y authority, by way of exception, in order to abbreviate the review process as petitioners raise a pure question of law involving jurisdiction in criminal complaints for libel under Article 360 of the RPC whether the Amended Information is sufficient to sustain a charge for written defamation in light of the requirements under Article 360 of the RPC, as amended by Republic Act (RA) No. 4363, reading: Art. 360. Persons responsible.Any person who shall publish, exhibit or cause the publication or exhibition of any defamation in writing or by similar means, shall be responsible for the same. The author or editor of a book or pamphlet, or the editor or business manager of a daily newspaper, magazine or serial publication, shall be responsible for the defamations contained therein to the same extent as if he were the author thereof. The criminal action and civil action for damages in cases of written defamations, as provided for in this chapter shall be filed simultaneously or separately with the Court of First Instance of the province or city where the libelous article is printed and first published or where any of the offended parties actually resides at the time of the commission of the offense: Provided, however, That where one of the offended parties is a public officer whose office is in the City of Manila at the time of the commission of the offense, the action shall be filed in the Court of First Instance of the City of Manila or of the city or province where the libelous article is printed and first published, and in case such public officer does not hold office in the City of Manila, the action shall be filed in the Court of First Instance of the province or city where he held office at the time of the commission of the offense or where the libelous article is printed and first published and in case one of the offended parties is a private individual, the action shall be filed in the Court of First Instance of the province or city where he actually resides at the time of the commission of the offense or where the libelous matter is printed and first published x x x. (emphasis and underscoring supplied) Venue is jurisdictional in criminal actions such that the place where the crime was committed determines not only the venue of the action but constitutes an essential element of jurisdiction.33 This principle acquires even greater import in libel cases, given that Article 360, as amended, specifically provides for the possible venues for the institution of the criminal and civil aspects of such cases. In Macasaet,34 the Court reiterated its earlier pronouncements in Agbayani v. Sayo35 which laid out the rules on venue in libel cases, viz:
18

For the guidance, therefore, of both the bench and the bar, this Court finds it appropriate to reiterate our earlier pronouncement in the case of Agbayani, to wit: In order to obviate controversies as to the venue of the criminal action for written defamation, the complaint or information should contain allegations as to whether, at the time the offense was committed, the offended party was a public officer or a private individual and where he was actually residing at that time. Whenever possible, the place where the written defamation was printed and first published should likewise be alleged. That allegation would be a sine qua non if the circumstance as to where the libel was printed and first published is used as the basis of the venue of the action. (emphasis and underscoring supplied) It becomes clear that the venue of libel cases where the complainant is a private individual is limited to only either of two places, namely: 1) where the complainant actually resides at the time of the commission of the offense; or 2) where the alleged defamatory article was printed and first published. The Amended Information in the present case opted to lay the venue by availing of the second. Thus, it stated that the offending article "was first published and accessed by the private complainant in Makati City." In other words, it considered the phrase to be equivalent to the requisite allegation of printing and first publication. The insufficiency of the allegations in the Amended Information to vest jurisdiction in Makati becomes pronounced upon an examination of the rationale for the amendment to Article 360 by RA No. 4363. Chavez v. Court of Appeals36 explained the nature of these changes: Agbayani supplies a comprehensive restatement of the rules of venue in actions for criminal libel, following the amendment by Rep. Act No. 4363 of the Revised Penal Code: "Article 360 in its original form provided that the venue of the criminal and civil actions for written defamations is the province wherein the libel was published, displayed or exhibited, regardless of the place where the same was written, printed or composed. Article 360 originally did not specify the public officers and the courts that may conduct the preliminary investigation of complaints for libel. Before article 360 was amended, the rule was that a criminal action for libel may be instituted in any jurisdiction where the libelous article was published or circulated, irrespective of where it was written or printed (People v. Borja, 43 Phil. 618). Under that rule, the criminal action is transitory and the injured party has a choice of venue. Experience had shown that under that old rule the offended party could harass the accused in a libel case by laying the venue of the criminal action in a remote or distant place. Thus, in connection with an article published in the Daily Mirror and the Philippine Free Press, Pio Pedrosa, Manuel V. Villareal and Joaquin Roces were charged with libel in the justice of the peace court of San Fabian, Pangasinan (Amansec v. De Guzman, 93 Phil. 933). To forestall such harassment, Republic Act No. 4363 was enacted. It lays down specific rules as to the venue of the criminal action so as to prevent the offended party in written defamation cases from inconveniencing the accused by means of out-of-town libel suits, meaning complaints filed in remote municipal courts (Explanatory Note for the bill which became Republic Act No. 4363, Congressional Record of May 20, 1965, pp. 424-5; Time, Inc. v. Reyes, L-28882, May 31, 1971, 39 SCRA 303, 311). x x x x (emphasis and underscoring supplied) Clearly, the evil sought to be prevented by the amendment to Article 360 was the indiscriminate or arbitrary laying of the venue in libel cases in distant, isolated or far-flung areas, meant to accomplish nothing more than harass or intimidate an accused. The disparity or unevenness of the situation becomes even more acute where the offended party is a person of sufficient means or possesses influence, and is motivated by spite or the need for revenge. If the circumstances as to where the libel was printed and first published are used by the offended party as basis for the venue in the criminal action, the Information must allege with particularity where the defamatory article was printed and first published, as evidenced or supported by, for instance, the address of their editorial or business offices in the case of newspapers, magazines or serial publications. This pre-condition becomes necessary in order to forestall any inclination to harass. The same measure cannot be reasonably expected when it pertains to defamatory material appearing on a website on the internet as there would be no way of determining the situs of its printing and first publication. To credit Gimenezs premise of equating his first access to the defamatory article on petitioners website in Makati with "printing and first publication" would spawn the very ills that the amendment to Article 360 of the RPC sought to discourage and prevent. It hardly requires much imagination to see the chaos that would ensue in situations where the websites author or writer, a blogger or anyone who posts messages therein could be sued for libel anywhere in the Philippines that the private complainant may have allegedly accessed the offending website. For the Court to hold that the Amended Information sufficiently vested jurisdiction in the courts of Makati simply because the defamatory article was accessed therein would open the floodgates to the libel suit being filed in all other locations where the pepcoalition website is likewise accessed or capable of being accessed.1avvphi1 Respecting the contention that the venue requirements imposed by Article 360, as amended, are unduly oppressive, the Courts pronouncements in Chavez37 are instructive: For us to grant the present petition, it would be necessary to abandon the Agbayani rule providing that a private person must file the complaint for libel either in the place of printing and first publication, or at the complainants place of residence. We would also have to abandon the subsequent cases that reiterate this rule in Agbayani, such as Soriano, Agustin, and Macasaet. There is no convincing reason to resort to such a radical action. These limitations imposed on libel actions filed by private persons are hardly onerous, especially as they still allow such persons to file the civil or criminal complaint in their respective places of residence, in which situation there is no need to embark on a quest to determine with precision where the libelous matter was printed and first published. (Emphasis and underscoring supplied.) IN FINE, the public respondent committed grave abuse of discretion in denying petition ers motion to quash the Amended Information. WHEREFORE, the petition is GRANTED. The assailed Order of April 22, 2008 and the Joint Resolution of August 12, 2008 are hereby SET ASIDE. The Regional Trial Court of Makati City, Br. 149 is hereby DIRECTED TO QUASH the Amended Information in Criminal Case No. 06-876 and DISMISS the case. SO ORDERED.

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SECOND DIVISION G.R. Nos. 172476-99 September 15, 2010 BRIG. GEN. (Ret.) JOSE RAMISCAL, JR., Petitioner, vs. SANDIGANBAYAN and PEOPLE OF THE PHILIPPINES, Respondents. DECISION CARPIO, J.: The Case This is a special civil action for certiorari1 seeking to annul the 5 April 2006 Resolution2 of the SandiganbayanFourth Division in Criminal Case Nos. 25122-45. The assailed Resolution denied petitioners motion to set aside his arraignment on 26 Februar y 2006 pending resolution of his motion for reconsideration of the Ombudsmans finding of probable cause against him. The Facts Petitioner Jose S. Ramiscal, Jr. was a retired officer of the Armed Forces of the Philippines (AFP), with the rank of Brigadier General, when he served as President of the AFP-Retirement and Separation Benefits System (AFP-RSBS) from 5 April 1994 to 27 July 1998.3 During petitioners term as president of AFP-RSBS, the Board of Trustees of AFP-RSBS approved the acquisition of 15,020 square meters of land situated in General Santos City for development as housing projects.4 On 1 August 1997, AFP-RSBS, represented by petitioner, and Atty. Nilo J. Flaviano, as attorney-in-fact of the 12 individual vendors,5 executed and signed bilateral deeds of sale over the subject property, at the agreed price ofP10,500.00 per square meter. Petitioner forthwith caused the payment to the individual vendors of the purchase price of P10,500.00 per square meter of the property. Subsequently, Flaviano executed and signed unilateral deeds of sale over the same property. The unilateral deeds of sale reflected a purchase price of only P3,000.00 per square meter instead of the actual purchase price of P10,500.00 per square meter. On 24 September 1997, Flaviano presented the unilateral deeds of sale for registration. The unilateral deeds of sale became the basis of the transfer certificates of title issued by the Register of Deeds of General Santos City to AFP-RSBS.6 On 18 December 1997, Luwalhati R. Antonino, the Congresswoman representing the first district of South Cotabato, which includes General Santos City, filed in the Ombudsman a complaint-affidavit7 against petitioner, along with 27 other respondents, for (1) violation of Republic Act No. 3019, otherwise known as the Anti-Graft and Corrupt Practices Act; and (2) malversation of public funds or property through falsification of public documents. The case was docketed as Case No. OMB-3-98-0020. After preliminary investigation, the Ombudsman, in its 20 January 1999 Resolution, 8 found petitioner probably guilty of violation of Section 3(e) of RA 3019 and falsification of public documents, thus: WHEREFORE, PREMISES CONSIDERED, this Office finds and so holds that the following crimes were committed and that respondents, whose names appear below, are probably guilty thereof: xxxx 4. JOSE RAMISCAL, JR., WILFREDO PABALAN, NILO FLAVIANO, conspirators for twelve (12) counts of falsification of public documents relative to the twelve (12) unilateral Deeds of Sale; xxxx 6. JOSE RAMISCAL, JR. WILFREDO PABALAN, and NILO FLAVIANO twelve (12) counts of violation of section 3(e) of RA 3019 for short-changing the government in the correct amount of taxes due for the sale of Lot X to AFP-RSBS;9 On 28 January 1999, the Ombudsman filed in the Sandiganbayan 12 informations10 for violation of Section 3(e) of RA 3019 and 12 informations11 for falsification of public documents against petitioner and several other co-accused. Petitioner filed his first motion for reconsideration dated 12 February 1999, 12 with a supplemental motion dated 28 May 1999,13 of the Ombudsmans finding of probable cause against him. In its 11 June 1999 Order,14 the Sandiganbayan disposed of petitioners first motion for reconsideration, thus: WHEREFORE, the prosecution is given 60 days from today within which to evaluate its evidence and to do whatever is appropriate on the Motion for Reconsideration dated February 12, 1999 and supplemental motion thereof dated May 28, 1999 of accused Jose Ramiscal and to inform this Court within the said period as to its findings and recommendations together with the action thereon of the Ombudsman. In a memorandum dated 22 November 2001, the Office of the Special Prosecutor (OMB-OSP) recommended that petitioner be excluded from the informations. On review, the Office of Legal Affairs (OMB-OLA), in a memorandum dated 18 December 2001, recommended the contrary, stressing that petitioner participated in and affixed his signature on the contracts to sell, bilateral deeds of sale, and various agreements, vouchers, and checks for the purchase of the subject property.15 The memoranda of OMB-OSP and OMB-OLA were forwarded for comment to the Office of the Ombudsman for Military (OMB-Military). In a memorandum dated 21 August 2002, the OMB-Military adopted the memorandum of OMB-OSP recommending the dropping of petitioners name from the informations. Acting Ombudsman Margarito Gervacio approved the recommendation of the OMB-Military. However, the recommendation of the OMB-Military was not manifested before the Sandiganbayan as a final disposition of petitioners first motion for reconsideration. A panel of prosecutors16 was tasked to review the records of the case. After thorough review, the panel of prosecutors found that petitioner indeed participated in and affixed his signature on the contracts to sell, bilateral deeds of sale, and various agreements, vouchers, and checks for the purchase of the property at the price ofP10,500.00 per square meter. The panel of prosecutors posited that petitioner could not feign ignorance of the execution of the unilateral deeds of sale, which indicated the false purchase price of P3,000.00 per square meter. The panel of prosecutors concluded that probable cause existed for petitioners continued prosecution. In its 19 December 2005 memorandum, 17 the panel of prosecutors recommended the following: WHEREFORE, premises considered, undersigned prosecutors recommend the following: 1. The August 2002 approved Recommendation of the Ombudsman-Military be set aside and the Motion for Reconsideration filed by Ramiscal (petitioner) be DENIED;

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2. Another information for violation of Section 3(e) of RA 3019 be filed against Ramiscal and all the other accused for causing damage to the government when it caused the payment of the amount of Php 10,500.00 per square meter for the subject lots when the actual amount should only be Php 3,000.00 per square meter.18 (Emphasis supplied) Ombudsman Ma. Merceditas N. Gutierrez approved the recommendation of the panel of prosecutors. Upon receipt of the final findings of the Ombudsman, the Sandiganbayan scheduled the arraignment of petitioner. Meanwhile, on 26 January 2006, petitioner filed his second motion for reconsideration19 of the Ombudsmans finding of probable cause against him. On 26 February 2006, petitioner was arraigned. For his refusal to enter a plea, the Sandiganbayan entered in his favor a plea of not guilty. On 9 March 2006, petitioner filed a motion to set aside his arraignment20 pending resolution of his second motion for reconsideration of the Ombudsmans finding of probable cause against him. The Ruling of the Sandiganbayan The Sandiganbayan pointed out that petitioners second motion for reconsideration of the Ombudsmans finding of probable caus e against him was a prohibited pleading. The Sandiganbayan explained that whatever defense or evidence petitioner may have should be ventilated in the trial of the case. In its assailed 5 April 2006 Resolution, the Sandiganbayan denied for lack of merit petitioners motion to set aside his arra ignment, thus: WHEREFORE, the Motion to Set Aside Arraignment is hereby DENIED for lack of merit. SO ORDERED.21 The Issue Did the Sandiganbayan commit grave abuse of discretion when it denied petitioners motion to set aside his arraignment pending resolution of his second motion for reconsideration of the Ombudsmans finding of probable cause against him? The Courts Ruling The petition has no merit. Petitioner contends that the Ombudsman should have excluded him from the informations. He claims lack of probable cause to indict him considering the prior findings of the Ombudsman recommending the dropping of the cases against him. Petitioner claims that heads of offices have to rely to a reasonable extent on their subordinates and that there should be grounds other than the mere signature appearing on a questioned document to sustain a conspiracy charge. Respondent Sandiganbayan counters that it correctly denied petitioners motion to set aside his arraignme nt. Respondent court argues that petitioners motion for reconsideration, filed on 26 January 2006 and pending with the Ombudsman at the time of his arraignme nt, violated Section 7, Rule II of the Rules of Procedure of the Office of the Ombudsman, as amended. Respondent court maintains that the memorandum of the panel of prosecutors finding probable cause against petitioner was the final decision of the Ombudsman. The Rules of Procedure of the Office of the Ombudsman, as amended by Administrative Order No. 15, Series of 2001,22 sanction the immediate filing of an information in the proper court upon a finding of probable cause, even during the pendency of a motion for reconsideration. Section 7, Rule II of the Rules, as amended, provides: Section 7. Motion for Reconsideration. a) Only one motion for reconsideration or reinvestigation of an approved order or resolution shall be allowed, the same to be filed within five (5) days from notice thereof with the Office of the Ombudsman, or the proper Deputy Ombudsman as the case may be, with corresponding leave of court in cases where the information has already been filed in court; b) The filing of a motion for reconsideration/reinvestigation shall not bar the filing of the corresponding information in Court on the basis of the finding of probable cause in the resolution subject of the motion.(Emphasis supplied) If the filing of a motion for reconsideration of the resolution finding probable cause cannot bar the filing of the corresponding information, then neither can it bar the arraignment of the accused, which in the normal course of criminal procedure logically follows the filing of the information. An arraignment is that stage where, in the mode and manner required by the Rules, an accused, for the first time, is granted the opportunity to know the precise charge that confronts him. The accused is formally informed of the charges against him, to which he enters a plea of guilty or not guilty.23 Under Section 7 of Republic Act No. 8493,24 otherwise known as the Speedy Trial Act of 1998, the court must proceed with the arraignment of an accused within 30 days from the filing of the information or from the date the accused has appeared before the court in which the charge is pending, whichever is later, thus: Section 7. Time Limit Between Filing of Information and Arraignment and Between Arraignment and Trial. - The arraignment of an accused shall be held within thirty (30) days from the filing of the information, or from the date the accused has appeared before the justice, judge or court in which the charge is pending, whichever date last occurs. x x x (Emphasis supplied) Section 1(g), Rule 116 of the Rules of Court, which implements Section 7 of RA 8493, provides: Section 1. Arraignment and plea; how made. (g) Unless a shorter period is provided by special law or Supreme Court circular, the arraignment shall be held within thirty (30) days from the date the court acquires jurisdiction over the person of the accused. xxx (Emphasis supplied) Section 1(g), Rule 116 of the Rules of Court and the last clause of Section 7 of RA 8493 mean the same thing, that the 30-day period shall be counted from the time the court acquires jurisdiction over the person of the accused, which is when the accused appears before the court. The grounds for suspension of arraignment are provided under Section 11, Rule 116 of the Rules of Court, which applies suppletorily in matters not provided under the Rules of Procedure of the Office of the Ombudsman or the Revised Internal Rules of the Sandiganbayan, thus: Sec. 11. Suspension of arraignment. Upon motion by the proper party, the arraignment shall be suspended in the following cases: (a) The accused appears to be suffering from an unsound mental condition which effectively renders him unable to fully understand the charge against him and to plead intelligently thereto. In such case, the court shall order his mental examination and, if necessary, his confinement for such purpose. (b) There exists a prejudicial question; and
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(c) A petition for review of the resolution of the prosecutor is pending at either the Department of Justice, or the Office of the President; provided, that the period of suspension shall not exceed sixty (60) days counted from the filing of the petition with the reviewing office.25 Petitioner failed to show that any of the instances constituting a valid ground for suspension of arraignment obtained in this case. Thus, the Sandiganbayan committed no error when it proceeded with petitioners arraignment, as mandated by Section 7 of RA 8493. Further, as correctly pointed out by the Sandiganbayan in its assailed Resolution, petitioners moti on for reconsideration filed on 26 January 2006 was already his second motion for reconsideration of the Ombudsmans finding of probable cause against him. The Ombudsman, in its 19 December 2005 memorandum, has already denied petitioners first motion for reconsideration,26 impugning for the first time the Ombudsmans finding of probable cause against him. Under Section 7, Rule II of the Rules of Procedure of the Office of the Ombudsman, petitioner can no longer file another motion for reconsideration questioning yet again the same finding of the Ombudsman. Otherwise, there will be no end to litigation. We agree with the Sandiganbayan that petitioners defenses are evidentiary in nature and are best threshed out in the trial of the case on the merits. Petitioners claim that the Ombudsman made conflicting conclusions on the existence of probable cause against him is baseless . The memorandum of the OMB-Military, recommending the dropping of the cases against petitioner, has been effectively overruled by the memorandum of the panel of prosecutors, thus: WHEREFORE, premises considered, undersigned prosecutors recommend the following: 1. The August 2002 approved Recommendation of the Ombudsman-Military be set aside and the Motion for Reconsideration filed by Ramiscal be DENIED;27 (Emphasis supplied) As the final word on the matter, the decision of the panel of prosecutors finding probable cause against petitioner prevails. This Court does not ordinarily interfere with the Ombudsmans finding of probable cause. 28 The Ombudsman is endowed with a wide latitude of investigatory and prosecutory prerogatives in the exercise of its power to pass upon criminal complaints. 29 As this Court succinctly stated in Alba v. Hon. Nitorreda:30 Moreover, this Court has consistently refrained from interfering with the exercise by the Ombudsman of his constitutionally mandated investigatory and prosecutory powers. Otherwise stated, it is beyond the ambit of this Court to review the exercise of discretion of the Ombudsman in prosecuting or dismissing a complaint filed before it. Such initiative and independence are inherent in the Ombudsman who, beholden to no one, acts as the champion of the people and preserver of the integrity of the public service.31 In Ocampo, IV v. Ombudsman,32 the Court explained the rationale behind this policy, thus: The rule is based not only upon respect for the investigatory and prosecutory powers granted by the Constitution to the Office of the Ombudsman but upon practicality as well. Otherwise, the functions of the courts will be grievously hampered by innumerable petitions assailing the dismissal of investigatory proceedings conducted by the Office of the Ombudsman with regard to complaints filed before it, in much the same way that the courts would be extremely swamped if they could be compelled to review the exercise of discretion on the part of the fiscals or prosecuting attorneys each time they decide to file an information in court or dismiss a complaint by a private complainant. 33 Significantly, while it is the Ombudsman who has the full discretion to determine whether or not a criminal case should be filed in the Sandiganbayan, once the case has been filed with said court, it is the Sandiganbayan, and no longer the Ombudsman, which has full control of the case.341avvphi1 In this case, petitioner failed to establish that the Sandiganbayan committed grave abuse of discretion amounting to lack or excess of jurisdiction when it denied petitioners motion to set aside his arraignment. There is grave abuse of discretion when power is exercised in an arbitrary, capricious, whimsical, or despotic manner by reason of passion or personal hostility so patent and gross as to amount to evasion of a positive duty or virtual refusal to perform a duty enjoined by law.35 Absent a showing of grave abuse of discretion, this Court will not interfere with the Sandiganbayans jurisdiction and control over a case properly filed before it. The Sandiganbayan is empowered to proceed with the trial of the case in the manner it determines best conducive to orderly proceedings and speedy termination of the case.36There being no showing of grave abuse of discretion on its part, the Sandiganbayan should continue its proceedings with all deliberate dispatch. We remind respondent to abide by this Courts ruling in Republic v. Sandiganbayan,37 where we stated that the mere filing of a petition for certiorari under Rule 65 of the Rules of Court does not by itself merit a suspension of the proceedings before the Sandiganbayan, unless a temporary restraining order or a writ of preliminary injunction has been issued against the Sandiganbayan. Section 7, Rule 65 of the Rules of Court so provides: Section 7. Expediting proceedings; injunctive relief. The court in which the petition [for certiorari, prohibition and mandamus] is filed may issue orders expediting the proceedings, and it may also grant a temporary restraining order or a writ of preliminary injunction for the preservation of the rights of the parties pending such proceedings.The petition shall not interrupt the course of the principal case unless a temporary restraining order or a writ of preliminary injunction has been issued against the public respondent from further proceeding in the case. (Emphasis supplied) WHEREFORE, we DENY the petition. We AFFIRM the assailed 5 April 2006 Resolution of the Sandiganbayan in Criminal Case Nos. 25122-45, which denied petitioners motion to set aside his arraignment. This Decision is immediately executory. Costs against petitioner. SO ORDERED.

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SECOND DIVISION G.R. No. 167571 November 25, 2008

LUIS PANAGUITON, JR., petitioner vs. DEPARTMENT OF JUSTICE, RAMON C. TONGSON and RODRIGO G. CAWILI, respondents. DECISION TINGA, J.: This is a Petition for Review1 of the resolutions of the Court of Appeals dated 29 October 2004 and 21 March 2005 in CA G.R. SP No. 87119, which dismissed Luis Panaguiton, Jr.'s (petitioner's) petition for certiorari and his subsequent motion for reconsideration. 2 The facts, as culled from the records, follow. In 1992, Rodrigo Cawili (Cawili) borrowed various sums of money amounting to P1,979,459.00 from petitioner. On 8 January 1993, Cawili and his business associate, Ramon C. Tongson (Tongson), jointly issued in favor of petitioner three (3) checks in payment of the said loans. Significantly, all three (3) checks bore the signatures of both Cawili and Tongson. Upon presentment for payment on 18 March 1993, the checks were dishonored, either for insufficiency of funds or by the closure of the account. Petitioner made formal demands to pay the amounts of the checks upon Cawili on 23 May 1995 and upon Tongson on 26 June 1995, but to no avail.3 On 24 August 1995, petitioner filed a complaint against Cawili and Tongson4 for violating Batas Pambansa Bilang 22 (B.P. Blg. 22)5 before the Quezon City Prosecutor's Office. During the preliminary investigation, only Tongson appeared and filed his counter-affidavit.6 Tongson claimed that he had been unjustly included as party-respondent in the case since petitioner had lent money to Cawili in the latter's personal capacity. Moreover, like petitioner, he had lent various sums to Cawili and in appreciation of his services, he was offered to be an officer of Roma Oil Corporation. He averred that he was not Cawili's business associate; in fact, he himself had filed several criminal cases against Cawili for violation of B.P. Blg. 22. Tongson denied that he had issued the bounced checks and pointed out that his signatures on the said checks had been falsified. To counter these allegations, petitioner presented several documents showing Tongson's signatures, which were purportedly the same as the those appearing on the checks.7 He also showed a copy of an affidavit of adverse claim wherein Tongson himself had claimed to be Cawili's business associate.8 In a resolution dated 6 December 1995,9 City Prosecutor III Eliodoro V. Lara found probable cause only against Cawili and dismissed the charges against Tongson. Petitioner filed a partial appeal before the Department of Justice (DOJ) even while the case against Cawili was filed before the proper court. In a letter-resolution dated 11 July 1997,10 after finding that it was possible for Tongson to co-sign the bounced checks and that he had deliberately altered his signature in the pleadings submitted during the preliminary investigation, Chief State Prosecutor Jovencito R. Zuo directed the City Prosecutor of Quezon City to conduct a reinvestigation of the case against Tongson and to refer the questioned signatures to the National Bureau of Investigation (NBI). Tongson moved for the reconsideration of the resolution, but his motion was denied for lack of merit. On 15 March 1999, Assistant City Prosecutor Ma. Lelibet S. Sampaga (ACP Sampaga) dismissed the complaint against Tongson without referring the matter to the NBI per the Chief State Prosecutor's resolution. In her resolution, 11 ACP Sampaga held that the case had already prescribed pursuant to Act No. 3326, as amended,12 which provides that violations penalized by B.P. Blg. 22 shall prescribe after four (4) years. In this case, the four (4)-year period started on the date the checks were dishonored, or on 20 January 1993 and 18 March 1993. The filing of the complaint before the Quezon City Prosecutor on 24 August 1995 did not interrupt the running of the prescriptive period, as the law contemplates judicial, and not administrative proceedings. Thus, considering that from 1993 to 1998, more than four (4) years had already elapsed and no information had as yet been filed against Tongson, the alleged violation of B.P. Blg. 22 imputed to him had already prescribed.13 Moreover, ACP Sampaga stated that the order of the Chief State Prosecutor to refer the matter to the NBI could no longer be sanctioned under Section 3, Rule 112 of the Rules of Criminal Procedure because the initiative should come from petitioner himself and not the investigating prosecutor.14 Finally, ACP Sampaga found that Tongson had no dealings with petitioner.15 Petitioner appealed to the DOJ. But the DOJ, through Undersecretary Manuel A.J. Teehankee, dismissed the same, stating that the offense had already prescribed pursuant to Act No. 3326.16Petitioner filed a motion for reconsideration of the DOJ resolution. On 3 April 2003, 17 the DOJ, this time through then Undersecretary Ma. Merceditas N. Gutierrez, ruled in his favor and declared that the offense had not prescribed and that the filing of the complaint with the prosecutor's office interrupted the running of the prescriptive period citing Ingco v. Sandiganbayan.18 Thus, the Office of the City Prosecutor of Quezon City was directed to file three (3) separate informations against Tongson for violation of B.P. Blg. 22.19 On 8 July 2003, the City Prosecutor's Office filed an information20 charging petitioner with three (3) counts of violation of B.P. Blg. 22.21 However, in a resolution dated 9 August 2004,22 the DOJ, presumably acting on a motion for reconsideration filed by Tongson, ruled that the subject offense had already prescribed and ordered "the withdrawal of the three (3) informations for violation of B.P. Blg. 22" against Tongson. In justifying its sudden turnabout, the DOJ explained that Act No. 3326 applies to violations of special acts that do not provide for a prescriptive period for the offenses thereunder. Since B.P. Blg. 22, as a special act, does not provide for the prescription of the offense it defines and punishes, Act No. 3326 applies to it, and not Art. 90 of the Revised Penal Code which governs the prescription of offenses penalized thereunder.23The DOJ also cited the case of Zaldivia v. Reyes, Jr.,24 wherein the Supreme Court ruled that the proceedings referred to in Act No. 3326, as amended, are judicial proceedings, and not the one before the prosecutor's office. Petitioner thus filed a petition for certiorari25 before the Court of Appeals assailing the 9 August 2004 resolution of the DOJ. The petition was dismissed by the Court of Appeals in view of petitioner's failure to attach a proper verification and certification of non-forum shopping. The Court of Appeals also noted that the 3 April 2003 resolution of the DOJ attached to the petition is a mere photocopy.26 Petitioner moved for the reconsideration of the appellate court's resolution, attaching to said motion an amended Verification/Certification of Non-Forum Shopping.27Still, the Court of Appeals denied petitioner's motion, stating that subsequent compliance with the formal requirements would not per se warrant a reconsideration of its resolution. Besides, the Court of Appeals added, the petition is patently without merit and the questions raised therein are too unsubstantial to require consideration.28 In the instant petition, petitioner claims that the Court of Appeals committed grave error in dismissing his petition on technical grounds and in ruling that the petition before it was patently without merit and the questions are too unsubstantial to require consideration.

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The DOJ, in its comment,29 states that the Court of Appeals did not err in dismissing the petition for non-compliance with the Rules of Court. It also reiterates that the filing of a complaint with the Office of the City Prosecutor of Quezon City does not interrupt the running of the prescriptive period for violation of B.P. Blg. 22. It argues that under B.P. Blg. 22, a special law which does not provide for its own prescriptive period, offenses prescribe in four (4) years in accordance with Act No. 3326. Cawili and Tongson submitted their comment, arguing that the Court of Appeals did not err in dismissing the petition for certiorari. They claim that the offense of violation of B.P. Blg. 22 has already prescribed per Act No. 3326. In addition, they claim that the long delay, attributable to petitioner and the State, violated their constitutional right to speedy disposition of cases. 30 The petition is meritorious. First on the technical issues. Petitioner submits that the verification attached to his petition before the Court of Appeals substantially complies with the rules, the verification being intended simply to secure an assurance that the allegations in the pleading are true and correct and not a product of the imagination or a matter of speculation. He points out that this Court has held in a number of cases that a deficiency in the verification can be excused or dispensed with, the defect being neither jurisdictional nor always fatal. 31 Indeed, the verification is merely a formal requirement intended to secure an assurance that matters which are alleged are true and correctthe court may simply order the correction of unverified pleadings or act on them and waive strict compliance with the rules in order that the ends of justice may be served,32 as in the instant case. In the case at bar, we find that by attaching the pertinent verification to his motion for reconsideration, petitioner sufficiently complied with the verification requirement. Petitioner also submits that the Court of Appeals erred in dismissing the petition on the ground that there was failure to attach a certified true copy or duplicate original of the 3 April 2003 resolution of the DOJ. We agree. A plain reading of the petition before the Court of Appeals shows that it seeks the annulment of the DOJ resolution dated 9 August 2004, 33 a certified true copy of which was attached as Annex "A."34 Obviously, the Court of Appeals committed a grievous mistake. Now, on the substantive aspects. Petitioner assails the DOJ's reliance on Zaldivia v. Reyes,35 a case involving the violation of a municipal ordinance, in declaring that the prescriptive period is tolled only upon filing of the information in court. According to petitioner, what is applicable in this case is Ingco v. Sandiganbayan,36 wherein this Court ruled that the filing of the complaint with the fiscal's office for preliminary investigation suspends the running of the prescriptive period. Petitioner also notes that the Ingco case similarly involved the violation of a special law, Republic Act (R.A.) No. 3019, otherwise known as the AntiGraft and Corrupt Practices Act, petitioner notes.37 He argues that sustaining the DOJ's and the Court of Appeals' pronouncements would result in grave injustice to him since the delays in the present case were clearly beyond his control. 38 There is no question that Act No. 3326, appropriately entitled An Act to Establish Prescription for Violations of Special Acts and Municipal Ordinances and to Provide When Prescription Shall Begin,is the law applicable to offenses under special laws which do not provide their own prescriptive periods. The pertinent provisions read: Section 1. Violations penalized by special acts shall, unless otherwise provided in such acts, prescribe in accordance with the following rules: (a) x x x; (b) after four years for those punished by imprisonment for more than one month, but less than two years; (c) x x x Sec. 2. Prescription shall begin to run from the day of the commission of the violation of the law, and if the same be not known at the time, from the discovery thereof and the institution of judicial proceedings for its investigation and punishment. The prescription shall be interrupted when proceedings are instituted against the guilty person, and shall begin to run again if the proceedings are dismissed for reasons not constituting jeopardy. We agree that Act. No. 3326 applies to offenses under B.P. Blg. 22. An offense under B.P. Blg. 22 merits the penalty of imprisonment of not less than thirty (30) days but not more than one year or by a fine, hence, under Act No. 3326, a violation of B.P. Blg. 22 prescribes in four (4) years from the commission of the offense or, if the same be not known at the time, from the discovery thereof. Nevertheless, we cannot uphold the position that only the filing of a case in court can toll the running of the prescriptive period. It must be pointed out that when Act No. 3326 was passed on 4 December 1926, preliminary investigation of criminal offenses was conducted by justices of the peace, thus, the phraseology in the law, "institution of judicial proceedings for its investigation and punishment,"39 and the prevailing rule at the time was that once a complaint is filed with the justice of the peace for preliminary investigation, the prescription of the offense is halted.40 The historical perspective on the application of Act No. 3326 is illuminating.41 Act No. 3226 was approved on 4 December 1926 at a time when the function of conducting the preliminary investigation of criminal offenses was vested in the justices of the peace. Thus, the prevailing rule at the time, as shown in the cases of U.S. v. Lazada42 and People v. Joson,43 is that the prescription of the offense is tolled once a complaint is filed with the justice of the peace for preliminary investigation inasmuch as the filing of the complaint signifies the institution of the criminal proceedings against the accused.44 These cases were followed by our declaration in People v. Parao and Parao45 that the first step taken in the investigation or examination of offenses partakes the nature of a judicial proceeding which suspends the prescription of the offense.46Subsequently, in People v. Olarte,47 we held that the filing of the complaint in the Municipal Court, even if it be merely for purposes of preliminary examination or investigation, should, and does, interrupt the period of prescription of the criminal responsibility, even if the court where the complaint or information is filed cannot try the case on the merits. In addition, even if the court where the complaint or information is filed may only proceed to investigate the case, its actuations already represent the initial step of the proceedings against the offender,48 and hence, the prescriptive period should be interrupted. In Ingco v. Sandiganbayan49 and Sanrio Company Limited v. Lim,50 which involved violations of the Anti-Graft and Corrupt Practices Act (R.A. No. 3019) and the Intellectual Property Code (R.A. No. 8293), which are both special laws, the Court ruled that the prescriptive period is interrupted by the institution of proceedings for preliminary investigation against the accused. In the more recent case of Securities and Exchange Commission v. Interport Resources Corporation, et al. ,51 the Court ruled that the nature and purpose of the investigation conducted by the Securities and Exchange Commission on violations of the Revised Securities Act, 52 another special law, is equivalent to the preliminary investigation conducted by the DOJ in criminal cases, and thus effectively interrupts the prescriptive period. The following disquisition in the Interport Resources case53 is instructive, thus: While it may be observed that the term "judicial proceedings" in Sec. 2 of Act No. 3326 appears before "investigation and punishment" in the old law, with the subsequent change in set-up whereby the investigation of the charge for purposes of prosecution has become the exclusive
24

function of the executive branch, the term "proceedings" should now be understood either executive or judicial in character: executive when it involves the investigation phase and judicial when it refers to the trial and judgment stage. With this clarification, any kind of investigative proceeding instituted against the guilty person which may ultimately lead to his prosecution should be sufficient to toll prescription.54 Indeed, to rule otherwise would deprive the injured party the right to obtain vindication on account of delays that are not under his control.55 A clear example would be this case, wherein petitioner filed his complaint-affidavit on 24 August 1995, well within the four (4)-year prescriptive period. He likewise timely filed his appeals and his motions for reconsideration on the dismissal of the charges against Tongson. He went through the proper channels, within the prescribed periods. However, from the time petitioner filed his complaint-affidavit with the Office of the City Prosecutor (24 August 1995) up to the time the DOJ issued the assailed resolution, an aggregate period of nine (9) years had elapsed. Clearly, the delay was beyond petitioner's control. After all, he had already initiated the active prosecution of the case as early as 24 August 1995, only to suffer setbacks because of the DOJ's flip-flopping resolutions and its misapplication of Act No. 3326. Aggrieved parties, especially those who do not sleep on their rights and actively pursue their causes, should not be allowed to suffer unnecessarily further simply because of circumstances beyond their control, like the accused's delaying tactics or the delay and inefficiency of the investigating agencies. We rule and so hold that the offense has not yet prescribed. Petitioner 's filing of his complaint-affidavit before the Office of the City Prosecutor on 24 August 1995 signified the commencement of the proceedings for the prosecution of the accused and thus effectively interrupted the prescriptive period for the offenses they had been charged under B.P. Blg. 22. Moreover, since there is a definite finding of probable cause, with the debunking of the claim of prescription there is no longer any impediment to the filing of the information against petitioner. WHEREFORE, the petition is GRANTED. The resolutions of the Court of Appeals dated 29 October 2004 and 21 March 2005 are REVERSED and SET ASIDE. The resolution of the Department of Justice dated 9 August 2004 is also ANNULLED and SET ASIDE. The Department of Justice is ORDERED to REFILE the information against the petitioner. No costs. SO ORDERED.

25

THIRD DIVISION A.M. No. RTJ-05-1944 December 13, 2005 [Formerly OCA I.P.I. No. 05-2189-RTJ] STATE PROSECUTOR RINGCAR B. PINOTE, Petitioner, vs. JUDGE ROBERTO L. AYCO, Respondent. DECISION CARPIO MORALES, J.: On August 13 and 20, 2004, Judge Roberto L. Ayco of Branch 26, Regional Trial Court (RTC) of South Cotabato allowed the defense in Criminal Case No. 1771 TB, "People v. Vice Mayor Salvador Ramos, et al.," for violation of Section 3 of Presidential Decree (P.D.) No. 1866, to present evidence consisting of the testimony of two witnesses, even in the absence of State Prosecutor Ringcar B. Pinote who was prosecuting the case. State Prosecutor Pinote was on August 13 and 20, 2004 undergoing medical treatment at the Philippine Heart Center in Quezon City, hence, his absence during the proceedings on the said dates. On the subsequent scheduled hearings of the criminal case on August 27, October 1, 15 and 29, 2004, State Prosecutor Pinote refused to crossexamine the two defense witnesses, despite being ordered by Judge Ayco, he maintaining that the proceedings conducted on August 13 and 20, 2004 in his absence were void. State Prosecutor Pinote subsequently filed a Manifestation on November 12, 2004 before the trial court, he restating why he was not present on August 13 and 20, 2004, and reiterating his position that Judge Aycos act of allowing the defense to present evidence in his absence was erroneous and highly irregular. He thus prayed that he should not be "coerced" to cross-examine those two defense witnesses and that their testimonies be stricken off the record. By Order issued also on November 12, 2004, Judge Ayco, glossing over the Manifestation, considered the prosecution to have waived its right to crossexamine the two defense witnesses. Hence, arose the present administrative complaint lodged by State Prosecutor Pinote (complainant) against Judge Ayco (respondent), for "Gross Ignorance of the Law, Grave Abuse of Authority and Serious Misconduct." By Comment dated March 18, 2005, respondent proffers that complainant filed the complaint "to save his face and cover up for his incompetence and lackadaisical handling of the prosecution" of the criminal case as in fact complainant was, on the request of the Provincial Governor of South Cotabato, relieved as prosecutor in the case by the Secretary of Justice. And respondent informs that even after complainant was already relieved as the prosecutor in the case, he filed a motion for his inhibition without setting it for hearing. On the above-said Manifestation filed by complainant before the trial court on November 12, 2004, respondent brands the same as "misleading" and "highly questionable," complainants having undergone medica l treatment at the Philippine Heart Center on August 13 and 20, 2004 having been relayed to the trial court only on said date. On his Order considering the prosecution to have waived presenting evidence, respondent justifies the same on complainants f ailure to formally offer the evidence for the prosecution despite several extensions of time granted for the purpose. Finally, respondent proffers that no substantial prejudice was suffered by the prosecution for complainant was permitted to cross examine the two defense witnesses but he refused to do so. By way of counter-complaint, respondent charges complainant with "Contempt of Court" and "Grave Misconduct" and/or "Conduct Unbecoming of a Member of the Bar and as an Officer of the Court." On evaluation of the case, the Office of the Court Administrator (OCA), citing Section 5, Rule 110 of the Revised Rule on Criminal Procedure, finds respondent to have breached said rule and accordingly recommends that he be reprimanded therefor, with warning that a repetition of the same or similar act shall be dealt with more severely. Rule 110, Section 5 of the Revised Rules of Criminal Procedure reads: Sec. 5. Who must prosecute criminal actions. - All criminal actions commenced by a complaint or information shall be prosecuted under the direction and control of the prosecutor. In case of heavy work schedule or in the event of lack of public prosecutors, the private prosecutor may be authorized in writing by the Chief of the Prosecution Office or the Regional State Prosecution Office to prosecute the case subject to the approval of the Court. Once so authorized to prosecute the criminal action, the private prosecutor shall continue to prosecute the case up to the end of the trial even in the absence of a public prosecutor, unless the authority is revoked or otherwise withdrawn. x x x (Underscoring supplied) Thus, as a general rule, all criminal actions shall be prosecuted under the control and direction of the public prosecutor. If the schedule of the public prosecutor does not permit, however, or in case there are no public prosecutors, a private prosecutor may be authorized in writing by the Chief of the Prosecution Office or the Regional State Prosecution Office to prosecute the case, subject to the approval of the court. Once so authorized, the private prosecutor shall continue to prosecute the case until the termination of the trial even in the absence of a public prosecutor, unless the authority is revoked or otherwise withdrawn. Violation of criminal laws is an affront to the People of the Philippines as a whole and not merely to the person directly prejudiced, he being merely the complaining witness.1 It is on this account that the presence of a public prosecutor in the trial of criminal cases is necessary to protect vital state interests, foremost of which is its interest to vindicate the rule of law, the bedrock of peace of the people. 2 Respondents act of allowing the presentation of the defense witnesses in the absence of complainant public prosecutor or a p rivate prosecutor designated for the purpose is thus a clear transgression of the Rules which could not be rectified by subsequently giving the prosecution a chance to cross-examine the witnesses. Respondents intention to uphold the right of the accused to a speedy disposition of the case, no matter how noble it may be , cannot justify a breach of the Rules. If the accused is entitled to due process, so is the State.
26

Respondents lament about complainants failure to inform the court of his inability to attend the August 13 and 20, 2004 hea rings or to file a motion for postponement thereof or to subsequently file a motion for reconsideration of his Orders allowing the defense to present its two witnesses on said dates may be mitigating. It does not absolve respondent of his utter disregard of the Rules. WHEREFORE, respondent Judge Roberto L. Ayco is hereby ordered to pay a fine FIVE THOUSAND PESOS (P5,000.00) with warning that a repetition of the same or similar acts in the future shall be dealt with more severely. Respecting the counter-complaint against complainant State Prosecutor Ringcar B. Pinote, respondent is advised that the same should be lodged before the Secretary of Justice. SO ORDERED.

27

THIRD DIVISION G.R. No. 158177 January 28, 2008

SPOUSES BENITO LO BUN TIONG and CAROLINE SIOK CHING TENG, petitioners, vs. VICENTE BALBOA, respondent. DECISION AUSTRIA-MARTINEZ, J.: The spouses Benito Lo Bun Tiong and Caroline Siok Ching Teng (petitioners) charge Vicente Balboa (respondent) with forum shopping. On February 24, 1997, respondent filed with the Regional Trial Court (RTC) of Manila (Branch 34), Civil Case No. 97-82225 for Collection of Sum of Money against petitioners. The amount sought covers three post-dated checks issued by petitioner Caroline Siok Ching Teng (Caroline), as follows: Asia Trust Check No. BNDO57546 dated December 30, 1996 for P2,000,000.00; Asia Trust Check No. BNDO57547 dated January 15, 1997 forP1,200,000.00; and Asia Trust Check No. BNDO57548 dated January 31, 1997 for P1,975,250.00 - or a total ofP5,175,250.00.1 On July 21, 1997, separate criminal complaints for violation of Batas Pambansa Blg. 22 (B.P. No. 22) were filed against Caroline before the Municipal Trial Court (MTC) of Manila (Branch 10), covering the said three checks. These cases were docketed as Criminal Case Nos. 277576 to 78.2 On August 11, 1998, the RTC rendered its Decision in Civil Case No. 97-82225 finding petitioners liable, as follows: WHEREFORE, judgment is hereby rendered in favor of the plaintiff and against the defendants ordering the latter: 1. To play the plaintiff the sum of P5,175,250.00 plus 6% interest per annum until full payment; 2. To pay the plaintiff the sum of P100,000.00 as and for attorney's fees. 3. To pay the cost of suit. The counterclaim is hereby dismissed for lack of merit. SO ORDERED.3 Thereafter, in a Decision dated December 5, 2001 rendered in Criminal Case Nos. 277576 to 78, the MTC acquitted Caroline of the offenses charged for failure of the prosecution to prove her guilt beyond reasonable doubt. The MTC, however, found Caroline civilly liable in favor of respondent for the amounts covered by these checks, to wit: WHEREFORE, accused Caroline Siok Ching Teng is acquitted of the charge for violation of BP Blg. 22 for failure of the prosecution to prove her guilt beyond reasonable doubt. The accused is ordered civilly liable to the offended party for the amounts of the checks subject of the three informations herein, i.e.,P1,200,000.00, P1,975,250.00 and P2,000,000.00. SO ORDERED.4 Petitioner sought partial reconsideration of the MTC Decision praying for the deletion of the award of civil indemnity, but it was denied by the MTC per Order dated April 12, 2002. Thus, Caroline appealed to the RTC, which docketed the case as Criminal Case Nos. 02-204544-46. In the meantime, petitioners brought to the Court of Appeals (CA) on appeal the RTC Decision in Civil Case No. 97-82225, docketed as CA-G.R. CV No. 61457. In the assailed Decision dated November 20, 2002, the CA5dismissed the appeal for lack of merit and affirmed the RTC Decision in toto. The dispositive portion of the assailed CA Decision reads: WHEREFORE, in view of the foregoing and finding no reversible error in the appealed Decision dated August 11, 1998 of Branch 34 of the Regional Trial Court of Manila in Civil Case No. 97-82225, the instant appeal is DISMISSED for lack of merit, and said Decision is affirmed in toto. SO ORDERED.6 Petitioners moved for reconsideration of the CA Decision, but this was denied per Resolution dated April 21, 2003. 7 On May 8, 2003, the RTC as an appellate court, rendered its Decision in Criminal Case No. 02-204544-46, modifying the MTC Decision by deleting the award of civil damages.8 Now before the Court for resolution is the Amended Petition filed under Rule 45 of the Rules of Court, questioning the CA Decision dated November 20, 2002 and Resolution dated April 21, 2003, on the lone ground that: PUBLIC RESPONDENT COURT OF APPEALS ACTED WITHOUT JURISDICTION AND WITH GRAVE ABUSE OF DISCRETION IN ALLOWING PRIVATE RESPONDENT TO RECOVER TWICE FOR THE SAME OBLIGATION ON ACCOUNT OF THE SAID PRIVATE RESPONDENT'S DELIBERATE FAILURE AND REFUSAL TO INFORM THE REGIONAL TRIAL COURT THAT THE CIVIL OBLIGATION BEING SUED UPON IS THE SUBJECT OF CRIMINAL COMPLAINTS WITH THE METROPOLITAN TRIAL COURT, AND FOR WHICH THE CIVIL OBLIGATION WAS SUBSEQUENTLY ADJUDGED. 9 Petitioners contend that the assailed CA Decision and Resolution should be reconsidered and the RTC Decision dated August 11, 1998 dismissed as respondent's act of filing Civil Case No. 97-82225 and Criminal Cases Nos. 277576 to 78 constitutes forum shopping. Forum shopping is the institution of two or more actions or proceedings grounded on the same cause, on the supposition that one or the other court would render a favorable disposition. It is usually resorted to by a party against whom an adverse judgment or order has been issued in one forum, in an attempt to seek and possibly to get a favorable opinion in another forum, other than by an appeal or a special civil action for certiorari.10 There is forum shopping when the following elements concur: (1) identity of the parties or, at least, of the parties who represent the same interest in both actions; (2) identity of the rights asserted and relief prayed for, as the latter is founded on the same set of facts; and (3) identity of the two preceding particulars, such that any judgment rendered in the other action will amount to res judicata in the action under consideration or will constitute litis pendentia.11 In Hyatt Industrial Manufacturing Corp. v. Asia Dynamic Electrix Corp. ,12 the Court ruled that there is identity of parties and causes of action between a civil case for the recovery of sum of money as a result of the issuance of bouncing checks, and a criminal case for the prosecution of a B.P. No. 22 violation. Thus, it ordered the dismissal of the civil action so as to prevent double payment of the claim. The Court stated:

28

x x x The prime purpose of the criminal action is to punish the offender to deter him and others from committing the same or similar offense, to isolate him from society, reform or rehabilitate him or, in general, to maintain social order. The purpose, meanwhile, of the civil action is for the restitution, reparation or indemnification of the private offended party for the damage or injury he sustained by reason of the delictual or felonious act of the accused. Hence, the relief sought in the civil aspect of I.S. No. 00-01-00304 and I.S. No. 00-01-00300 is the same as that sought in Civil Case No. MC 01-1493, that is, the recovery of the amount of the checks, which, according to petitioner, represents the amount to be paid by respondent for its purchases. x x x This was reiterated in Silangan Textile Manufacturing Corp. v. Demetria,13 where the civil case for the recovery of the amount covered by the bouncing checks was also ordered dismissed. In Hyatt and Silangan, the Court applied Supreme Court Circular No. 57-97 effective September 16, 1997, which provides: 1. The criminal action for violation of Batas Pambansa Blg. 22 shall be deemed to necessarily include the corresponding civil action, and no reservation to file such action separately shall be allowed or recognized. This was later adopted as Rule 111(b) of the 2000 Revised Rules of Criminal Procedure, to wit: (b) The criminal action for violation of Batas Pambansa Blg. 22 shall be deemed to include the corresponding civil action. No reservation to file such civil action separately shall be allowed. Upon filing of the aforesaid joint criminal and civil actions, the offended party shall pay in full the filing fees based on the amount of the check involved, which shall be considered as the actual damages claimed. Where the complaint or information also seeks to recover liquidated, moral, nominal, temperate or exemplary damages, the offended party shall pay the filing fees based on the amounts alleged therein. If the amounts are not so alleged but any of these damages are subsequently awarded by the court, the filing fees based on the amount awarded shall constitute a first lien on the judgment. Where the civil action has been filed separately and trial thereof has not yet commenced, it may be consolidated with the criminal action upon application with the court trying the latter case. If the application is granted, the trial of both actions shall proceed in accordance with section 2 of this Rule governing consolidation of the civil and criminal actions. The foregoing, however, are not applicable to the present case. It is worth noting that Civil Case No. 97-82225 was filed on February 24, 1997, and Criminal Cases Nos. 277576 to 78 on July 21, 1997, prior to the adoption of Supreme Court Circular No. 57-97 on September 16, 1997. Thus, at the time of filing of Civil Case No. 97-82225 and Criminal Cases Nos. 277576 to 78, the governing rule is Section 1, Rule 111 of the 1985 Rules of Court, to wit: SEC. 1. Institution of criminal and civil actions. - When a criminal action is instituted, the civil action for the recovery of civil liability is impliedly instituted with the criminal action, unless the offended party waives the civil action, reserves his right to institute it separately, or institutes the civil action prior to the criminal action. Such civil action includes the recovery of indemnity under the Revised Penal Code, and damages under Articles 32, 33, 34 and 2176 of the Civil Code of the Philippines arising from the same act or omission of the accused. x x x x (Emphasis supplied) Under the foregoing rule, an action for the recovery of civil liability arising from an offense charged is necessarily included in the criminal proceedings, unless (1) there is an express waiver of the civil action, or (2) there is a reservation to institute a separate one, or (3) the civil action was filed prior to the criminal complaint.14 Since respondent instituted the civil action prior to the criminal action, then Civil Case No. 97-82225 may proceed independently of Criminal Cases Nos. 277576 to 78, and there is no forum shopping to speak of. Even under the amended rules, a separate proceeding for the recovery of civil liability in cases of violations of B.P. No. 22 is allowed when the civil case is filed ahead of the criminal case. Thus, in the Hyatt case, the Court noted,viz.: x x x This rule [Rule 111(b) of the 2000 Revised Rules of Criminal Procedure ] was enacted to help declog court dockets which are filled with B.P. 22 cases as creditors actually use the courts as collectors. Because ordinarily no filing fee is charged in criminal cases for actual damages, the payee uses the intimidating effect of a criminal charge to collect his credit gratis and sometimes, upon being paid, the trial court is not even informed thereof. The inclusion of the civil action in the criminal case is expected to significantly lower the number of cases filed before the courts for collection based on dishonored checks. It is also expected to expedite the disposition of these cases. Instead of instituting two separate cases, one for criminal and another for civil, only a single suit shall be filed and tried. It should be stressed that the policy laid down by the Rules is to discourage the separate filing of the civil action. The Rules even prohibit the reservation of a separate civil action, which means that one can no longer file a separate civil case after the criminal complaint is filed in court. The only instance when separate proceedings are allowed is when the civil action is filed ahead of the criminal case. Even then, the Rules encourage the consolidation of the civil and criminal cases. We have previously observed that a separate civil action for the purpose of recovering the amount of the dishonored checks would only prove to be costly, burdensome and time-consuming for both parties and would further delay the final disposition of the case. This multiplicity of suits must be avoided. Where petitioners' rights may be fully adjudicated in the proceedings before the trial court, resort to a separate action to recover civil liability is clearly unwarranted. (Emphasis supplied) Moreover, the RTC, in its Decision in Criminal Case Nos. 02-204544-46, already deleted the award of civil damages. Records do not disclose that appeal had been taken therefrom. There is, therefore, no double recovery of the amounts covered by the checks or unjust enrichment on the part of respondent. WHEREFORE, the petition is DENIED for lack of merit. The Decision dated November 20, 2002 and Resolution dated April 21, 2003 of the Court of Appeals are AFFIRMED. Costs against petitioners. SO ORDERED.

29

G.R. No. 129282 November 29, 2001 DMPI EMPLOYEES CREDIT COOPERATIVE, INC., (DMPI-ECCI), petitioner, vs. HON. ALEJANDRO M. VELEZ, as Presiding Judge of the RTC, Misamis Oriental, Br. 20, and ERIBERTA VILLEGAS, respondents. PARDO, J.: The Case In this special civil action for certiorari, petitioner DMPI Employees Credit Cooperative, Inc. (DMPI-ECCI) seeks the annulment of the order1 of the Regional Trial Court, Misamis Oriental, Branch 20, granting the motion for reconsideration of respondent Eriberta Villegas, and thus reversing the previous dismissal of Civil Case No. CV-94-214. The Facts On February 18, 1994, the prosecuting attorney filed with the Regional Trial Court, Misamis Oriental, Branch 37, an information for estafa2 against Carmen Mandawe for alleged failure to account to respondent Eriberta Villegas the amount of P608,532.46. Respondent Villegas entrusted this amount to Carmen Mandawe, an employee of petitioner DMPI-ECCI, for deposit with the teller of petitioner. Subsequently, on March 29, 1994, respondent Eriberta Villegas filed with the Regional Trial Court, Misamis Oriental, Branch 20, a complaint3 against Carmen Mandawe and petitioner DMPI-ECCI for a sum of money and damages with preliminary attachment arising out of the same transaction. In time, petitioner sought the dismissal of the civil case on the following grounds: (1) that there is a pending criminal case in RTC Branch 37, arising from the same facts, and (2) that the complaint failed to contain a certification against forum shopping as required by Supreme Court Circular No. 28-91.4 On December 12, 1996, the trial court issued an order5 dismissing Civil Case No. CV-94-214. On January 21, 1997, respondent filed a motion for reconsideration6 of the order. On February 21, 1997, the trial court issued an order7 granting respondent's motion for reconsideration, thereby recalling the dismissal of the case. Hence, this petition.8 The Issues The issues raised are: (1) whether the plaintiff's failure to attach a certification against forum shopping in the complaint is a ground to dismiss the case;9 and, (2) whether the civil case could proceed independently of the criminal case for estafa without having reserved the filing of the civil action. The Court's Ruling On the first issue, Circular No. 28-91 of the Supreme Court requires a certificate of non-forum shopping to be attached to petitions filed before the Supreme Court and the Court of Appeals. This circular was revised on February 8, 199411 by extending the requirement to all initiatory pleadings filed in all courts and quasi-judicial agencies other than the Supreme Court and the Court of Appeals. Respondent Villegas' failure to attach a certificate of non-forum shopping in her complaint did not violate Circular No. 28-91, because at the time of filing, the requirement applied only to petitions filed with the Supreme Court and the Court of Appeals.12 Likewise, Administrative Circular No. 04-94 is inapplicable for the reason that the complaint was filed on March 29, 1994, three days before April 1, 1994, the date of effectivity of the circular.13 On the second issue, as a general rule, an offense causes two (2) classes of injuries. The first is the social injury produced by the criminal act which is sought to be repaired thru the imposition of the corresponding penalty, and the second is the personal injury caused to the victim of the crime which injury is sought to be compensated through indemnity which is civil in nature.14 Thus, "every person criminally liable for a felony is also civilly liable."15 This is the law governing the recovery of civil liability arising from the commission of an offense. Civil liability includes restitution, reparation for damage caused, and indemnification of consequential damages.16 The offended party may prove the civil liability of an accused arising from the commission of the offense in the criminal case since the civil action is either deemed instituted with the criminal action or is separately instituted. Rule 111, Section 1 of the Revised Rules of Criminal Procedure, which became effective on December 1, 2000, provides that: "(a) When a criminal action is instituted, the civil action for the recovery of civil liability arising from the offense charged shall be deemed instituted with the criminal action unless the offended party waives the civil action, reserves the right to institute it separately or institutes the civil action prior to the criminal action." [Emphasis supplied] Rule 111, Section 2 further provides that "After the criminal action has been commenced, the separate civil action arising therefrom cannot be instituted until final judgment has been entered in the criminal action." [Emphasis supplied] However, with respect to civil actions for recovery of civil liability under Articles 32, 33, 34 and 2176 of the Civil Code arising from the same act or omission, the rule has been changed. Under the present rule, only the civil liability arising from the offense charged is deemed instituted with the criminal action unless the offended party waives the civil action, reserves his right to institute it separately, or institutes the civil action prior to the criminal action.17 There is no more need for a reservation of the right to file the independent civil actions under Articles 32, 33, 34 and 2176 of the Civil Code of the Philippines. "The reservation and waiver referred to refers only to the civil action for the recovery of the civil liability arising from the offense charged. This does not include recovery of civil liability under Articles 32, 33, 34 and 2176 of the Civil Code of the Philippines arising from the same act or omission which may be prosecuted separately even without a reservation."18 Rule 111, Section 3 reads: "Sec. 3. When civil action may proceed independently. In the cases provided in Articles 32, 33, 34 and 2176 of the Civil Code of the Philippines, the independent civil action may be brought by the offended party. It shall proceed independently of the criminal action and shall require only a preponderance of evidence. In no case, however, may the offended party recover damages twice for the same act or omission charged in the criminal action." The changes in the Revised Rules on Criminal Procedure pertaining to independent civil actions which became effective on December 1, 2000 are applicable to this case. Procedural laws may be given retroactive effect to actions pending and undetermined at the time of their passage. There are no vested rights in the rules of procedure.19 Thus, Civil Case No. CV-94-214, an independent civil action for damages on account of the fraud committed against respondent Villegas under Article 33 of the Civil Code, may proceed independently even if there was no reservation as to its filing. The Fallo: WHEREFORE, the Court DENIES the petition. The Court AFFIRMS the order dated February 21, 1997. No costs. SO ORDERED. 30
10

SECOND DIVISION G.R. No. 147923 October 26, 2007 JIMMY T. GO, petitioner, vs. ALBERTO T. LOOYUKO, respondent. x-------------------------------------------x G.R. No. 147962 October 26, 2007 JIMMY T. GO, petitioner, vs. ALBERTO T. LOOYUKO and COURT OF APPEALS, respondent. x-------------------------------------------x G.R. No. 154035 October 26, 2007 JIMMY T. GO, petitioner, vs. ALBERTO T. LOOYUKO, respondent. DECISION VELASCO, JR., J.: The Case

Before us are three (3) petitions. The first,1 G.R. No. 147962, is for certiorari under Rule 65. It assails the February 12, 2001 Resolution2 of the Court of Appeals (CA) in CA-G.R. SP No. 62438, which granted a Writ of Preliminary Injunction in favor of respondent Looyuko restraining the Orders of the Pasig City Regional Trial Court (RTC), Branch 69, from enforcing the Orders dated September 25, 2000, 3 December 19, 2000,4 and December 29, 20005 in Civil Case No. 67921 entitled Jimmy T. Go v. Alberto T. Looyuko for Specific Performance, Accounting, Inventory of Assets and Damages; also questioned is the April 24, 2001 CA Resolution6 which rejected petitioners plea for reconsideration. G.R. No. 1479237 assails the September 11, 2000 CA Decision8 in CA-G.R. SP No. 58639, which upheld the December 16, 19999 Makati City RTC Order denying the requested inhibition of RTC Judge Nemesio Felix (now retired) and the March 8, 2000 Order10 which denied the recall of the December 16, 1999 Order and which likewise required the prosecution to make a formal offer of evidence. Also challenged is the March 27, 2001 CA Resolution11 denying petitioners Motion for Reconsideration. The third, G.R. No. 154035,12 assails the January 31, 2002 CA Decision13 in CA-G.R. SP No. 62296, which affirmed the Makati City RTC May 9, 2000 Order14 in Criminal Case No. 98-1643, denying petitioners prayer to defer submission of the formal offer of evidence and at the same time granting leave to respondent to file demurrer to evidence, and the September 22, 2000 Order15 denying reconsideration of the May 9, 2000 Order. Likewise challenged is the June 3, 2002 CA Resolution16 of the CA disallowing petitioners Motion for Reconsideration. The second, G.R. No. 147923, and third, G.R. No. 154035, petitions under Rule 45 of the Rules of Court arose from Criminal Case No. 98-1643 entitled People of the Philippines v. Alberto T. Looyuko for Estafa under Article 315, paragraph 1 (b) of the Revised Penal Code before the Makati City RTC, Branch 56. In G.R. No. 154035, we consolidated the three petitions having originated from the same criminal case involving the same parties with interrelated issues. Although the latter petition raises the issue of the existence of a business partnership and propriety of the conduct of the inventory of assets and properties of Noahs Ark Sugar Refinery in Civil Case No. 67921, all the foregoing actions trace their beginnings from th e same factual milieu.17 The Facts Petitioner Go and respondent Looyuko were business associates. Respondent is the registered owner of Noahs Ark Merchandising , a sole proprietorship, which includes Noahs Ark International, Noahs Ark Sugar Carriers, Noahs Ark Sugar Truckers, Noahs Ark Sugar Repacker, Noahs Ark Sugar Insurers, Noahs Ark Sugar Terminal, Noahs Ark Sugar Building and the land on which the building stood, and Noahs Ark Sugar Refinery, and the plant/building/machinery in the compound and the land on which the refinery is situated. These businesses are collectively known as the Noahs Ark Group of Companies. Go was the business manager or chief operating officer of the group of companies. Sometime in 1997, the business associates had a falling out that spawned numerous civil lawsuits. Among these actions are Civil Case No. 67921 and Criminal Case No. 98-1643 from which arose several incidents which eventually became subject of these consolidated petitions. Criminal Case No. 98-1643 On May 21, 1998, petitioner filed People of the Philippines v. Alberto T. Looyuko, an Affidavit Complaint18 before the Makati City RTC, Branch 56, charging respondent with Estafa under Article 315, paragraph 1 (b) of the Revised Penal Code. The case was docketed as Criminal Case No. 98-1643. Petitioner alleged that respondent misappropriated and converted in his name petitioners 41,376 China Banking Corporation (C BC) shares of stock. Petitioner averred that he entrusted the stock certificates to respondent for the latter to sell. The Information reads: That sometime during the month of May, 1997 or prior thereto, in the City of Makati, Philippines and within the jurisdiction of this Honorable Court, the above-named accused, received in trust from complainant Jimmy T. Go China Banking Corporation stock certificates numbers 25447, 25449, 25450, 26481, 28418, 30916, 32501, 34697 and 36713 representing the 41,376 shares of stocks of the complainant with China Banking Corporation, with a market value of P1,400.00 per share, more or less, with the obligation on the part of the accused to sell the same and remit the proceeds thereof to the complainant, but the accused, once in possession of said stock certificates, far from complying with his aforesaid obligation, with intent to gain and abuse of confidence, did then and there willfully, unlawfully and feloniously misappropriated, misapply and convert the said shares of stocks to his own personal benefit by causing the transfer of said stock certificates to his name considering that the same were endorsed in blank by the complainant out of the latters trust to the accused, and the accused never paid the market value of said shares of stocks, which is P1,400.00 per share, more or less, or a total market value of P57,926,400.00 for the 41,376 shares of stocks, to the damage and prejudice of the complainant in the amount of P7,926,400.00. CONTRARY TO LAW.19 After respondent pleaded "Not Guilty," and after the testimonies of the prosecution witnesses among them, Go and Amalia de Leon, an employee of CBC, who testified that certificates of stocks in Gos name were cancelled and new certificates were issued in Looyukos name. Earlier, subpoena ad testificandum and subpoena duces tecumwere issued to Peter Dee, President of CBC, Atty. Arsenio Lim, Corporate Secretary of CBC, and Gloria Padecio. The trial court also felt no need for the testimonies of Dee, Lim, and Padecio and ordered the prosecution to offer its evidence. Petitioner filed a Motion for Reconsideration and asked that the prosecution be allowed to present its last witness from Amsteel Securities, Inc., Bohn Bernard J. Briones. The RTC granted the motion. However, at the conclusion of Briones testimony, the prosecution moved to su bpoena Alvin Padecio

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which was vehemently objected to by the defense. The trial court denied the motion. The prosecution thereafter opted to ask for ten (10) days to formally offer its documentary evidence. The trial court granted the request. Instead of filing its formal offer of evidence, the prosecution filed an Urgent Motion for Reconsideration, 20 then a Supplemental Motion with Manifestation, and a Second Supplemental Motion with Manifestation,21 all praying that the testimony of Alvin Padecio be allowed. For his part, respondent filed a Motion to Declare the Prosecution as Having Waived its Right to Make a Formal Offer of Evidence.22 Hence, petitioner filed an Omnibus Motion to Withdraw the Urgent Motion for Reconsideration with Motion for Inhibition. 23 On December 16, 1999, the trial court denied petitioners motion for inhibition; 24 petitioners motion to declare the prosecution to have waived its right to file formal offer of evidence; and gave the prosecution a last chance to submit its formal offer of documentary evidence within ten (10) days from notice.25 Petitioner moved to defer compliance with the submission of its formal offer of documentary evidence pending petitioners mot ion for reconsideration of the trial courts December 16, 1999 Order denying petitioners motion for inhibition. 26 The RTC denied petitioners motion and granted the prosecution a last opportunity to submit its formal offer of documentary evidence within five (5) days from notice.27 Frustrated, petitioner adamantly reiterated his motion for inhibition in a Manifestation/Motion 28 praying that the trial court reconsider its Order directing the prosecution to formally offer its documentary evidence in deference to the petition for certiorari it intends to file with the CA, where it would assail the December 16, 1999 and March 8, 2000 Orders denying the inhibition of the judge. Subsequently, petitioner filed a Petition for Certiorari29 under Rule 65 before the CA. It again sought the reversal of the orders denying his motion for inhibition. The petition was docketed as CA-G.R. SP No. 58639. Meanwhile, before the RTC hearing the criminal case, respondent filed an Omnibus Motion30 dated March 20, 2000 to declare petitioner to have rested his case on the basis of the prosecutions testimonial evidence and to grant respondent leave to file his demurrer to eviden ce. The RTC denied the Omnibus Motion. Petitioner timely filed a Motion for Reconsideration/Manifestation, which was denied. Respondent filed his demurrer to evidence incorporating in it his offer of evidence. Petitioner filed another petition for certiorari before the CA, docketed as CA-G.R. SP No. 62296. It sought to reverse the orders of the trial court declaring petitioner to have waived his right to formally offer his documentary evidence and allowing respondent to file a demurrer to evidence. While these motions were being considered by the trial court, petitioner filed an administrative case docketed as OCA I.P.I. No. 00-971-RTJ against the trial court Presiding Judge Nemesio S. Felix. It charged Judge Felix withPartiality, relative to Criminal Case No. 98-1643. Citing the administrative case he filed against Judge Felix, petitioner filed a Second Motion for Voluntary Inhibition 31 before the trial court. The trial court denied the second motion.32 His Motion for Reconsideration was opposed33 by respondent. Civil Case No. 67921 Meanwhile, during the pendency of Crim. Case No. 98-1643, on May 23, 2000, petitioner filed a Complaint34docketed as Civil Case No. 67921 entitled Jimmy T. Go v. Alberto T. Looyuko for Specific Performance, Accounting, Inventory of Assets and Damages against respondent before the Pasig City RTC. Petitioner claimed that in two (2) Agreements executed on February 9, 198235 and October 10, 1986,36 respondent and petitioner agreed to have their venture registered with the Department of Trade and Industry (DTI) in the name of Looyuko as sole proprietor, and both agreed to be equally entitled to 50% of the business, goodwill, profits, and real and personal properties owned by the group of companies. Petitioner alleged that respondent had committed and continued to commit insidious acts to oust him from the ownership of half of the assets of the f irms under Noahs Ark Group of Companies in breach of their agreements. Thus, petitioners action for specific performance, accounting, and inventory of assets and damages was instituted against respondent. Respondent filed a motion to dismiss on the grounds of forum shopping, litis pendentia, and abandonment or laches. The motion to dismiss was denied.37 The trial court likewise denied respondents Motion for Reconsideration.38 The trial court nevertheless granted petitioners motion to conduct an inventory of the assets of the group of companies but under the direct supervision and control of the Branch Clerk of Court.39 On January 2, 2001, respondent filed before the CA a Petition for Certiorari40 with application for a temporary restraining order (TRO) and preliminary injunction assailing the trial courts orders denying respondents motion to dismiss and grant of the motion of petitioner to conduct an inventory. Respondent also filed a Manifestation and Motion for Reconsideration of the grant of the motion to inventory before the trial court. Therein, respondent informed the trial court of his intention to elevate the denial of his motion to dismiss before the CA, praying that no further proceedings be conducted in view thereof. Apparently, respondents petition for certiorari before the CA did not mention the fact of the Man ifestation and Motion for Reconsideration filed and pending before the trial court. After filing the petition for certiorari, respondent filed an Urgent Ex-Parte Motion to Admit Additional Annexes to Petition.41 In the meantime, on January 5, 2001, the inventory of assets in the Noahs Ark Sugar Refinery was completed. Three days after the CA issued a Resolution42 enjoining the trial court from enforcing its orders denying the motion to dismiss and grant of motion to inventory, it set the hearing for the application of the injunctive writ on January 29, 2001. On February 9, 2001, petitioner filed his opposition43 to respondents urgent motion to admit additional annexes to petition which was replied44 by respondent with additional annexes appended thereto. The Ruling of the Court of Appeals in CA-G.R. SP No. 58639 (Criminal Case No. 98-1643) On September 11, 2000, the CA rendered the assailed Decision dismissing the petition. The CA explained that the petition was initiated solely by petitioner and was dismissible for it did not implead nor have the participation of the Office of the Solicitor General. And, on the merits, the appellate court ruled that the voluntary inhibition prayed by petitioner had no legal and factual basis. The appellate court found that three (3) alleged grounds of partiality raised by petitioner were not badges of partiality. The appellate court ruled that the denial of the testimony of three (3) witnesses and that of Alvin Padecio was an exercise of sound discretion by the judge. Besides, the CA added, Alvin Padecio, son of respondent, was entitled to the testimonial privilege set forth in Section 25, 45 Rule 130 of the Rules of Court. Moreover, the appellate court found baseless the other two (2) grounds of partiality. In fine, the CA held that mere allegation of partiality and bias will not suffice for a judge to voluntarily inhibit himself and shirk from responsibility of hearing the case. On March 27, 2001, the appellate court likewise denied petitioners Motion for Reconsideration. Thus, petitioner assails the above Decision and Resolution of the appellate court in CA-G.R. SP No. 58639 through a Petition for Review on Certiorari before us docketed as G.R. No. 147923.
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The Ruling of the Court of Appeals in CA-G.R. SP No. 62296 (Criminal Case No. 98-1643) On January 31, 2002, the appellate court in CA-G.R. SP No. 62296 rendered the assailed Decision. The CA in dismissing the petition ruled that the trial court did not commit grave abuse of discretion in finding that the petitioner had waived his right to file a formal offer of documentary evidence and in allowing respondent to file a demurrer to evidence. It ratiocinated that the pendency of the issue of inhibition before the appellate court absent a TRO did not suspend the proceedings in the trial court. The CA pointed out that petitioner should have pursued his plea for injunctive relief before it or to file with the trial court his Formal Offer of Evidence Ex Abundantia Cautelam. Since petitioner pursued neither, he cannot fault the trial court from issuing the assailed orders. Finally, on the issue of the demurrer to evidence, the CA held that such was seasonably filed by respondent. It ruled in this wise: In the case before the Respondent Court, the Petitioner had presented its witnesses but had no documentary evidence to formally offer as it was considered to have waived the same by his intractable refusal to file its "Formal Offer of Evidence." Hence, the "Demurrer to Evidence," filed by the Private Respondent, was seasonably filed with the Respondent Court.46 Petitioners Motion for Reconsideration was also denied. Hence, petitioner assails the above Decision and Resolution of the appellate court in CA-G.R. SP No. 62296 through a Petition for Review on Certiorari before us docketed as G.R. No. 154035. The Ruling of the Court of Appeals in CA-G.R. SP No. 62438 (Civil Case No. 67921) On February 12, 2001, the CA issued the assailed Resolution, granting a writ of preliminary injunction conditioned on the filing of a PhP 50,000 bond. The CA ruled that the requisites for an injunctive writ were present and that thestatus quo at the inception of the case on May 23, 2000 must be observed. Thus, the appellate court enjoined the trial court from enforcing its Orders dated September 25, 2000, December 19, 2000, and December 29, 2000, and from conducting further proceedings in the case pending resolution of the certiorari case. Petitioners Motion for Reconsideration was denied through the appellate courts April 24, 2001 Resolution. Thus, petitioner assails the above Resolutions of the appellate court in CA-G.R. SP No. 62438 through a petition for certiorari under Rule 65 before us docketed as G.R. No. 147962. The Issues In G.R. No. 147923, petitioner Go raises the sole issue: Whether the Honorable Court of Appeals committed reversible errors when it failed to apply the law and established jurisprudence on the matter by issuing the questioned Resolutions (sic) thereby affirming the questioned Orders of the Court a quo which were issued with grave abuse of discretion. In G.R. No. 154035, petitioner Go raises the sole issue: Whether the Honorable Court of Appeals committed reversible errors when it failed to apply the law and established jurisprudence on the matter by issuing the questioned Resolutions thereby affirming the questioned Orders of the Court a quo which were issued with grave abuse of discretion. In G.R. No. 147962, petitioner Go alleges that the respondent CA acted with grave abuse of discretion and in excess of its jurisdiction in rendering the questioned Resolutions when: 1) It failed to dismiss the questioned Petition notwithstanding the fatal error committed by Looyuko in intentionally failing to await the resolution of his Motion for Reconsideration filed in the Court a quo before filing his Petition with the Court of Appeals. 2) It failed to dismiss the questioned Petition on the ground of Looyukos failure to attach all relevant and pertinent documents to his Petition. 3) It failed to dismiss the questioned Petition notwithstanding the fact that Looyuko violated the rule against forum-shopping. 4) It failed to apply the rule that consummated acts could no longer be restrained by injunction. 5) It granted Looyukos prayer for injunction. Injunction should have been denied. Looyuko has unclean hands and he seeks equity without "doing equity." No irreparable damage exists and a plain and adequatelegal remedy is available to him. 6) It fixed the amount of the injunction bond in the measly amount of P50,000.00. Meanwhile, during the pendency of these petitions, respondent Looyuko died on October 29, 2004.47 The Courts Ruling The petitions are partly meritorious. G.R. Nos. 147923 and 154035 We will tackle G.R. Nos. 147923 and 154035 jointly since the issues raised are closely interwoven as the pending incidents arose from the same Crim. Case No. 98-1643. Voluntary Inhibition: Not a remedy absent valid grounds In G.R. No. 147923, petitioner strongly asserts that Presiding Judge Nemesio Felix has displayed manifest bias and partiality in favor of respondent by disallowing the presentation of the testimonies of the prosecutions vital witnesses, namely, Dee, Lim, Gloria Padecio, and A lvin Padecio, without any valid reason and in utter bad faith. Petitioner also foists the alleged badges of partiality in the conduct and attitude of the trial court judge during the proceedings; and that it is revealing that the respondent and his counsel knew the judge beforehand. Finally, petitioner points to the apparent animosity and enmity of Judge Felix in his Comment to the administrative case (OCA I.P.I. No. 00-971-RTJ) filed by petitioner against him. We have ploughed through the records and we are constrained to agree with the findings of the appellate court. First, we find no manifest partiality. Indeed, the adverse rulings on the denial of the proposed testimonies of the prosecutions witnesses are judicial in nature. Absent proof that the trial court judge had acted in a wanton, whimsical or oppressive manner or for an illegal consideration, and similar reasons, in giving undue advantage to respondent, inhibition is not a remedy to oust the judge from sitting on the case. Second, the other two (2) grounds raised by petitioner are also baseless. We reiterate the age-old rule in civil cases that one who alleges a fact has the burden of proving it and a mere allegation is not evidence.48 Verily, petitioner has not shown substantial proof to bolster these allegations. It is quite
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revealing what was pointed out by Judge Felix in his December 16, 1999 Order, as quoted by the appellate court, that the alle gation of respondents counsel saying to petitioner that "Amin na si Judge" first came out only in petitioners second supplemental motion with manifestation dated September 7, 1999. If it was indeed uttered by respondents counsel, such would have been immediately stated in the prior ple adings of petitioner: the urgent motion for reconsideration dated August 26, 1999 and supplemental motion with manifestation dated August 31, 1999. Besides, in a string of cases, this Court has said that bias and prejudice, to be considered valid reasons for the voluntary inhibition of judges, must be proved with clear and convincing evidence. Bare allegations of partiality and prejudgment will not suffice.49 Third, on June 26, 2002, we dismissed the administrative case filed by petitioner against Judge Felix in OCA I.P.I. No. 00-971-RTJ. Therein, we found no basis to administratively discipline respondent judge for manifest partiality. Verily, the assailed orders were issued with judicial discretion and no administrative liability attaches absent showing of illegal consideration or giving undue advantage to a party, and much less can we compel the trial court judge to inhibit himself absent valid grounds therefor. Fourth, since the grounds raised by petitioner in his motion to inhibit are not among those expressly mentioned in Section 1, Rule 137 of the Revised Rules of Court, the decision to inhibit himself lies within the sound discretion of Judge Felix. Grounds raised outside the five (5) mandatory disqualification of judges enumerated in the first paragraph of Sec. 1 of Rule 137 are properly addressed to the sound discretion of the trial court judge hearing a case as pertinently provided for in the second paragraph of Sec. 1, Rule 137, thus: SECTION 1. Disqualification of judges. x x x A judge may, in the exercise of his sound discretion, disqualify himself from sitting in a case, for just or valid reasons other than those mentioned above. Thus, it is clearly within the discretion of the judge to voluntarily inhibit himself from sitting in a case or not. Fifth, we fail to appreciate petitioners contention that the harsh language in the comment of Judge Felix shows his apparent anim osity and enmity against petitioner. We have gone over the 2nd Indorsement (Comment) of Judge Felix and we failed to find such animosity against petitioner. Be that as it may, the tenor of the comment is usual given the indignation and the bother that judges, and other court employees for that matter, have to go through when faced with an administrative case. Finally, this issue has been mooted as Judge Nemesio Felix had compulsorily retired on December 19, 2004. Grave abuse of discretion in the denial of additional witnesses At this juncture, we come to the issue of denial of additional witnesses. Petitioner contends that the prosecution should have been given the opportunity to present four witnesses, namely, Dee, the President of CBC; Lim, Corporate Secretary of CBC; Gloria Padecio and Alvin Padecio, whom petitioner strongly avers are vital witnesses to prove the allegations in the Information as set out in the issues embodied in the Pre-Trial Order. The contention of petitioner is well-taken. It is basic that the case of the prosecution in a criminal case depends on the strength of its evidence and not on the weakness of the defense. This is so as proof beyond reasonable doubt is required in criminal cases. Thus, the prosecution must be afforded ample opportunity to present testimonial and documentary evidence to prove its case. A close perusal of the antecedent facts in the instant case shows that the prosecution had not been given this opportunity. The Pre-Trial Order50 of January 19, 1999 shows that the prosecution will present seven (7) witnesses and to resolve the issues on whether petitioner is only a mere employee of or a "50-50" partner of respondent. The prosecution was allowed to present only three (3) witnesses, namely, petitioner Jimmy T. Go, Amalia de Leon, representative of CBC, Bohn Briones, representative of and Credit Comptroller of Amsteel Securities, Inc. It must be noted that after petitioner and de Leon presented their testimonies, the trial court ruled that the testimonies of Dee and Lim of the CBC, who were ready to testify, and that of Gloria Padecio, the common-law wife of respondent, were superfluous. Moreover, after much wrangling with the prosecution conceding the non-presentation of the three (3) witnesses, the testimony of Briones was allowed as final witness for the prosecution. But Briones testimony left much to be desired as he was not able to testify on some points the prosecution considered vital to its case. Thus, the prosecution requested for the presentation of Alvin Padecio, the son of respondent and Gloria Padecio, the alleged stock agent of Amsteel Securities, Inc. who handled the transaction involving the subject shares of stock of CBC. This was likewise denied by the trial court, which led to the motion for inhibition and administrative case against Judge Felix, and the adamant stand of petitioner not to rest his case by filing his formal offer of evidence until the testimony of Padecio is had. It must be emphasized that in a catena of cases we have reiterated the principle that the matter of deciding who to present as a witness for the prosecution is not for the defendant or the trial court to decide, as it is the prerogative of the prosecutor. 51 It cannot be overemphasized that the trial court must accord full opportunity for the prosecution, more so in criminal cases, to adduce evidence to prove its case and to properly ventilate the issues absent patent showing of dilatory or delaying tactics. The reason is obvious: it is tasked to produce and adduce evidence beyond a reasonable doubt. Sans such evidence, a dismissal of the criminal case on a demurrer to the evidence is proper. In the case at bar, there was no showing that the presentation of the three (3) witnesses previously approved by the trial court would be dilatory and manifestly for delay. The trial court anchored its ruling on the denial of the three (3) witnesses on the fact that the Pre-Trial Order already stipulated the fact that the certificates were issued in the name of petitioner Go, were indorsed in blank and delivered to respondent, and the certificates were subsequently transferred to respondents name. The trial court ruled that these facts were already testified to by petitioner and de Leon. Moreover, the trial court also ruled that the testimony of Gloria Padecio was a superfluity as petitioner already testified to the alleged partnership between petitioner and respondent. We cannot agree with the trial court and neither can we give imprimatur on the appellate courts affirmance thereof. We find that the tria l court gravely abused its discretion in denying petitioner and the prosecution to present their witnesses. Grave abuse of discretion implies such capricious and whimsical exercise of judgment as is equivalent to lack of jurisdiction. It is well-settled that an act of a court or tribunal may only be considered to have been done in grave abuse of discretion when the act was performed in a capricious or whimsical exercise of judgment which is equivalent to lack of jurisdiction. The abuse of discretion must be so patent and gross as to amount to an evasion of positive duty or to a virtual refusal to perform a duty enjoined or to act at all in contemplation of law, as where the power is exercised in an arbitrary and despotic manner by reason of passion or personal hostility.52 An error of judgment committed in the exercise of its legitimate jurisdiction is not the same as "grave abuse of discretion." An abuse of discretion is not sufficient by itself to justify the issuance of a writ of certiorari. We find that the trial court gravely abused its discretion in patently and arbitrarily denying the prosecution the opportunity to present four (4) witnesses in the instant criminal case. First, the testimonies of Dee and Lim from CBC would bolster and tend to prove whatever fact the prosecution is

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trying to establish. Truth to tell, only the testimony of de Leon corroborates petitioners testimony on the alleged transfer from petitioners name to that of respondent of the certificates of stock. More light can be shed on the transaction with the additional testimony of Dee and Lim. Second, the superfluity of a testimony vis--vis what has already been proven can be determined with certainty only after it has been adduced. Verily, the testimonies of petitioner Go and de Leon on the issue of the transfer cannot be said to have truly proven and been corroborated with certainty as they are. Third, the trial court cannot invoke its discretion under Sec. 6 of Rule 134, Rules of Court given that only two (2) witnesses were presented when it denied the testimony of the three (3) witnesses. Sec. 6 of Rule 134 pertinently provides: SEC. 6. Power of the court to stop further evidence. The court may stop the introduction of further testimony upon any particular point when the evidence upon it is already so full that more witnesses to the same point cannot be reasonably expected to be additionally persuasive. But this power should be exercised with caution. The above proviso clearly grants the trial court the authority and discretion to stop further testimonial evidence on the ground that additional corroborative testimony has no more persuasive value as the evidence on that particular point is already so full. Indeed, it was only petitioner Go, whose testimony may be considered self-serving who testified on the issue of the transfer. Certainly, the additional testimony of de Leon on the issue of the transfer cannot be considered as so adequate that additional corroborative testimony has no more persuasive value. Besides, the discretion granted by the above proviso has the clear caveat that this power should be exercised with caution, more so in criminal cases where proof beyond reasonable doubt is required for the conviction of the accused. Fourth, in consonance with the immediate preceding discussion, petitioner Gos testimony on the alleged partnership is not confirmed and supported by any other proof with the exclusion of the testimony of Gloria Padecio. Certainly, it is imperative for the prosecution to prove by clear and strong evidence that the alleged partnership exists; otherwise, respondent Looyuko is entitled to exoneration as the element of trust is important in estafa by abuse of confidence. Corroborative testimony is a necessity given the nature of the criminal case. Likewise, the trial court gravely abused its discretion in denying the prosecution to present the testimony of Alvin Padecio considering that Briones of Amsteel Securities, Inc. did not provide some details on the transfer. Alvin Padecio, petitioner claims, is the person who can shed light on these matters, more particularly if one considers the fact that he is the son of respondent Looyuko. Based on the foregoing findings, we hold that the trial court whimsically, arbitrarily, and gravely abused its discretion amounting to a denial of the prosecution of its day in court. Death of respondent extinguished criminal liability Respondent Looyuko died on October 29, 2004. It is an established principle that the death of the accused pending final adjudication of the criminal case extinguishes the accuseds criminal liability. If the civil liabilitydirectly arose from and is based solely on the offense committed, then the civil liability is also extinguished.53 In the case at bar, the civil liability for the recovery of the CBC stock certificates covering 41,376 shares of stock or their value does not directly result from or based solely on the crime of estafa but on an agreement or arrangement between the parties that petitioner Go would endorse in blank said stock certificates and give said certificates to respondent Looyuko in trust for petitioner for said respondent to sell the stocks covered by the certificates. In such a case, the civil liability survives and an action for recovery therefor in a separate civil action can be instituted either against the executor or administrator or the estate of the accused. The case law on the matter reads: 1. Corollarily, the claim for civil liability survives notwithstanding the death of the accused, if the same may also be predicated on a source of obligation other than delict. Article 1157of the Civil Code enumerates these other sources of obligation from which the civil liability may arise as a result of the same act or omission: a.) Law b.) Contracts c.) Quasi-contracts d.) x x x e.) Quasi-delicts 2. Where the civil liability survives, as explained in Number 2 above, an action for recover therefore may be pursued but only by way of filing a separate civil action and subject to Section 1, Rule 111 of the 1985 Rules on Criminal Procedure as amended. This separate civil action may be enforced either against the executor/administrator or the estate of the accused, depending on the source of obligation upon which the same is based as explained above.54 (Emphasis supplied.) On the other hand, Sec. 4, Rule 111 of the Rules on Criminal Procedure provides: SEC. 4. Effect of death on civil actions. The death of the accused after arraignment and during the pendency of the criminal action shall extinguish the civil liability arising from the delict. However, the independent civil action instituted under section 3 of this Rule or which thereafter is instituted to enforce liability arising from other sources of obligation may be continued against the estate or legal representative of the accused after proper substitution or against said estate, as the case may be. The heirs of the accused may be substituted for the deceased without requiring the appointment of an executor or administrator and the court may appoint a guardian ad litem for the minor heirs. (Emphasis supplied.) In the light of the foregoing provision, Crim. Case No. 98-1643 has to be dismissed by reason of the death of respondent Looyuko without prejudice to the filing of a separate civil action. One last point. Petitioner Go filed the two petitions before the CA docketed as CA-G.R. SP No. 58639 and CA-G.R. SP No. 62296 involving incidents arising from the proceedings in Crim. Case No. 98-1643. It can be observed from the two petitions that they do not reflect the conformity of the trial prosecutor assigned to said criminal case. This is in breach of Sec. 5, Rule 110 of the Rules of Court that requires that all criminal actions shall be prosecuted "under the direction and control of a public prosecutor." Although in rare occasions, the offended party as a "person aggrieved" was allowed to file a petition under Rule 65 before the CA without the intervention of the Solicitor General,55 the instant petitions before the CA, as a general rule, should be filed by the Solicitor General on behalf of the State and not solely by the offended party.56
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For non-compliance with the rules, the twin petitions could have been rejected outright. However, in view of the death of respondent Looyuko, these procedural matters are now mooted and rendered insignificant. G.R. No. 147962 Appellate courts discretion to give due course to petition Petitioner strongly asserts that the CA gravely abused its discretion in failing to dismiss the petition in CA-G.R. SP No. 62438 on the ground of respondents failure to attach all relevant and pertinent documents to his petition, and it erroneously ruled that such proce dural defect was cured by admitting respondents motion to admit additional annexes. Petitioner relies on Manila Midtown Hotels and Land Corp., et al. v. NLRC57 and contends that Director of Lands v. Court of Appeals58 cited by the CA is inapplicable. We cannot agree with petitioner. Sec. 1 of Rule 65 pertinently provides: SECTION 1. Petition for certiorari. When any tribunal, board or officer exercising judicial or quasi-judicial functions has acted without or in excess of its or his jurisdiction, or with grave abuse of discretion amounting to lack or excess of jurisdiction, and there is no appeal, nor any plain, speedy, and adequate remedy in the ordinary course of law, a person aggrieved thereby may file a verified petition in the proper court, alleging the facts with certainty and praying that judgment be rendered annulling or modifying the proceedings of such tribunal, board or officer, and granting such incidental reliefs as law and justice may require. The petition shall be accompanied by a certified true copy of the judgment, order or resolution subject thereof, copies of all pleadings and documents relevant and pertinent thereto, and a sworn certification of non-forum shopping as provided in the third paragraph of Section 3, Rule 46. The above proviso clearly vests the appellate court the authority and discretion to give due course to the petitions before it or to dismiss the same when it is not sufficient in form and substance, the required pleadings and documents are not attached thereto, and no sworn certificate on non-forum shopping is submitted. And such must be exercised, not arbitrarily or oppressively, but in a reasonable manner in consonance with the spirit of the law. The appellate court should always see to it that justice is served in exercising such discretion. In the case at bar, the appellate court exercised its discretion in giving due course to respon dent Looyukos petition in view of the policy of liberality in the application of the rules. Verily, petitioner has not shown that the appellate court abused its discretion in an arbitrary or oppressive manner in not dismissing the petition due to the non-attachment of some relevant pleadings to the petition. The miscue was cured when respondent submitted additional annexes to the petition. Neither has petitioner shown any manifest bias, fraud, or illegal consideration on the part of the appellate court to merit reconsideration for the grant of due course. Respondent guilty of forum shopping There was still a pending Motion for Reconsideration (to the Order of denial of Looyukos Motion to Dismiss) filed by Looyuko in the court a quo when he instituted the petition before the CA on January 2, 2001. It is aggravated by the fact that the Motion for Reconsideration to the denial Order was filed on the same day or simultaneously with the filing of the Petition for Certiorari; hence, the petition is in the nature of forum shopping. The issues brought before the CA are similar to the issues raised in Looyukos Motion for Reconsideration involving similar cause of act ion and reliefs sought, that is, to dismiss the basic complaint of petitioner Go. This Court in a catena of cases resolved that a Motion for Reconsideration is an adequate remedy in itself, and is a condition sine qua nonto the prosecution of the independent, original, and extra ordinary special civil action of certiorari. 59 We must not lose sight of the fact that a Motion for Reconsideration (subsequently denied) is a pre-requisite before a Petition for Certiorari may properly be filed.60 Considering, that the Motion for Reconsideration has not been resolved by the court a quo, the petition (CA-G.R. SP No. 62438) was prematurely filed; hence, it should have been outrightly denied due course. Looyuko was remiss of his duty to inform the appellate court in his petition that there was a pending Motion for Reconsideration in the court a quo. Consummated acts not restrained by injunctive writ A close review of the antecedent facts bears out that, indeed, petitioner did not know of the petition for certiorari before the CA until he received a copy of the CAs January 8, 2001 Resolution on January 12, 2001. It is undisputed that petitioner received a copy of respondents December 29, 2000 petition only on January 19, 2001. Clearly, petitioner did not yet know of the pendency of the petition for certiorari before the CA when the inventory of the a ssets in Noahs Ark Sugar Refinery was completed on January 5, 2001. Thus, the appellate court committed reversible error when it held that petitioner proceeded at his own peril the conduct of the inventory in view of the pendency of the certiorari case in which the appellate court enjoined the trial court from proceeding with its January 8, 2001 Resolution. Verily, even before the CA granted the TRO and issued its January 8, 2001 Resolution, the proceeding to be enjoined, that is, the conduct of the inventory, had already been done. Thus, we agree with petitioner that Verzosa v. Court of Appeals61 relied upon by the appellate court is not applicable. The established principle is that when the events sought to be prevented by injunction or prohibition have already happened, nothing more could be enjoined or prohibited.62 Indeed, it is a universal principle of law that an injunction will not issue to restrain the performance of an act already done. This is so, for the simple reason that nothing more can be done in reference thereto.63 A writ of injunction becomes moot and academic after the act sought to be enjoined has already been consummated.64 In the case at bar, it is manifest that the inventory has already been conducted when the January 8, 2001 TRO and February 12, 2001 Writ of Injunction were issued. Thus, the issue of injunction has been mooted, and the injunctive writ must be nullified and lifted. Inventory of assets does not prejudice the parties Moreover, it must be noted that the inventory of assets granted by the trial court on December 29, 2000, which was completed on January 5, 2001, does not prejudice respondent Looyukos right. Certainly, the rights of respondent over the inventoried assets in Noahs Ark Sugar Refinery have not been transgressed, set aside, diminished, or militated upon by the conduct of the inventory. An inventory does not confer any rights. Thus, by conducting the inventory, petitioner had not been conferred any rights over the assets absent a final determination by the court on the main action for specific performance, accounting, and damages, as the inventory is only an ancillary remedy preparatory for the party to an action to institute other legal remedies for the protection of whatever right the party may have over the subject of the inventory. Injunction, therefore, against the inventory of the assets covered by the December 29, 2000 Order should be lifted since the inventory has been completed and there is nothing to enjoin or restrain. Consequently, the February 12, 2001 CA Resolution on this matter will have to be modified.
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Lower court to proceed absent any TRO or injunctive writ from this Court With regard to the injunction on the September 25, 2000 and December 19, 2000 Orders which denied respondents motion to dismiss and motion for reconsideration, respectively, which effectively prohibited the Pasig City RTC from conducting further proceedings in Civil Case No. 67921 until CA-G.R. SP No. 62438 is resolved, it is clear that more than six (6) years had elapsed since the April 24, 2001 CA Resolution was issued and still the CA petition of petitioner has not yet been resolved on the merits. It is observed that this Court did not issue a TRO or a writ of preliminary injunction against the CA from proceeding in CA-G.R. SP No. 62438. The CA should have proceeded to resolve the petition notwithstanding the pendency of G.R. No. 147962 before this Court. This is unequivocal from Sec. 7 of Rule 65 which provides that the "petition shall not interrupt the course of the principal case unless a TRO or a writ of preliminary injunction has been issued against the public respondent from further proceeding in the case." This rule must be strictly adhered to by the lower court notwithstanding the possibility that the proceedings undertaken by the lower court tend to or would render nugatory the pending petition before this Court. As long as there is no directive from this Court for the lower court to defer action in the case, the latter would not be faulted if it continues with the proceedings in said case. Given the more than six (6) years that CA-G.R. SP No. 62438 has been pending with the CA, we deem it better to resolve the issue of the propriety of the denial by the trial court of respondents motion to dismiss than remanding it to the CA. Issue of denial of motion to dismiss Respondent Looyuko anchored his motion to dismiss on the ground of forum shopping, litis pendentia, and abandonment or laches. Respondent anchors his grounds of litis pendentia and forum shopping on the fact of the pendency of Civil Case No. 98-91153 entitled Alberto T. Looyuko v. Jimmy T. Go a.k.a. Jaime Gaisano and the Register of Deeds of Manila before the Manila RTC, Branch 36, and in Civil Case No. MC 98-038 entitled Alberto T. Looyuko v. Jimmy T. Go a.k.a. Jaime Gaisano and the Register of Deeds of Mandaluyong City before Mandaluyong City RTC, Branch 213. Civil Case No. 98-91153 involves an action to amend Transfer Certificate of Title (TCT) Nos. 160277 and 160284 by deleting the name of petitioner Jimmy T. Go as co-owner. While Civil Case No. MC 98-038 is a petition to cancel the adverse claims annotated by petitioner in TCT No. 64070 in the name of respondent Alberto T. Looyuko and in TCT No. 3325 in the name of Noahs Ark Sugar Refinery. In both civil cases, petitioner has anchored his defense and adverse claims on the Agreements executed on February 9, 1982 and October 10, 1986, wherein the parties allegedly entered into and embodied in said agreements their true intent and relationship with respect to their business ventures in Noahs Ark Group of Companies, that is, for convenience and expediency, the parties agreed to have their ventures registered with the DTI in the name of respondent Looyuko only as sole proprietor while they are both equally entitled to 50% of the business, goodwill, profits, real and personal properties owned by the group of companies. Respondent pointed out that that petitioner has prayed in Civil Case No. 98-91153 that the parties agreement dated February 9, 1982 and October 10, 1986 be declared valid and binding, and in Civil Case No. MC 98-038 to order the Register of Deeds of Mandaluyong City to register petitioner Gos name as co-owner of the properties covered by TCT Nos. 64070 and 3325 by virtue of the February 9, 1982 and October 10, 1986 agreements. Thus, respondent strongly argues that the issue regarding the validity and binding effect of the alleged partnership agreements dated February 9, 1982 and October 10, 1986 on which petitioner anchors his claim of co-ownership in the Noahs Ark Group of Companies has been squarely raised not only as a defense but also as basis of his prayer for positive relief. Respondent now contends that petitioner is barred by litis pendentia in filing Civil Case No. 67921 for Specific Performance, Accounting, Inventory of Assets and Damages anchored on the same issue of the disputed partnership agreements. Moreover, such filing duly recognized by the trial court constitutes forum shopping. We cannot agree with respondent. Litis pendentia and forum shopping not present There is no basis for respondents claim based on litis pendentia and forum shopping. For litis pendentia to be a ground for the dismissal of an action there must be: (1) identity of the parties or at least such as to represent the same interest in both actions; (2) identity of rights asserted and relief prayed for, the relief being founded on the same acts; and (3) the identity in the two cases should be such that the judgment which may be rendered in one would, regardless of which party is successful, amount to res judicata in the other.65 On the other hand, forum shopping exists where the elements of litis pendentia are present, and where a final judgment in one case will amount to res judicata in the other.66 A brief perusal of the cause of action in Civil Case No. 67921 vis--vis those of Civil Case Nos. 98-91153 and MC 98-038 reveals that there is neither identity of rights asserted and reliefs prayed for, nor are the reliefs founded on the same acts. In this case, Civil Case No. 67921, the relief sought before the Pasig City RTC where the complaint for specific performance was filed by petitioner, was the enforcement of the disputed partnership agreements, whereas, in the Makati City and Mandaluyong City RTCs, the reliefs sought by petitioner who is a defendant and respondent, respectively, were merely as defense for his co-ownership over subject parcels of land and as defense for the adverse claims he had annotated in the titles of subject properties. Such defenses cannot be equated with seeking relief for the enforcement of the disputed partnership agreements. Indeed, the complaint and petition filed by respondent in the Makati City and Mandaluyong City RTCs had different causes of action and sought different reliefs which did not stem from nor are founded from the same acts complained of. There is no basis, therefore, for petitioners contention that respondent is guilty of forum shopping nor the instant complaint barred by litis pendentia. Anent abandonment or laches, we fully agree with the trial court that there is no basis to dismiss the complaint in Civil Case No. 67921 on the grounds of laches and abandonment. Laches, being controlled by equitable considerations and addressed to the sound discretion of the trial court, is evidentiary in nature and thus can not be resolved in a motion to dismiss, as we have held in the fairly recent case of Felix Gochan and Sons Realty Corporation v. Heirs of Raymundo Baba.67 WHEREFORE, the petition in G.R. No. 147962 is GRANTED. The February 12, 2001 and April 24, 2001 Resolutions of the CA in CA-G.R. SP No. 62438 are REVERSED and SET ASIDE, and the Writ of Preliminary Injunction is LIFTED. The Petition for Certiorari of respondent Looyuko in CA-G.R. SP No. 62438 is DISMISSEDfor lack of merit, and the Orders dated September 25, 2000, December 19, 2000, and December 29, 2000 of the Pasig City RTC, Branch 69 are AFFIRMED. The Pasig City RTC, Branch 69 is hereby ordered to proceed with the case with dispatch. The petition in G.R. No. 147923 is DENIED and the September 11, 2000 Decision and March 27, 2001 Resolution of the CA in CA-G.R. SP No. 58639 are AFFIRMED. The petition in G.R. No. 154035 is GRANTED. The January 31, 2002 Decision and June 3, 2002 Resolution of the CA in CA-G.R. SP No. 62296 are REVERSED and SET ASIDE. Likewise, the Orders dated May 9, 2000 and September 22, 2000 of the Makati City RTC in Crim. Case No. 98-1643 are REVERSED and SET ASIDE. However, in view of the demise of respondent Looyuko on October 29, 2004, the Makati City RTC is ordered to dismiss Crim. Case No. 98-1643 without prejudice to the filing of a separate civil action by petitioner Go. No pronouncement as to costs. SO ORDERED.
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SECOND DIVISION G.R. No. 150785 September 15, 2006

EMMA P. NUGUID, petitioner, vs. CLARITA S. NICDAO,1 respondent. DECISION CORONA, J.: In this petition for review on certiorari under Rule 45 of the Rules of Court, Emma P. Nuguid assails the decision of the Court of Appeals (CA) dated October 30, 2001 in CA-G.R. No. 23054: WHEREFORE, the Petition for Review is hereby GRANTED and the Assailed Decision dated May 10, 1999 of the Regional Trial Court [RTC], Branch 5, Bataan, affirming the Decision dated January 11, 1999 of the First Municipal Circuit Trial Court of Dinalupihan-Hermosa, Bataan is REVERSED and SET ASIDE. The petitioner CLARITA S. NICDAO is hereby ACQUITTED of the offense charged. NO COSTS. SO ORDERED.2 Petitioner seeks a review of the decision with respect to the alleged lack of civil liability of respondent Clarita S. Nicdao. Stemming from two cases of violation of BP 22,3 this petition involves the following facts: xxx xxx xxx

Accused Clarita S. Nicdao is charged with having committed the crime of Violation of BP 22 in fourteen (14) counts. The criminal complaints allege that sometime in 1996, from April to August thereof, [respondent] and her husband [,] of Vignette Superstore [,] approached [petitioner] and asked her if they [could] borrow money to settle some obligations. Having been convinced by them and because of the close relationship of [respondent] to [petitioner], the latter lent the former her money. Thus, every month, she was persuaded to release P100,000.00 to the accused until the total amount reached P1,150,000.00. As security for the P1,150,000.00, [respondent] gave [petitioner] the following open dated Hermosa Savings Bank (HSLB) ( sic) with the assurance that if the entire amount is not paid within one (1) year, [petitioner] can deposit the check: Check No. 7277 7348 12118 8812 12102 7255 2286 8128 7254 7278 4540 4523 12103 7294 P1,150,000.00 In June 1997, [petitioner] together with Samson Ching demanded payment of the sums [above-mentioned], but [respondent] refused to acknowledge the indebtedness. Thus, on October 6, 1977, [petitioner] deposited all aforementioned checks in the bank of Samson Ching totaling P1,150,000.00 since all the money given by her to [respondent] came from Samson Ching. The checks were all returned for having been drawn against insufficient funds (DAIF). A verbal and written demand was made upon [respondent] to pay the amount represented by the bounced checks, but [to] no avail. Hence, a complaint for violation of BP 22 was filed against the [respondent].4(Citation omitted) After petitioner instituted 14 criminal cases5 (docketed as Criminal Case Nos. 9458-9471) for violation of BP 22 involving the sum of P1,150,000, corresponding warrants of arrest were issued against respondent. On November 12, 1997, respondent was arraigned. She pleaded not guilty and trial ensued. In a decision dated January 11, 1999, Judge Manuel M. Tan of the Municipal Circuit Trial Court of Dinalupihan, Bataan found respondent guilty of the charges against her. Respondent was sentenced to pay P1,150,000, plus interest, and to suffer imprisonment equivalent to one year for each violation of BP 22, or a total of 14 years of imprisonment. On appeal, the decision was affirmed in toto by the Regional Trial Court of Dinalupihan, Bataan. Respondent elevated the case to the CA. On October 30, 2001, the CA reversed the decision of the lower courts and acquitted respondent. According to the CA, certain substantial facts were overlooked by the trial court. These circumstances, if properly considered, justified a different conclusion on the case.6
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Amount P100,000.00 (Exhibit "A") 150,000.00 (Exhibit "A") 100,000.00 (Exhibit "A") 50,000.00 (Exhibit "A") 100,000.00 (Exhibit "A") 100,000.00 (Exhibit "A") 50,000.00 (Exhibit "A") 100,000.00 (Exhibit "A") 50,000.00 (Exhibit "A") 100,000.00 (Exhibit "A") 50,000.00 (Exhibit "A") 50,000.00 (Exhibit "A") 50,000.00 (Exhibit "A") 100,000.00 (Exhibit "A")

Petitioner now comes to us, raising this main issue: whether respondent remains civilly liable to her for the sum ofP1,150,000. In this connection, she asserts that respondent obtained loans from her in the aggregate amount ofP1,150,000 and that these loans have not been paid. From the standpoint of its effects, a crime has a dual character: (1) as an offense against the State because of the disturbance of the social order and (2) as an offense against the private person injured by the crime unless it involves the crime of treason, rebellion, espionage, contempt and others (wherein no civil liability arises on the part of the offender either because there are no damages to be compensated or there is no private person injured by the crime7). What gives rise to the civil liability is really the obligation of everyone to repair or to make whole the damage caused to another by reason of his act or omission, whether done intentionally or negligently and whether or not punishable by law. 8 Extinction of penal action does not carry with it the eradication of civil liability, unless the extinction proceeds from a declaration in the final judgment that the fact from which the civil liability might arise did not exist.9 On one hand, as regards the criminal aspect of a violation of BP 22, suffice it to say that: [t]he gravamen of BP 22 is the act of making and issuing a worthless check or one that is dishonored upon its presentment for payment [and] the accused failed to satisfy the amount of the check or make arrangement for its payment within 5 banking days from notice of dishonor. The act is malum prohibitum, pernicious and inimical to public welfare. Laws are created to achieve a goal intended to guide and prevent against an evil or mischief. Why and to whom the check was issued is irrelevant in determining culpability. The terms and conditions surrounding the issuance of the checks are also irrelevant.10 On the other hand, the basic principle in civil liability ex delicto is that every person criminally liable is also civilly liable, crime being one of the five sources of obligations under the Civil Code.11 A person acquitted of a criminal charge, however, is not necessarily civilly free because the quantum of proof required in criminal prosecution (proof beyond reasonable doubt) is greater than that required for civil liability (mere preponderance of evidence12). In order to be completely free from civil liability, a person's acquittal must be based on the fact that he did not commit the offense.13 If the acquittal is based merely on reasonable doubt, the accused may still be held civilly liable since this does not mean he did not commit the act complained of.14 It may only be that the facts proved did not constitute the offense charged.15 Acquittal will not bar a civil action in the following cases: (1) where the acquittal is based on reasonable doubt as only preponderance of evidence is required in civil cases; (2) where the court declared the accused's liability is not criminal but only civil in nature and (3) where the civil liability does not arise from or is not based upon the criminal act of which the accused was acquitted.16 In this petition, we find no reason to ascribe any civil liability to respondent. As found by the CA, her supposed civil liability had already been fully satisfied and extinguished by payment. The statements of the appellate court leave no doubt that respondent, who was acquitted from the charges against her, had already been completely relieved of civil liability: [Petitioner] does not dispute the fact that payments have already been made by petitioner in [the stated] amounts but argues that the Demand Draft represented payment of a previous obligation. However, no evidence of whatever nature was presented by the prosecution to substantiate their claim that there was indeed a previous obligation involving the same amount for which the demand draft was given. Except for this bare allegation, which is self-serving, no documentary evidence was ever adduced that there were previous transactions involving the subject amount. Likewise, [petitioner] admitted having received the cash payments from petitioner on a daily basis but argues that the same were applied to interest payments only. It however appears that *petitioner+ was charging *respondent+ with an exorbitant rate of intereston a daily basis. xxx In any event, the cash payments [made] were recorded at the back of the cigarette cartons by [petitioner] in her own handwriting as testified to by [respondent] and her employees, Melanie Tolentino and Jocelyn Nicdao. Indeed, the daily cash payments marked in evidence as Exhibits 7 to 15 reveal that [respondent] had already paid her obligation to [petitioner] in the amount of P5,780,000.00 as of July 21, 1997 and that she stopped making further payments when she realized that she had already paid such amount. From the foregoing, it would appear that [respondent] made a total payment of P6,980,000.00, inclusive of the P1,200,000.00 Demand Draft, which is definitely much more than P1,150,000.00, the amount she actually borrowed from [petitioner]. These facts were never rebutted by [petitioner]. Moreover, we find no evidence was presented by the prosecution to prove that there was a stipulation in writing that interest will be paid by [respondent] on her loan obligations [as required under Article 1956 of the Civil Code]. xxx xxx xxx

By and large, the obligation of [respondent] has already been extinguished long before the encashment of the subject checks. A check is said to apply for account only when there is still a pre-existing obligation. In the case at bench, the pre-existing obligation was extinguished after full payment was made by [respondent]. We therefore find the clear and convincing documentary evidence of payment presented by [respondent] worthy of credence.17 (emphasis supplied) WHEREFORE, the petition is hereby DENIED. The October 30, 2001 decision of the Court of Appeals in CA-G.R. No. 23054 is AFFIRMED. Costs against petitioner. SO ORDERED.

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SECOND DIVISION G.R. No. 176795 June 30, 2008

SPS. CAROLINA and REYNALDO JOSE, petitioners, vs. SPS. LAUREANO and PURITA SUAREZ, respondents. 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 da ily 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 defenda nts from entering plaintiffs store and premises to get cash sales and other items against plaintiffs will [sic] under such terms and conditions as this Court may affix. 5 Thereafter, at the instance of Carolina, several cases for violation of B.P. Blg. 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 O rder.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 consider ed 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
40

case, respondents argue that the rule on forum shopping is not intended to deprive a party to a case of a legitimate remedy. 22 Finally, they claim that the case falls under the exceptions to the rule that the prosecution of criminal cases may not be enjoined by a writ of injunction, considering that in this case there is a prejudicial question which is sub judice, and that there is persecution rather than prosecution.23 The case hinges on the determination of whether there exists a prejudicial question which necessitates the suspension of the proceedings in the MTCCs. We find that there is none and thus we resolve to grant the petition. A prejudicial question generally comes into play in a situation where a civil action and a criminal action are both pending and there exists in the former an issue which must be preemptively resolved before the latter may proceed, because howsoever the issue raised in the civil action is resolved would be determinative juris et de jureof the guilt or innocence of the accused in the criminal case. The rationale behind the principle of prejudicial question is to avoid two conflicting decisions. It has two essential elements: (i) the civil action involves an issue similar or intimately related to the issue raised in the criminal action; and (ii) the resolution of such issue determines whether or not the criminal action may proceed.24 Now the prejudicial question posed by respondents is simply this: whether the daily interest rate of 5% is void, such that the checks issued by respondents to cover said interest are likewise void for being contra bonos mores, and thus the cases for B.P. Blg. 22 will no longer prosper. The prejudicial question theory advanced by respondents must fail. In the first place, the validity or invalidity of the interest rate is not determinative of the guilt of respondents in the criminal cases. The Court has consistently declared that the cause or reason for the issuance of a check is inconsequential in determining criminal culpability under B.P. Blg. 22.25 In several instances, we have held that what the law punishes is the issuance of a bouncing check and not the purpose for which it was issued or the terms and conditions relating to its issuance; and that the mere act of issuing a worthless check is malum prohibitum provided the other elements of the offense are properly proved.26 The nature and policy of B.P. Blg. 22 were aptly enunciated by the Court in Meriz v. People,27 when it stated: x x x. [B.P. Blg.] 22 does not appear to concern itself with what might actually be envisioned by the parties, its primordial intention being to instead ensure the stability and commercial value of checks as being virtual substitutes for currency. It is a policy that can easily be eroded if one has yet to determine the reason for which checks are issued, or the terms and conditions for their issuance, before an appropriate application of the legislative enactment can be made. The gravamen of the offense under [B.P. Blg.] 22 is the act of making or issuing a worthless check or a check that is dishonored upon presentment for payment. The act effectively declares the offense to be one of malum prohibitum. The only valid query then is whether the law has been breached, i.e., by the mere act of issuing a bad check, without so much regard as to the criminal intent of the issuer.28 Thus, whether or not the interest rate imposed by petitioners is eventually declared void for being contra bonos mores will not affect the outcome of the B.P. Blg. 22 cases because what will ultimately be penalized is the mere issuance of bouncing checks. In fact, the primordial question posed before the court hearing the B.P. Blg. 22 cases is whether the law has been breached, that is, if a bouncing check has been issued. The issue has in fact been correctly addressed by the MTCCs when respondents motion to suspend the crimi nal proceedings was denied upon the finding that there exists no prejudicial question which could be the basis for the suspension of the proceedings. The reason for the denial of the motion is that the "cases can very well proceed for the prosecution of the accused in order to determine her criminal propensity as a consequence of the issuance of several checks which subsequently bounced" for "what the law punishes is the issuance and/or drawing of a check and upon presentment for deposit or encashment, it was dishonored due to insufficient funds [or] account closed." 29 There being no prejudicial question, the RTC and, consequently, the Court of Appeals gravely erred when they allowed the suspension of the proceedings in the B.P. Blg. 22 cases. Now, on to other matters. We find that respondents are guilty of forum shopping. There is forum shopping when a party seeks to obtain remedies in an action in one court, which had already been solicited, and in other courts and other proceedings in other tribunals. Forum shopping is the act of one party against another, when an adverse judgment has been rendered in one forum, of seeking another and possibly favorable opinion in another forum other than by appeal or by special civil action of certiorari; or the institution of two or more acts or proceedings grounded on the same cause on the supposition that one or the other court would make a favorable disposition.30 Respondents filed their motions to suspend proceedings in the MTCCs hearing the B.P. Blg. 22 cases but unfortunately, the same were denied. Failing to get the relief they wanted, respondents sought before the RTC, the suspension of the criminal proceedings which was granted. Respondents tried to extricate themselves from the charge of forum shopping by explaining that after the denial of their motions to suspend, their only remedy was the application for preliminary injunction in the civil casea relief which they had already asked for in their complaint and which was also initially not granted to them. Any which way the situation is viewed, respondents acts constituted forum shopping since they sought a possibly favorable opinion from one court after another had issued an order unfavorable to them. The Court notes that three cases, namely, Ras v. Rasul,31 Medel v. CA32 and Danao v. Court of Appeals33finding no application to the instant case were mentioned by the RTC, the Court of Appeals and by respondents themselves in support of their position. Ras v. Rasul cropped up in the order of the RTC which was quoted with approval by the Court of Appeals. According to the RTC, the ruling in the said case allegedly "can be squarely applied in this case which nullified and set aside the conviction in a criminal case because of a prejudicial question."34 We do not agree. The Ras case involves a petition for nullification of a deed of sale on the ground of forgery. While the civil case was pending, an information for estafa was filed against the respondent in the civil case. The Court ruled that there were prejudicial questions considering that the defense against the charge of forgery in the civil case is based on the very same facts which would be determinative of the guilt or innocence of the respondent in the estafa case. The instant case is different from Ras inasmuch as the determination of whether the 5% daily interest is contra bonos mores and therefore void, or that the total amount loaned from petitioners has been sufficiently paid, will not affect the guilt or innocence of Purita because the material question in the B.P. Blg. 22 cases is whether Purita had issued a bad check, regardless of the purpose or condition of its issuance. Medel v. CA is the case upon which respondents anchor their claim that the interest due on their loans is only 1% per month and thus they have already overpaid their obligation to petitioners. In Medel, the Court declared that the rate of 5.5% interest per month on a P500,000.00 loan is iniquitous, unconscionable and hence contrary to morals, and must equitably be reduced to 12% per annum. While the Medel case made a finding that the stipulated interest rate is excessive and thus may be equitably reduced by the courts, we do not see how a reduction of the interest rate, should there be any, or a subsequent declaration that the amount due has been fully paid, will have an effect on the determination of whether or not Purita had in fact issued bouncing checks.
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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 let ter,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 ANDSET 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.

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