SECOND DIVISION

CRISOSTOMO M. PLOPINIO,
Complainant,

A.M. No. P-08-2458

(Formerly OCA IPI No. 08-2755-P)

Present:
CARPIO, J.,
Chairperson,
BRION,
DEL CASTILLO,
ABAD, and
PEREZ, JJ.

- versus -

ATTY. LIZA ZABALA-CARIO,

Clerk of Court, Regional
29, Libmanan,Camarines Sur,
Respondent.

Trial

Court,

Branch
Promulgated:

March 22, 2010

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

DECISION

PEREZ, J.:
[1]

The instant administrative case stemmed from a Letter dated 20 January 2007 of Crisostomo M. Plopinio (complainant), informing the Court that he
had charged Atty. Liza D.Zabala-Cario (respondent Atty. Cario), Clerk of Court, Regional Trial Court (RTC), Branch 29, Libmanan, Camarines Sur,
criminally and administratively before the Office of the Ombudsman, for violation of Section 4(c), Republic Act No. 6713 and Section 3(e), Republic Act
No. 3019 on 10 February 2006 and 22 March 2006. These were docketed as OMB-L-A-06-0072-A and OMB-L-C-06-0110-A, and OMB-L-C-02-98-C and
OMB-L-A-06-0212-C, respectively.
Complainant stated that respondent Atty. Cario may not have disclosed to the Supreme Court, in the course of her application as Clerk of Court, her
pending administrative and criminal cases before the Ombudsman.
In an Indorsement

[2]

dated 8 May 2007, the Office of the Court Administrator (OCA) directed respondent Atty. Cario to give her comment on the letter.

[3]

In her Comment dated 24 May 2007, respondent Atty. Cario vehemently denied the allegations against her. She claimed that she was just being
truthful when she answered No to item number 37(a) of her Personal Data Sheet (PDS) which states: Have you ever been formally charged? She
admitted that she was aware of the two (2) complaints filed against her and her former Regional Election Director before the Ombudsman. She,
however, pointed out that these cases are still in the preliminary investigation and pre-charge stages, since probable cause has yet to be determined by
the investigating officers and as such, should not be considered as formal charges yet.
[4]

Acting on the recommendation of the OCA, the Court issued a resolution re-docketing the complaint as a regular administrative matter against
respondent Atty. Cario and referred the matter to the Executive Judge of RTC, Libmanan, Camarines Sur, for investigation, report and recommendation
within sixty (60) days from receipt of the record.
[5]

On 4 February 2009, the Court issued a Resolution noting the undated letter of complainant stating that Judge-Designate Lore V. Bagalacsa is
respondent Atty. Cariosgodmother at her wedding and in one of complainants cases, SP Civil Action No. L-03-06, Judge Bagalacsa exhibited ill-feelings
against him when he questioned why she was still hearing his cases. The Court referred the matter to Executive Judge Jaime E.
Contreras, RTC, Naga City, for investigation, report and recommendation.
[6]

In his Report and Recommendation dated 29 June 2009, Investigating Judge Contreras stated that the complaint warrants disciplinary action against
respondent Atty. Cario. The Investigating Judge found respondent liable for her failure to properly understand the import of the question Have you ever
been formally charged? He contends that as a lawyer, respondent Atty. Cario should have known that such kind of query was intended to dig into her
personal background; whether administrative or criminal cases were filed against her regardless of whatever stages these may be.
Finding no deliberate intent on the part of respondent Atty. Cario to withhold information about her pending Ombudsman cases, the Investigating Judge
recommended that she be admonished to be more circumspect and prudent in answering her PDS, with a stern warning that a repet ition of the same or
similar act shall be dealt with more severely. The Investigating Judge further recommended that the question in the PDS, which reads: Have you ever
been formally charged? be modified, in order to avoid any erroneous interpretation, to read as follows: Have you ever been charged criminally or
administrative (sic) in any forum? What is the stage now?
The OCA adopted the findings and conclusions of the Investigating Judge but recommended that respondent Atty. Cario be suspended for a period of
one (1) month without pay, with a stern warning that a repetition of the same offense or commission of a similar offense in the future, shall be dealt wi th
[7]
more severely. It concluded that it was not a simple case of misconstruction of the term formally charged that could justify the non-disclosure of the
Ombudsman cases filed against her. As a lawyer, she is expected to understand the essence of the question. Moreover, the OCA noted that respondent
Atty. Cario has been in the government service for a period of eighteen (18) years, hence, she is presumed to have gained familiarity wit h the questions
in the PDS.
We disagree with the findings and recommendation of the OCA.
Respondent Atty. Cario is charged with dishonesty for allegedly falsifying her PDS. Dishonesty is defined as intentionally making a false statement in
any material fact, or practicing or attempting to practice any deception or fraud in securing his examination, registration, appointment or promotion. It is

also understood to imply a disposition to lie, cheat, deceive, or defraud; untrustworthiness; lack of integrity; lack of honesty, probity or integrity in
[8]
principle; lack of fairness and straightforwardness; disposition to defraud, deceive or betray.
Thus, dishonesty, like bad faith, is not simply bad judgment or negligence. Dishonesty is a question of intention. In ascertaining the intention of a person
accused of dishonesty, consideration must be taken not only of the facts and circumstances which gave rise to the act committ ed by the petitioner, but
also of his state of mind at the time the offense was committed, the time he might have had at his disposal for the purpose of meditating on the
[9]
consequences of his act, and the degree of reasoning he could have had at that moment.
The intention to falsify or misrepresent, as found by the Investigating Judge, is absent on the part of respondent Atty. Cario when she answered the
question Have you ever been formally charged? When she filled-up her PDS, she had in mind the Uniform Rules on Administrative Cases in the Civil
Service, which states, among others:
Section 8. Complaint. A complaint against a civil service official or employee shall not be given due course unless it is in writing and
subscribed and sworn to by the complainant. However, in cases initiated by the proper disciplining authority, the complaint need not
be under oath.
xxxx
The complaint should be written in a clear, simple and concise language and in a systematic manner as to apprise the civil servant
concerned of the nature and cause of the accusation against him and to enable him to intelligently prepare his defense or ans wer.
The complaint shall contain the following:
a.
b.
c.
d.
e.

full name and address of the complainant;

full name and address of the person complained of as well as his position and office of employment;
a narration of the relevant and material facts which shows the acts or omissions allegedly committed by the
civil servant;
certified true copies of documentary evidence and affidavits of his witnesses, if any; and
certification or statement of non-forum shopping.
In the absence of any one of the aforementioned requirements, the complaint shall be dismissed.

xxxx
Section 16. Formal Charge. After a finding of a prima facie case, the disciplining authority shall formally charge the person
complained of. The formal charge shall contain a specification of charge(s), a brief statement of material or relevant facts,
accompanied by certified true copies of the documentary evidence, if any, sworn statements covering the testimony of witnesses, a
directive to answer the charge(s) in writing under oath in not less than seventy-two (72) hours from receipt thereof, an advice for the
respondent to indicate in his answer whether or not he elects a formal investigation of the charge(s), and a notice that he is entitled
to be assisted by a counsel of his choice.
If the respondent has submitted his comment and counter-affidavits during the preliminary investigation, he shall be given the
opportunity to submit additional evidence.
The disciplining authority shall not entertain requests for clarification, bills of particulars or motions to dismiss which are obviously
designed to delay the administrative proceedings. If any of these pleadings are interposed by the respondent, the same shall be
considered as an answer and shall be evaluated as such.
xxxx
Section 34. Effect of the Pendency of an Administrative Case. Pendency of an administrative case shall not disqualify respondent
from promotion or from claiming maternity/paternity benefits.
For this purpose, a pending administrative case shall be construed as follows:
a.
b.

When the disciplining authority has issued a formal charge; or

In case of a complaint filed by a private person, a prima facie case is found to exist by the disciplining
authority.

Respondent Atty. Carios non-disclosure of her pending Ombudsman cases was by reason of her interpretation of what a formal charge mean t
as distinguished from a complaint. She banked on the distinction of these terms as defined under the Uniform Rules on Administrative Cases in the Civil
Service. She correctly argued that the termformal charge in the PDS must find its meaning in the Uniform Rules on Administrative Cases in the Civil
Service. For after all, both the Uniform Rules on Administrative Cases in the Civil Service and the CS Form 212 (Revised 2005), otherwise known as the
Personal Data Sheet, had been promulgated and revised by the Civil Service Commission itself.
It is not correct to say that this is a simple case of misconstruction of the term formally charge and that as a lawyer, respondent Atty. Cario is
expected to understand the essence of such question. For in reality, the question is subject to varied interpretations.
In criminal cases, the determination of whether a person is considered formally charged is found in Rule 112 of the Revised R ules of Criminal
Procedure, to wit:
Section 4. Resolution of investigating prosecutor and its review. If the investigating prosecutor finds cause to hold the
respondent for trial, he shall prepare the resolution and information. He shall certify under oath in the information that he, or as
shown by the record, an authorized officer, has personally examined the complainant and his witnesses; that there is reasonab le
ground to believe that a crime has been committed and that the accused is probably guilty thereof; that the accused was infor med of
the complaint and of the evidence submitted against him; and that he was given an opportunity to submit controverting evidence.
Otherwise, he shall recommend the dismissal of the complaint.

Within five (5) days from his resolution, he shall forward the record of the case to the provincial or city prosecutor or chief
state prosecutor, or to the Ombudsman or his deputy in cases of offenses cognizable by the Sandiganbayan in the exercise of its
original jurisdiction. They shall act on the resolution within ten (10) days from their receipt thereof and shall immediately inform the
parties of such action.
No complaint or information may be filed or dismissed by an investigating prosecutor without the prior written authority or
approval of the provincial or city prosecutor or chief state prosecutor or the Ombudsman or his deputy.
Where the investigating prosecutor recommends the dismissal of the complaint but his recommendation is disapproved by
the provincial or city prosecutor or chief state prosecutor or the Ombudsman or his deputy on the ground that a probable cause
exists, the latter may, by himself, file the information against the respondent, or direct another assistant prosecutor or st ate
prosecutor to do so without conducting another preliminary investigation.

If we but look at the attachments to the complaint itself, it is evident that at the time respondent Atty. Cario was applying for the position of Clerk of Court,
she had not yet been formally charged administratively or criminally.
[10]

In the Orders dated 10 February 2006 in OMB-L-A-06-0072-A and OMB-L-C-06-0110-A, the Deputy Ombudsman for Luzon directed respondent
Atty. Cario and her Regional Election Director, Atty. Zacarias C. Zaragosa, Jr., to submit their counter-affidavit/s, affidavit/s of their witnesses, if any, and
such other controverting evidence, with proof of service of copies upon the complainant within ten (10) days from receipt of the orders. The orders
further state that [T]hereafter, the case will be considered submitted for final disposition or taking of further action as may warranted x x x.
Clearly, there were no final dispositions of the cases yet. In fact, the complainant even stated in his Complaint
resolved by the Ombudsman.

[11]

that those cases were not yet

Thus, it is only after the issuance of the resolution finding probable cause and filing of the information in court that she can be considered
formally charged. In fact, the reckoning point is the filing of the information with the written authority or approval of the Ombudsman.
To rule otherwise would subject herein respondent, or any civil servant for that matter, to extreme hardships considering that a government official or
employee formally charged is deprived of some rights/privileges, i.e., obtaining loans from the Government Service Insurance System or other
[12]
government-lending institutions, delay in the release of retirement benefits, disqualification from being nominated or appointed to any judicial post and,
in some instances, prohibition to travel.
To summarize, a person shall be considered formally charged:
(1) In administrative proceedings (a) upon the filing of a complaint at the instance of the disciplining authority; or (b) upon the finding
of the existence of a prima facie case by the disciplining authority, in case of a complaint filed by a private person.
(2) In criminal proceedings (a) upon the finding of the existence of probable cause by the investigating prosecutor and the
consequent filing of an information in court with the required prior written authority or approval of the provincial or city
prosecutor or chief state prosecutor or the Ombudsman or his deputy; (b) upon the finding of the existence of probable
cause by the public prosecutor or by the judge in cases not requiring a preliminary investigation nor covered by the Rule
[13]
on Summary Procedure; or (c) upon the finding of cause or ground to hold the accused for trial pursuant to Section 13
[14]
of the Revised Rule on Summary Procedure.

WHEREFORE, in the light of foregoing, the instant administrative complaint against Atty. Liza D. Zabala-Cario, Clerk of Court, RTC, Branch
29, Libmanan, CamarinesSur is hereby DISMISSED for lack of merit.
The Office of the Court Administrator is DIRECTED to cause the dissemination of the guidelines set forth herein.
SO ORDERED.

JOSE PORTUGAL PEREZ

Associate Justice

WE CONCUR:

ANTONIO T. CARPIO
Associate Justice
Chairperson

ARTURO D. BRION MARIANO C. DEL CASTILLO

Associate Justice Associate Justice

ROBERTO A. ABAD
Associate Justice

[1]

Rollo, p. 3.
Id. at 25.
[3]
Id. at 26-27.
[4]
Id. at 28-29.
[5]
Id. at 33-34.
[6]
Id. at 100-104.
[7]
Id. at 128-133.
[8]
Wooden v. Civil Service Commission, G.R. No. 152884, 30 September 2005, 471 SCRA 512, 526.
[9]
Millena v. Court of Appeals, 381 Phil. 132, 142-143 (2000).
[10]
Rollo, pp. 1617.
[11]
Id. at 3.
[12]
Rule 4, Section 5, The Rules of the Judicial and Bar Council.
[13]
Rule 112, Section 8, The Revised Rules of Criminal Procedure.
[14]
The Revised Rule on Summary Procedure provides:
SEC. 13. Arraignment and trial. Should the court, upon a consideration of the complaint or information and the affidavits submitted by both
parties, find no cause or ground to hold the accused for trial, it shall order the dismissal of the case, otherwise, the cour t shall set the case for
arraignment and trial.
[2]

Republic of the Philippines

Supreme Court
Manila
FIRST DIVISION
METROPOLITAN BANK and

G.R. No. 164538

TRUST COMPANY,
Petitioner,
Present:

CORONA, C. J., Chairperson,

- versus -

LEONARDO-DE CASTRO,
*

BERSAMIN,

DEL CASTILLO, and

PEREZ, JJ.
ROGELIO REYNADO and
**

JOSE C. ADRANDEA,

Respondents.

Promulgated:
August 9, 2010
x-------------------------------------------------------------------x

DECISION

DEL CASTILLO, J.:

It is a hornbook doctrine in our criminal law that the criminal liability for estafa is not affected by a compromise, for it is a public offense which must be prosecuted
and punished by the government on its own motion, even though complete reparation [has] been made of the damage suffered by the private offended party. Since a
criminal offense like estafa is committed against the State, the private offended party may not waive or extinguish the criminal liability that the law imposes for the
[1]
commission of the crime.
[2]

This Petition for Review on Certiorari under Rule 45 of the Rules of Court seeks the reversal of the Court of Appeals (CAs) Decision dated October 21, 2002 in
[3]
[4]
CA-G.R. SP No. 58548 and its further Resolution dated July 12, 2004 denying petitioners Motion for Reconsideration.

Factual Antecedents
On January 31, 1997, petitioner Metropolitan Bank and Trust Company charged respondents before the Office of the City Prosecutor of Manila with the crime of estafa
[5]
under Article 315, paragraph 1(b) of the Revised Penal Code. In the affidavit of petitioners audit officer, Antonio Ivan S. Aguirre, it was alleged that the special audit
conducted on the cash and lending operations of its Port Area branch uncovered anomalous/fraudulent transactions perpetrated by respondents in connivance with client
Universal Converter Philippines, Inc. (Universal); that respondents were the only voting members of the branchs credit committee authorized to extend credit
accommodation to clients up to P200,000.00; that through the so-called Bills Purchase Transaction, Universal, which has a paid-up capital of only P125,000.00 and
[6]
actual maintaining balance of P5,000.00, was able to make withdrawals totaling P81,652,000.00 against uncleared regional checks deposited in its account at petitioners
Port Area branch; that, consequently, Universal was able to utilize petitioners funds even before the seven-day clearing period for regional checks expired; that Universals
withdrawals against uncleared regional check deposits were without prior approval of petitioners head office; that the uncleared checks were later dishonored by the drawee
bank for the reason Account Closed; and, that respondents acted with fraud, deceit, and abuse of confidence.
In their defense, respondents denied responsibility in the anomalous transactions with Universal and claimed that they only intended to help the Port Area branch solicit and
increase its deposit accounts and daily transactions.
[7]
Meanwhile, on February 26, 1997, petitioner and Universal entered into a Debt Settlement Agreement whereby the latter acknowledged its indebtedness to the former in
[8]
the total amount ofP50,990,976.27 as of February 4, 1997 and undertook to pay the same in bi-monthly amortizations in the sum of P300,000.00 starting January 15,
[9]
1997, covered by postdated checks, plus balloon payment of the remaining principal balance and interest and other charges, if any, on December 31, 2001.
Findings of the Prosecutor
[10]

Following the requisite preliminary investigation, Assistant City Prosecutor Winnie M. Edad (Prosecutor Edad) in her Resolution
evidence insufficient to hold respondents liable for estafa. According to Prosecutor Edad:

dated July 10, 1997 found petitioners

The execution of the Debt Settlement Agreement puts complainant bank in estoppel to argue that the liability is criminal. Since the agreement was
made even before the filing of this case, the relations between the parties [have] change[d], novation has set in and prevented the incipience of any
[11]
criminal liability on the part of respondents.

Thus, Prosecutor Edad recommended the dismissal of the case:

[12]

WHEREFORE, for insufficiency of evidence, it is respectfully recommended that the case be dismissed.

[13]

On December 9, 1997, petitioner appealed the Resolution of Prosecutor Edad to the Department of Justice (DOJ) by means of a Petition for Review.
Ruling of the Department of Justice
On June 22, 1998, the DOJ dismissed the petition ratiocinating that:

It is evident that your client based on the same transaction chose to file estafa only against its employees and treat with kid gloves its big time client
Universal who was the one who benefited from this transaction and instead, agreed that it should be paid on installment basis.
To allow your client to make the choice is to make an unwarranted classification under the law which will result in grave injustice against herein
respondents. Thus, if your client agreed that no estafa was committed in this transaction with Universal who was the principal player and beneficiary
of this transaction[,] more so with herein respondents whose liabilities are based only on conspiracy with Universal.
Equivocally, there is no estafa in the instant case as it was not clearly shown how respondents misappropriated the P53,873,500.00 which Universal
owed your client after its checks deposited with Metrobank were dishonored. Moreover, fraud is not present considering that the Executive
Committee and the Credit Committee of Metrobank were duly notified of these transactions which they approved. Further, no damage was caused
[14]
to your client as it agreed [to] the settlement [with] Universal.
[15]

A Motion for Reconsideration

[16]

was filed by petitioner, but the same was denied on March 1, 2000 by then Acting Secretary of Justice Artemio G. Tuquero.
[17]

Aggrieved, petitioner went to the CA by filing a Petition for Certiorari & Mandamus.
Ruling of the Court of Appeals
[18]

[19]

By Decision of October 21, 2002, the CA affirmed the twin resolutions of the Secretary of Justice. Citing jurisprudence wherein we ruled that while novation does not
[20]
extinguish criminal liability, it may prevent the rise of such liability as long as it occurs prior to the filing of the criminal information in court. Hence, according to the CA, [j]ust
as Universal cannot be held responsible under the bills purchase transactions on account of novation, private respondents, who acted in complicity with the former, cannot
[21]
be made liable [for] the same transactions. The CA added that [s]ince the dismissal of the complaint is founded on legal ground, public respondents may not be
[22]
compelled by mandamus to file an information in court.
[23]

Incidentally, the CA totally ignored the Comment of the Office of the Solicitor General (OSG) where the latter, despite being the statutory counsel of public respondent
DOJ, agreed with petitioner that the DOJ erred in dismissing the complaint. It alleged that where novation does not extinguish criminal liability for estafa neither does
[24]
restitution negate the offense already committed.
Additionally, the OSG, in sharing the views of petitioner contended that failure to implead other responsible individuals in the complaint does not warrant its dismissal,
[25]
suggesting that the proper remedy is to cause their inclusion in the information. This notwithstanding, however, the CA disposed of the petition as follows:
WHEREFORE, the petition is DENIED due course and, accordingly, DISMISSED. Consequently, the resolutions dated June 22, 1998 and March 1,
2000 of the Secretary of Justice are AFFIRMED.
[26]

SO ORDERED.

Hence, this instant petition before the Court.

[27]

On November 8, 2004, we required respondents to file Comment, not a motion to dismiss, on the petition within 10 days from notice. The OSG filed a Manifestation and
[28]
[29]
Motion in Lieu of Comment while respondent Jose C. Adraneda (Adraneda) submitted his Comment on the petition. The Secretary of Justice failed to file the required
comment on the OSGs Manifestation and Motion in Lieu of Comment and respondent Rogelio Reynado (Reynado) did not submit any. For which reason, we issued a
[30]
show cause order on July 19, 2006. Their persistent non-compliance with our directives constrained us to resolve that they had waived the filing of comment and to
impose a fine of P1,000.00 on Reynado. Upon submission of the required memorandum by petitioner and Adraneda, the instant petition was submitted for resolution.
Issues
Petitioner presented the following main arguments for our consideration:
1.

Novation and undertaking to pay the amount embezzled do not extinguish criminal liability.

2.

It is the duty of the public prosecutor to implead all persons who appear criminally liable for the offense charged.

Petitioner persistently insists that the execution of the Debt Settlement Agreement with Universal did not absolve private respondents from criminal liability for
estafa. Petitioner submits that the settlement affects only the civil obligation of Universal but did not extinguish the criminal liability of the respondents. Petitioner thus faults
the CA in sustaining the DOJ which in turn affirmed the finding of Prosecutor Edad for committing apparent error in the appreciation and the application of the law on
[31]
novation. By petitioners claim, citing Metropolitan Bank and Trust Co. v. Tonda, the negotiations pertain [to] and affect only the civil aspect of the case but [do] not
[32]
preclude prosecution for the offense already committed.
In his Comment, Adraneda denies being a privy to the anomalous transactions and passes on the sole responsibility to his co-respondent Reynado as the
latter was able to conceal the pertinent documents being the head of petitioners Port Area branch. Nonetheless, he contends that because of the Debt Settlement
Agreement, they cannot be held liable for estafa.
The OSG, for its part, instead of contesting the arguments of petitioner, even prayed before the CA to give due course to the petition contending that DOJ
indeed erred in dismissing the complaint for estafa.
Given the facts of the case, the basic issue presented before this Court is whether the execution of the Debt Settlement Agreement precluded petitioner from holding
[33]
respondents liable to stand trial for estafa under Art. 315 (1)(b) of the Revised Penal Code.
Our Ruling
We find the petition highly meritorious.
Novation not a mode of extinguishing
criminal liability for estafa; Criminal liability for estafa not affected by compromise or novation of
contract.
[34]

Initially, it is best to emphasize that novation is not one of the grounds prescribed by the Revised Penal Code for the extinguishment of criminal liability.
[35]

[36]

In a catena of cases, it was ruled that criminal liability for estafa is not affected by a compromise or novation of contract. In Firaza v. People and Recuerdo v. People, this
Court ruled that in a crime of estafa, reimbursement or belated payment to the offended party of the money swindled by the accused does not extinguish the criminal liability
[37]
[38]
of the latter. We also held inPeople v. Moreno and in People v. Ladera that criminal liability for estafa is not affected by compromise or novation of contract, for it is a
public offense which must be prosecuted and punished by the Government on its own motion even though complete reparation should have been made of the damage
[39]
suffered by the offended party. Similarly in the case ofMetropolitan Bank and Trust Company v. Tonda cited by petitioner, we held that in a crime of estafa, reimbursement
of or compromise as to the amount misappropriated, after the commission of the crime, affects only the civil liability of the offender, and not his criminal liability.
Thus, the doctrine that evolved from the aforecited cases is that a compromise or settlement entered into after the commission of the crime does not extinguish accuseds
liability for estafa.Neither will the same bar the prosecution of said crime. Accordingly, in such a situation, as in this case, the complaint for estafa against respondents should
not be dismissed just because petitioner entered into a Debt Settlement Agreement with Universal. Even the OSG arrived at the same conclusion:
Contrary to the conclusion of public respondent, the Debt Settlement Agreement entered into between petitioner and Universal Converter
Philippines extinguishes merely the civil aspect of the latters liability as a corporate entity but not the criminal liability of the persons who actually
[40]
committed the crime of estafa against petitioner Metrobank. x x x
Unfortunately for petitioner, the above observation of the OSG was wittingly glossed over in the body of the assailed Decision of the CA.
Execution of the Debt Settlement Agreement did not prevent the incipience of criminal liability.

Even if the instant case is viewed from the standpoint of the law on contracts, the disposition absolving the respondents from criminal liability because of
novation is still erroneous.
Under Article 1311 of the Civil Code, contracts take effect only between the parties, their assigns and heirs, except in case where the rights and obligations
arising from the contract are not transmissible by their nature, or by stipulation or by provision of law. The civil law principle of relativity of contracts provides that contracts
[41]
can only bind the parties who entered into it, and it cannot favor or prejudice a third person, even if he is aware of such contract and has acted with knowledge thereof.
In the case at bar, it is beyond cavil that respondents are not parties to the agreement. The intention of the parties thereto not to include them is evident either in
the onerous or in the beneficent provisions of said agreement. They are not assigns or heirs of either of the parties. Not being parties to the agreement, respondents cannot
take refuge therefrom to bar their anticipated trial for the crime they committed. It may do well for respondents to remember that the criminal action commenced by petitioner
had its genesis from the alleged fraud, unfaithfulness, and abuse of confidence perpetrated by them in relation to their positions as responsible bank officers. It did not arise
from a contractual dispute or matters strictly between petitioner and Universal. This being so, respondents cannot rely on subject settlement agreement to preclude
prosecution of the offense already committed to the end of extinguishing their criminal liability or prevent the incipience of any liability that may arise from the criminal
offense. This only demonstrates that the execution of the agreement between petitioner and Universal has no bearing on the innocence or guilt of the respondents.

Determination of the probable cause, a function belonging to the public prosecutor; judicial review
allowed where it has been clearly established that the prosecutor committed grave abuse of discretion.

In a preliminary investigation, a public prosecutor determines whether a crime has been committed and whether there is probable cause that the accused is
[42]
guilty thereof. The Secretary of Justice, however, may review or modify the resolution of the prosecutor.
Probable cause is defined as such facts and circumstances that will engender a well-founded belief that a crime has been committed and that the respondent is probably
[43]
guilty thereof and should be held for trial. Generally, a public prosecutor is afforded a wide latitude of discretion in the conduct of a preliminary investigation. By way of
exception, however, judicial review is allowed where respondent has clearly established that the prosecutor committed grave abuse of discretion that is, when he has
exercised his discretion in an arbitrary, capricious, whimsical or despotic manner by reason of passion or personal hostility, patent and gross enough as to amount to an
[44]
evasion of a positive duty or virtual refusal to perform a duty enjoined by law. Tested against these guidelines, we find that this case falls under the exception rather than
the general rule.
A close scrutiny of the substance of Prosecutor Edads Resolution dated July 10, 1997 readily reveals that were it not for the Debt Settlement Agreement, there was indeed
probable cause to indict respondents for the crime charged. From her own assessment of the Complaint-Affidavit of petitioners auditor, her preliminary finding is that
[45]
Ordinarily, the offense of estafa has been sufficiently established. Interestingly, she suddenly changed tack and declared that the agreement altered the relation of the
parties and that novation had set in preventing the incipience of any criminal liability on respondents. In light of the jurisprudence herein earlier discussed, the prosecutor
should not have gone that far and executed an apparent somersault. Compounding further the error, the DOJ in dismissing petitioners petition, ruled out estafa contrary to
the findings of the prosecutor. Pertinent portion of the ruling reads:
Equivocally, there is no estafa in the instant case as it was not clearly shown how respondents misappropriated the P53,873,500.00 which Universal
owed your client after its checks deposited with Metrobank were dishonored. Moreover, fraud is not present considering that the Executive
Committee and the Credit Committee of Metrobank were duly notified of these transactions which they approved. Further, no damage was caused
[46]
to your client as it agreed [to] the settlement [with] Universal.

The findings of the Secretary of Justice in sustaining the dismissal of the Complaint are matters of defense best left to the trial courts deliberation and
contemplation after conducting the trial of the criminal case. To emphasize, a preliminary investigation for the purpose of determining the existence of probable cause is not
a part of the trial. A full and exhaustive presentation of the parties evidence is not required, but only such as may engender a well-grounded belief that an offense has been
[47]
committed and that the accused is probably guilty thereof. A finding of probable cause does not require an inquiry into whether there is sufficient evidence to procure a
[48]
[49]
conviction. It is enough that it is believed that the act or omission complained of constitutes the offense charged. So we held in Balangauan v. Court of Appeals:
Applying the foregoing disquisition to the present petition, the reasons of DOJ for affirming the dismissal of the criminal complaints for estafa and/or
qualified estafa are determinative of whether or not it committed grave abuse of discretion amounting to lack or excess of jurisdiction. In
requiring hard facts and solid evidence as the basis for a finding of probable cause to hold petitioners Bernyl and Katherene liable to stand trial for the
crime complained of, the DOJ disregards the definition of probable cause that it is a reasonable ground of presumption that a matter is, or may be,
well-founded, such a state of facts in the mind of the prosecutor as would lead a person of ordinary caution and prudence to believe, or entertain an
honest or strong suspicion, that a thing is so. The term does not mean actual and positive cause nor does it import absolute certainty. It is merely
based on opinion and reasonable belief; that is, the belief that the act or omission complained of constitutes the offense charged. While probable
cause demands more than bare suspicion, it requires less than evidence which would justify conviction. Herein, the DOJ reasoned as if no evidence
was actually presented by respondent HSBC when in fact the records of the case were teeming; or it discounted the value of such substantiation
when in fact the evidence presented was adequate to excite in a reasonable mind the probability that petitioners Bernyl and Katherene committed
the crime/s complained of. In so doing, the DOJ whimsically and capriciously exercised its discretion, amounting to grave abuse of discretion, which
rendered its resolutions amenable to correction and annulment by the extraordinary remedy of certiorari.

In the case at bar, as analyzed by the prosecutor, a prima facie case of estafa exists against respondents. As perused by her, the facts as presented in the
Complaint-Affidavit of the auditor are reasonable enough to excite her belief that respondents are guilty of the crime complained of. In Andres v. Justice Secretary
[50]
Cuevas we had occasion to rule that the presence or absence of the elements of the crime is evidentiary in nature and is a matter of defense that may be passed
[51]
upon after a full-blown trial on the merits.
Thus confronted with the issue on whether the public prosecutor and the Secretary of Justice committed grave abuse of discretion in disposing of the case
of petitioner, given the sufficiency of evidence on hand, we do not hesitate to rule in the affirmative. We have previously ruled that grave abuse of discretion may arise
when a lower court or tribunal violates and contravenes the Constitution, the law or existing jurisprudence.
Non-inclusion of officers of Universal not a ground for the dismissal of the complaint.

The DOJ in resolving to deny petitioners appeal from the resolution of the prosecutor gave another ground failure to implead the officers of Universal. It
explained:
To allow your client to make the choice is to make an unwarranted classification under the law which will result in grave injustice against
herein respondents. Thus, if your client agreed that no estafa was committed in this transaction with Universal who was the principal player and
[52]
beneficiary of this transaction[,] more so with herein respondents whose liabilities are based only on conspiracy with Universal.

The ratiocination of the Secretary of Justice conveys the idea that if the charge against respondents rests upon the same evidence used to charge co-accused
(officers of Universal) based on the latters conspiratorial participation, the non-inclusion of said co-accused in the charge should benefit the respondents.

The reasoning of the DOJ is flawed.

Suffice it to say that it is indubitably within the discretion of the prosecutor to determine who must be charged with what crime or for what offense. Public prosecutors, not the
private complainant, are the ones obliged to bring forth before the law those who have transgressed it.
[53]

Section 2, Rule 110 of the Rules of Court mandates that all criminal actions must be commenced either by complaint or information in the name of the People of
the Philippines against all persons who appear to be responsible therefor. Thus the law makes it a legal duty for prosecuting officers to file the charges against whomsoever

the evidence may show to be responsible for the offense. The proper remedy under the circumstances where persons who ought to be charged were not included in the
complaint of the private complainant is definitely not to dismiss the complaint but to include them in the information. As the OSG correctly suggested, the proper remedy
should have been the inclusion of certain employees of Universal who were found to have been in cahoots with respondents in defrauding petitioner. The DOJ, therefore,
cannot seriously argue that because the officers of Universal were not indicted, respondents themselves should not likewise be charged. Their non-inclusion cannot be
perversely used to justify desistance by the public prosecutor from prosecution of the criminal case just because not all of those who are probably guilty thereof were
charged.
Mandamus a proper remedy when resolution of public respondent is tainted with grave abuse of
discretion.

Mandamus is a remedial measure for parties aggrieved. It shall issue when any tribunal, corporation, board, officer or person unlawfully neglects the performance of an act
[54]
which the law specifically enjoins as a duty resulting from an office, trust or station. The writ of mandamus is not available to control discretion neither may it be issued to
compel the exercise of discretion. Truly, it is a matter of discretion on the part of the prosecutor to determine which persons appear responsible for the commission of a
crime. However, the moment he finds one to be so liable it becomes his inescapable duty to charge him therewith and to prosecute him for the same. In such a situation,
the rule loses its discretionary character and becomes mandatory.Thus, where, as in this case, despite the sufficiency of the evidence before the prosecutor, he refuses to
file the corresponding information against the person responsible, he abuses his discretion. His act is tantamount to a deliberate refusal to perform a duty enjoined by
law. The Secretary of Justice, on the other hand, gravely abused his discretion when, despite the existence of sufficient evidence for the crime of estafa as acknowledged
by the investigating prosecutor, he completely ignored the latters finding and proceeded with the questioned resolution anchored on purely evidentiary matters in utter
disregard of the concept of probable cause as pointed out in Balangauan. To be sure, findings of the Secretary of Justice are not subject to review unless shown to have
[55]
been made with grave abuse. The present case calls for the application of the exception. Given the facts of this case, petitioner has clearly established that the public
prosecutor and the Secretary of Justice committed grave abuse of discretion.
WHEREFORE, the petition is GRANTED. The assailed Decision of the Court of Appeals in CA-G.R. SP No. 58548 promulgated on October 21, 2002 affirming the
Resolutions dated June 22, 1998 and March 1, 2000 of the Secretary of Justice, and its Resolution dated July 12, 2004 denying reconsideration thereon are
hereby REVERSED and SET ASIDE. The public prosecutor is ordered to file the necessary information for estafa against the respondents.

SO ORDERED.

MARIANO C. DEL CASTILLO

Associate Justice

WE CONCUR:

RENATO C. CORONA
Chief Justice
Chairperson

TERESITA J. LEONARDO-DE CASTRO

Associate Justice

LUCAS P. BERSAMIN
Associate Justice

JOSE PORTUGAL PEREZ

Associate Justice

CERT IF IC AT I ON

Pursuant to Section 13, Article VIII of the Constitution, it is hereby certified that the conclusions in the above Decision had been reached in consultation before the case was
assigned to the writer of the opinion of the Courts Division.

RENATO C. CORONA
Chief Justice

In lieu of Associate Justice Presbitero J. Velasco, Jr., per Special Order No. 876 dated August 2, 2010.
Sometimes referred to as Jose C. Andraneda and Jose C. Adraneda in other parts of the records.
Tamayo v. People, G.R No. 174698, July 28, 2008, 560 SCRA 312, 323-324.
[2]
CA rollo, pp. 195-202; penned by Associate Justice Edgardo P. Cruz and concurred in by Assoc iate Justices Oswaldo D. Agcaoili and Amelita G.
Tolentino.
[3]
Id. at 249-251; penned by Associate Justice Edgardo P. Cruz and concurred in by Associate Justices Martin S. Villarama, Jr. (now a Member of this
Court) and Amelita G. Tolentino.
**

[1]

[4]

Id. at 205-215.
Id. at 33-47.
[6]
Id. at 43.
[7]
Id. at 65-69.
[8]
Id. at 65.
[9]
Id. at 69.
[10]
Id. at 48-50.
[11]
Id. at 49.
[12]
Id. at 50.
[13]
Id. at 51-64.
[14]
Id. at 72.
[15]
Id. at 73-85.
[16]
Id. at 86.
[17]
Id. at 2-32.
[18]
Id. at 195-202.
[19]
Diongzon v. Court of Appeals, 378 Phil. 1090 (1999).
[20]
Id. at 1097.
[21]
Ca rollo, p. 201.
[22]
Id.
[23]
Id. at 139-147.
[24]
Id. at 142-143.
[25]
Id. at 144.
[26]
Id. at 202.
[27]
Rollo, p. 197.
[28]
Id. at 219-235.
[29]
Id. at 208-217.
[30]
Id. at 240.
[31]
392 Phil. 797 (2000).
[32]
Id. at 811.
[33]
ART. 315. Swindling (estafa). Any person who shall defraud another by any of the means mentioned hereinbelow shall be punished by:
xxxx
1. With unfaithfulness or abuse of confidence, namely:
xxxx
(b) By misappropriating or converting, to the prejudice of another, money, goods or any other personal property received by the offender in
trust, or on commission, or for administration, or under any other obligation involving the duty to make delivery of, or to return the same,
even though such obligation be totally or partially guaranteed by a bond; or by denying having received such money, goods, or other
property;
xxxx
[34]
Ocampo-Paule v. Court of Appeals, 426 Phil. 463, 471 (2002); REVISED PENAL CODE, Art. 89. How criminal liability is totally extinguished. Criminal
liability is totally extinguished: 1) By the death of the convict, as to the personal penalties; and as to pecuniary penalties, liability therefor is
extinguished only when the death of the offender occurs before final judgment; 2) By service of the sentence; 3) By amnesty, which completely
extinguishes the penalty and all its effects; 4) By absolute pardon; 5) By prescription of the crime; 6) By prescription of the penalty; and 7) By the
marriage of the offended woman, as provided in Article 344 of this Code.
[35]
G.R. No. 154721, March 22, 2007, 518 SCRA 681, 694.
[36]
G.R. No. 168217, June 27, 2006, 493 SCRA 517, 536.
[37]
373 Phil 336, 349 (1999).
[38]
398 Phil. 588; 602 (2000).
[39]
Supra note 31 at 811-812.
[40]
CA rollo, p. 219.
[41]
Integrated Packaging Corporation v. Court of Appeals, 388 Phil. 835, 845 (2000).
[42]
RULES OF COURT, Rule 112, Section 1.
[43]
Baviera v. Paglinawan, G.R. Nos. 168380 and 170602, February 8, 2007, 515 SCRA 170, 184.
[44]
Glaxosmithkline Philippines, Inc. v. Khalid Mehmood Malik, G.R. No. 166924, August 17, 2006, 499 SCRA 268, 273.
[45]
CA rollo, p. 49.
[46]
Id. at 72.
[47]
Ledesma v. Court of Appeals, 344 Phil. 207, 226 (1997).
[48]
Ang-Abaya v. Ang, G.R. No. 178511, December 4, 2008, 573 SCRA 129, 142.
[49]
G.R. No. 174350, August 13, 2008, 562 SCRA 184, 206-207.
[50]
499 Phil. 36 (2005).
[51]
Id. at 49-50.
[52]
CA rollo, p. 72.
[53]
SEC. 2. The complaint or information. The complaint or information shall be in writing, in the name of the People of the Philippines and against all
persons who appear to be responsible for the offense involved.
[54]
RULES OF COURT, Rule 65, Sec. 3.
[55]
Public Utilities Department v. Hon. Guingona, Jr., 417 Phil. 798, 805 (2001).
[5]

Republic of the Philippines

Supreme Court
Manila
SECOND DIVISION

PEOPLE OF THE PHILIPPINES,

G.R. No. 180109

Petitioner,
Present:
CARPIO, J.,
Chairperson,
NACHURA,
PERALTA,
ABAD, and
MENDOZA, JJ.

- versus -

JOSEPH JOJO V. GREY, FRANCIS B. GREY, and COURT OF

APPEALS-CEBU CITY, EIGHTEENTH DIVISION,
Respondents.

Promulgated:
July 26, 2010

x------------------------------------------------------------------------------------x
DECISION
NACHURA, J.:

Before this Court is a Petition for Review under Rule 45 of the Rules of Court filed by the People of the Philippines, through the Office of the
[1]
Solicitor General (OSG), seeking the nullification of the Court of Appeals (CA) (Cebu City-Eighteenth Division) Resolution dated March 13, 2007,
[2]
[3]
Decision dated May 8, 2007, and Resolution dated October 8, 2007, in CA-G.R. SP No. 02558, entitled Mayor Joseph Jojo V. Grey and Francis B.
Grey v. Hon. Roberto A. Navidad, Presiding Judge of the Regional Trial Court of Calbayog City, Branch 32, and the People of the Philippines.
On December 11, 2006, an Information for Murder was filed against respondent Joseph Grey, former Mayor of San Jorge, Samar; his son,
respondent Francis Grey; and two others for the death of Rolando Diocton, an employee of the San Jorge municipal government, before the R egional
Trial Court (RTC), Branch 41, Gandara, Samar. The Information was accompanied by other supporting documents and a motion for the issuance of a
[4]
warrant of arrest.
Respondents filed a petition for review with the Secretary of Justice. Meanwhile, RTC Branch 41 Presiding Judge R osario Bandal denied the
motion for the issuance of a warrant of arrest. Judge Bandal found the prosecutions evidence to be insufficient to link respondents to the crime charged.
She directed the prosecution to present, within five days, additional evidenc e that would show that accused were the assailants or that they conspired,
[5]
confederated, or helped in the commission of the crime charged.
The prosecution then filed an Omnibus Motion for Reconsideration and a motion for the inhibition of Judge Bandal.
[7]
herself but denied the motion for reconsideration.

[6]

The judge inhibited

Thereafter, the provincial prosecutor filed a petition for change of venue before this Court, attaching thereto a letter from the victims wife
[8]
expressing fear for her life and that of the other witnesses.
The Secretary of Justice, in a Resolution dated January 4, 2007, dismissed the petition for review and respondents counter ch arge of perjury.
He found no error to warrant the modification or reversal of the prosecutors resolution. The Secretary of Justice ruled that the evidence adduced against
respondents was sufficient to establish probable cause for the offense charged. Respondents motion for reconsideration was denied on January 30,
[9]
2007.
Subsequently, the prosecution withdrew their motion for change of venue before this Court, citing financial difficulties in bringing witnesses
[11]
Respondents opposed the motion and prayed that all proceedings be suspended until after the May 14, 2007 elections.

[10]

to Manila.

However, on February 19, 2007, respondents filed their own petition for change of venue before this Court, alleging that the presiding judge
[12]
who took over the case, Judge Roberto Navidad, was a pawn in the political persecution being staged against them. In its August 22, 2007
[13]
Resolution, this Court denied the petition for lack of merit and directed Judge Navidad to hear the case with dispatch.
Accordingly, Judge Navidad proceeded with the preliminary inquiry on the existence of probable cause, and, in an Order dated February 20,
2007, ruled that the finding of probable cause was supported by the evidence on record. He then issued warrants of arrest against respondents and all
[14]
but one of their co-accused.
[15]

Respondents filed a Petition for Certiorari and Prohibition before the CA, alleging that Judge Navidad gravely abused his discretion in
issuing the February 20, 2007 Order, and seeking a temporary restraining order (TRO) and/or a writ of preliminary injunction. T hey alleged that the filing
of the murder charges against them on the basis of perjured statements coming from their political opponents supporters smacks of political harassment
[16]
at its foulest form. Respondents pointed out that the criminal complaint was filed barely two months after Joseph Grey declared his intentions to
challenge incumbent Congressman Reynaldo S. Uy, a former ally, in the May 2007 congressional elections. Likewise, respondents claimed that one of
the witnesses, Urien Moloboco, who executed an affidavit before the Provincial Prosecutor, was the subject of an Alias Warran t of Arrest for murder
issued by the RTC of Gandara, Samar on June 26, 2006, and, hence, was a fugitive from the law at the time of the filing of the criminal complaint against
respondents. Respondents maintain that the fact that Moloboco was not arrested when he executed his affidavit before the pros ecutor, spoke of the
[17]
power and clout of the witness protectors.
[18]

The CA Eighteenth Division issued a TRO on March 13, 2007. After oral arguments, the CA issued a Decision
making the TRO permanent, ordering that warrants of arrest be set aside, and dismissing the criminal case without prejudice.

[19]

dated May 8, 2007,

The CA held that Judge Navidad failed to abide by the constitutional mandate for him to personally determine the existence of probable
[20]
cause. According to the CA, nowhere in the assailed Order did Judge Navidad state his personal assessment of the evidence before him and the
personal justification for his finding of probable cause. It found that the judge extensively quoted from the Joint Resolution of the Provincial Prosecutor
and the Resolution of the Secretary of Justice, and then adopted these to conclude that there was sufficient evidence to supp ort the finding of probable
cause. The CA held that the Constitution commands the judge to personally determine the existence of probable cause before issuing warrants of
[21]
arrest.

[22]

Moreover, the CA also ruled that the Information was not supported by the allegations in the submitted affidavits. It pointed out that the
Information charged respondents as principals by direct participation, but the complaint-affidavit and supporting affidavits uniformly alleged that
[23]
respondents were not at the scene of the shooting. The CA further found that the allegations in the complaint-affidavit and supporting affidavits were
insufficient to establish probable cause. It said that there was nothing in the affidavits to show acts that would support th e prosecutions theory that
[24]
respondents were also charged as principals by conspiracy.
Petitioners motion for reconsideration of the CAs May 8, 2007 Decision was denied in a Resolution dated October 8, 2007.
petition for review.

[25]

Hence, this

Petitioner argues that respondents committed forum shopping, which would warrant the outright dismissal of their petition below. Petitioner
alleges that respondents petition for change of venue before this Court and their petition for prohibition before the CA actu ally involve the same subject
[26]
matter, parties, and issues that of enjoining Judge Navidad from proceeding with the trial of the criminal case against them. Moreover, these two
[27]
proceedings have resulted in conflicting decisions, with this Court resolving to proceed with the case and with the CA enjoining the same.
Petitioner also argues against the CAs ruling that Judge Navidad failed to personally determine the existence of probable cause. It said that
although the judge adopted the findings of the prosecutors as to the sufficiency of evidence constituting probable cause, the language of the Order
clearly reflects that the judge himself personally examined the records and found that there was probable cause for the issuance of warrants of
[28]
[29]
arrest. Moreover, the judge was correct in finding probable cause based on the sworn statements of the witnesses submitted to the court. Petitioner
[30]
avers that the CA disregarded the fact that the Information alleged conspiracy. In any case, petitioner asserts that a perceived defect in the
[31]
Information is not jurisdictional as the same may be amended anytime before arraignment or with leave of court after arraignm ent.
Petitioner also claims that respondents had not shown any clear and unmistakable right to the relief they sought. It said that there are more
than enough plain, speedy, and adequate remedies available to respondents. Their constitutional rights are amply protected in the enforcement of the
[32]
warrants of arrest. They can likewise apply for bail or move to quash the allegedly defective Information.
Petitioner also argues that this Court has laid down the rule that criminal prosecution cannot be enjoined, and any exception to this rule must
[33]
be convincingly established. On the other hand, the comparative injury to the People in permanently enjoining a criminal case is beyond any of
respondents speculative claim of injury.
Thus, petitioner is praying that the CAs May 8, 2007 Decision and October 8, 2007 Resolution be reversed and set aside, and t he writ of
[34]
injunction be dissolved.
In their Comment, respondents assert that the trial court issued its February 20, 2007 Order in gross violation of the Constitution and
[35]
prevailing jurisprudence on the matter. Respondents claim that the trial courts violation is evident in the indecent haste with which it issued the Order
[36]
and Warrants of Arrest, and in its own admission in the Order itself. Respondents also maintain that the trial court acted whimsically, capriciously, and
[37]
with grave abuse of discretion when it concluded that there was probable cause to issue warrants of arres t against respondents. Respondents
[38]
likewise assert that the trial court committed grave abuse of discretion when it reversed the finding of Judge Bandal, who first heard the case.
The petition is impressed with merit.
Initially, we decide the issue of forum shopping raised by petitioner.
Petitioner maintains that respondents committed forum shopping when it filed a petition for change of venue before this Court and a petition for
prohibition before the CA.
Forum shopping is an act of a party, against whom an adverse judgment or order has been rendered in one forum, of seeking and possibly
getting a favorable opinion in another forum, other than by appeal or special civil action for certiorari. It may also involve the institution of two or more
[39]
actions or proceedings grounded on the same cause on the supposition that one or the other court would make a favorable disposition.
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. The elements of forum shopping are: (a) identity of parties, or at least such parties as would represent the same interest in both actions; (b)
identity of rights asserted and relief prayed for, the relief being founded on the same facts; and (c) identity of the two preceding particulars such that any
[40]
judgment rendered in the other action will, regardless of which party is successful, amount to res judicata in the action under consideration.
The elements of res judicita are: (a) the former judgment must be final; (b) the court which rendered judgment had jurisdiction over the parties
and the subject matter; (c) it must be a judgment on the merits; and (d) there must be, between the first and second actions, identity of parties, subject
[41]
matter, and cause of action.
A reexamination of the two actions in this case, in light of the foregoing jurisprudence, is in order.
In the petition for change of venue filed on February 19, 2007, respondents prayed for the transfer of the criminal case to an y court in Metro
[42]
Manila, alleging that the prosecution was politically motivated and designed to hamper the plan of respondent Joseph Grey to run for a congressional
[43]
seat in the May 2007 elections. They contended that it would be extremely pernicious to the interest of justice if trial of this case and (of) the other two
cases are held in Samar, especially in the City of Calbayog, where the said (Congressman) Reynaldo Uy is a resid ent and absolutely wields
[44]
power. They also asked the Court to hold the proceedings in abeyance until after the May 14, 2007 elections.
In its August 22, 2007 Resolution, the Court denied the petition for transfer of venue for lack of merit. It also directed Judge Navidad to hear the case
[45]
with dispatch.
On March 5, 2007, while their petition for change of venue was pending before this Court, respondents filed a petition for certiorari before the
CA. They prayed, first, for the issuance of a TRO and/or a writ of preliminary injunction to prohibit Judge Navidad from proc eeding with Criminal Case
No. 4916 and from causing the implementation of the warrants of arrest against respondents; and second, for the Court to set aside Judge Navidads
[46]
February 20, 2007 Order and the corresponding warrants he issued. The TRO was granted on March 13, 2007, and the CA Decision making the
same injunction permanent and setting aside the warrants of arrest was promulgated on May 8, 2007, a few days before the May 14, 2007 elections.
The CA correctly ruled that respondents were not guilty of forum shopping when they filed the two actions. Respondents raised different issues and
sought different reliefs in the two actions, although both were grounded on the same set of facts.

The issue in the petition for change of venue is whether the trial of the case was to be moved to another court in light of respondents
allegations that the same was being used as a tool for their political persecution. On the other hand, the issue in the petit ion for certiorari before the CA
was whether Judge Navidad gravely abused his discretion in issuing the February 20, 2007 Order and the warrants for respondents arrest.
Thus, this Courts Resolution would not have amounted to res judicata that would bar the petition for certiorari before the CA.
We now resolve the substantive issues.
Respondents, in their petition before the CA, questioned the alleged lack of personal determination of probable cause by Judg e Navidad in
issuing the warrants for their arrest.
Judge Navidads Order reads:
In this separate, independent constitutionally-mandated Inquiry conducted for the purpose of determining the sufficiency of the
evidence constituting probable cause to justify the issuance of a Warrant of Arrest, the Court perforce, made a very careful and
meticulous and (sic) review not only of the records but also the evidence adduced by the prosecution, particularly the sworn
[47]
statements/affidavits of Mario Abella, Uriendo Moloboco and Edgar Pellina.

The language of the Order clearly shows that the judge made his own personal determination of the existence of probable cause by examining not only
the prosecutors report but also his supporting evidence, consisting mainly of the sworn statements of the prosecutions witnesses.
It is well to remember that there is a distinction between the preliminary inquiry which determines probable cause for the is suance of a warrant
of arrest and the preliminaryinvestigation proper which ascertains whether the offender should be held for trial or be released. The determination of
probable cause for purposes of issuing the warrant of arrest is made by the judge. The preliminary investigation proper whether or not there is
[48]
reasonable ground to believe that the accused is guilty of the offense charged is the function of the investigating prosecutor.
The duty of the judge to determine probable cause to issue a warrant of arrest is mandated by Article III, Section 2 of the Philippine
Constitution:
Section 2. The right of the people to be secure in their persons, houses, papers, and effects against unreasonable
searches and seizures of whatever nature and for any purpose shall be inviolable, and no search warrant or warrant of arrest shall
issue except upon probable cause to be determined personally by the judge after examination under oath or affirmation of the
complainant and the witnesses he may produce, and particularly describing the place to be searched and the persons or things to
be seized.
[49]

In Soliven v. Makasiar, the Court explained that this constitutional provision does not mandatorily require the judge to personally examine
the complainant and her witnesses. Instead, he may opt to personally evaluate the report and supporting documents submitted by the prosecutor or he
may disregard the prosecutors report and require the submission of supporting affidavits of witnesses. Thus, in Soliven, we said:
What the Constitution underscores is the exclusive and personal responsibility of the issuing judge to satisfy himself of the
existence of probable cause. In satisfying himself of the existence of probable cause for the issuance of a warrant of arrest, the
judge is not required to personally examine the complainant and his witnesses. Following established doctrine and procedure, he
shall: (1) personally evaluate the report and the supporting documents submitted by the fiscal regarding the existence of probable
cause and, on the basis thereof, issue a warrant of arrest; or (2) if on the basis thereof he finds no probable cause, he may
disregard the fiscals report and require the submission of supporting affidavits of witnesses to aid him in arriving at a conclusion as
to the existence of probable cause.
Sound policy dictates this procedure, otherwise judges would by unduly laden with the preliminary examination and
[50]
investigation of criminal complaints instead of concentrating on hearing and deciding cases filed before their courts.

What the law requires as personal determination on the part of a judge is that he should not rely solely on the report of the investigating
[51]
prosecutor. This means that the judge should consider not only the report of the investigating prosecutor but also the affidavit and the documentary
evidence of the parties, the counter-affidavit of the accused and his witnesses, as well as the transcript of stenographic notes taken during the
[52]
preliminary investigation, if any, submitted to the court by the investigating prosecutor upon the filing of the Information.
The Court has also ruled that the personal examination of the complainant and his witnesses is not mandatory and indispensabl e in the
determination of probable cause for the issuance of a warrant of arrest. The necessity arises only when there is an utter failure of the evidence to show
[53]
the existence of probable cause. Otherwise, the judge may rely on the report of the investigating prosecutor, provided that he likewise evaluates the
documentary evidence in support thereof.
Contrary to respondents claim, Judge Navidad did not gravely abuse his discretion in issuing the same.
A perusal of the assailed Order bears out this fact.
It was only through a review of the proceedings before the prosecutor that could have led Judge Navidad to determine that the accused were
given the widest latitude and ample opportunity to challenge the charge of Murder which resulted, among others, (in) a filing of a counter-charge of
[54]
Perjury. Likewise, his personal determination revealed no improper motive on the part of the prosecution and no circumst ance which would overwhelm
[55]
the presumption of regularity in the performance of official functions. Thus, he concluded that the previous Order, denying the motion for the issuance
[56]
of warrants of arrest, was not correct.
These statements sufficiently establish the fact that Judge Navidad complied with the constitutional mandate for personal determination of
probable cause before issuing the warrants of arrest.

The CA likewise overlooked a fundamental rule we follow in this jurisdiction. It is an established doctrine that injunction will not lie to enjoin a criminal
[57]
prosecution because public interest requires that criminal acts be immediately investigated and prosecuted for the protection of society.
However, it is also true that various decisions of this Court have laid down exceptions to this rule, among which are:
a. To afford adequate protection to the constitutional rights of the accused (Hernandez v. Albano, et al., L-19272, January
25, 1967, 19 SCRA 95);
b. When necessary for the orderly administration of justice or to avoid oppression or multiplicity of actions (Dimayuga, et
al. v. Fernandez, 43 Phil. 304; Hernandez v. Albano, supra;Fortun v. Labang, et al., L-38383, May 27, 1981, 104 SCRA 607);
c. When there is a pre-judicial question which is sub[-]judice (De Leon v. Mabanag, 70 Phil. 202);
d. When the acts of the officer are without or in excess of authority (Planas v. Gil, 67 Phil. 62);
e. Where the prosecution is under an invalid law, ordinance or regulation (Young v. Rafferty, 33 Phil. 556; Yu Cong Eng v.
Trinidad, 47 Phil. 385, 389);
f. When double jeopardy is clearly apparent (Sangalang v. People and Avendia, 109 Phil. 1140);
g. Where the court has no jurisdiction over the offense (Lopez v. City Judge, L-25795, October 29, 1966, 18 SCRA 616);

h. Where there is a case of persecution rather than prosecution (Rustia v. Ocampo, CA-G.R. No. 4760, March 25, 1960);
i. Where the charges are manifestly false and motivated by the lust for vengeance (Recto v. Castelo, 18 L.J. [1953], cited
in Raoa v. Alvendia, CA-G.R. No. 30720-R, October 8, 1962;Cf. Guingona, et al. v. City Fiscal, L-60033, April 4, 1984, 128 SCRA
577); x x x
j. When there is clearly no prima facie case against the accused and a motion to quash on that ground has been denied
(Salonga v. Pao, et al., L-59524, February 18, 1985, 134 SCRA 438)[; and]
[k.] Preliminary injunction has been issued by the Supreme Court to prevent the threatened unlawful arrest of petitioners
[58]
(Rodriguez v. Castelo, L-6374, August 1, 1953).

Respondents insisted that political persecution by their political rivals was the underlying reason for the filing of criminal charges against them, and used
this as basis for asking the appellate court to stop the proceedings in the trial court.
Indeed, this Court has recognized that, in certain instances, political persecution or political motives may have impelled the filing of criminal charges
against certain political rivals. But this Court has also ruled that any allegation that the filing of the charges is politic ally motivated cannot justify the
[59]
prohibition of a criminal prosecution if there is otherwise evidence to support the charges.
In this case, the judge, upon his personal examination of the complaint and evidence before him, determined that there was pr obable cause to
issue the warrants of arrest after the provincial prosecution, based on the affidavits presented by complainant and her witnesses, found probable cause
to file the criminal Information. This finding of the Provincial Prosecutor was affirmed by the Secretary of Justice.
To establish political harassment, respondents must prove that the public prosecutor, not just the private complainant, acted in bad faith in
[60]
prosecuting the case or has lent himself to a scheme that could have no other purpose than to place respondents in contempt and disrepute. It must
[61]
be shown that the complainant possesses the power and the influence to control the prosecution of cases.
Likewise, the allegation that the filing of the complaint was politically motivated does not serve to justify the nullification of the informations
[62]
where the existence of such motive has not been sufficiently established nor substantial evidence presented in supp ort thereof.
Other than their own self-serving claims, respondents have adduced absolutely no proof of the perceived political persecution being waged by their
rivals. Respondents have not shown any evidence of such a grand design. They have not alleged, much less proved, any ill moti ve or malice that could
have impelled the provincial prosecutor, the judge, and even the Secretary of Justice to have res pectively ruled in the way each of them did. In short,
respondents are holding tenuously only on the hope that this Court will take them at their word and grant the relief they pray for. This Court, however,
cannot anchor its ruling on mere allegations.
[63]

Needless to say, a full-blown trial is to be preferred to ferret out the truth. If, as respondents claim, there is no evidence of their culpability,
then their petition for bail would easily be granted. Thereafter, the credibility of the prosecutions and the accuseds respectiv e evidence may be tested
during the trial. It is only then that the guilt or innocence of respondents will be determined. Whether the criminal prosecution was merely a tool for
harassment or whether the prosecutions evidence can pass the strict standards set by the law and withstand the exacting scrutiny of the court will all be
resolved at the trial of the case.
The criminal Information in this case was filed four years ago and trial has yet to begin. The victims kin, indeed, all the parties, are awaitin g its
resolution. Any further delay will amount to an injustice.
WHEREFORE, the foregoing premises considered, the Court of Appeals Decision dated May 8, 2007 and Resolution dated October 8, 2007 in
CA-G.R. SP No. 02558 are hereby REVERSED and SET ASIDE, and the Permanent Injunction is hereby DISSOLVED. The Order of
the Regional Trial Court of Calbayog City, Samar, dated February 20, 2007, is hereby REINSTATED. The Regional Trial Court of Calbayog City, Samar,
is DIRECTED to proceed with hearing, and to decide Criminal Case No. 4916 with dispatch.
SO ORDERED.

ANTONIO EDUARDO B. NACHURA

Associate Justice

WE CONCUR:

ANTONIO T. CARPIO
Associate Justice
Chairperson

DIOSDADO M. PERALTA
Associate Justice

ROBERTO A. ABAD
Associate Justice

JOSE CATRAL MENDOZA

Associate Justice

ATTESTATI ON
I attest that the conclusions in the above Decision had been reached in consultation before the case was assigned to the writ er of the opinion of the
Courts Division.

ANTONIO T. CARPIO
Associate Justice
Chairperson, Second Division

CERTIFIC ATION
Pursuant to Section 13, Article VIII of the Constitution and the Division Chairperson's Attestation, I certify that the concl usions in the above Decision had
been reached in consultation before the case was assigned to the writer of the opinion of the Courts Division.

RENATO C. CORONA
Chief Justice

[1]

Rollo, pp. 33-35.

Penned by Associate Justice Francisco P. Acosta, with Executive Justice Arsenio J. Magpale and Associate Justice Agustin S. D izon, concurring; id.
at 36-59.
[3]
Rollo, pp. 60-67.
[4]
Id. at 5.
[5]
Id. at 41.
[6]
Id. at 5.
[7]
Id. at 134-136.
[8]
Id. at 5-6.
[9]
Id. at 145-146.
[10]
Id. at 42.
[11]
Id. at 6.
[12]
Id. at 7.
[13]
Id. at 172-173.
[14]
Id. at 174-177.
[15]
Id. at 178-214.
[16]
Id. at 181.
[17]
Id. at 184.
[18]
Id. at 33-35.
[19]
Id. at 36-59.
[20]
Id. at 49-50.
[21]
Id. at 49-51.
[22]
Id. at 51.
[23]
Id. at 51-52.
[24]
Id. at 53.
[25]
Id. at 60-67.
[2]

[26]

Id. at 10.
Id. at 12.
[28]
Id. at 14.
[29]
Id. at 16.
[30]
Id. at 20.
[31]
Id. at 22.
[32]
Id.
[33]
Id. at 24-25.
[34]
Id. at 29.
[35]
Id. at 269.
[36]
Id. at 271.
[37]
Id. at 275.
[38]
Id. at 284.
[39]
Cruz v. Caraos, G.R. No. 138208, April 23, 2007, 521 SCRA 510, 520-521, citing Government Service Insurance System v. Bengson Commercial
Buildings, Inc., 426 Phil. 111, 125 (2002).
[40]
Id. at 522.
[41]
Ayala Land, Inc. v. Valisno, 381 Phil. 518, 528 (2000).
[42]
Rollo, p. 169.
[43]
Id. at 167.
[44]
Id. at 168.
[45]
Id. at 172.
[46]
Id. at 212.
[47]
Id. at 174-175. (Emphasis supplied.)
[48]
AAA v. Carbonell, G.R. No. 171465, June 8, 2007, 524 SCRA 496, 509, citing People v. Inting, 187 SCRA 788, 792-793 (1990).
[49]
G.R. Nos. L-82585, L-82827, and L-83979, November 14, 1988, 167 SCRA 393.
[50]
Id. at 398.
[51]
AAA v. Carbonell, supra note 48, at 509 .
[52]
Okabe v. Gutierrez, G.R. No. 150185, May 27, 2004, 429 SCRA 685, 707.
[53]
AAA v. Carbonell, supra note 48, at 509, citing Webb v. Hon. De Leon, 317 Phil. 758, 794 (1995).
[54]
Rollo, p. 175.
[55]
Id. at 177.
[56]
Id. at 176.
[57]
Asutilla v. PNB, 225 Phil. 40, 43 (1986).
[58]
Brocka v. Enrile, G.R. Nos. 69863-65, December 10, 1990, 192 SCRA 183, 188-189, citing Regalado, Remedial Law Compendium (1988 ed.), p.
188.
[59]
Paredes, Jr. v. Hon. Sandiganbayan, 322 Phil. 709, 732-733 (1996).
[60]
Id. at 736. (Citations omitted.)
[61]
Id.
[62]
Socrates v. Sandiganbayan, 324 Phil. 151, 167 (1996).
[63]
AAA v. Carbonell, supra note 48, at 511, citing Abugotal v. Judge Tiro, 160 Phil. 884, 890 (1975).
[27]

THIRD DIVISION
HILARIO P. SORIANO and ROSALINDA ILAGAN,
Petitioners,

G.R. No. 159517-18

Present:

- versus -

PEOPLE OF THE PHILIPPINES, BANGKO SENTRAL NG

PILIPINAS (BSP), and PHILIPPINE DEPOSIT
INSURANCE CORPORATION (PDIC),
Respondents.

YNARES-SANTIAGO, J.,
Chairperson,
CHICO-NAZARIO,
VELASCO, JR.,
NACHURA, and
PERALTA, JJ.
Promulgated:
June 30, 2009

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

DECISION
NACHURA, J.:

Petitioners Hilario P. Soriano and Rosalinda Ilagan (petitioners) appeal by certiorari the August 5, 2003 Decision
(CA) in the consolidated cases CA-G.R. SP. Nos. 64648 and 64649.

[1]

of the Court of Appeals

The antecedents.
Hilario P. Soriano (Soriano) and Rosalinda Ilagan (Ilagan) were the President and General Manager, respectively, of the Rural Bank of San
Miguel (Bulacan), Inc. (RBSM). Allegedly, on June 27, 1997 and August 21, 1997, during their incumbency as president and manager of the bank,

petitioners indirectly obtained loans from RBSM.They falsified the loan applications and other bank records, and made it appear that Virgilio J. Malang
and Rogelio Maaol obtained loans of P15,000,000.00 each, when in fact they did not.
Accordingly, on May 4, 2000, State Prosecutor Josefino A. Subia charged Soriano in the Regional Trial Court (RTC) of Malolos, Bulacan, with
violation of Section 83 of Republic Act No. 337 (R.A. No. 337) or the General Banking Act, as amended by Presidential Decree No. 1795, or Violation of
the Director, Officer, Stockholder or Related Interest (DOSRI) Rules (DOSRI Rules). The inculpatory portion of the Information reads:

That on or about June 27, 1997 and thereafter, and within the jurisdiction of this Honorable Court, the said accused, in his
capacity as President of the Rural Bank of San Miguel (Bulacan), Inc. did then and there, unlawfully, feloniously, and indirectly
borrow or secure a loan with Rural Bank of San Miguel-San Miguel Branch amounting to Php15 million, without the consent and
written approval of the majority of the directors of the bank, by using the name of one depositor VIRGILIO J. MALANG of San Miguel
Bulacan who have no knowledge of the said loan, and once in possession of the said amount of Php14,775,000.00, net of interest
[2]
converted the same to his own personal use and benefit, in flagrant violation of the said law.
On the same date, an information for estafa thru falsification of commercial document was also filed against Soriano and Ilagan, viz.:

That on or about June 27, 1997 and thereafter, in San Miguel, Bulacan and within the jurisdiction of this Honorable Court,
the said accused HILARIO P. SORIANO and ROSALINDA ILAGAN, as principals by direct participation, with unfaithfulness or
abuse of confidence and taking advantage of their position as President of Rural Bank of San Miguel (Bulacan), Inc. and Manager of
Rural Bank of San Miguel-San Miguel Branch, a duly organized banking institutions under Philippine Laws, conspiring,
confederating and mutually helping one another, did then and there, willfully and feloniously falsify loan documents consisting of
loan application/information sheet, and promissory note dated June 27, 1997, disclosure statement on loan/credit transaction, credit
proposal report, managers check no. 06514 dated June 27, 1997 and undated RBSM-San Miguel Branch check voucher, by making
it appear that one VIRGILIO J. MALANG filed the aforementioned documents when in truth and in fact, VIRGILIO J. MALANG did
not participate in the execution of said loan document and that by virtue of said falsification and with deceit and intent to cause
damage, the accused credited the loan proceeds of the loan amounting to Php14,775,000.00, net of interest, to the account
of VIRGILIO J. MALANG with the RBSM and thereafter converted the same amount to their own personal gain and benefit, to the
damage and prejudice of the Rural Bank of San Miguel-San Miguel Branch, its creditors and the Bangko Sentral Ng Pilipinas in the
amount of Php14,775,000.00.
CONTRARY TO LAW.

[3]

The informations were docketed as Criminal Case Nos. 1719-M-2000 and 1720-M-2000, respectively, and were raffled to Branch 14, presided by Judge
Petrita Braga Dime.
Another information for violation of Section 83 of R.A. No. 337, as amended, was filed against Soriano, this time, covering t he P15,000,000.00
loan obtained in the name of Rogelio Maaol. The information reads:
That on or about August 21, 1997 and thereafter, and within the jurisdiction of this Honorable Court, the said accused, in
his capacity as President of the Rural Bank of San Miguel (Bulacan), Inc. did then and there, unlawfully, feloniously, and in directly
borrow or secure a loan with Rural Bank of San Miguel-San Miguel Branch, a domestic rural ba[n]king institution created, organized
and existing under Philippine laws, amounting to Php15.0 million, knowing fully well that the same has been done by him without the
written approval of the majority of [the] board of directors of the said bank and which consent and approval the said accused
deliberately failed to obtain and enter the same upon the record of said banking institution and to transmit a copy of which to the
supervising department of the said bank, as required by the General Banking Act, by using the name of one depositor ROGELIO
MAAOL of San Jose, San Miguel Bulacan who have no knowledge of the said loan, and once in possession of the said amount of
[4]
Php 15.0 million, converted the same to his own personal use and benefit, in flagrant violation of the said law.
Soriano and Ilagan were also indicted for estafa thru falsification of commercial document for obtaining said loan. Thus:
That on or about August 21, 1997 and thereafter, in San Miguel, Bulacan and within the jurisdiction of this Honorable
Court, the said accused HILARIO P. SORIANO andROSALINDA ILAGAN, as principals by direct participation, with unfaithfulness
or abuse of confidence and taking advantage of their position as President of Rural Bank of San Miguel (Bulacan), Inc. and Manager
of Rural Bank of San Miguel-San Miguel Branch, a duly organized banking institutions under Philippine Laws, conspiring
confederating and mutually helping one another, did then and there, willfully and feloniously falsify loan documents consisti ng of
loan application/information sheet and promissory note dated August 21, 1997, by making it appear that one ROGELIO
MAAOL filled up the application/information sheet and filed the aforementioned loan documents when in truth and in fact, ROGELIO
MAAOL did not participate in the execution of said loan document and that by virtue of said falsification and wit h deceit and intent to
cause damage, the accused succeeded in securing a loan in the amount of Php15.0 million, from Rural Bank of San Miguel-San
Miguel Branch in the name of ROGELIO MAAOL, which amount of Php 15.0 million representing loan proceeds the accused
deposited to the account ofROGELIO MAAOL maintained with Rural Bank of San Miguel and thereafter converted the same
amount to their own personal gain and benefit, to the damage and prejudice of the Rural Bank of San Miguel-San Miguel Branch, its
creditors, the Bangko Sentral Ng Pilipinas and the Philippine Deposit Insurance Corporation in the amount of Php 15.0 million .
[5]

CONTRARY TO LAW.

The cases were docketed as 1980-M-2000 and 1981-M-2000, respectively, and were raffled to Branch 77, presided by Judge Aurora Santiago-Lagman.
Petitioners moved to quash the informations in Criminal Case Nos. 1719-M-2000 and 1720-M-2000 (pending before Branch 14), and also in
Criminal Case Nos. 1980-M-2000 and 1981-M-2000 (pending with Branch 77), on grounds that: (i) more than one (1) offense is charged; and (ii) the
facts charged do not constitute an offense. Specifically, petitioners argued that the prosecutor charged more than one offense for a single act. Soriano
was charged with violation of DOSRI rules and estafa thru falsification of commercial document for allegedly securing fictitious loans. They further
argued that the facts as alleged in the information do not constitute an offense.
In an Order

[6]

dated November 15, 2000, RTC Branch 77 denied the motion to quash. Rejecting petitioners arguments, it held:

Section 13 of Rule 110 of the Revised Rules of Criminal Procedure provides that the complaint or information must charge
but only one offense, except only in those cases in which existing laws prescribe a single punishment for various offenses. Under
this Rule, the Information is defective when it charges two (2) or more offenses. The rule enjoining the charging of two (2) or more
offenses in one information has for its aim to give the defendant the necessary knowledge of the charge to enable him to prove h is
defense (People vs. Ferrer, 101 Phil. 234, cited in Herrera Remedial Law IV., p. 72). While Section 3 (e) of Rule 117 of the Revised
Rules of Court provides as one of the grounds where the accused may move to quash the complaint or information, considering
Sec. 13 of Rule 110 of the Rules as aforestated, it is apparent that the said ground refers to a situation where the accused is being
charged in one information or criminal complaint for more than one offense. The record shows that two (2) Informations were filed
against the herein accused, one in Criminal Case No. 1980-M-2000 against accused Hilario P. Soriano for Violation of Sec. 83 of
R.A. No. 337, as amended by PD 1795, and another one in Criminal Case No. 1981-M-2000 against accused Hilario P. Soriano and
Rosalinda Ilagan for Estafa Thru Falsification of Commercial Documents. Thus, each Information charges only one offense.
Even assuming that the two (2) cases arose from the same facts, if they violate two (2) or more provisions of the law, a
prosecution under one will not bar a prosecution under another (Pp. vs. Tac-an, 182 SCRA 601; Lamera v. Court of Appeals, 198
SCRA 186, cited in Herrera Criminal Procedure, Vol. 4, p. 453).
Upon the foregoing, this Court finds that there is no basis to quash the Informations filed in these two (2) cases as the
accused are being charged therein with only one offense in each Information. As to the assertion of the accused that the facts
charged do not constitute an offense, this Court finds that the allegations of both parties are evidentiary and the same can only be
determined after a full blown trial on the merits of these cases where both parties will be given a chance to present their evidence in
support of their respective positions.
WHEREFORE, the instant motion is DISMISSED and the arraignment of both accused and the pre-trial of these cases
[7]
scheduled on December 4, 2000 at 10:00 o clock in the morning, shall proceed as scheduled.

Petitioners motion to quash informations in Criminal Case Nos. 1719-M-2000 and 1720-M-2000 before Branch 14 likewise suffered the same
[8]
fate, as Judge Braga Dime denied the same in an Order dated November 27, 2000, holding that:
Duplicity in criminal pleading is the joinder of two or more distinct and separate offenses in the same court of an
indictment or information. (41 Am. Jur. 2d 1011). Whether two offenses are charged in an information, or otherwise, must not be
made to depend upon the evidence presented at the trial court but upon the facts alleged in the information (Provincial Fiscal of
Nueva Ecija vs. CFI, 79 Phil. 165). Where an offense may be committed in any of the different modes provided by law and the
offense is alleged to have been committed in two or more modes specified, the indictment is sufficient. The allegations in the
information of the various ways of committing the offense should be considered as a description of only one offense and the
information cannot be dismissed on the ground of multifariousness (Jurado v. Suy Yan, L-30714, April 30, 1971)
A perusal of the criminal information filed in the above-entitled cases indubitably show that each information charges only but one
offense. Thus, in Criminal Case No. 1719-M-2000, Accused Hilario P. Soriano is charged only with violation of Sec. 83 of RA 337,
as amended by PD 1796, while in Criminal Case No. 1720-M-2000, Accused Hilario P. Soriano and Rosalinda Ilagan are charged
only with Estafa thru falsification of commercial document.
On the ground that the facts charged do not constitute an offense xxx xxx xxx
[b]y simply reading the information filed against the Accused Hilario P. Soriano, in Crim. Case No. 1719-M-2000 it is clear
that the allegations, which is hypothetically admitted by said accused, in the same information set out an offense for violation of Sec.
83 of RA 337 as amended by PD No. 1795.
Finally, Accused, in addition to the two (2) grounds aforesaid, cited prematurity and lack of probable cause which would
warrant the quashal of the two (2) informations.
These additional grounds relied upon by the Accused for the quashal of the two (2) informations must necessarily fail
because they are not one of the grounds enumerated in Sec. 3, Rule 117 of the Revised Rules of Court which this Court shall not
consider, in accordance with Sec. 2, Rule 117 of the Revised Rules of Court.
WHEREFORE, premises considered, the Motion to Quash, dated September 1, 2000 filed by both Accused is hereby
DENIED, for lack of merit.
SO ORDERED.

[9]

Petitioners went up to the Court of Appeals via certiorari, assailing the Orders of Branch 77 and Branch 14. The petitions were docketed as
[10]
CA-G.R. SP. Nos. 64648 and 64649. By decision of August 5, 2003, the CA, which priorly consolidated the petitions, sustained the denial of
petitioners separate motions to quash:
WHEREFORE,
FOREGOING
PREMISES
CONSIDERED,
these
petitions
are DENIED
DUE
COURSE and
accordingly DISMISSED. The assailed Orders dated November 15, 2000 and February 12, 2001 of the Regional Trial Court, Branch
77, Malolos, Bulacan in Criminal Case Nos. 1980-M-2000 and 1981-M-2000, entitled, People of the Philippines vs. Hilario P.
Soriano and People of the Philippines vs. Hilario P. Soriano and Rosalinda Ilagan, respectively, in CA-G.R. SP. No. 64648 and the
Orders dated November 27, 2000 and March 9, 2001 of the Regional Trial Court, Branch 14, Malolos, Bulacan in Criminal Case
Nos. 1719-M-2000 and 1720-M-2000, entitled People of the Philippines vs. Hilario P. Soriano and People of the Philippines vs.
[11]
Hilario P. Soriano and Rosalinda Ilagan, respectively, in CA-G.R. SP. No. 64649 are affirmed.
Petitioners are now before this Court, submitting for resolution the same matters argued before the RTC and the CA. They insist that RTC
Branch 14 and Branch 77 abused their discretion in denying their motions to quash informations. Thus, they posit that the CA committed reversible error
in dismissing their petitions for certiorari.
The appeal should be denied.

The term grave abuse of discretion, in its juridical sense, connotes capricious, despotic, oppressive or whimsical exercise of judgment as is
equivalent to lack of jurisdiction. The abuse must be of such degree as to amount to an evasion of positive duty or a virtual refusal to perform a duty
enjoined by law, as where the power is exercised in an arbitrary and capricious manner by reason of passion and hostility. The word capricious, usually
used in tandem with the term arbitrary, conveys the notion of willful and unreasoning action. Thus, when seeking the corrective hand of certiorari, a clear
[12]
showing of caprice and arbitrariness in the exercise of discretion is imperative.
We reviewed the records before us, and we discerned no caprice or arbitrariness on the part of the RTC in denying the motions.
Petitioners assail the validity of the informations against them on the ground that more than one (1) offense is charged. They point that
Soriano was charged with violation of DOSRI Rules and with estafa thru falsification of commercial document for allegedly obtaining loans from
RBSM. Thus, they claim that the informations were duplicitous; hence, they should be quashed.
[13]

Indisputably, duplicity of offenses in a single information is a ground to quash the Information under Section 3(e), Rule 117 of the 1985
[14]
Rules of Criminal Procedure. The Rules prohibit the filing of a duplicitous information to avoid confusing the ac cused in preparing his defense.
[15]
By duplicity of charges is meant a single complaint or information that charges more than one offense. Section 13 of Rule 110 of the 1985
Rules on Criminal Procedure clearly states:
Duplicity of Offense. A complaint or information must charge but one offense, except only in those cases in which existing
laws prescribe a single punishment for various offenses.
Otherwise stated, there is duplicity (or multiplicity) of charges when a single Information charges more than one offense.

[16]

In this case, however, Soriano was faced not with one information charging more than one offense, but with more than one information,
each charging a different offense - violation of DOSRI rules in one, and estafa thru falsification of commercial documents in the others. Ilagan, on the
other hand, was charged with estafa thru falsification of commercial documents in separate informations. Thus, petitioners erroneously invoke
duplicity of charges as a ground to quash the Informations.
Petitioners also contend that Soriano should be charged with one offense only, because all the charges filed against him proceed from and are
based on a single act of obtaining fictitious loans. Thus, Soriano argues that he cannot be charged with estafa thru falsification of commercial document,
considering that he is already being prosecuted for obtaining a DOSRI loan.
The contention has no merit.
Jurisprudence teems with pronouncements that a single act or incident might offend two or more entirely distinct and unrelated provisions

[17]

of law,

thus justifying the filing of several charges against the accused.

[18]

In Loney v. People,

this Court, in upholding the filing of multiple charges against the accused, held:

As early as the start of the last century, this Court had ruled that a single act or incident might offend against two or mor e
entirely distinct and unrelated provisions of law thus justifying the prosecution of the accused for mor e than one offense. The only
limit to this rule is the Constitutional prohibition that no person shall be twice put in jeopardy of punishment for the same offense.
In People v. Doriquez, we held that two (or more) offenses arising from the same act are not the same
x x x if one provision [of law] requires proof of an additional fact or element which the other does not, x x x. Phrased
elsewise, where two different laws (or articles of the same code) define two crimes, prior jeopardy as to one of them is
no obstacle to a prosecution of the other, although both offenses arise from the same facts, if each crime involves
some important act which is not an essential element of the other.
xxx xxx xxx
Consequently, the filing of the multiple charges against petitioners, although based on the same incident, is consistent with
settled doctrine.

As aptly pointed out by the BSP in its memorandum, there are differences between the two (2) offenses. A DOSRI violation cons ists in the
failure to observe and comply with procedural, reportorial or ceiling requirements prescribed by law in the grant of a loan to a director, officer,
stockholder and other related interests in the bank, i.e. lack of written approval of the majority of the directors of the bank and failure to enter such
approval into corporate records and to transmit a copy thereof to the BSP supervising department. The elements of abuse of confidence, deceit, fraud or
false pretenses, and damage, which are essential to the prosecution for estafa, are not elements of a DOSRI violation. The filing of several charges
against Soriano was, therefore, proper.
Petitioners next question the sufficiency of the allegations in the informations, contending that the same do not constitute an offense.
[19]

The fundamental test in considering a motion to quash anchored on Section 3 (a), Rule 117 of the1985 Rules on Criminal Procedure, is the
sufficiency of the averments in the information; that is, whether the facts alleged, if hypothetically admitted, would establish the essential elements of the
[20]
offense charged as defined by law. The trial court may not consider a situation contrary to that set forth in the criminal complaint or information. Facts
that constitute the defense of the petitioners against the charge under the information must be proved by them during trial. Such facts or circumstances
[21]
do not constitute proper grounds for a motion to quash the information on the ground that the material averments do not constitute the offense.
We have reviewed the informations and find that they contain material allegations charging Soriano with violation of DOSRI rules and estafa
thru falsification of commercial documents.
In Criminal Case Nos. 1719 & 1980 for violation of DOSRI rules, the informations alleged that Soriano was the president of RB SMI, while
Ilagan was then its general manager; that during their tenure, Soriano, with the direct participation of Ilagan, and by using the names of Virgilio Malang
and Rogelio Maaol, was able to indirectly obtain loans without complying with the requisite board approval, reportorial and ceiling requirements, in
[22]
violation of Section 83 of R.A. No. 377 as amended.
Similarly, the informations in Criminal Case Nos. 1720 & 1981 charge petitioners with estafa thru falsification of commercial document. They
allege that petitioners made it appear that Virgilio J. Malang and Rogelio Maaol obtained loans and received the proceeds thereof when they did not in
fact secure said loans or receive the amounts reflected in the promissory notes and other bank records.
[23]

The information in Criminal Case No. 1720 further alleges the elements of estafa under Article 315 (1)(b) of the RPC to wit: (i) that money,
goods or other personal property be received by the offender in trust, or on commission, or for administration, or under any other obligation involving the
duty to make delivery of or to return the same; (ii) that there be misappropriation or conversion of such money or property b y the offender, or denial on
his part of such receipt; (iii) that such misappropriation or conversion or denial is to the prejudice of another; and (iv) that there is demand made by the
offended party to the offender.
The information in Criminal Case No. 1981, on the other hand, further alleged the following essential elements of estafa under Article 315 (2)
[24]
(a) of the RPC: (i) that there must be a false pretense, fraudulent act or fraudulent means; (ii) that such false pretense, fraudulent act or fraudulent
means must be made or executed prior to or simultaneously with the commission of the fraud; (iii) that the offended party must have relied on the false
pretense, fraudulent act, or fraudulent meansthat is, he was induced to part with his money or property because of the false pretense, fraudulent act, or
fraudulent means; and (iv) that, as a result thereof, the offended party suffered damage. The informations in Criminal Case N os. 1720 & 1981, thus,
charge petitioners with the complex crime of estafa thru falsification of commercial documents.
Verily, there is no justification for the quashal of the Information filed against petitioners. The RTC committed no grave abuse of discretion in
denying the motions.
In fine, the Court has consistently held that a special civil action for certiorari is not the proper remedy to assail the denial of a motion to quash
an information. The proper procedure in such a case is for the accused to enter a plea, go to trial without prejudice on his part to present the special
defenses he had invoked in his motion to quash and if after trial on the merits, an adverse decision is rendered, to appeal therefrom in th e manner
[25]
authorized by law. Thus, petitioners should not have forthwith filed a special civil action for certiorari with the CA and instead, they should have gone
to trial and reiterated the special defenses contained in their motion to quash. There are no special or exceptional circumstances in the present case that
would justify immediate resort to a filing of a petition for certiorari. Clearly, the CA did not commit any reversible error, much less, grave abuse of
discretion in dismissing the petition.
WHEREFORE, the petition for review is DENIED and the assailed Decision of the Court of Appeals is AFFIRMED. Costs against the petitioners.
SO ORDERED.

ANTONIO EDUARDO B. NACHURA

Associate Justice
WE CONCUR:

CONSUELO YNARES-SANTIAGO
Associate Justice
Chairperson

MINITA V. CHICO-NAZARIO
Associate Justice

PRESBITERO J. VELASCO, JR.

Associate Justice

DIOSDADO M. PERALTA
Associate Justice

ATTESTATI ON
I attest that the conclusions in the above Decision were reached in consultation before the case was assigned to the writer of the opinion of the Courts
Division.

CONSUELO YNARES-SANTIAGO
Associate Justice
Chairperson, Third Division

CERTIFIC ATION
Pursuant to Section 13, Article VIII of the Constitution and the Division Chairperson's Attestation, I certify that the concl usions in the above Decision had
been reached in consultation before the case was assigned to the writer of the opinion of the Courts Division.

REYNATO S. PUNO
Chief Justice

[1]

Penned by Associate Justice Mercedes Gozo-Dadole (retired), with Associate Justices Conrado M. Vasquez, Jr. (now Presiding Justice) and Rosmari
D. Carandang, concurring; rollo, pp. 57-67.
[2]
Id. at 211-212.
[3]
Id. at 214-215.
[4]
Id. at 71.
[5]
Id. at 68-69.
[6]
Id. at 93-97.
[7]
Id. at 96-97.
[8]
Id. at 240-243.
[9]
Id. at 241-243
[10]
Supra note 1.
[11]
Id. at 66-67.
[12]
Torres v. Abundo, Sr, G.R. No. 174263, January 24, 2007, 512 SCRA 564, 565.
[13]
Sec. 3. Grounds. The accused may move to quash the complaint or information on any of the following grounds:
xxx xxx xxx
(e) That more than one (1) offense is charged except in those cases in which the existing laws prescribe a single punishment for various offenses;
xxx xxx xxx
[14]
Loney v. People, G.R. No. 152644, February 10, 2006, 482 SCRA 194, 209.
[15]
Id. at 208.
[16]
Id.
[17]
Loney v. People, supra, See See Nierras v. Dacuycuy, G.R. Nos. 59568-76, 11 January 1990, 181 SCRA 1; People v. Doriquez, 133 Phil. 295
(1968); People v. Alvarez, 45 Phil. 472 (1923); People v. Cabrera, 43 Phil. 64 (1922); United Statesv. Capurro, et al., 7 Phil. 24 (1906).
[18]
Supra at 209-210, 212.
[19]
Section 3. Grounds. The accused may move to quash the complaint or information on any of the following grounds:
(a) That the facts charged do not constitute an offense;
xxx xxx xxx
[20]
Caballero v. Sandiganbayan, G.R. No. 137355-58, September 25, 2007, 534 SCRA 30, 43.
[21]
Torres v. Hon. Garchitorena, 442 Phil. 765, 777 (2002).
[22]
Sec. 83. No director or officer of any banking institution shall, either directly or indirectly, for himself or as the representative or agent of other, borrow
any of the deposits of funds of such banks, nor shall he become a guarantor, indorser, or surety for loans from such bank to others, or in any manner be

an obligor for money borrowed from the bank or loaned by it, except with the written approval of the majority of the directors of the bank, excluding the
director concerned. Any such approval shall be entered upon the records of the corporation and a copy of such entry shall be transmitted forthwith to the
Superintedent of Banks. The office of any director or officer of a bank who violates the provisions of this section shall immediately become vacant and
the director or officer shall be punished by imprisonment of not less than one year nor more than ten years and by a fine of not less than one thousand
nor more than ten thousand pesos.
The Monetary Board may regulate the amount of credit accommodations that may be extended, directly or indirectly, by banking institutions to
their directors, officers, or stockholders. However, the outstanding credit accommodations which a bank may extend to each of its stockholders owning
two per cent (2%) or more of the subscribed capital stock, its directors, or its officers, shall be limited to an amount equi valent to the respective
outstanding deposits and book value of the paid-in capital contribution in the bank: Provided, however, That loans and advances to officers in the form of
fringe benefits granted in accordance with rules and regulations as may be prescribed by the Monetary B oard shall not be subject to the preceding
limitation.
[23]
ART. 315. Swindling (estafa). Any person who shall defraud another by any of the means mentioned hereinbelow shall be punished by:
xxx xxx xxx
1. With unfaithfulness or abuse of confidence, namely:
xxx xxx xxx
(b) By misappropriating or converting, to the prejudice of another, money, goods, or any personal property received by the of fender in trust or on
commission, or for administration, or under any obligation involving the duty to make delivery of or to retur n the same, even though such obligation be
totally or partially guaranteed by a bond; or by denying having received such money, goods, or other property.
[24]
ART. 315. Swindling (estafa). Any person who shall defraud another by any of the means mentioned hereinbelow shall be punished by:
xxx xxx xxx
2. By means of any of the following false pretenses or fraudulent acts executed prior to or simultaneously with the commission of the fraud:
(a) By using fictitious name, or falsely pretending to possess, power, influence, qualifications, property, credit, agency, business or imaginary
transactions, or by means of similar deceits.
xxx xxx xxx
[25]

Sasot v. People, G.R. No. 143193, June 29, 2005, 462 SCRA 138, 145.

THIRD DIVISION
[G.R. No. 149472. October 15, 2002]
JORGE SALAZAR, petitioner, vs. PEOPLE OF THE PHILIPPINES, respondent.
DECISION
PUNO, J.:
In an information dated January 21, 1987, petitioner Jorge Salazar was charged with estafa under Article 315 paragraph 1(b) of the Revised Penal
Code. The information reads:
th
That on or about the 10 date of January 1986 in the Municipality of Makati, Metro Manila, Philippines, and within the jurisdiction of this Honorable Court,
the above-named accused, being the Vice President and Treasurer of Aurora/Uni-Group, Inc., received from Olivier Philippines and Skiva International,
Inc. as represented by Teresita M. Tujan the amount of $41,300.00 for the sole purpose of meeting the cost of textile and lab or in the manufacture of
seven hundred dozen stretch twill jeans which he (accused) is duty bound to deliver to said complainant, and the accused once in possession of the
same, far from complying from his obligation, with unfaithfulness and abuse of confidence and to defraud said complainant, di d, then and there willfully
and unlawfully and feloniously misappropriate, misapply and convert the same for his own personal use and benefit despite repeated demands to return
the said amount, failed and refused and still fails and refuses to do so, to the damage and prejudice of said complainant, in the aforementioned amount
of $41,300.00 or its equivalent in Philippine currency.
[1]
Contrary to law.
On arraignment, petitioner pleaded not guilty to the charge.
It appears that Skiva International, Inc. (Skiva) is a New York-based corporation which imports clothes from the Philippines through its buying
agent, Olivier (Philippines) Inc. (Olivier).Aurora Manufacturing & Development Corporation (Aurora) and Uni-Group Inc. (Uni-Group) are domestic
corporations which supply finished clothes to Skiva. Mr. Werner Lettmayr is the President of both Aurora and Uni-Group while the petitioner, Jorge
Salazar, is the Vice-President and Treasurer of Uni-Group and a consultant of Aurora.
Skiva, through its buying agent, Olivier, has been purchasing finished clothes from Aurora and Uni-Group. When an order is procured for the
delivery of clothes, Olivier, issues to the local supplier, Aurora/Uni-Group, a Purchase Contract and Olivier issues to Skiva a Sales Contract. In these
transactions, payment is usually made by way of a letter of credit wherein the supplier is paid only upon the presentation of the proper shipping
[2]
documents to the designated bank.
In December 1985, Skiva informed Olivier that it needs ladies jeans to be delivered sometime in January 1986. Olivier, in turn, through its Officer[3]
in-Charge, Ms. Teresita Tujan, contacted Aurora and Uni-Group to supply the jeans. Thus, a Purchase Contract dated December 18, 1985 was issued
by Olivier to Uni-Group wherein Uni-Group was to supply 700 dozens of three (3) different designs of Ladies Basic 5 Pockets Stretch Twill Jeans
[4]
[5]
payable by means of a letter of credit at sight. The Purchase Contract was confirmed by Mr. Lettmayr on December 30, 1985 . A Sales Contract was
[6]
also issued by Olivier to Skiva containing the same terms and conditions as the Purchase Contract and was confirmed by Mr. Jack Cheh ebar of Skiva.
On January 7, 1986, the parties agreed that Skiva will advance to Aurora/Uni-Group the amount of US$41,300.00 (then equivalent to P850,370.00
[7]
at the exchange rate of P20.59 to US$1.00) as Aurora/Uni-Group did not have sufficient funds to secure raw materials to manufacture the jeans. It was
[8]
also agreed that the amount advanced by Skiva represents advance payment of its order of 700 dozens of ladies jeans. Skiva then issued a check in
[9]
the said amount payable to Uni-Group. However, due to the length of time needed for the check to be cleared, the parties made arrangements to remit
[10]
[11]
the funds instead by way of telegraphic transfer.
Thus, the check issued by Skiva was returned by Mr. Lettmayr and as agreed, the funds were
remitted by Skiva from its bank in New York, the Israel Discount Bank, to the joint account of Mr. and Mrs. Jorge Salazar and Mr. and Mrs. Werner
[12]
Lettmayr at Citibank N.A.
On January 16, 1986, petitioner, who had possession and control of the passbook of the said joint account, withdrew the amount of
[13]
[14]
US$21,675.21 and on January 22, 1986, petitioner withdrew the amount of US$20,000.00. The prosecution also presented evidence that
subsequent to said withdrawals, the amounts of US$71.70 and US$63.99 were deducted from the joint account as telegraphic transfer fee and
[15]
commission for the remittance of the funds to another account.
In the meantime, Ms. Tujan contacted Aurora/Uni-Group to follow up on the production of the jeans. She learned that only 3,000 meters out of the
[16]
10,000 meters of Litton fabrics required for the order were purchased from Litton Mills by the petitioner. 3,000 meters of Litton fabrics are enough to
[17]
produce only 200 dozens of ladies jeans - an amount insufficient to satisfy the order of Skiva of 700 dozens of ladies twill jeans. Upon inquiry with Mr.
[18]
Lettmayr, the latter advised Ms. Tujan that the query be directed to petitioner as petitioner is in charge of securing the materials.
However, Ms. Tujan
[19]
could not locate the petitioner.
Consequently, in a letter dated March 13, 1986, demand was made upon Aurora/Uni-Group through its President, Mr. Lettmayr, to return the
[20]
money advanced in the amount of US$41,300.00.

For failure of Aurora/Uni-Group to deliver the ladies jeans or to account for the US$41,300.00 despite demand, Skiva, through its local agent
represented by Ms. Tujan, filed a criminal complaint for estafa against Mr. Lettmayr and petitioner. After prelimi nary investigation, the Public Prosecutor
[21]
dismissed the complaint against Mr. Lettmayr and an information was filed against petitioner.
After trial, the lower court convicted herein petitioner of estafa under Article 315 paragraph 1 (b) of the Revised Penal Code, sentencing him to
suffer the indeterminate penalty of imprisonment of eight (8) years and one (1) day of prision mayor as the minimum to fourteen (14) years, eight (8)
[22]
months and one (1) day of reclusion temporal as the maximum and to pay Uni-Group and Aurora the amount of P595,259.00.
On March 13, 1997,
[23]
the lower court denied petitioners Motion for Reconsideration.
On appeal, the Court of Appeals affirmed in toto the decision of the trial court and
[24]
denied petitioners Motion for Reconsideration.
Aggrieved by the aforementioned rulings, petitioner files the instant petition for review.
The petition is bereft of merit.
The following are the elements of estafa under Article 315 paragraph 1 (b) of the Revised Penal Code: a) that money, goods or other personal
property is received by the offender in trust, or on commission, or for administration, or under any other obligation involving the duty to make delivery of,
or to return the same; b) that there be misappropriation or conversion of such money or property by the offender; or denial on his part of such receipt; c)
[25]
that such misappropriation or conversion or denial is to the prejudice of another; and d) there is demand made by the offended party to the offender.
[26]
We agree with the trial courts finding that the contract between Skiva and Aurora/Uni-Group was one of sale. Thus, upon remittance by Skiva of
its advance payment in the amount of US$41,300.00, ownership thereof was transferred to Aurora/Uni-Group and Aurora/Uni-Group had no obligation to
account or deliver the money to Skiva, its only obligation under the contract of sale being to deliver the 700 dozens of ladi es jeans. However, petitioner,
as an employee of Aurora/Uni-Group who was aware of the specific purpose of the remittance, upon receipt of the amount, had the obligation to account
for the proceeds thereof to Aurora/Uni-Group.
The records establish that: 1) the amount of US$41,300.00 was remitted by telegraphic transfer to the joint account of the petitioner and his wife
[27]
[28]
and Mr. and Mrs. Werner Lettmayr; 2) the said amount was remitted as advance payment by Skiva for the jeans it ordered; and 3) the amount of
US$21,675.21 was withdrawn by petitioner on January 16, 1986 and the amount of US$20,000.00 was withdrawn by petitioner on January 22,
[29]
[30]
1986. In fact, petitioner himself admits having withdrawn from the joint account on two occasions after the remittance was made. Petitioner further
admits having made such withdrawal for the purpose of purchasing materials to be used for the jeans ordered by Skiva and a port ion thereof to be given
[31]
to Aurora. Thus, upon withdrawal by petitioner of the amounts advanced by Skiva, petitioner received the same in trust with an obligation to return the
funds or account for the proceeds thereof.
With respect to the element of conversion or misappropriation of the amount received, petitioner claims that a portion of the amount was used to
[32]
purchase 3,000 meters of Litton fabrics and the balance was returned to Aurora. However, upon cross-examination, petitioner was unable to recall the
amount paid for the purchase of the fabrics or the amount given to Aurora nor was petitioner able to identify whether payment for the purchase of fabric
[33]
or the return of funds to Aurora was made in cash or in check.
In fact, except for his bare testimony, petitioner failed to present evidence to support his defense that payment for the purchase of fabrics had
been made or that the balance of the amount received by petitioner was given to Aurora. The only reason why the Court is inclined to believe that 3,000
meters of Litton fabrics were purchased for the manufacture of the jeans is because the witness for the prosecution, Ms. Tujan, independently verified
[34]
the purchase of the said materials from Litton Mills.
To support petitioners claim that the remainder of the amount withdrawn was returned to Aurora, petitioner presents a letter dated October 15,
1986 from the Philippine Veterans Investment Development Corporation (PHIVIDEC) addressed to Mr. Werner Lettmayr, President of Aurora, regarding
[35]
the financial audit of Aurora, wherein the amount of P850,780.00 is indicated as an amount due to Uni-Group. Atty. Cesar Singson, witness for the
defense, testified that the amount of P850,780.00 indicated in the said letter represents the peso equivalent of the advance payment of US$41,300.00
[36]
made by Skiva to Uni-Group.
We agree with the trial court that the probative value of the said letter is nil. The trial court correctly ruled:
The court doubts the probative value of the contents of [the letter] because the person who testified thereon, a certain Atty. Cesar Singson, was not the
one who prepared the document. He was only one [of] those who was furnished a copy thereof. Moreover, when said piece of evidence was presented,
there were inconsistencies in the testimony of the [petitioner] as to how he was able to procure said documents. In a hearing he testified that he
personally procured said letter from the records of PHIVIDEC and the person who certified said copy signed the same in his pr esence. On cross
examination, he testified that he did not personally obtain said letter and he was not there when the person who authenticated said letter signed it and
that it was only given to him by his former counsel. This is further muddled when Atty. Singson testified that he was the one who authenticated said
document on December 7, 1987 from his copy upon the request of the accused. Atty. Singson has already severed his ties with PHIVIDEC on the latter
part of the year 1986. This means that Atty. Singson was no longer connected with PHIVIDEC when he authenticated said document based on his copy
[37]
which implies that the document was not obtained from the records of PHIVIDEC.
Further, even assuming that the letter may be given credence, we are unable to see any indication that the amount of P850,780 .00 or at least a
portion thereof (assuming that the said amount represents the advance payment made by Skiva) has been received by Aurora and/or Uni-Group from
petitioner. At most, what said letter indicates is that Aurora acknowledges liability to Uni-Group in the said amount or that said amount has been received
by Uni-Group from Skiva as advance payment which Uni-Group may have, in turn, assigned to Aurora. The glaring fact remains that nowhere can it be
seen from the said letter that there was actual receipt by Aurora from petitioner of the amount indicated therein, or at leas t a portion thereof, after
deduction of the cost of the materials purchased to manufacture the jeans ordered.
Moreover, the prosecution was able to establish that upon withdrawal of the said amounts, petitioner caused the telegraphic transfer of the amount
[38]
to another account prior to petitioners receipt of the amount in pesos. In fact, upon being confronted by the prosecution with Exhibits R and T which
are account debit forms showing that certain amounts were deducted by Citibank N.A. from the joint account as telegraphic transfer fee for the amounts
withdrawn by petitioner, petitioner admitted that upon withdrawal, the dollars was converted by the bank, remitted abroad, and given to me in
[39]
pesos. The act committed by petitioner of remitting the funds abroad constitutes an act of conversion or misappropriation. This Cour t has previously
[40]
held that even a temporary disturbance of property rights constitutes misappropriation. The words convert and misappropriate as used in Article 315
paragraph 1 (b) of the Revised Penal Code, connote an act of using or disposing of anothers property as if it were ones own, or of devoting it to a
purpose or use different from that agreed upon. To misappropriate a thing of value for ones own use includes, not only conversion to ones personal
[41]
advantage but also every attempt to dispose of the property of another without right. Thus, when petitioner caused the remittance of the amount
withdrawn to another account, such act constituted conversion or misappropriation or unauthorized disposition of the property, contrary to the purpose
for which the property was devoted.
Petitioner also claims that the third element of estafa is not present as the party prejudiced, in accordance with the findings of the trial court and
the Court of Appeals, is Skiva, when petitioner had no obligation to account to Skiva the proceeds of the amount withdrawn. Petitioner argues that
consistent with the ruling of the lower court that Aurora is the owner of the sum remitted as advance payment, petitioner had the obligation to account for
[42]
the proceeds thereof to Aurora and not to Skiva.
Thus, petitioner maintains that a conviction for estafa will not hold as no damage to Aurora was
alleged in the information nor did the prosecution present any proof of damage to Aurora.
We are not persuaded.
[43]
As held in the case of First Producers Holdings Corporation v. Co, in estafa, the person prejudiced or the immediate victim of the fraud need
not be the owner of the goods misappropriated. Thus, Article 315 of the Revised Penal Code provides that any person who shall defraud another by any
means mentioned [in Article 315] may be held liable for estafa.The use by the law of the word another instead of the word owner means that as an
[44]
element of the offense, loss should have fallen upon someone other than the perpetrator of the crime. Thus, the finding of the trial court that Skiva, the
party prejudiced, is not the owner of the sum misappropriated will not nullify the conviction of the petitioner.

Petitioner claims that the element of demand is absent as no demand was made by Skiva on petitioner. Petitioner argues that although demand
was made by Skiva to Aurora/Uni-Group and/or Mr. Lettmayr, no demand was shown to have been made on petitioner himself.
We hold that the element of demand was satisfied when demand was made upon Aurora/Uni-Group. To require Skiva to make a demand on
petitioner himself would be superfluous and would serve no other additional purpose. We note that at the time when Ms. Tujan was following up on the
delivery of the jeans, except for the advice of Mr. Lettmayr to direct her queries to petitioner who was in charge of procuri ng the materials for the jeans,
Ms. Tujan could not have known that petitioner may be primarily responsible for the non-delivery of the jeans. As far as Skiva/Olivier was concerned, it
was the obligation of Aurora/Uni-Group to deliver the jeans, which at the time of demand, was not complied with. Thus, Skiva/Olivier acted appropriately
when it demanded from Aurora/Uni-Group the return of the amount advanced.
To require that demand should have been made by Skiva/Olivier upon petitioner himself to uphold the conviction of the trial c ourt is to sustain a
[45]
blind application of the law. In the case of United States v. Ramirez, this Court held:
The consummation of the crime of estafa does not depend on the fact that a request for the return of the money is first made and refused in order that
the author of the crime should comply with the obligation to return the sum misapplied. The appropriation or conversion of money received to the
prejudice of the owner thereof are the sole essential facts which constitute the crime of estafa, and thereupon the author th ereof incurs the penalty
imposed by the Penal Code.
[46]
Further, in Tubbs v. People and Court of Appeals this Court ruled that the law does not require a demand as a condition precedent to the
crime of embezzlement. It so happens only that failure to account, upon demand for funds and property held in trust, is circumstantial evidence of
misappropriation.
[47]
In Benito Sy y Ong v. People and Court of Appeals, we also held that in a prosecution for estafa, demand is not necessary when there is
evidence of misappropriation.
Petitioner likewise maintains that Skiva has no authority to institute the present action as estafa was not committed against Skiva but against
Aurora/Uni-Group on the basis of the finding that the transaction between Skiva and Aurora/Uni-Group was one of sale. Thus, petitioner argues that
[48]
pursuant to Section 3, Rule 110 of the Rules on Criminal Procedure, the complaint should not have been instituted by Skiva as it is not the offended
[49]
party contemplated by the Rules and petitioner had no obligation to account to Skiva the proceeds of the amount withdrawn from the joint account.
The complaint referred to in Rule 110 contemplates one that is filed in court to commence a criminal action i n those cases where a complaint of
[50]
the offended party is required by law, instead of an information which is generally filed by a fiscal. It is not necessary that the proper offended party file
a complaint for purposes of preliminary investigation by the fiscal. The rule is that unless the offense subject of the complaint is one that cannot be
[51]
prosecuted de oficio, any competent person may file a complaint for preliminary investigation.
Thus, as a general rule, a criminal action is commenced by a complaint or information, both of which are f iled in court. If a complaint is filed directly
in court, the same must be filed by the offended party and in case of an information, the same must be filed by the fiscal. However, a complaint filed with
[52]
the fiscal prior to a judicial action may be filed by any person. Thus, in the case at bar, the complaint was validly filed by Skiva despite the finding of
the lower court that petitioner had no obligation to account to Skiva.
WHEREFORE, the instant petition is DENIED and the appealed judgment of the court a quo finding petitioner guilty beyond reasonable doubt of
the crime of Estafa under Article 315 paragraph 1 (b) of the Revised Penal Code is AFFIRMED. Costs against appellant.
SO ORDERED.
Panganiban, Sandoval-Gutierrez, Corona, and Carpio-Morales, JJ., concur.

[1]

Records, p. 1.
TSN, October 9, 1991, pp. 30-31.
TSN, October 9, 1991, p. 22.
[4]
Exhibit B.
[5]
Exhibit B-10.
[6]
Exhibit C.
[7]
TSN, October 9, 1991, pp. 42-46.
[8]
Exhibit D.
[9]
Exhibit E-1.
[10]
TSN, December 6, 1991, p. 21.
[11]
Exhibit E.
[12]
TSN, December 6, 1991, pp. 21-22; Exhibits F, F-1, F-2 and F-3.
[13]
Exhibit Q.
[14]
Exhibit S.
[15]
Exhibits R and T; TSN, November 17, 1992, pp. 32-36.
[16]
TSN, December 6, 1991, p. 39.
[17]
TSN, July 27, 1992, p. 41.
[18]
Id., pp. 40-41.
[19]
Id., p. 46.
[20]
Exhibit L.
[21]
Records, p. 83.
[22]
Rollo, pp. 54-62.
[23]
Records, pp. 431-434.
[24]
Rollo, pp. 44-53, 63.
[25]
II L. B. Reyes, The Revised Penal Code 734 (1998); Ocampo-Paule v. Court of Appeals, G.R. No. 145872, February 4, 2002.
[26]
Rollo, p. 58.
[27]
Exhibits F, F-1, F-2 and F-3.
[28]
Exhibit D.
[29]
Exhibits Q and S.
[30]
TSN, February 15, 1994, pp. 23-25.
[31]
Id., August 17, 1994, p. 54.
[32]
Id., p.55.
[33]
Id., pp. 57, 59 and 67.
[34]
Id., December 6, 1991, p. 39.
[35]
Exhibit 2-F.
[36]
TSN, March 8, 1995, pp. 29-30.
[37]
Records, pp. 59-60; citations omitted.
[38]
Exhibits R and T.
[39]
TSN, August 30, 1994, p. 5 (emphasis supplied).
[40]
Lu Hayco v. Court of Appeals, 138 SCRA 227, 240-241 (1985).
[2]
[3]

[41]

Saddul v. Court of Appeals, 192 SCRA 277 (1990).

Rollo, p. 21.
[43]
336 SCRA 551, 560 (2000).
[44]
Id.
[45]
9 Phil. 67, 70 (1907).
[46]
101 Phil. 114, 119 (1957).
[47]
172 SCRA 685, 695-696 (1989).
[48]
Sec. 3. Complaint defined.- A complaint is a sworn written statement charging a person with an offense, subscribed by the offended party, any
peace officer, or other public officer charged with the enforcement of the law violated. (emphasis supplied).
[49]
Rollo, pp. 28-32.
[50]
II F. Regalado, Remedial Law Compendium 229-230 (1995).
[51]
Ebarle, et. al. v. Hon. Sucaldito, et. al., 156 SCRA 803, 819 (1987).
[52]
Id.
[42]

EN BANC
[G.R. No. 135877. August 22, 2002]
PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. ERNESTO NICOLAS y OCAMPO, accused-appellant.
DECISION
QUISUMBING, J.:
[1]
For automatic review is the decision dated October 9, 1998 of the Regional Trial Court of Paraaque City, Branch 259, finding appellant Ernesto
[2]
Nicolas guilty of rape. The heinous nature of the offense is underscored by the charge against him in the amended information which reads as follows:
st
That on or about the 21 day of October 1997, in the Municipality of Paraaque, Metro Manila, Philippines and within the jurisdiction of this Honorable
Court, the above-named accused did then and there willfully, unlawfully and feloniously have carnal intercourse with Flabiana Mendoza, a paral yzed, 53
years (sic) old, mother of complainant, and who was then unconscious and deprived of reason, against her will and consent.
CONTRARY TO LAW.
Upon arraignment, appellant, assisted by counsel, pleaded not guilty. Trial commenced thereafter. Four witnesses testified for the prosecution.
[3]
MA. VICTORIA PUNZALAN, a daughter of the victim Flaviana Mendoza, testified that in August 1997, her mother was brought to the Philippine
[4]
General Hospital for treatment. Upon being brought home in September of that same year, Flavianas medical records and actual condition showed that
[5]
she was almost physically paralyzed and in a very weak state of mind and health. According to Ma. Victoria, her sisters Annaliza Urmelita and Daisy
Mendoza told her that their mother was raped by appellant on October 21, 1997. She added that at the time of the rape, her mother was persistently ill,
[6]
and was physically and mentally incapacitated. Her mother eventually died on November 15, 1997.
DAISY MENDOZA, another daughter of the victim, testified that on October 21, 1997, she was sleeping on the floor of her grandparents house
where her mother, grandparents, and nephew Lorenzo Mendoza also slept. At around 3:00 A.M., she woke up and saw appellant Ernesto Nicolas on top
of her mother, Flaviana Mendoza. Both had their shorts pulled down. Appellant appeared to be doing a pumping motion, with her mother underneath
him. She hurriedly went out of the house and called her brother Joel, whose house was about six meters away. When they returned, they saw Ernesto
still on top of their mother. Her brother shouted at appellant to move down. Appellant then went out of the house. Thereafter, they reported the incident
to the barangay office.
Appellant was apprehended at his sisters house and brought to the Coastal Police Station where an investigation was conducted. Daisy testified
that even prior to the incident, Flaviana was already mentally and physically weak. She said she accompanied her sister Annaliza Urmelita, private
[7]
complainant in this case, to the barangay office to file a complaint against appellant.
JOEL MENDOZA, son of the victim, corroborated the testimony of his sisters on what transpired between 2:00-3:00 A.M. of October 21, 1997. He
added that upon seeing Ernesto atop his mother, he shouted invectives at him and ordered him to stop what he was doing. Appellant got off Flaviana
and pretended to be asleep. It was at this point where Joel saw that his mother also had her shorts pulled down. As he was furious, his wife stopped him
from assaulting appellant and so he went to his other sisters house, adjacent to his own, to tell her about the incident. Later, they went back to see their
mother. He recalled he was wielding a wooden stick to hit appellant. He and Daisy told appellant to get out of the house. According to Joel, he
remembered that Daisy slapped appellant while he hit the appellant. Appellant hurriedly left. Joels sisters then went to the barangay officials to report the
[8]
incident and lodge a complaint against appellant.
[9]
DR. LUDIVINO LAGAT testified that he was the physician who conducted a physical and genital examination on the victim, Flaviana Mendoza,
on October 21, 1997, a few hours after the alleged rape was committed. The victim was weak, needed assistance to move, and had difficulty answering
[10]
questions. He further testified that based on his examination, there could have been prior sexual intercourse without necessarily producing any genital
[11]
injury on the victim.
For the defense, appellant Ernesto Nicolas and his nephew Herminio Nicolas testified.
Appellant ERNESTO NICOLAS testified that Flaviana Mendoza was his first cousin and that he lived with his nephews and nieces in his brothers
house, located a street away from the house of his aunt, Flavianas mother, where Flaviana was staying. On October 21, 1997, he went to his aunts
house, looking for a place to sleep, as his house was already closed. It was there that he saw Flaviana. Upon seeing that there was no more space for
him, he left. He also testified that earlier that morning Flavianas son Joel confronted him and told him to leave the house. Thereafter, he proceeded to
his brothers house next door. He was sleeping by the door when he was arrested by barangay officials. Thereafter, he was brought to the Coastal Police
Station where he was detained. He claimed he did not know the reason for his arrest. He denied having sexual intercourse with Flaviana and claimed
[12]
that he had no idea why he was being accused of raping her. He admitted that he knew that Flaviana was almost paralyzed, mentally and physically.
Appellants nephew, HERMINIO NICOLAS, testified that at around 1:00 A.M. of October 21, 1997, as he arrived from a derby, he s aw Ernesto
Nicolas sitting on a broken refrigerator.Appellant said that he was just going to sleep where he sat, just 10 meters away from where Flaviana was
allegedly raped. At that time, the witness said he did not notice anything unusual or strange, only that the occupants of the house were still awake. At
around 2:00 A.M., he saw appellant near his house, and by 3:00 A.M., he (Herminio) went inside to sleep, and saw and heard nothing beyond 3:00
[13]
A.M.
In its decision dated October 9, 1998, the trial court found appellant guilty of the crime charged and rendered judgment as follows:
WHEREFORE, PREMISES CONSIDERED, finding accused Ernesto Nicolas GUILTY beyond reasonable doubt for the crime of Rape as defin ed and
penalized under No. 10, Art. 266-B RA 8353, this Court hereby sentences him to the maximum penalty of DEATH and to suffer the accessory penalties
provided by law specifically Art. 40 of the Revised Penal Code. For the civil liability, he is further condemned to indemnify the heirs of the victim
P50,000.00 in line with existing jurisprudence; P50,000.00 as moral damages and P50,000.00 as exemplary damages.
The Branch Clerk of Court is directed to prepare the Mittimus for the immediate transfer of accused Ernesto Nicolas from Paraaque City Jail to the
Bureau of Corrections in Muntinlupa City and finally to forward all the records of this case to the Supreme Court for automatic review in accordance with
Section 9 (sic) Rule 122 of the Rules of Court and Article 47 of the Revised Penal Code as amended by Section 22 of RA 7659.
[14]
SO ORDERED.
This case is now before us on automatic review, with appellant alleging that the trial court:
I. . . . ERRED IN FINDING THE ACCUSED-APPELLANT ERNESTO NICOLAS Y OCAMPO GUILTY BEYOND REASONABLE DOUBT
OF THE CRIME OF RAPE DEFINED AND PENALIZED UNDER RA 8353 (THE ANTI-RAPE LAW OF 1997) AMENDING ART. 335 OF
THE REVISED PENAL CODE.

II. . . . GRAVELY ERRED IN CONVICTING HEREIN ACCUSED-APPELLANT DESPITE FAILURE ON THE PART OF THE
[15]
PROSECUTION TO PRESENT THE VERY COMPLAINANT ANNALIZA ORMELITA.
Considering the assigned errors, two issues are for resolution. First, whether or not it is indispensable for the prosecution to present Annaliza
Urmelita, the daughter of the victim who subscribed to the complaint for rape. Second, whether or not the evidence for the prosecution suffices to prove
beyond reasonable doubt that petitioner is guilty of the heinous crime of rape for which he has been sentenced to death.
On the first issue, appellant contends that Annaliza Urmelita should have been presented in order to identify her complaint during the
trial. Appellant avers that her failure to do so amounts to a lack of a valid complaint, because under Section 5, Rule 110 of the 19 85 Rules on Criminal
[16]
Procedure, such identification by complainant is jurisdictional in a prosecution for rape. Appellant also contends that Annalizas non-presentation
during trial violates the constitutional right of the accused to meet and confront his accuser.
For the appellee, however, the OSG avers that considering Flavianas state of health, it devolved upon her children, of suffic ient age and
[17]
discretion, to execute the complaint on her behalf. Note that Flavianas own parents, said to be about aged 97, were already too feeble for the
ordeal. Her daughter Annaliza Urmelita undertook the task and filed the affidavit-complaint sufficient to vest jurisdiction on the court. The OSG further
contends that there was no need to present Annaliza during trial since she did not witness the rape incident. It was sufficient to have presented her
siblings Joel and Daisy who saw what had happened. These witnesses had in fact been confronted and cross-examined by the defense, in satisfaction
[18]
of the right of the accused guaranteed under the Constitution.
The contentions of the OSG are well-taken.
It is true that at the time, the 1985 Rules of Criminal Procedure required a sworn complaint of the offended party in the prosecution of rape and
other private crimes. The purpose of this requirement was to serve as a condition precedent to the exercise by the proper authorities of the power to
[19]
prosecute the guilty parties. The overriding consideration in determining compliance with the requirement is the intent and determination of the
[20]
aggrieved party to seek judicial redress. Once the requirement is satisfied by the proper affidavit or complaint, the prosecutorial process is then
commenced, and the court could validly exercise its legally mandated jurisdiction over the rape case.
The rule is that when the offended party has executed and subscribed to a complaint, the prosecution before the court may be initiated by means
[21]
of an information signed by the prosecutor alone. But there is nothing in the rule that requires the complaint to still be identified in court during
trial. The rule, in our view, is not vitiated by the fact that the complaint was signed by the daughter of the disabled and mentally ill victim. Otherwise the
rule would be requiring the impossible, which is absurd.
Annaliza Urmelitas affidavit-complaint, we believe, is sufficient compliance with the rules. Annaliza swore to the contents of her affidavit-complaint,
which was duly filed. Moreover, all of Flavianas other children have shown their intent to proceed with the case by actively participating in the trial. These
include Ma. Victoria, Joel, and Daisy, who were presented as witnesses.In our view, it is clear that the offended partys chil dren are firm in their resolve to
seek judicial redress.
[22]
In any event, we have previously ruled in the case of People vs. Barrientos that any issue on the validity and sufficiency of the complaint should
[23]
[24]
be raised in a motion to quash the information pursuant to Section 3, Rule 117 of the Rules of Court. As in the cited case of Barrientos, this Court
considers any attack on the validity and efficacy of the affidavit-complaint at this time rather belated.
We must also note that, even if considered in the light of current provisions of law and the rules, the same ruling would be reached. Under R.A.
[25]
[26]
8353, rape has been reclassified from being a private crime into a crime against persons. As a result, the prosecution of the crime of rape has been
effectively removed from the ambit of the requirements of Chapter Five, Title Eleven of the Revised Penal Code and Section 5, Rule 110 of the 1985
Rules of Criminal Procedure. We note further that on December 1, 2000, the Revised Rules on Criminal Procedure took effect and, following the
[27]
[28]
amendments brought about by R.A. 8353, Section 5, Rule 110 thereof has correspondingly been amended. Rape may now be prosecuted de oficio.
As to the alleged violation of appellants right to confrontation, we find appellants contention without merit.
The right to confrontation has a two-fold purpose: (1) primarily, to afford the accused an opportunity to test the testimony of the witness by cross [29]
examination; and (2) secondarily, to allow the judge to observe the deportment of the witness.
In this case, Annaliza was the one who signed the complaint, considering the physical disability of her paralyzed mother. However, it was her
sister Daisy and brother Joel who saw what had happened on October 21, 1997. The occurrences that constitute the crime charged were culled from
their testimony. Notably, appellant had the opportunity to confront both Daisy and Joel, along with the other prosecution witnesses. Daisy and Joel were
presented in court, and their testimonies were adequately tested by the defense who subjected them to cross -examination. Likewise, the judge had
ample opportunity to observe their demeanor while testifying, and evaluate their testimony. The judge found their testimony candid, straightforward and
[30]
credible. It was not, in our view, indispensable under the circumstances of this case to present Annaliza on the witness stand.
Now, we resolve the second issue. Has appellants guilt been proved beyond reasonable doubt?
[31]
Rape is committed by, inter alia, having carnal knowledge of a woman who is deprived of reason or otherwise unconscious. The prosecution
needs to prove in this case (1) the fact of sexual intercourse between the accused and the victim; and (2) the mental disability of the latter. Being
[32]
deprived of reason means to suffer from mental abnormality, deficiency or retardation.
At the trial, both the mental and the physical states of the victim were proved by testimonies of witnesses and by her clinical records presented by
[33]
the prosecution. Witnesses testified that Flaviana was physically incapable of moving about on her own. She had difficulty understanding what was
[34]
[35]
being said to her; she did not recognize people around her, not even members of her family. Appellant himself admitted that Flaviana suffered from
mental and physical disorders.
What remains to be proved is whether or not appellant had sexual intercourse with Flaviana Mendoza. On this point, the prosecution presented
the positive testimonies of Daisy and Joel Mendoza, both children of the victim. They positively identified appellant Ernesto Nicolas, and they
categorically testified under oath in open court that they saw appellant in the act of sexually abusing their invalid mother on or about 3:00 A.M. of
October 21, 1997.
However, appellant denies the charge of rape, stating that he did not have sexual intercourse with Flaviana Mendoza. He presented his nephew,
Herminio Nicolas, who testified that nothing unusual happened at 3:00 A.M. of October 21, 1997. Appellant then attacked the credibility of the testimony
of eyewitness Daisy Mendoza, saying that it was unusual and contrary to human experience and deserved scant consideration.
We note that in giving credence to the prosecutions evidence, the trial court stated that the testimonies of prosecu tion witnesses, including Daisy
Mendoza, were delivered in a candid and straightforward manner. The court observed them to be pained and under stress while testifying against a
[36]
relative. Time and again this Court has accorded great weight to factual findings of the trial court, particularly as regards credibility of witnesses, for it
[37]
had the opportunity to observe first-hand the deportment and demeanor of witnesses.
Moreover, a careful perusal of the records of this case shows that appellants defense of denial is weak. It was not positively corroborated even by
his nephew, who merely testified as to the occurrences in the area prior to the time of the alleged rape. Denial and alibi unsubstantiated by clear and
convincing evidence are negative and self-serving. They cannot be given greater evidentiary weight over the testimonies of credible witnesses who
[38]
testified on affirmative matters.
In assailing the credibility of the prosecution witnesses, appellant averred that it was unlikely for rape to be perpetrated in a crowded place, such
as the house where Flaviana was staying. In a long line of cases, however, we have held that the presence of other people in the vicinity does not deter
[39]
the commission of rape; there is no rule that rape can be committed only in seclusion. Lust is no respecter of time or place; rape can be committed in
[40]
small, confined places like a one-room shack, and in the presence of other family members.
According to appellant, the behavior of prosecution witness Daisy Mendoza, who left to c all her brother when she saw appellant sexually molesting
her mother, was unnatural. Appellant insists that the natural reaction would have been for Daisy to immediately retaliate or wake her grandparents to as k
for help, instead of leaving the house.
But as pointed out by the Office of the Solicitor General in its brief for the appellee, witness Daisy Mendoza was only 15 years old, and she
[41]
admitted it was her first time to be confronted with such a situation. She was in no position to stop a grown 39-year-old man in the heat of

passion. She even considered him as an uncle. It was the most natural thing for her to summon her older brother, who could better deal with the beastly
[42]
situation. The fact that her grandparents were not awakened when she went out is immaterial. Both grandparents were already about 97 years old at
[43]
that time, and also did not even notice appellant enter their house. Like her, they would be helpless to deal with the repulsive behavior of appellant.
In sum, we hold that appellants guilt has been established beyond reasonable doubt by the prosecution. However, in our view, it was error for the
trial court to impose the penalty of death on appellant.
As aforementioned, the trial court convicted appellant based on R.A. 8353, particularly under the provisions of Article 266-B, No.
[44]
[45]
10 thereof. This is erroneous. R.A. 8353 took effect on October 22, 1997, which was one day after the commission of the crime on October 21,
[46]
[47]
1997. The Constitution prohibits ex post facto laws. What properly applies to the present case are the provisions of R.A. 7659, which was the law in
effect on the day when the rape was committed.
[48]
Under Sec. 11 of R.A. 7659, only seven circumstances called for the mandatory imposition of death on the offender. The qualifying
circumstance of when the offender knew of the mental disability, emotional disorder and/or physical handicap of the offended party at the time of the
commission of the crime was only added later, under R.A. 8353. It could not be applied here to qualify appellants offense and justify the death
sentence. The proper penalty imposable in this case is that provided for under R.A. 7659 for simple rape, which is only reclusion perpetua.
Nonetheless, it behooves this Court to state that even under the new rape law, R.A. 8353, the death penalty would still be improper. As the law
now stands in Article 266-B, paragraph 10, of the Revised Penal Code as amended, knowledge of the offender of the mental disability of the victim at the
time of the commission of the crime of rape qualifies the crime and makes it punishable by death. But such knowledge must be alleged in the information
[49]
since a crime can only be qualified by circumstances pleaded in the indictment. To hold otherwise would result in a denial of the right of the accused
to be informed of the charges against him, hence a denial of due process.
A close reading of the amended information filed by the prosecutor shows that the fact of appellants knowledge of Flavianas c ondition at the time
the rape was committed was not alleged therein. This omission rules out any finding of qualified rape as defined by statute. Thus, notwithstanding proof
of such knowledge, appellant could only be held liable for the crime of simple rape.
[50]
[51]
As to appellants civil liability, we find in order the award of P50,000 as indemnity and of another P50,000 as moral damages. However, the
[52]
award of P50,000 as exemplary damages should be reduced to only P25,000, pursuant to current jurisprudence.
WHEREFORE, the decision of the Regional Trial Court of Paraaque City, Branch 259, is hereby MODIFIED. Appellant ERNESTO NICOLAS is
found GUILTY beyond reasonable doubt of the crime of Rape. He is sentenced to suffer the penalty of reclusion perpetua. He is also ordered to pay to
the concerned heirs of the victim, Flaviana Mendoza, P50,000 as civil indemnity, P50,000 as moral damages, and P25,000 as exemplary d amages,
together with the costs.
SO ORDERED.
Bellosillo, Acting C.J., Puno, Vitug, Mendoza, Panganiban, Ynares-Santiago, Carpio, Austria-Martinez, and Corona, JJ., concur.
Davide, Jr., C.J., and Sandoval-Gutierrez, J., on official leave.

[1]

Rollo, pp. 16-24.

Id. at 8.
[3]
Sometimes referred to as Flaviana Salvador, Flabiana Mendoza, and/or Flaviana Marasigan in the records.
[4]
Records p. 358; Exhibits A-13 & A-14.
[5]
Sometimes spelled Ormelita, Urmeneta in the records.
[6]
TSN, February 24, 1998, pp. 3-15.
[7]
TSN, March 17, 1998, pp. 2-17.
[8]
TSN, April 14, 1998, pp. 2-21.
[9]
Sometimes referred to as Ludivico in the records.
[10]
In affirmation of Conclusion No. 2 contained in the Living Case Report stated as:
2. Hymen obliterated and its orifice wide (3.0 cm. in diameter) as to allow a complete penetration by an average-sized, adult Filipino male organ in full
erection without producing any genital injury. See Records, p. 15.
[11]
TSN, April 28, 1998, pp. 2-7.
[12]
TSN, July 6, 1998, pp. 2-8.
[13]
TSN, August 26, 1998, pp. 2-20.
[14]
Rollo, p. 24.
[15]
Id. at 41.
[16]
1985 Rules of Criminal Procedure, Rule 110, Section 5, paragraphs 3 and 4: The offenses of seduction, abduction, rape or acts of
lasciviousness shall not be prosecuted except upon a complaint filed by the offended party or her parents, grandparents or guardian, nor, in any case, if
the offender has been expressly pardoned by the above-named persons, as the case may be. In case the offended party dies or becomes incapacitated
before she could file the complaint and has no known parents, grandparents or guardian, the State shall initiate the criminal action in her behalf.
The offended party, even if she were a minor, has the right to initiate the prosecution for the above offenses, independently of her parents, grandparents,
or guardian, unless she is incompetent or incapable of doing so upon grounds other than her minority. Where the offended party who is a
minor fails to file the complaint, her parents, grandparents, or guardian may file the same. The right to file the action granted to parents,
grandparents or guardian shall be exclusive of all other persons and shall be exercised successively in the order herein provided, except as
stated in the immediately preceding paragraph.
[17]
See TSN, March 17, 1998, p. 17.
[18]
Rollo, pp. 87-89.
[19]
See People vs. Bolado, 226 SCRA 800 (1993).
[20]
People vs. Barrientos, 285 SCRA 221, 234 (1998).
[21]
People vs. Ramirez, 136 SCRA 702, 705 (1985).
[22]
Supra, note 20, 285 SCRA 221 (1998); citing People vs. Garcia, G.R. No. 120093, 281 SCRA 463 (1997).
[23]
SEC. 3. Grounds. The accused may move to quash the complaint or information on any of the following grounds:
(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 file 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 prescribed 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.
[24]
Exceptions cited in the Garcia case are the grounds of no offense charged, lack of jurisdiction over the offense charged, extinction of the offense or
penalty, and jeopardy.
[2]

[25]

AN ACT EXPANDING THE DEFINITION OF THE CRIME OF RAPE RECLASSIFYING THE SAME AS A CRIME AGAINST PERSONS, AMENDING
FOR THE PURPOSE ACT NO. 3815, AS AMENDED, OTHERWISE KNOWN AS THE REVISED PENAL CODE, AND FOR OTHER
PURPOSES.
[26]
R.A. 8353, Section 2. Rape as a Crime Against Persons. - The crime of rape shall hereafter be classified as a Crime Against Persons under Title
Eight of Act No. 3815, as amended, otherwise known as the Revised Penal Code. x x x
[27]
2000 Revised Rules of Criminal Procedure, Rule 110, Section 5, paragraphs 3 and 4: The offenses of seduction, abduction and acts of
lasciviousness shall not be prosecuted except upon a complaint filed by the offended party or her parents, grandparents or g uardian, nor, in any case, if
the offender has been expressly pardoned by any of them. If the offended party dies or becomes incapacitated before she can file the complaint, and
has no known parents, grandparents or guardian, the State shall initiate the criminal action in her behalf.
The offended party, even if a minor, has the right to initiate the prosecution of the offenses of seduction, abduction and ac ts of lasciviousness
independently of her parents, grandparents, or guardian, unless she is incompetent or incapable of doing so. Where the offended party, who is
a minor, fails to file the complaint, her parents, grandparents, or guardian may file the same. The right to file the action granted to parents,
grandparents, or guardian shall be exclusive of all other persons and shall be exercised successively in the order herein provided, except as
stated in the immediately preceding paragraph.
[28]
People vs. Yparraguirre, G.R. No. 124391, 335 SCRA 69 (2000).
[29]
rd
J.G. Bernas, THE 1987 PHILIPPINE CONSTITUTION, A REVIEWER-PRIMER, 164 (3 ed., 1997).
[30]
Rollo, p. 62.
[31]
Under Article 335, of the Revised Penal Code, as amended by R.A. 7659, which 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.
xxx
[32]
People vs. Magabo, G. R. No. 139471, 350 SCRA 126, 131 (2001), citing People vs. Reyes, G.R. No. 113781, 315 SCRA 563, 577 (1999),
citing People vs. Andaya, G.R. No. 126545, 306 SCRA 202, 214 (1999), citingPeople vs. Guerrero, G.R. No. 95031, 242 SCRA 606, 617
(1995).
[33]
TSN, February 24, 1998, p. 7; TSN, April 14, 1998, pp. 18-19. See also TSN, March 17, 1998, pp. 12-13.
[34]
TSN, February 24, 1998, p. 7.
[35]
TSN, July 6, 1998, pp. 11-12.
[36]
Rollo, p. 62.
[37]
People vs. Balgos, G.R. No. 126115, 323 SCRA 372, 380 (2000).
[38]
People vs. Llamo, G.R. No. 132138, 323 SCRA 791, 806 (2000).
[39]
People vs. Bato, G.R. No. 134939, 325 SCRA 671, 678 (2000).
[40]
People vs. Lagarto and Cordero, G.R. No. 118828 & 119371, 326 SCRA 693, 746 (2000).
[41]
Rollo, pp. 80-81.
[42]
TSN, March 17, 1998, p. 17. See also TSN, April 14, 1998, p. 22, where Joel Mendoza testified that his grandmother was 94 years old while their
grandfather was 96 years old.
[43]
TSN, March 17, 1998, p. 20.
[44]
ART. 266-B. Penalties. - x x x
The death penalty shall be imposed if the crime of rape is committed with any of the following aggravating/qualifying circums tances.
xxx
10.) When the offender knew of the mental disability, emotional disorder and/or physical handicap of the offended party at the time of the commission of
the crime.
xxx
[45]
See R.A. 8353, Section 5 stating that the Act shall take effect 15 days after completion of its publication in two newspapers of general
circulation. Publication was in fact made in the Malaya newspaper on October 7, 1997, and hence, took effect 15 days thereafter, or on
October 22, 1997.
[46]
ARTICLE III, Section 22, 1987 Constitution.
[47]
Which took effect on December 31, 1993.
[48]
ART. 335. When and how rape is committed.- x x x
xxx
The death penalty shall also be imposed if the crime of rape is committed with any of the following 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.
2. When the victim is under the custody of the police or military authorities.
3. When the rape is committed in full view of the husband, parent, any of the children or other relatives within the third degree of consanguinity.
4. When the victim is a religious or a child below seven (7) years old.
5. When the offender knows that he is afflicted with Acquired Immune Deficiency Syndrome (AIDS) disease.
6. When committed by any member of the Armed Forces of the Philippines or the Philippine National Police or any law enforcement agency.
7. When by reason or on the occasion of the rape, the victim has suffered permanent physical mutilation. (As amended by Section 11, R.A. 7659.)
[49]
People vs. Magabo, G.R. No. 139471, 350 SCRA 126, 136 (2001).
[50]
People vs. Garcia, G.R. No. 141125, February 28, 2002, p. 14.
[51]
People vs. Garcia, G.R. No. 139753, May 7, 2002, p. 13.
[52]
People vs. Lachica, G.R. No. 143677, May 9, 2002, p. 24.