THIRD DIVISION

MARY ANN RODRIGUEZ, G.R. Nos. 155531-34

Petitioner,
Present:

- versus - Panganiban, J.,

Chairman,
Sandoval-Gutierrez,
Hon. THELMA A. PONFERRADA, Corona,*
in Her Official Capacity as Carpio Morales, and
Presiding Judge of the Garcia, JJ
Regional Trial Court of
Quezon City, Branch 104;
PEOPLE OF THE PHILIPPINES; Promulgated:
and GLADYS NOCOM,
Respondents. July 29, 2005
x -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- --- -- -- -- -- x

DECISION

PANGANIBAN, J.:

S
ettled is the rule that the single act of issuing a bouncing check may give rise to
two distinct criminal offenses: estafa and violation of Batas Pambansa Bilang 22
(BP 22). The Rules of Court allow the offended party to intervene via a private
prosecutor in each of these two penal proceedings. However, the recovery of
the single civil liability arising from the single act of issuing a bouncing check in
either criminal case bars the recovery of the same civil liability in the other criminal
action. While the law allows two simultaneous civil remedies for the offended party, it
authorizes recovery in only one. In short, while two crimes arise from a single set of
facts, only one civil liability attaches to it.

The Case

Before us is a Petition for Certiorari[1] under Rule 65 of the Rules of Court, seeking to
reverse the July 27, 2002 Order[2] of the Regional Court (RTC) of Quezon City (Branch
104) in Criminal Case Nos. Q-01-106256 to Q-01-106259. Also assailed is the August
16, 2002 Order[3] of the RTC denying petitioners Motion for Reconsideration. The first
assailed Order is quoted in full as follows:
For consideration is the opposition of the accused, through counsel, to the
formal entry of appearance of private prosecutor.

Accused, through counsel, contends that the private prosecutor is barred

from appearing before this Court as his appearance is limited to the civil aspect
which must be presented and asserted in B.P. 22 cases pending before the
Metropolitan Trial Court of Quezon City.
 The private prosecutor submitted comment stating that the offended party
did not manifest within fifteen (15) days following the filing of the information that
the civil liability arising from the crime has been or would be separately prosecuted
and that she should therefore be required to pay the legal fees pursuant to Section
20 of Rule 141 of the Rules of Court, as amended.

Considering that the prosecution under B.P. 22 is without prejudice to any

liability for violation of any provision of the Revised Penal Code (BP 22, Sec. 5),
the civil action for the recovery of the civil liability arising from the estafa cases
pending before this Court is deemed instituted with the criminal action (Rule 111,
Sec. 1 [a]). The offended party may thus intervene by counsel in the prosecution
of the offense (Rule 110. Sec. 16).

WHEREFORE, the appearance of a private prosecutor shall be allowed

upon payment of the legal fees for these estafa cases pending before this Court
pursuant to Section 1 of Rule 141 of the Rules of Court, as amended.[4]

The Facts

The undisputed facts are narrated by petitioner as follows:

On 10 December 2001, the Honorable Assistant City Prosecutor Rossana S.

Morales-Montojo of Quezon City Prosecutors Office issued her Resolution in I.S.
No. 01-15902, the dispositive portion of which reads as follows:

Premises considered, there being PROBABLE CAUSE to charge

respondent for ESTAFA under Article 315 paragraph 2(d) as amended by
PD 818 and for Violation of Batas Pambansa Blg. 22, it is respectfully
recommended that the attached Information be approved and filed in Court.

As a consequence thereof, separate informations were separately filed against

herein [p]etitioner before proper [c]ourts, for Estafa and [v]iolation of Batas
Pambansa Blg. 22.

Upon payment of the assessed and required docket fees by the [p]rivate
[c]omplainant, the informations for [v]iolation of Batas Pambansa Blg. 22 against
herein [p]etitioner were filed and raffled to the Metropolitan Trial Court of Quezon
City, Branch 42, docketed as Criminal Cases Nos. 0108033 to 36.

On the other hand, the informations for [e]stafa cases against herein [p]etitioner
were likewise filed and raffled to the Regional Trial Court of Quezon City, Branch
104, docketed as Criminal Cases Nos. 01-106256 to 59.

On 17 June 2002, petitioner through counsel filed in open court before the [p]ublic
[r]espondent an Opposition to the Formal Entry of Appearance of the Private
Prosecutor dated 14 June 2002.

The [p]ublic [r]espondent court during the said hearing noted the Formal Entry of
Appearance of Atty. Felix R. Solomon as [p]rivate [p]rosecutor as well as the
Opposition filed thereto by herein [p]etitioner. x x x.

As ordered by the Court, [p]rivate [c]omplainant through counsel filed her

Comment to the Opposition of herein [p]etitioner.
 On 27 June 2002, the [p]ublic [r]espondent court issued the first assailed Order
allowing the appearance of the [p]rivate [p]rosecutor in the above-entitled criminal
cases upon payment of the legal fees pursuant to Section 1 of Rule 141 of the
Rules of Court, as amended.

On 31 July 2002, [a]ccused through counsel filed a Motion for Reconsideration

dated 26 July 2002.

On 16 August 2002, the [p]ublic [r]espondent court issued the second assailed
Order denying the Motion for Reconsideration of herein [p]etitioner.[5]

Ruling of the Trial Court

Noting petitioners opposition to the private prosecutors entry of appearance, the RTC
held that the civil action for the recovery of civil liability arising from the offense charged
is deemed instituted, unless the offended party (1) waives the civil action, (2) reserves the
right to institute it separately, or (3) institutes the civil action prior to the criminal action.
Considering that the offended party had paid the corresponding filing fee for the estafa
cases prior to the filing of the BP 22 cases with the Metropolitan Trial Court (MeTC),
the RTC allowed the private prosecutor to appear and intervene in the proceedings.

Hence, this Petition.[6]

Issues

Petitioner raises this sole issue for the Courts consideration:

Whether or not a [p]rivate [p]rosecutor can be allowed to intervene and participate
in the proceedings of the above-entitled [e]stafa cases for the purpose of
prosecuting the attached civil liability arising from the issuance of the checks
involved which is also subject mater of the pending B.P. 22 cases.[7]

The Courts Ruling

The Petition has no merit.

Sole Issue:
Civil Action in BP 22 Case Not a Bar
to Civil Action in Estafa Case

Petitioner theorizes that the civil action necessarily arising from the criminal case
pending before the MTC for violation of BP 22 precludes the institution of the
corresponding civil action in the criminal case for estafa now pending before the RTC.
She hinges her theory on the following provisions of Rules 110 and 111 of the Rules of
Court:
SECTION 16. Intervention of the offended party in criminal action. -- Where the
civil action for recovery of civil liability is instituted in the criminal action pursuant
to Rule 111, the offended party may intervene by counsel in the prosecution of the
offense.
 SECTION 1. Institution of criminal and civil actions. -- (a) When a criminal action
is instituted, the civil action for the recovery of civil liability arising from the offense
charged shall be deemed instituted with the criminal action unless the offended
party waives the civil action, reserves the right to institute it separately or institutes
the civil action prior to the criminal action.

The reservation of the right to institute separately the civil action shall be made
before the prosecution starts presenting its evidence and under circumstances
affording the offended party a reasonable opportunity to make such reservation.

When the offended party seeks to enforce civil liability against the accused by way
of moral, nominal, temperate, or exemplary damages without specifying the
amount thereof in the complaint or information, the filing fees therefor shall
constitute a first lien on the judgment awarding such damages.

xxxxxxxxx

(b) The criminal action for violation of Batas Pambansa Blg. 22 shall be deemed
to include the corresponding civil action. No reservation to file such civil action
separately shall be allowed.

Upon filing of the aforesaid joint criminal and civil actions, the offended party shall
pay in full the filing fees based on the amount of the check involved, which shall
be considered as the actual damages claimed. Where the complaint or information
also seeks to recover liquidated, moral, nominal, temperate or exemplary
damages, the offended party shall pay the filing fees based on the amounts alleged
therein. If the amounts are not so alleged but any of these damages are
subsequently awarded by the court, the filing fees based on the amount awarded
shall constitute a first lien on the judgment.

Where the civil action has been filed separately and trial thereof has not yet
commenced, it may be consolidated with the criminal action upon application with
the court trying the latter case. If the application is granted, the trial of both actions
shall proceed in accordance with section 2 of this Rule governing consolidation of
the civil and criminal actions.

Based on the foregoing rules, an offended party may intervene in the prosecution
of a crime, except in the following instances: (1) when, from the nature of the crime and
the law defining and punishing it, no civil liability arises in favor of a private offended
party; and (2) when, from the nature of the offense, the offended parties are entitled to
civil indemnity, but (a) they waive the right to institute a civil action, (b) expressly reserve
the right to do so or (c) the suit has already been instituted. In any of these instances, the
private complainants interest in the case disappears and criminal prosecution becomes the
sole function of the public prosecutor.[8] None of these exceptions apply to the instant
case. Hence, the private prosecutor cannot be barred from intervening in the estafa suit.

True, each of the overt acts in these instances may give rise to two criminal liabilities --
one for estafa and another for violation of BP 22. But every such act of issuing a bouncing
check involves only one civil liability for the offended party, who has sustained only a single
injury.[9] This is the import of Banal v. Tadeo,[10] which we quote in part as follows:
Generally, the basis of civil liability arising from crime is the fundamental
postulate of our law that Every man criminally liable is also civilly liable (Art. 100,
 The Revised Penal Code). Underlying this legal principle is the traditional theory
that when a person commits a crime he offends two entities namely (1) the society
in which he lives in or the political entity called the State whose law he had violated;
and (2) the individual member of that society whose person, right, honor, chastity
or property was actually or directly injured or damaged by the same punishable act
or omission. However, this rather broad and general provision is among the most
complex and controversial topics in criminal procedure. It can be misleading in its
implications especially where the same act or omission may be treated as a crime
in one instance and as a tort in another or where the law allows a separate civil
action to proceed independently of the course of the criminal prosecution with which
it is intimately intertwined. Many legal scholars treat as a misconception or fallacy
the generally accepted notion that the civil liability actually arises from the crime
when, in the ultimate analysis, it does not. While an act or omission is felonious
because it is punishable by law, it gives rise to civil liability not so much because it
is a crime but because it caused damage to another. Viewing things pragmatically,
we can readily see that what gives rise to the civil liability is really the obligation and
the moral duty of everyone to repair or make whole the damage caused to another
by reason of his own act or omission, done intentionally or negligently, whether or
not the same be punishable by law. In other words, criminal liability will give rise to
civil liability only if the same felonious act or omission results in damage or injury to
another and is the direct and proximate cause thereof. Damage or injury to another
is evidently the foundation of the civil action. Such is not the case in criminal actions
for, to be criminally liable, it is enough that the act or omission complained of is
punishable, regardless of whether or not it also causes material damage to another.
(See Sangco, Philippine Law on Torts and Damages, 1978, Revised Edition, pp.
246-247).

Thus, the possible single civil liability arising from the act of issuing a bouncing
check can be the subject of both civil actions deemed instituted with the estafa case and
the BP 22 violation prosecution. In the crimes of both estafa and violation of BP 22, Rule
111 of the Rules of Court expressly allows, even automatically in the present case, the
institution of a civil action without need of election by the offended party. As both
remedies are simultaneously available to this party, there can be no forum shopping.[11]

Hence, this Court cannot agree with what petitioner ultimately espouses. At the
present stage, no judgment on the civil liability has been rendered in either criminal case.
There is as yet no call for the offended party to elect remedies and, after choosing one
of them, be considered barred from others available to her.

Election of Remedies

Petitioner is actually raising the doctrine of election of remedies. In its broad sense,
election of remedies refers to the choice by a party to an action of one of two or more
coexisting remedial rights, where several such rights arise out of the same facts, but the
term has been generally limited to a choice by a party between inconsistent remedial
rights, the assertion of one being necessarily repugnant to, or a repudiation of, the
other.[12] In its more restricted and technical sense, the election of remedies is the
adoption of one of two or more coexisting ones, with the effect of precluding a resort
to the others.[13]

The Court further elucidates in Mellon Bank v. Magsino[14] as follows:

 As a technical rule of procedure, the purpose of the doctrine of election of remedies is
not to prevent recourse to any remedy, but to prevent double redress for a single
wrong.[15] It is regarded as an application of the law of estoppel, upon the theory that a
party cannot, in the assertion of his right occupy inconsistent positions which form the
basis of his respective remedies. However, when a certain state of facts under the law
entitles a party to alternative remedies, both founded upon the identical state of facts,
these remedies are not considered inconsistent remedies. In such case, the invocation
of one remedy is not an election which will bar the other, unless the suit upon the remedy
first invoked shall reach the stage of final adjudication or unless by the invocation of the
remedy first sought to be enforced, the plaintiff shall have gained an advantage thereby
or caused detriment or change of situation to the other.[16] It must be pointed out that
ordinarily, election of remedies is not made until the judicial proceedings has gone to
judgment on the merits.[17]

Consonant with these rulings, this Court, through Justice J.B.L. Reyes, opined that while
some American authorities hold that the mere initiation of proceedings constitutes a
binding choice of remedies that precludes pursuit of alternative courses, the better rule
is that no binding election occurs before a decision on the merits is had or a detriment
to the other party supervenes.[18] This is because the principle of election of remedies is
discordant with the modern procedural concepts embodied in the Code of Civil
Procedure which permits a party to seek inconsistent remedies in his claim for relief
without being required to elect between them at the pleading stage of the litigation.[19]

In the present cases before us, the institution of the civil actions with the estafa
cases and the inclusion of another set of civil actions with the BP 22 cases are not
exactly repugnant or inconsistent with each other. Nothing in the Rules signifies that
the necessary inclusion of a civil action in a criminal case for violation of the Bouncing
Checks Law[20] precludes the institution in an estafa case of the corresponding civil
action, even if both offenses relate to the issuance of the same check.

The purpose of Section 1(b) of Rule 111 is explained by Justice Florenz D. Regalado
(ret.), former chairman of the committee tasked with the revision of the Rules of Criminal
Procedure. He clarified that the special rule on BP 22 cases was added, because the
dockets of the courts were clogged with such litigations; creditors were using the courts
as collectors. While ordinarily no filing fees were charged for actual damages in criminal
cases, the rule on the necessary inclusion of a civil action with the payment of filing fees
based on the face value of the check involved was laid down to prevent the practice of
creditors of using the threat of a criminal prosecution to collect on their credit free of
charge.[21]

Clearly, it was not the intent of the special rule to preclude the prosecution of the
civil action that corresponds to the estafa case, should the latter also be filed. The crimes
of estafa and violation of BP 22 are different and distinct from each other. There is no
identity of offenses involved, for which legal jeopardy in one case may be invoked in the
other. The offenses charged in the informations are perfectly distinct from each other
in point of law, however nearly they may be connected in point of fact.[22]

What Section 1(b) of the Rules of Court prohibits is the reservation to file the
corresponding civil action. The criminal action shall be deemed to include the
corresponding civil action. [U]nless a separate civil action has been filed before the institution of
the criminal action, no such civil action can be instituted after the criminal action has been
filed as the same has been included therein.[23] In the instant case, the criminal action for
estafa was admittedly filed prior to the criminal case for violation of BP 22, with the
corresponding filing fees for the inclusion of the corresponding civil action paid
accordingly.[24]

Furthermore, the fact that the Rules do not allow the reservation of civil actions
in BP 22 cases cannot deprive private complainant of the right to protect her interests
in the criminal action for estafa. Nothing in the current law or rules on BP 22 vests the
jurisdiction of the corresponding civil case exclusively in the court trying the BP 22
criminal case.[25]

In promulgating the Rules, this Court did not intend to leave the offended parties
without any remedy to protect their interests in estafa cases. Its power to promulgate the
Rules of Court is limited in the sense that rules shall not diminish, increase or modify
substantive rights.[26] Private complainants intervention in the prosecution of estafa is
justified not only for the prosecution of her interests, but also for the speedy and
inexpensive administration of justice as mandated by the Constitution.[27]

The trial court was, therefore, correct in holding that the private prosecutor may
intervene before the RTC in the proceedings for estafa, despite the necessary inclusion
of the corresponding civil action in the proceedings for violation of BP 22 pending
before the MTC. A recovery by the offended party under one remedy, however,
necessarily bars that under the other. Obviously stemming from the fundamental rule
against unjust enrichment,[28] this is in essence the rationale for the proscription in our
law against double recovery for the same act or omission.
WHEREFORE, the Petition is DISMISSED and the assailed Order
AFFIRMED. Costs against petitioner.

SO ORDERED.

------Although the Court has ruled that the issuance of a bouncing check may result
in two separate and distinct crimes of estafa and violation of BP 22, 10
FACTS:

Assistant City Prosecutor Morales-Montojo of Quezon City Prosecutors Office issued her Resolution finding
probable cause to charge respondent for ESTAFA and for Violation of Batas Pambansa Blg. 22. As a consequence,
separate informations were filed against petitioner.

Petitioner through counsel filed in open court before the [p]ublic [r]espondent an Opposition to the
Formal Entry of Appearance of the Private Prosecutor. The court allowed the appearance of the private
prosecutor. It ruled that civil action for the recovery of civil liability arising from the offense charged is deemed
instituted, unless the offended party (1) waives the civil action, (2) reserves the right to institute it separately,
or (3) institutes the civil action prior to the criminal action. Considering that the offended party had paid the
corresponding filing fee for the estafa cases prior to the filing of the BP 22 cases with the Metropolitan Trial
Court (MeTC), the RTC allowed the private prosecutor to appear and intervene in the proceedings.

ISSUE: Whether or not a [p]rivate [p]rosecutor can be allowed to intervene and participate in the proceedings
of the above-entitled [e]stafa cases for the purpose of prosecuting the attached civil liability arising from the
issuance of the checks involved which is also subject mater of the pending B.P. 22 cases.
RULING:
An offended party may intervene in the prosecution of a crime, except in the following instances: (1)
when, from the nature of the crime and the law defining and punishing it, no civil liability arises in favor of a
private offended party; and (2) when, from the nature of the offense, the offended parties are entitled to civil
indemnity, but (a) they waive the right to institute a civil action, (b) expressly reserve the right to do so or (c)
the suit has already been instituted. In any of these instances, the private complainants interest in the case
disappears and criminal prosecution becomes the sole function of the public prosecutor. None of these
exceptions apply to the instant case. Hence, the private prosecutor cannot be barred from intervening in the
estafa suit.

Generally, the basis of civil liability arising from crime is the fundamental postulate of our law that Every
man criminally liable is also civilly liable (Art. 100, The Revised Penal Code). Underlying this legal principle is
the traditional theory that when a person commits a crime he offends two entities namely (1) the society in
which he lives in or the political entity called the State whose law he had violated; and (2) the individual member
of that society whose person, right, honor, chastity or property was actually or directly injured or damaged by
the same punishable act or omission. However, this rather broad and general provision is among the most
complex and controversial topics in criminal procedure. It can be misleading in its implications especially where
the same act or omission may be treated as a crime in one instance and as a tort in another or where the law
allows a separate civil action to proceed independently of the course of the criminal prosecution with which it
is intimately intertwined. Many legal scholars treat as a misconception or fallacy the generally accepted notion
that the civil liability actually arises from the crime when, in the ultimate analysis, it does not. While an act or
omission is felonious because it is punishable by law, it gives rise to civil liability not so much because it is a
crime but because it caused damage to another. Viewing things pragmatically, we can readily see that what
gives rise to the civil liability is really the obligation and the moral duty of everyone to repair or make whole the
damage caused to another by reason of his own act or omission, done intentionally or negligently, whether or
not the same be punishable by law. In other words, criminal liability will give rise to civil liability only if the same
felonious act or omission results in damage or injury to another and is the direct and proximate cause
thereof. Damage or injury to another is evidently the foundation of the civil action. Such is not the case in
criminal actions for, to be criminally liable, it is enough that the act or omission complained of is punishable,
regardless of whether or not it also causes material damage to another.
 G.R. No. 122452 January 29, 2001

TAM WING TAK, petitioner,

vs.
HON. RAMON P. MAKASIAR (in his Capacity as Presiding Judge of the Regional Trial Court of Manila,
Branch 35) and ZENON DE GUIA (in his capacity as Chief State Prosecutor), respondents.

QUISUMBING, J.:

This is a petition for review on certiorari of the decision of the Regional Trial Court of Manila, Branch
35, dated September 14, 1995, which dismissed herein petitioner's special civil action for mandamus and sustained
the Letter-Order of respondent Chief State Prosecutor. The latter dismissed petitioner's appeal from the resolution
of the City Prosecutor of Quezon City, which, in turn, dismissed petitioner's complaint against Vic Ang Siong for
violation of the Bouncing Checks Law or B.P. Blg. 22.

The factual background of this case is as follows:

On November 11, 1992, petitioner, in his capacity as director of Concord-World Properties, Inc., (Concord
for brevity), a domestic corporation, filed an affidavit-complaint with the Quezon City Prosecutor's Office,
charging Vic Ang Siong with violation of B.P. Blg. 22. Docketed by the Prosecutor as I.S. No. 93-15886, the
complaint alleged that a check for the amount of P83,550,000.00, issued by Vic Ang Siong in favor of Concord,
was dishonored when presented for encashment.

Vic Ang Siong sought the dismissal of the case on two grounds: First, that petitioner had no authority to
file the case on behalf of Concord, the payee of the dishonored check, since the firm's board of directors had not
empowered him to act on its behalf. Second, he and Concord had already agreed to amicably settle the issue after
he made a partial payment of P19,000,000.00 on the dishonored check.1wphi1.nt

On March 23, 1994, the City Prosecutor dismissed I.S. No. 93-15886 on the following grounds: (1) that
petitioner lacked the requisite authority to initiate the criminal complaint for and on Concord's behalf; and (2) that
Concord and Vic Ang Siong had already agreed upon the payment of the latter's balance on the dishonored check.

A copy of the City Prosecutor's resolution was sent by registered mail to petitioner in the address he
indicated in his complaint-affidavit. Notwithstanding that petitioner was represented by counsel, the latter was
not furnished a copy of the resolution.

On June 27, 1994, petitioner's counsel was able to secure a copy of the resolution dismissing I.S. No. 93-
15886. Counting his 15-day appeal period from said date, petitioner moved for reconsideration on July 7, 1994.

On October 21, 1994, the City Prosecutor denied petitioner's motion for reconsideration. Petitioner's
counsel received a copy of the denial order on November 3, 1994.

On November 7, 1994, petitioner's lawyer filed a motion to extend the period to appeal by an additional
15 days counted from November 3, 1994 with the Chief State Prosecutor. He manifested that it would take time
to communicate with petitioner who is a Hong Kong resident and enable the latter to verify the appeal as
procedurally required.

On November 8, 1994, petitioner appealed the dismissal of his complaint by the City Prosecutor to the
Chief State Prosecutor. The appeal was signed by petitioner's attorney only and was not verified by petitioner
until November 23, 1994.

On December 8, 1994, the Chief State Prosecutor dismissed the appeal for having been filed out of time.
Petitioner's lawyer received a copy of the letter-resolution dismissing the appeal on January 20, 1995.

On January 30, 1995, petitioner moved for reconsideration.

On March 9, 1995, respondent Chief State Prosecutor denied the motion for reconsideration.

Petitioner then filed Civil Case No. 95-74394 for mandamus with the Regional Trial Court of Quezon
City to compel the Chief State Prosecutor to file or cause the filing of an information charging Vic Ang Siong
with violation of B.P. Blg. 22.
 On September 14, 1995, the trial court disposed of the action as follows:

WHEREFORE, for utter lack of merit, the petition for mandamus of petitioner is DENIED and
DISMISSED.

SO ORDERED.1

Petitioner moved for reconsideration, but the trial court denied this motion in its order dated October 24,
1995.

Hence, the instant petition.

Before this Court, petitioner claims respondent judge committed grave errors of law in sustaining
respondent Chief State Prosecutor whose action flagrantly contravenes: (1) the established rule on service of
pleadings and orders upon parties represented by counsel; (b) the basic principle that except in private crimes,
any competent person may initiate a criminal case; and (3) the B.P. Blg. 22 requirement that arrangement for full
payment of a bounced check must be made by the drawer with the drawee within five (5) banking days from
notification of the check's dishonor.2

We find pertinent for our resolution the following issues:

(1) Was there valid service of the City Prosecutor's resolution upon petitioner?

(2) Will mandamus lie to compel the City Prosecutor to file the necessary information in court?

In upholding respondent Chief State Prosecutor, the court a quo held:

It is generally accepted principle in the service of orders, resolutions, processes and other papers to serve
them on the party or his counsel, either in his office, if known, or else in the residence, also if known. As the party
or his counsel is not expected to be present at all times in his office or residence, service is allowed to be made
with a person in charge of the office, or with a person of sufficient discretion to receive the same in the residence.

In the case under consideration, it is not disputed that the controverted Resolution dismissing the complaint
of the petitioner against Vic Ang Siong was served on the former by registered mail and was actually delivered
by the postmaster on April 9, 1994 at said petitioner's given address in the record at No. 5 Kayumanggi Street,
West Triangle, Quezon City. The registered mail was in fact received by S. Ferraro. The service then was complete
and the period for filing a motion for reconsideration or appeal began to toll from that date. It expired on April
24, 1994. Considering that his motion for reconsideration was filed only on July 7, 1994, the same was filed
beyond the prescribed period, thereby precluding further appeal to the Office of the respondent.3

Petitioner, before us, submits that there is no such "generally accepted practice" which gives a tribunal the
option of serving pleadings, orders, resolutions, and other papers to either the opposing party himself or his
counsel. Petitioner insists that the fundamental rule in this jurisdiction is that if a party appears by counsel, then
service can only be validly made upon counsel and service upon the party himself becomes invalid and without
effect. Petitioner relies upon Rule 13, Section 2 of the Rules of Court4 and our ruling in J.M. Javier Logging
Corp. v. Mardo, 24 SCRA 776 (1968) to support his stand. In the J.M. Javier case, we held:

[W]here a party appears by attorney, notice to the former is not a notice in law, unless service upon the
party himself is ordered by the court5

The Solicitor General, for respondents, contends that the applicable rule on service in the present case is
Section 2 of the Department of Justice (DOJ) Order No. 223,6 which allows service to be made upon either party
or his counsel. Respondents argue that while a preliminary investigation has been considered as partaking of the
nature of a judicial proceeding,7 nonetheless, it is not a court proceeding and hence, falls outside of the ambit of
the Rules of Court.

We agree with petitioner that there is no "generally accepted practice" in the service of orders, resolutions,
and processes, which allows service upon either the litigant or his lawyer. As a rule, notice or service made upon
a party who is represented by counsel is a nullity,8 However, said rule admits of exceptions, as when the court or
tribunal order service upon the party9 or when the technical defect is waived.10
 To resolve the issue on validity of service, we must make a determination as to which is the applicable
rule the on service in the Rules of Court, as petitioner insists or the rule on service in DOJ Order No. 223?

The Rules of Court were promulgated by this Court pursuant to Section 13, Article VII of the 1935
Constitution11 (now Section 5 [5], Article VIII of the Constitution)12 to govern "pleadings, practice and
procedure in all courts of the Philippines." The purpose of the Rules is clear and does not need any interpretation.
The Rules were meant to govern court (stress supplied) procedures and pleadings. As correctly pointed out by the
Solicitor General, a preliminary investigation, notwithstanding its judicial nature, is not a court proceeding. The
holding of a preliminary investigation is a function of the Executive Department and not of the Judiciary.13 Thus,
the rule on service provided for in the Rules of Court cannot be made to apply to the service of resolutions by
public prosecutors, especially as the agency concerned, in this case, the Department of Justice, has its own
procedural rules governing said service.

A plain reading of Section 2 of DOJ Order No. 223 clearly shows that in preliminary investigation, service
can be made upon the party himself or through his counsel. It must be assumed that when the Justice Department
crafted the said section, it was done with knowledge of the pertinent rule in the Rules of Court and of jurisprudence
interpreting it. The DOJ could have just adopted the rule on service provided for in the Rules of Court, but did
not. Instead, it opted to word Section 2 of DOJ Order No. 223 in such a way as to leave no doubt that in preliminary
investigations, service of resolutions of public prosecutors could be made upon either the party or his counsel.

Moreover, the Constitution provides that "Rules of procedure of special courts and quasi-judicial bodies
shall remain effective unless disapproved by the Supreme Court."14 There is naught in the records to show that
we have disapproved and nullified Section 2 of DOJ Order No. 223 and since its validity is not an issue in the
instant case, we shall refrain from ruling upon its validity.

We hold that there was valid service upon petitioner pursuant to Section 2 of DOJ Order No. 223.

On the issue of whether mandamus will lie. In general, mandamus may be resorted to only where one's
right is founded clearly in law and not when it is doubtful.15 The exception is to be found in criminal cases where
mandamus is available to compel the performance by the public prosecutor of an ostensibly discretionary function,
where by reason of grave abuse of discretion on his part, he willfully refuses to perform a duty mandated by
law.16 Thus, mandamus may issue to compel a prosecutor to file an information when he refused to do so in spite
of the prima facie evidence of guilt.17

Petitioner takes the stance that it was grave abuse for discretion on the part of respondent Chief State
Prosecutor to sustain the dismissal of I.S. No. 93-15886 on the grounds that: (1) Vic Ang Siong's obligation which
gave rise to the bounced check had already been extinguished by partial payment and agreement to amicably
settle balance, and (2) petitioner had no standing to file the criminal complaint since he was neither the payee nor
holder of the bad check. Petitioner opines that neither ground justifies dismissal of his complaint.

Petitioner's stand is unavailing. Respondent Chief State Prosecutor in refusing to order the filing of an
information for violation of B.P. Blg. 22 against Vic Ang Siong did not act without or in excess of jurisdiction or
with grave abuse of discretion.

First, with respect to the agreement between Concord and Victor Ang Siong to amicably settle their
difference, we find this resort to an alternative dispute settlement mechanism as not contrary to law, public policy,
or public order. Efforts of parties to solve their disputes outside of the courts are looked on with favor, in view of
the clogged dockets of the judiciary.

Second, it is not disputed in the instant case that Concord, a domestic corporation, was the payee of the
bum check, not petitioner. Therefore, it is Concord, as payee of the bounced check, which is the injured party.
Since petitioner was neither a payee nor a holder of the bad check, he had neither the personality to sue nor a
cause of action against Vic Ang Siong. Under Section 36 of the Corporation Code18, read in relation to Section
23,19 it is clear that where a corporation is an injured party, its power to sue is lodged with its board of directors
or turstees.20 Note that petitioner failed to show any proof that he was authorized or deputized or granted specific
powers by Concord's board of director to sue Victor And Siong for and on behalf of the firm. Clearly, petitioner
as a minority stockholder and member of the board of directors had no such power or authority to sue on Concord's
behalf. Nor can we uphold his act as a derivative suit. For a derivative suit to prosper, it is required that the
minority stockholder suing for and on behalf of the corporation must allege in his complaint that he is suing on a
derivative cause of action on behalf of the corporation and all other stockholders similarly situated who may wish
to join him in the suit.21 There is no showing that petitioner has complied with the foregoing requisites. It is
obvious that petitioner has not shown any clear legal right which would warrant the overturning of the decision
of public respondents to dismiss the complaint against Vic Ang Siong. A public prosecutor, by the nature of his
office, is under no compulsion to file a criminal information where no clear legal justification has been shown,
and no sufficient evidence of guilt nor prima facie case has been presented by the petitioner.22 No reversible error
may be attributed to the court a quo when it dismissed petitioner's special civil action for mandamus.1wphi1.nt

WHEREFORE, the instant petition is DISMISSED for lack of merit. Costs against petitioner.

SO ORDERED.

Bellosillo, Mendoza, Buena, and De Leon, Jr., JJ., concur.

Footnotes:

1 Rollo, p. 33.

2 Id. at 6-7.

3 Id. at 32.

4 Said provision reads:

SEC. 2. Papers to be filed and served. Every order required by its terms to be served, every pleading
subsequent to the complaint, every written motion other than one which be heard ex parte, and every written
notice, appearance, demand, offer of judgment or similar papers shall be filed with the court and served upon the
parties affected thereby. If any of such parties has appeared by an attorney or attorneys, service upon him shall
be made upon his attorneys or one of them, unless service upon the party himself is ordered by the court. When
one attorney appears for several parties, he shall only be entitled to one copy of any paper served upon him by
the opposite side.

5 24 SCRA 779 (1968) citing Vivero v. Santos, 98 Phil. 500, 504 (1956); Chavani v. Tancinco, 90 Phil.
862, 864 (1952), San Jacinto v. San Jacinto, 52 Off. Gaz. 2582.

6 The provision reads: "The appeal must be filed within a period shall be interrupted only by the filing of
a motion for resolution within ten (10) days from receipt of the resolution and shall continue to run from the time
the resolution denying the counsel has been received by the movant or his counsel." Note that DOJ Order No. 223
dated June 30, 1993 has already been superseded by DOJ Circular No. 70 (2000 NPS) dated July 3, 2000, which
took effect on September 1, 2000.

7 Cojuangco, Jr., v. Presidential Commission on Good Government, 190 SCRA 226, 243 (1990).

8 Antonio v. Court of Appeals, 153 SCRA 592, 600 (1987) citing Republic of the Philippines v. Arro, 150
SCRA 625 (1987).

9 Jalover v. Ytorriaga, 80 SCRA 100, 106 (1977) citing J.M. Javier Logging Corp. v. Mardo, supra; Elli,
et al., v. Ditan, et al., 5 SCRA 503 (1962); McGrath v. Collector of Internal Revenue, 1 SCRA 639 (1961).

10 National Lumber & Hardware Co. v. Velasco, 106 Phil. 1098, 1101 (1960).

11 "The Supreme Court shall have the power to promulgate rules concerning pleading, practice and
procedure in all courts, and the admission to the practice of law. Said rules shall be uniform for all courts of the
same grade and shall not diminish, increase, or modify substantive rights. The existing laws on pleading, practice
and procedure are hereby repealed as statutes, and are declared Rules of Court, subject to the power of the
Supreme Court to alter and modify the same. The Congress shall have the power to repeal, alter or supplement
the rules concerning pleading, practice and procedure and the admission to the practice of law in the Philippines."

12 "The Supreme Court shall have the following powers:

xxx

[5] Promulgate rules concerning the protection and enforcement of constitutional rights, pleading,
practice, and procedure in all courts, the admission to the practice of law, the Integrated Bar, and legal assistance
to the underprivileged. Such rules shall provide a simplified and inexpensive procedure for the speedy disposition
of cases, shall be uniform for all courts of the same grade, and shall not diminish, increase, or modify substantive
rights. Rules of procedure of special courts and quasi-judicial bodies shall remain effective unless disapproved
by the Supreme Court.