Republic of the Philippines

SUPREME COURT
Manila
EN BANC
A.M. No. RTJ-05-1909

April 6, 2005

COMMUNITY RURAL BANK OF GUIMBA (N. E.), INC., Represented by OLGA M. SAMSON, Complainant,
vs.
JUDGE TOMAS B. TALAVERA, Regional Trial Court (Branch 28), Cabanatuan City, Nueva Ecija,respondent.
DECISION
PANGANIBAN, J.:
The Constitution expects judges to be embodiments of competence, integrity, probity and independence. They must
personify four ins; namely, integrity, independence, industry and intelligence. 1 Their judgments must be characterized
by excellence, their conduct by ethics, and their outlook by eternity. They are not common individuals whose gross
errors "men forgive and time forgets."
The Case and the Facts
In a Complaint-Affidavit dated June 24, 2003, the Community Rural Bank of Guimba (N. E.), Inc. -- through its chief
operating officer, Olga M. Samson -- charged Judge Tomas B. Talavera of the Regional Trial Court (Branch 28) of
Cabanatuan City, Nueva Ecija, with (1) serious misconduct and/or gross inefficiency and (2) violation of Rules 1.01, 2
3.013 and 3.024 of the Code of Judicial Conduct. The Office of the Court Administrator (OCA) summarized the factual
antecedents as follows:
"In September 1997, the Bank lodged a complaint with the City Prosecutors Office of Cabanatuan charging several
persons (the accused, for brevity) with the offense of Estafa in relation to P.D. Nos. 818 and 1689. After a preliminary
investigation, the Investigating Fiscal recommended the filing --of six (6) Informations for Estafa against the accused.
These were docketed as Criminal Case Nos. 8760 to 8765 and were raffled to Branches 25, 26, 28, and 86 of RTC,
Cabanatuan City. Respondent was the presiding judge of Branch 28 to whom Criminal Case Nos. 8761 and 8763
were raffled.
"On 28 December 1998, the accused appealed the findings of the Investigating Fiscal to the Department of Justice
(DOJ, for brevity). On 19 November 1999, the DOJ denied the petition of the accused. Then, the accused filed a
Motion for Reconsideration, which was denied by the DOJ through a resolution, dated 15 August 2000. Hence,
respondent issued a Warrant of Arrest fixing no bail against the accused.
"On 20 November 2000, the accused filed a Motion for Reinvestigation and to Lift the Issuance of Warrant of Arrest
(Motion for Reinvestigation, for brevity). However, neither the Bank nor its counsel was furnished a copy of said
Motion. There was also no hearing on the said motion to afford the Bank an opportunity to oppose the same.
"On 4 December 2000, respondent granted the Motion for Reinvestigation without any hearing thereon. Thus, a
reinvestigation proceeding was conducted by Assistant Provincial Prosecutor Virgilio Caballero. Again, the Bank was
not notified of said proceedings.
"Assistant Provincial Prosecutor Caballero, in his Joint Resolution dated 28 December 2000, reversed the earlier
findings of the previous Investigating Fiscal. Thus, on the same day, a Motion to Dismiss was filed by Assistant
Provincial Prosecutor Caballero. Neither the bank nor its counsel was notified about the said Motion and no hearing
thereon was held to afford the Bank an opportunity to oppose the same.
"Respondent granted the Motion to Dismiss and ordered the release of the accused on 29 December 2000.
"On 11 January 2001, the Bank, arguing that it had been deprived of due process, filed a Motion for Reconsideration
with Opposition/Comment to the Motion to Dismiss and Omnibus Motion for the Reinstatement of the Criminal
Information and for the Recall of Order for Release.

"Respondent denied the afore-mentioned Motion of the Bank for lack of merit on 23 March 2001. Thus, the Bank filed
a Petition for Review under Rule 65 of the Revised Rules of Court with the Court of Appeals.
"In view of the foregoing, Ms. Samson argued that respondent transgressed Sections 2, 5 and 6 of Rule 15 of the
Revised Rules of Court, when he granted the Motion for Reinvestigation of the accused and Assistant Provincial
Prosecutor Caballeros Motion to Dismiss without notice and hearing in favor of the Bank or its counsel. Furthermore,
the granting by respondent of the Motion to Dismiss based solely on the Resolution issued by Assistant Provincial
Prosecutor Caballero, without making his own independent findings of the merits of the case, is repugnant to the
principle laid down in Crespo vs. Mogul (151 SCRA 462 [30 June 1987]) which held that once a complaint or
information is filed in court any disposition or the conviction or acquittal of the accused rests in the sound discretion of
the court.
"2.
COMMENT/OPPOSITION WITH MOTION TO DISMISS dated 11 August 2003 of Respondent Judge Tomas B.
Talavera where he refutes the foregoing Complaint-Affidavit as follows:
"There was no need to set the Motion for Reinvestigation for hearing because the Office of the Provincial Prosecutor
who has direct control and supervision of all criminal cases was furnished a copy of said motion. Furthermore, it
should be noted that, in the Motion for Reinvestigation filed before the court, the Office of the Provincial Prosecutor
through the Assistant Provincial Prosecutor signified his intention not to object to the Motion for Reinvestigation as can
be seen from his handwritten note and signature appearing on said motion. Hence, setting the same for hearing would
be an exercise in futility and it could just delay the immediate disposition of the case.
"The Office of the Provincial Prosecutor, after the reinvestigation, issued a Joint Resolution dated 28 December 2000
through Assistant Provincial Prosecutor Virgilio Caballero recommending the dismissal of the criminal case. On the
basis of said Joint Resolution, a Motion to Dismiss was filed by Assistant Provincial Prosecutor Caballero, which was
granted by respondent on 29 December 2003.
"The Motion to Dismiss was not set anymore for hearing because it was filed by the public prosecutor who conducted
the reinvestigation. Since the Motion to Dismiss was filed by prosecutor and the same was not prejudicial to the
adverse party (the accused), it is just proper for the court to treat the said motion as non-litigious.
"The private prosecutor filed a petition for certiorari before the Court of Appeals seeking to amend and set aside the
Order dated 23 March 2003 of Respondent Judge which denied the Motion for Reconsideration of the private
complainant. The said petition is still pending before the Court of Appeals. The grounds used by the private
complainant in her petition for certiorari are the same grounds in the administrative complaint. Hence, the
administrative complaint filed by the private complainant is a violation of the principle on sub judice.
"3.

REPLY dated 15 September 2003 of the Bank through its legal counsel stating the following arguments:

"The reasoning of respondent in allowing the Motion for Reinvestigation without notice to private counsel and hearing
is erroneous. The said motion is litigious. Therefore, sound judicial discretion should have prompted the respondent
to treat said motion as a mere scrap of paper for violating the general rules on motions under Sections 2, 5 and 6 of
Rule 15 of the Rules of Court and in view of the principles enunciated in Brizuela vs. Judge Mendiola (A.M. No. RTJ00-1560 dated 5 July 2000) and Bajet vs. Judge Areola (A.M. No. RTJ-01-1615 dated 19 June 2001). In Brizuela and
Bajet, the Supreme Court held that failure to serve notice on the adverse party rendered a litigious motion a mere
scrap of paper.
"Furthermore, the rule on sub judice was not violated by complainant. The cause of action and reliefs prayed for in the
instant administrative complaint are different from the petition filed by the Bank before the Court of Appeals. The
petition filed before the Court of Appeals was filed on the ground of "grave abuse of discretion amounting to lack of
jurisdiction, there being no other plain, speedy and adequate remedy in the ordinary course of law, seeking to annul
and set aside" respondents Order dated 23 March 2001 denying complainant Banks Motion for Reconsideration of an
earlier Order dated 29 December 2000 granting Assistant Provincial Prosecutor Caballeros Motion to Dismiss. On the
other hand, the administrative complaint filed by the Bank aims to subject respondent to the appropriate administrative
sanctions."5
In a Resolution dated October 20, 2004, 6 this Court resolved to re-docket the Complaint as a regular administrative
matter.
Evaluation and Recommendation of the OCA

The OCA opined that by dismissing the criminal case without giving complainant the opportunity to object to the Motion
for Reinvestigation and Motion to Dismiss, respondent showed gross ignorance of the law, for which he should be
sanctioned. The OCA added that the presence of the offended party was required in the hearing of a motion to dismiss
as much as in the arraignment. The dismissal of the criminal cases covered the litigations civil aspect (recovery of
damages by the offended party), which was deemed included in the Information.
Pursuant to Rule 140 of the Rules of Court, the OCA recommended that respondent judge be fined in the amount of
P21,000.
On the other hand, the OCA recommended that the charge of gross misconduct be dismissed for lack of substantial
evidence. It found no clear proof of malice or wrongful intent on the part of respondent.
The Courts Ruling
We agree with the findings and recommendations of the OCA.
Administrative Liability
Courts exist to dispense and promote justice. Judges are the visible representations of law and justice. 7 One of their
principal duties is to have an adequate grasp of the Constitution, the law and jurisprudence. Indeed, they must be the
embodiments of competence, integrity and independence. 8 They owe it to the dignity of the court over which they
preside, to the public who depend on them, and to the legal profession to which they belong, to know the very law they
are supposed to interpret and apply.9 Party litigants will have great faith in the administration of justice only if judges
can demonstrate their grasp of legal principles.10
In the present case, the gross ignorance of respondent judge and his notorious violation of simple legal precepts were
clearly shown by his issuance of the Orders dated December 4, 2000 granting the Motion for Reinvestigation of the
accused and December 29, 2000 granting the prosecutors Motion to Dismiss.
First, respondent should not have entertained the Motion for Reinvestigation filed by the accused. The former was fully
aware that the latter had appealed the unfavorable ruling of the investigating prosecutor to the Department of Justice
(DOJ). Respondent judge must have in fact taken that appeal into consideration when he issued a warrant of arrest
against all the accused only on September 19, 2000, 11 after Justice Secretary Serafin R. Cuevas had denied their
Petition for Review and affirmed the presence of prima facie evidence against them. 12 Subsequently, on August 15,
2000, the secretary also denied with finality the Motion for Reconsideration filed by the accused. 13
Inasmuch as the Resolution of the provincial prosecutor has been affirmed by the secretary of justice, the existence of
probable cause to hold the accused for trial may be deemed to be the finding of the secretary himself, not merely of
the prosecutor who had first investigated the case. 14 Therefore, what the prosecutor reviewed and overruled in the
reinvestigation was not the actuation and resolution of his predecessor, but of the secretary of justice no less. 15
The justice secretarys superior authority in the prosecution of offenses was elucidated upon by this Court in Ledesma
v. Court of Appeals,16 which we quote:
"Section 39, Chapter 8, Book IV in relation to Sections 5, 8, and 9, Chapter 2, Title III of the [Revised Administrative]
Code gives the secretary of justice supervision and control over the Office of the Chief Prosecutor and the Provincial
and City Prosecution Offices. The scope of his power of supervision and control is delineated in Section 38, paragraph
1, Chapter 7, Book IV of the Code:
(1)
Supervision and Control. Supervision and control shall include authority to act directly whenever a specific
function is entrusted by law or regulation to a subordinate; direct the performance of duty; restrain the commission of
acts; review, approve, reverse or modify acts and decisions of subordinate officials or units; x x x
xxx

xxx

xxx

Supervision and control of a department head over his subordinates have been defined in administrative law as
follows:
In administrative law, supervision means overseeing or the power or authority of an officer to see that subordinate
officers perform their duties. If the latter fail or neglect to fulfill them, the former may take such action or step as

prescribed by law to make them perform such duties. Control, on the other hand, means the power of an officer to
alter or modify or nullify or set aside what a subordinate officer had done in the performance of his duties and to
substitute the judgment of the former for that of the latter.
"Review as an act of supervision and control by the justice secretary over the fiscals and prosecutors finds basis in the
doctrine of exhaustion of administrative remedies which holds that mistakes, abuses or negligence committed in the
initial steps of an administrative activity or by an administrative agency should be corrected by higher administrative
authorities, and not directly by courts. x x x"
The actions of prosecutors are not unlimited; they are subject to review by the secretary of justice who may affirm,
nullify, reverse or modify their actions or opinions. 17 Consequently the secretary may direct them to file either a motion
to dismiss the case or an information against the accused. 18
In short, the secretary of justice, who has the power of supervision and control over prosecuting officers, is the ultimate
authority who decides which of the conflicting theories of the complainants and the respondents should be believed. 19
The provincial or city prosecutor has neither the personality nor the legal authority to review or overrule the decision of
the secretary.20 This principle is elementary.
Consistent with this administrative superior-subordinate relationship between them, Section 7 of Department Order No.
22321 (the rules governing appeals from resolutions in preliminary investigations or reinvestigations) provides:
Sec. 7. Motion for Reinvestigation. At any time after the appeal has been perfected and before the resolution
thereof, the appellant may file a motion for reinvestigation on the ground that new and material evidence has been
discovered which appellant could not with reasonable diligence have discovered during the preliminary investigation
and which if produced and admitted would probably change the resolution.
From the above-quoted provision, a motion for reinvestigation on the ground of newly discovered evidence must be
filed before the justice secretary rules on an appeal from a resolution in a preliminary investigation.
In the present case, the accused filed their Motion for Reinvestigation on November 29, 2000, 22 about three months
after the August 15, 2000 Resolution of the secretary denying with finality their Motion for Reconsideration of the denial
of their Petition for Review. Clearly, therefore, it was grossly erroneous for respondent judge to order the
reinvestigation of the case by the prosecutor. This action enabled the latter to reprobate and reverse the secretarys
Resolution. In granting the Motion for Reinvestigation, respondent effectively demolished the DOJs power of control
and supervision over prosecutors.
Furthermore, the judge perfunctorily granted the Motion for Reinvestigation on the basis of an alleged newly
discovered evidence -- a one-page Affidavit executed by Ms Gloria Sacramento, one of the co-accused in the criminal
case. The Affidavit,23 dated October 29, 1997, was clearly not newly discovered; it was already known to the accused
even during the preliminary investigation. There was no explanation whatsoever as to why this piece of evidence was
never presented during the preliminary investigation. Nonetheless, respondent hastily granted the Motion.
Considering that a prima facie case had been found to exist against the accused during the preliminary investigation -a fact affirmed by the justice secretary -- respondent judge should have exercised great restraint in granting a
reinvestigation.24
It must be stressed here that a preliminary investigation is essentially prefatory and inquisitorial. 25 It is not a trial of the
case on the merits and has no purpose except to determine whether a crime has been committed, and whether there
is probable cause to believe that the accused is guilty of that crime. 26 A preliminary investigation is not the occasion for
a full and exhaustive display of the parties evidence, which needs to be presented only to engender a well-grounded
belief that an offense has been committed, and that the accused is probably guilty thereof. 27
Second, in granting the Motion to Dismiss, respondent relied solely on the Resolution of the prosecutor who had
conducted the reinvestigation and recommended the dismissal of the case for alleged insufficiency of evidence. The
December 29, 2000 Order28 granting the Motion to Dismiss reads in full as follows:
"Finding the Motion to Dismiss in these cases to be meritorious, the same is hereby granted, and Fernando del
Rosario and Flordeliza del Rosario, both accused in the above-entitled cases are hereby ordered released unless they
are being detained for some other lawful cause.

"Cabanatuan City, December 29, 2000."

This perfunctory Order does not demonstrate an independent evaluation or assessment of the evidence (or the lack
thereof) against the accused. In other words, the dismissal of the case was not shown to be based upon the judges
own individual conviction that there was no viable case against them.
This Court also observes that respondent acted with undue haste when he granted the Motion on December 29,
2000,29 only a day after the reinvestigation was concluded on December 28, 2000. 30 Coupled with the absence of the
required evaluation in the Resolution granting the dismissal of the case, this hasty action leads to the indubitable
conclusion that the judge did not personally evaluate the parties evidence before acting on the Motion.
Settled is the legal doctrine that the discretion to accede to a Motion to Dismiss filed by the prosecutor rests solely with
the court.31 Mere approval of the position taken by the prosecution is not equivalent to the discretion required in cases
like this.32 The trial judge must be convinced that there was indeed no sufficient evidence against the accused. Such a
conclusion can be arrived at only after a thorough assessment of the prosecution evidence. For a valid and proper
exercise of judicial discretion, accepting the prosecutions word that the evidence is insufficient is not enough; 33 strictly
required of the order disposing of the motion is the trial judges own evaluation of such evidence. 34 Once a complaint
or an information is filed in court, the judge -- not the prosecutor -- assumes full control of the controversy. 35 Thus, a
grant of the motion to dismiss is equivalent to a disposition of the case itself, 36 a subject clearly within the courts
exclusive jurisdiction and competence.37
Furthermore, when respondent judge issued the warrants of arrest without bail against all the accused, it is presumed
that he had studied the Information and the Resolution of the prosecutor and agreed with the latters findings of
probable cause.38 Consequently, the grant of the Motion for Reinvestigation and of the Motion to Dismiss for alleged
insufficiency of evidence posed a serious contradiction of the earlier finding of probable cause.
Third, respondent granted the Motions despite the obvious lack of notice to complainant (the private offended party in
the criminal
case) and lack of hearing. This lapse effectively deprived it of its day in court.
The Rules of Court require that, with the exception of motions that the court may act upon without prejudicing the rights
of the adverse party, every written motion should be set for hearing by the movant. Sections 4, 5 and 6 of Rule 15 of
the Rules of Court explicitly require that notices be sent at least three days before the hearing and directed at the
parties concerned; and that they state the time and place of hearing of the motion, with proper proof of notice thereof.
Without such proof, the motion is considered pro forma; thus, the court cannot act upon it.39
The purpose of the notice is to enable the adverse party to appear for its own protection and to contest the motion. 40
Elementary due process mandates that the other party be notified of the adverse action of the opposing party, 41 so as
to avoid a capricious change of mind and to ensure impartiality of the trial. 42 Here, the Motions for Reinvestigation and
to Dismiss were fatally defective, as neither contained any proper notice of hearing. Respondent thus grossly erred in
taking cognizance of these Motions.
In criminal proceedings, the word "party" is held to mean not only the government and the accused, but also other
persons who may be affected by the orders issued and/or judgment rendered therein. 43
Undoubtedly, complainant had an interest in the maintenance of the criminal prosecution. 44 Its right to intervene
therein was practically beyond question, as it neither instituted a separate civil action nor reserved or waived the right
to do so.45 Thus, as the party injured by the crime, it had the right to be heard on a motion that was derogatory to its
interest in the civil aspect of the case. Due process 46 necessitates that it be afforded this opportunity, especially
because of a conflict between the positions of the public prosecutor and of the offended party.
Respondent judge does not deny that no notice was given to complainant. Neither was a hearing conducted before
the issuance of the subject Orders. By such failure of notice and hearing, he effectively deprived complainant of the
opportunity to appear and to oppose the said Motions. That the offended party, not only the accused, must be
accorded due process was explained by the Court in Dimatulac v. Villon, which ruled thus:
"x x x Although the determination of a criminal case before a judge lies within his exclusive jurisdiction and
competence, his discretion is not unfettered, but rather must be exercised within reasonable confines. The judges
action must not impair the substantial rights of the accused, nor the right of the State and offended party to due

process of law.
"Indeed, for justice to prevail, the scales must balance; justice is not to be dispensed for the accused alone. The
interests of society and the offended parties which have been wronged must be equally considered. Verily, a verdict of
conviction is not necessarily a denial of justice; and an acquittal is not necessarily a triumph of justice, for, to the
society offended and the party wronged, it could also mean injustice. Justice then must be rendered even-handedly to
both the accused, on one hand, and the State and the offended party, on the other." 47
All told, respondent showed his lack of understanding, not only of the basic and established superior-subordinate
relationship between the secretary of justice and the provincial prosecutors, but also of the functions and duties of the
trial court in "the proper scheme of things" in our criminal justice system. The judge similarly failed to attach
importance to the standard and fundamental procedure mandated by the Rules of Court and the rudiments of due
process. His actions manifested a marked deficiency in his knowledge of the law. Where, as in this case, the legal
principle involved is basic, simple and elementary, lack of conversance therewith constitutes gross ignorance of the
law.48
Judges are expected to have more than just a modicum acquaintance with the statutes and procedural rules. 49 The
Code of Judicial Ethics requires them to be embodiments of, among other desirable characteristics, judicial
competence.50 They are not common individuals whose gross errors "men forgive and time forgets." 51
The OCA recommended the penalty of a fine in the amount of P21,000 for respondent judges gross ignorance of the
law, which is classified by Rule 140 of the Rules of Court as a serious charge. As to the complaint of serious
misconduct, we also adopt the findings of the OCA that no fraud, malice or wrongful intent was imputed, or proved by
complainant; hence, respondent cannot be made liable therefor.
WHEREFORE, Judge Tomas B. Talavera is found GUILTY of gross ignorance of the law and is FINEDtwenty
one thousand pesos.
He is hereby sternly warned that a repetition of the same or similar infractions in the future shall be dealt with more
severely.
SO ORDERED.
Davide, Jr., (Chief Justice), Puno, Quisumbing, Ynares-Santiago, Sandoval-Gutierrez, Carpio, Austria-Martinez,
Corona, Carpio-Morales, Callejo, Sr., Azcuna, Tinga, Chico-Nazario, Garcia, J.J., concur.
Case Doctrines:
The secretary of justice, who has the power of supervision and control over prosecuting officers, is the ultimate
authority who decides which of the conflicting theories of the complainants and the respondents should be believed.
The provincial or city prosecutor has neither the personality nor the legal authority to review or overrule the decision of
the secretary.
A preliminary investigation is essentially prefatory and inquisitorial. It is not a trial of the case on the merits and has
no purpose except to determine whether a crime has been committed, and whether there is probable cause to believe
that the accused is guilty of that crime.
In criminal proceedings, the word party is held to mean not only the government and the accused, but also other
persons who may be affected by the orders issued and/or judgment rendered therein. Elementary due process
mandates that the other party be notified of the adverse action of the opposing party, so as to avoid a capricious
change of mind and to ensure impartiality of the trial.

 When a motion is pro forma, the court cannot act upon it.
Facts: Community Rural Bank (Bank) filed a complaint with the prosecutors office of Cabanatuan charging several
persons (the accused) with Estafa. After preliminary investigation, 6 informations for estafa were filed, 2 of which were
raffled to the branch where respondent, Judge Talavera, presided.
The accused appealed the finding of the Fiscal to the DOJ, which the latter denied, so Judge Talavera issued a warrant
of arrest with no bail against the accused.
Later, the accused filed with Judge Talavera a motion for reinvestigation and to lift the warrant of arrest. Bank was not
notified of this motion. Judge granted the motion without any hearing thereon. When the reinvestigation was
conducted, the Bank was still not notified.
The assistant provincial prosecutor who conducted the reinvestigation reversed the earlier findings of the fiscal. On the
same day, a motion to dismiss was filed with Judge, which he granted, and he also ordered the release of the accused.
The Bank was never notified of any of these proceedings. Bank then filed an MR arguing it was deprived of due
process. It also asked that the criminal information be reinstated. Judge denied this. Hence, Bank filed the present
case charging Judge Talavera with (1) serious misconduct and/or gross inefficiency and (2) violation of Rules 1.01,
3.01 and 3.02 of the Code of Judicial Conduct.
Issue:
Whether or not respondent judge is guilty of gross ignorance and violation of simple legal precepts.
Held:
Yes. Respondent judge's gross ignorance and violation of simple legal precepts is clearly shown by his issuance of the
Orders granting the Motion for Reinvestigation of the accused and the prosecutors Motion to Dismiss.
Motion for Reinvestigation
First, judge should not have entertained the motion for reinvestigation, since DOJ Secretary Serafin Cuevas already
denied with finality the appeal of the accused, finding that there was prima facie evidence against the accused. The
secretary of justice, who has the power of supervision and control over prosecuting officers, is the ultimate authority
who decides which of the conflicting theories of the complainants and the respondents should be believed. The
provincial or city prosecutor has neither the personality nor the legal authority to review or overrule the decision of the
secretary.
Section 7 of Department Order No. 223 (the rules governing appeals from resolutions in preliminary investigations or
reinvestigations) provides:
Sec. 7. Motion for Reinvestigation. At any time after the appeal has been perfected and before the resolution
thereof, the appellant may file a motion for reinvestigation on the ground that new and material evidence has been
discovered which appellant could not with reasonable diligence have discovered during the preliminary investigation
and which if produced and admitted would probably change the resolution.

Here, the motion for reinvestigation was filed 3 months after the DOJ Secretary already denied their appeal with
finality. Clearly, therefore, Judge Talavera was wrong in granting the motion. In granting the Motion for Reinvestigation,
respondent effectively demolished the DOJs power of control and supervision over prosecutors.
Newly discovered evidence
Also, there was no newly discovered evidence. The one-page Affidavit executed by Ms Gloria Sacramento, one of the
co-accused in the criminal case. was clearly not newly discovered; it was already known to the accused even during
the preliminary investigation. There was no explanation whatsoever as to why this piece of evidence was never
presented during the preliminary investigation. Nonetheless, respondent hastily granted the Motion.
Preliminary investigation
It must be stressed that a preliminary investigation is essentially prefatory and inquisitorial. It is not a trial of the case
on the merits and has no purpose except to determine whether a crime has been committed, and whether there is
probable cause to believe that the accused is guilty of that crime. A preliminary investigation is not the occasion for a
full and exhaustive display of the parties evidence, which needs to be presented only to engender a well-grounded
belief that an offense has been committed, and that the accused is probably guilty thereof.
Motion to Dismiss
Second, it was also error for the Judge to grant the Motion to Dismiss by relying merely on the resolution of the
prosecutor who conducted the reinvestigation. In his Order, he merely stated that the motion to dismiss is meritorious,
and nothing more. The Order failed to demonstrate an independent evaluation or assessment of the evidence against
the accused.
The Judge acted with undue haste when he granted the Motion only a day after the reinvestigation was concluded.
This leads to the conclusion that the judge did not personally evaluate the parties evidence before acting on the
Motion.The discretion to grant a Motion to Dismiss rests solely with the court. However, mere approval of the position
taken by the prosecution is not equivalent to the discretion required. Once a complaint or an information is filed in
court, the judge -- not the prosecutor -- assumes full control of the controversy. A grant of the motion to dismiss is
equivalent to a disposition of the case itself, which is a subject clearly within the courts exclusive jurisdiction and
competence.
When Judge issued the warrants of arrest without bail against all the accused, it is presumed that he had studied the
Information and the Resolution of the prosecutor and agreed with the latters findings of probable cause. Thus, the
grant of the Motion for Reinvestigation and of the Motion to Dismiss for alleged insufficiency of evidence posed a
serious contradiction of the earlier finding of probable cause.
Pro forma motions
Finally, Judge granted both of the Motions despite the obvious lack of notice to the Bank and lack of hearing. This
lapse effectively deprived it of its day in court.
The Rules of Court require that, with the exception of motions that the court may act upon without prejudicing the rights
of the adverse party, every written motion should be set for hearing by the movant. Sections 4, 5 and 6 of Rule 15 of
the Rules of Court explicitly require that notices be sent at least three days before the hearing and directed at the
parties concerned; and that they state the time and place of hearing of the motion, with proper proof of notice thereof.

Without such proof, the motion is considered pro forma; thus, the court cannot act upon it.
The purpose of the notice is to enable the adverse party to appear for its own protection and to contest the motion.
Elementary due process mandates that the other party be notified of the adverse action of the opposing party, so as to
avoid a capricious change of mind and to ensure impartiality of the trial. Here, the Motions for Reinvestigation and to
Dismiss were fatally defective, as neither contained any proper notice of hearing. Respondent thus grossly erred in
taking cognizance of these Motions.
In criminal proceedings, the word party is held to mean not only the government and the accused, but also other
persons who may be affected by the orders issued and/or judgment rendered therein.
Due process
Undoubtedly, complainant had an interest in the maintenance of the criminal prosecution. Its right to intervene therein
was practically beyond question, as it neither instituted a separate civil action nor reserved or waived the right to do
so. Thus, as the party injured by the crime, it had the right to be heard on a motion that was derogatory to its interest in
the civil aspect of the case. Due process necessitates that it be afforded this opportunity, especially because of a
conflict between the positions of the public prosecutor and of the offended party.
All told, respondent showed his lack of understanding, not only of the basic and established superior-subordinate
relationship between the secretary of justice and the provincial prosecutors, but also of the functions and duties of the
trial court in the proper scheme of things in our criminal justice system.
Judges are expected to have more than just a modicum acquaintance with the statutes and procedural rules. The
Code of Judicial Ethics requires them to be embodiments of, among other desirable characteristics, judicial
competence. They are not common individuals whose gross errors men forgive and time forgets. Judge was FINED
P20,000.00. (Community Rural Bank v. Tomas B. Talavera, 455 SCRA 34, A.M. No. RTJ-05-1909, April 6, 2005)

Republic of the Philippines

SUPREME COURT
SECOND DIVISION
G.R. No. 163818 October 20, 2005
SEBASTIAN SERAG, LINO NAPAO, THOMIX SEGUMALIAN, JOSE OLIVER SEGUMALIAN, RODOLFO
TALANQUINES, ROQUE SANMILLAN, EDGAR STA. CRUZ, ELEAZAR SAOL, NEMESIO PANUGOT,
TEODORICO DELA CRUZ, VICENTE DELA CRUZ, ABRAHAM DELA CRUZ * and MARILYN SILFAVAN,Petitioners,
vs.
COURT OF APPEALS and MA. DAISY SIBYA, Respondents.
DECISION
CALLEJO, SR., J.:
In the wee hours of May 11, 2001, Atty. Jesus Sibya, Jr., a mayoralty candidate in San Joaquin, Iloilo during the 2001
elections, was shot to death in front of his residence. His driver, Norberto Salamat III, was also wounded. The Criminal
Investigation and Detection Group in Iloilo City filed a criminal complaint for murder and attempted murder against Lino
Napao, then incumbent mayor of San Joaquin, and Sebastian Serag. 1 In a Joint Resolution dated May 26, 2001, the
Provincial Prosecutor filed two Informations with the Regional Trial Court (RTC) of Guimbal, Iloilo: (1) for Murder with
the Use of Unlicensed Firearms, and (2) Attempted Murder with the Use of Unlicensed Firearms against Serag and
Napao and seven unidentified persons.2 The cases were docketed as Criminal Case Nos. 925 and 926.
On May 28, 2001, Norberto Salamat III and Ma. Daisy Sibya, the widow of the deceased, filed before the Office of the
Provincial Prosecutor a Supplemental Complaint for murder, frustrated murder and violation of Presidential Decree No.
1866 against Serag, Lino Napao, 16 others, and three other unidentified persons. 3 On July 26, 2001, the Provincial
Prosecutor issued a Joint Resolution finding probable cause for murder and attempted murder with the use of
unlicensed firearms against Serag, Lino Napao, Juan Napao and 14 other accused, including those whose identities
were earlier unknown.4 The Provincial Prosecutor filed, in the RTC of Guimbal, Iloilo, an Amended Information for
Murder5 and an Amended Information for Attempted Murder with the use of unlicensed firearm against the said
accused.
Accused Juan Napao and the 14 other additional accused filed on August 16, 2002, a petition for review of the July 26,
2001 Joint Resolution of the Provincial Prosecutor before the Department of Justice (DOJ). 6

The trial court found probable cause for murder and attempted murder against the accused. Consequently, the court
issued an Order7 on September 27, 2001, for the issuance of warrants for the arrest of the accused who were still at
large.
Pending the resolution by the Secretary of Justice of the said petition for review, the proceedings were suspended.
Subsequently, however, the arraignment of the accused was set on May 21, 2002. It was, thereafter, reset to June 6,
2002 which, by agreement of the prosecution and the defense, was "intransferrable" in character. 8 It turned out that the
day before (May 20, 2002), the Secretary of Justice had issued Resolution No. 258 affirming with modification, the
Joint Resolution of the Provincial Prosecutor, downgrading the charges from Murder to Homicide, and from Attempted
Murder to Attempted Homicide, respectively, except as to four of the accused. The Provincial Prosecutor was likewise
ordered to amend the Amended Informations accordingly.9 The RTC received a copy of the Resolution on May 27,
2002.
Ma. Daisy Sibya, likewise, received, on May 27, 2002, a copy of the said Resolution. She filed a motion for the
reconsideration of the said resolution on June 4, 2002, serving copies thereof on the RTC and the accused-petitioners
by registered mail.
In compliance with Resolution No. 258 of the Secretary of Justice, the Provincial Prosecutor filed before the RTC on
June 5, 2002 a Motion for Leave to File a Second Amended Information for homicide and attempted homicide in the
two cases, and for the court to admit the said second Amended Informations. 10 The motion was set for hearing at 2:00
p.m. of June 6, 2002. During the said hearing, the private prosecutors opposed the motion and moved for deferment,
contending that the private complainant had earlier filed a motion for reconsideration of Resolution No. 258, and that it
would be premature for the Provincial Prosecutor to file a motion for the admission of the Second Amended
Information and for the court to admit the same. 11 The Provincial Prosecutor joined the motion of the private
prosecutors.
However, the RTC verbally granted the motion of the Provincial Prosecutor, and admitted the Second Amended
Information for Homicide.12 Criminal Case No. 926 for the attempted homicide was, likewise, dismissed on the ground
that it had no jurisdiction over the said case. The RTC further declared that it had not been served with a copy of the
private complainants motion for reconsideration. The court forthwith arraigned the accused for homicide, who pleaded
not guilty to the crime charged.
On June 6, 2002, the RTC issued its Order 13 granting the motion of the Provincial Prosecutor for the admission of the
Second Amended Information for Homicide, and ordered the dismissal of Criminal Case No. 926 without prejudice to
its re-filing in the Municipal Trial Court (MTC). Accordingly, the Information was re-filed in the MTC, docketed as
Criminal Case No. 1604. The accused were arraigned for the said cases. 14 Taking into account the finding of the
Secretary of Justice, the court held that the finding of probable cause for murder against the accused did not bar it
from admitting the Second Amended Information for Homicide. Likewise, the pendency of the private complainants
motion for the reconsideration of the May 20, 2002 Resolution of the Secretary of Justice was not a valid reason for the
deferment of the arraignment of the accused for homicide. On June 19, 2002, the private prosecutors moved for the
reconsideration of the order of the trial court which, however, denied the motion in an Order 15 dated July 26, 2002.
The private complainant forthwith assailed the orders of the trial court and the arraignment of the accused on June 6,
2002 via a petition for certiorari in the Court of Appeals (CA). The case was docketed as CA-G.R. SP No. 73035. She
insisted that the admission by the RTC of the Second Amended Information downgrading the crime charged therein to
Homicide and the arraignment of the accused therein on June 6, 2002 were premature since the Secretary of Justice
had not yet resolved her motion for reconsideration of the May 20, 2002 Resolution.
On November 22, 2002, the CA issued a Temporary Restraining Order enjoining the RTC from proceeding with
Criminal Case Nos. 925 and 926.16
In the meantime, the Secretary of Justice issued a Resolution 17 on November 18, 2002, granting the motion for
reconsideration of the private complainant, setting aside Resolution No. 258. Consequently, the May 26, 2001 and July
26, 2001 Resolutions of the Provincial Prosecutor were reinstated. The Secretary of Justice opined that the killing of
the deceased was, after all, qualified by treachery. He further declared that he was not proscribed from taking
cognizance of and resolving the private complainants motion for reconsideration notwithstanding the arraignment of
the accused. He directed the Provincial Prosecutor to withdraw the Second Amended Information for Homicide and
Attempted Homicide and to file, in lieu thereof, separate Informations for Murder and Attempted Murder, respectively,
against the said accused.

On December 5, 2002, the accused-petitioners filed a motion for the reconsideration of the said Resolution. 18They
argued that, with their arraignment in the RTC and the MTC, the Secretary of Justice should have denied the private
complainants motion for reconsideration, conformably with Section 7(2) of DOJ Circular No. 70. However, the
Secretary of Justice denied the said motion.
Juan Napao and the other petitioners in the Department of Justice filed a petition for certiorari with the CA assailing the
November 18, 2002 Resolution of the Secretary of Justice, and praying for the reinstatement of Resolution No. 258.
The case was docketed as CA-G.R. SP No. 77759.
In a Resolution19 dated July 18, 2003, the CA dismissed the petition for failure of the petitioners therein to comply with
Section 2, Rule 42 and Section 5, Rule 7 of the Rules of Court, as only one of the petitioners had executed the
requisite certificate of non-forum shopping. The petitioners therein filed a motion for the reconsideration of the CA
resolution, but the appellate court denied the motion for lack of merit. 20
On June 3, 2004, Sebastian Serag, et al. filed a petition for review on certiorari with this Court, assailing the
Resolutions of the CA in CA-G.R. SP No. 77759. The case was docketed as G.R. No. 163557. In a Resolution dated
June 23, 2004, this Court denied the petition for the petitioners failure to show that the appellate court committed any
reversible error. The said resolution became final and executory, and entry of judgment was made of record on August
23, 2004.
Meanwhile, on November 22, 2002, the CA issued a Resolution 21 in CA-G.R. SP No. 73035 directing the respondents
to file their comment on the petition within 10 days from notice thereof.
On November 27, 2002, petitioner Ma. Daisy Sibya filed an Urgent Manifestation and Motion 22 with the CA in CA-G.R.
SP No. 73035, praying that the appellate court resolve her petition on its merits in light of the November 18, 2002
Resolution of the Secretary of Justice and to set aside the June 6, 2002 arraignment of the private respondents in the
trial court. The private respondents opposed the motion on the ground that they had filed a Joint motion for
reconsideration of the November 18, 2002 Resolution of the Secretary of Justice, who had yet to resolve the same. 23
On December 4, 2002, the Provincial Prosecutor filed a Motion with the trial court for the withdrawal of the Second
Amended Information for homicide and for the reinstatement of the Amended Information for murder. However, in view
of the temporary restraining order issued by the CA in CA-G.R. SP No. 73035, the trial court suspended the
proceedings.
On December 16, 2002, the CA issued a Resolution 24 in CA-G.R. SP No. 73035 dismissing the petition on the ground
that it had become moot and academic in light of the November 18, 2002 Resolution of the Secretary of Justice.
Private complainant Ma. Daisy Sibya filed a motion for reconsideration of the said Resolution on the ground that the
November 18, 2002 Resolution of the Secretary of Justice could not be implemented unless and until the assailed
Orders of the trial court and the arraignment of the accused therein on June 6, 2002 are nullified. 25 The private
respondents therein opposed the motion on the ground that the petitioner was estopped from assailing their
arraignment.
On November 10, 2003, the CA issued a Resolution 26 granting the motion of the petitioner in CA-G.R. SP No. 73035
and consequently nullifying the June 6 and July 26, 2002 Orders of the trial court, as well as the arraignment of the
private respondents therein on June 6, 2002.
On June 21, 2004, Sebastian Serag, et al. filed a Petition for review on certiorari with this Court assailing the
November 10, 2003 Resolution of the CA in CA-G.R. SP No. 73035. The case was docketed as G.R. No. 163818. The
petitioners alleged that the CA acted without or in excess of its jurisdiction or with grave abuse of discretion amounting
to either lack or excess of jurisdiction in nullifying the June 6, 2002 and July 26, 2002 Orders of the RTC and their
arraignment on June 6, 2002 instead of dismissing the petition for being moot and academic. 27
The petitioners insist that by virtue of the Secretary of Justices November 18, 2002 Resolution, reverting to the original
charges of murder and attempted murder, the private respondents petition in the CA had been mooted. They note that
the relief prayed for by the petitioner therein (private respondent Sibya) for the retention of the original charges was
granted by the Secretary of Justice. They maintain that the CA was correct in dismissing the petition for being moot
and academic in its Resolution of
December 16, 2002. The private complainant should have filed the appropriate pleading in the trial court for the
implementation of the November 18, 2002 Resolution of the Secretary of Justice, instead of insisting that her petition

be resolved on its merits. By its November 10, 2003 Resolution nullifying the assailed Orders of the RTC and the
arraignment of the petitioners on June 6, 2002, the CA thereby deprived the RTC of its jurisdiction to act on all pending
motions of the Provincial Prosecutor, that is, for the withdrawal of the Second Amended Information for homicide and
the reinstatement of the Amended Information for murder. The petitioners insist that the RTC had the authority to delve
into and resolve the merits of the Provincial Prosecutors motion for the withdrawal of the Second Amended
Information for homicide and the reinstatement of the Amended Information for murder. After all, the trial court has
complete control of the case; any disposition therein is subject to its sound discretion and it is not bound by the
findings and recommendations of the Secretary of Justice.
The petitioners further claim that their arraignment on June 6, 2002 was on the insistence of the prosecutors, making
the setting "intransferrable" whether or not the Secretary of Justice would resolve their petition for review. Thus, the
RTC had no other alternative but to proceed with their arraignment. Moreover, the private complainant failed to serve
them and the RTC with copies of her motion for reconsideration in the DOJ on or before the said date. The private
prosecutors service of the said motion for reconsideration on them (petitioners) and the RTC by registered mail was
anomalous, considering the proximity of the law office of the private prosecutors, the defense counsel and the RTC.
Finally, the petitioners emphasize that the private respondent failed to append to her petition in CA-G.R. SP No. 73035
certified true copies of the assailed orders; hence, the appellate court abused its discretion in not dismissing the said
petition outright.
In her comment on the petition, the private respondent averred that the instant petition had been mooted by this
Courts dismissal of the petitioners petition in G.R. No. 163557.
In reply, the petitioners contend that the subject matter of their petition in CA-G.R. SP No. 77759 was the November
18, 2002 Resolution of the Secretary of Justice, while the subject matter of CA-G.R. SP No. 73035 were the June 6,
2002 and July 26, 2002 Orders of the RTC, as well as the petitioners arraignment on June 6, 2002.
The threshold issues for resolution are the following: (a) whether the petition at bench is barred by the resolution of this
Court in G.R. No. 163557 denying due course and dismissing the petition for review on certiorari; and (b) whether the
CA committed grave abuse of discretion amounting to excess or lack of jurisdiction in nullifying the June 6, 2002 and
July 26, 2002 Orders of the RTC and their arraignment on June 6, 2002 instead of dismissing the petition in CA-G.R.
SP No. 73035 for being moot and academic.
On the first issue, we find the contention of the private respondent to be barren of merit. A motion is considered moot
when it no longer presents a justiciable controversy because the issues involved have become academic or dead. 28
Courts will not determine a moot question in which no practical relief can be granted. 29 However, the Court will decide a
question otherwise moot and academic if it is capable of repetition, yet evading review. 30
In the present case, the issues posed by the petitioner in CA-G.R. SP No. 77759 are as follows:
I. RESPONDENT SECRETARY OF JUSTICE GRAVELY ABUSED HIS DISCRETION WHEN HE ACTED ON THE
MOTION FOR RECONSIDERATION OF PRIVATE COMPLAINANTS AND IN ISSUING THE ASSAILED
RESOLUTION OF NOVEMBER 18, 2002, COMPLETELY REVERSING HIS RESOLUTION 258 OF MAY 20, 2002 IN
VIOLATION OF SECTIONS 12(e) AND SEC. 7, PAR. 2 OF ITS OWN DEPARTMENT CIRCULAR NO. 70.
II. IT WAS GRAVE ERROR FOR RESPONDENT SECRETARY OF JUSTICE TO ACT ON THE MOTION FOR
RECONSIDERATION OF PRIVATE COMPLAINANTS WHEN HE WAS ALREADY INFORMED THAT THE ACCUSED
HAVE ALREADY BEEN ARRAIGNED ON THE SECOND AMENDED INFORMATION BASED ON HIS RESOLUTION
258 OF MAY 20, 2002; DOUBLE JEOPARDY ALREADY ATTACHES.31
The Court notes that the CA failed to resolve the said issues on their merits, and instead dismissed the said petition for
the petitioners failure to comply with Section 2, Rule 43 and Section 5, Rule 7 of the Rules of Court. The said ruling
was affirmed by this Court. On the other hand, the issue raised by the private respondent in her petition in CA-G.R. SP
No. 73035 was whether the RTC committed grave abuse of discretion amounting to excess or lack of jurisdiction in
nullifying the June 6, 2002 and July 26, 2002 Orders of the RTC, and the arraignment of the petitioners herein on June
6, 2002. Thus, the dismissal by this Court of the petition in G.R. No. 163557 and the consequent affirmance of the
November 18, 2002 Resolution of the Secretary of Justice did not render the issues raised in this case moot and
academic. This Court has to delve into and resolve the issue of whether the RTC abused its discretion amounting to
excess or lack of jurisdiction in granting the Provincial Prosecutors motion for the admission of the Second Amended
Information and in proceeding with the petitioners arraignment for homicide. The Secretary of Justice could not have

resolved the said issues, as only the CA and this Court on appeal under Rule 45 of the Rules of Court are competent
to do so. Thus, the appellate court cannot likewise be blamed for not dismissing the petition in CA-G.R. SP No. 73035
filed by the private respondent for being moot and academic when the Secretary of Justice issued his November 18,
2002 Resolution reversing Resolution No. 258.
The appellate courts nullification of the June 6, 2002 and July 26, 2002 Orders of the RTC and the arraignment of the
petitioners on June 6, 2002 are well-founded. Section 13 of DOJ Circular No. 70 reads:
SECTION 13. Motion for reconsideration. The aggrieved party may file a motion for reconsideration within a nonextendible period of ten (10) days from receipt of the resolution on appeal, furnishing the adverse party and the
Prosecution Office concerned with copies thereof and submitting proof of such service. No second or further motion for
reconsideration shall be entertained.
The private respondent, on May 27, 2002, received a copy of Resolution No. 258 of the Secretary of Justice
downgrading the charges from murder and attempted murder to homicide and attempted homicide. She had the right
to file a motion for reconsideration of the aforesaid resolution on or before June 6, 2002. Indeed, she filed such motion,
through the private prosecutors, by personal delivery to the DOJ on June 4, 2002. Thereafter, it behooved the RTC to
suspend the proceedings until after the Secretary of Justice had resolved such motion with finality, including the
consideration of the motion of the Provincial Prosecutor for the admission of the Second Amended Information for
homicide, the dismissal of Criminal Case No. 926, and the arraignment of the petitioners for homicide. It was, in fact,
premature for the Provincial Prosecutor to file such motion for the admission of the Second Amended Information since
the Secretary of Justice had not yet resolved the said motion; after all, he may still reconsider Resolution No. 258,
which he did on November 18, 2002, effectively reversing his previous ruling affirming the assailed Resolutions of the
Provincial Prosecutor on May 26, 2001 and July 26, 2001, and thus reverting to the original charges of murder and
attempted murder. As this Court declared in Marcelo v. Court of Appeals:32
Consequently, the 5 December 1991 Manifestation and Motion of the petitioners praying for the dismissal of the case
and the 10 December 1991 motion of Assistant City Prosecutor Jamolin asking for the withdrawal of the information
were prematurely filed, because as to the first, the period of the offended party to appeal from the resolution to the
Secretary of Justice had not yet lapsed or even begun, there being no showing of the date the offended party received
a copy thereof; and, as to the second, an appeal had in fact been filed on 10 December 1991.
Prudence, if not wisdom or at the very least respect for the authority of the prosecution agency to which the Bersamin
court deferred, dictated against a favorable action on the Review Committees resolution until the denial of the appeal
or the affirmance of the resolution by the Secretary of Justice. The Bersamin court acted then with precipitate or undue
haste in issuing the 13 December 1991 Order granting the petitioners motion to dismiss and Prosecutor Jamolins
motion to withdraw the information in Criminal Case No. Q-91-21285.
Accordingly, we rule that the trial court in a criminal case which takes cognizance of an accuseds motion for review of
the resolution of the investigating prosecutor or for reinvestigation and defers the arraignment until resolution of the
said motion must act on the resolution reversing the investigating prosecutors finding or on a motion to dismiss based
thereon only upon proof that such resolution is already final in that no appeal was taken therefrom to the Department
of Justice.
Admittedly, the private prosecutors failed to serve the RTC with a copy of their motion for reconsideration by personal
delivery, and failed to file a formal motion for the deferment of the hearing of the Provincial Prosecutors motion for the
admission of the Second Amended Information for homicide and the arraignment of the petitioners before June 6,
2002. However, the private prosecutors explained that due to time constraints, owing to the ten-day period for filing
such motion for reconsideration, such motion had to be hand-carried to the DOJ on June 4, 2002, while copies meant
for the RTC and to the accused were sent by registered mail. Furthermore, the RTC was not precluded from taking
cognizance of and resolving the oral motion of the private prosecutors for the deferment of the hearing on the
Provincial Prosecutors motion for the admission of the Second Amended Information for homicide. After all, under
Rule 15, Section 2 of the Rules of Court, motions may be made in open court or in the course of a hearing or trial in
the presence of the other party who has the opportunity to object thereto.
In fine, the RTC acted with inordinate and precipitate haste when it granted the Provincial Prosecutors motion for the
admission of the Second Amended Information for homicide, ordered the withdrawal of Criminal Case No. 926 for
attempted homicide based on Resolution No. 258 of the DOJ Secretary, and arraigned the accused therein for
homicide.

As the appellate court correctly pointed out in its November 10, 2003 Resolution:
Public respondent also erroneously found that the pendency of the motion for reconsideration, and the other reasons
given, not compelling for the court to defer its action on the motion to admit. Public respondent also questioned the
personality of the petitioner, as the private offended party, in actively participating in the criminal prosecution.
As earlier stated, Department Circular No. 70 places the duty upon the appellant and the trial prosecutor to see to it
that, pending resolution of the appeal, the proceedings in court are held in abeyance.
Therefore, the pendency of an appeal before the DOJ is enough reason for the deferment of any proceedings in the
trial court and petitioner, through the private prosecutors, correctly moved for the deferment of the admission of the
second amended informations for homicide and attempted homicide. It should be considered that the motion to defer
was even with the conformity of the public prosecutor and the appearance of the private prosecutors is pursuant to
Section 16, Rule 110 of the 2000 Rules on Criminal Procedure, to wit:
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.
Besides the oral recitation in open court by the private prosecutors of the grounds cited in the motion to defer the
admission of the second amended informations for homicide and attempted homicide, which the public respondent
found unprocedural, petitioner was not really given the opportunity to oppose the motion to admit the same
informations.
All these facts taken together, there appears to be an undue haste on the part of the public respondent in admitting the
second amended informations for homicide and attempted homicide and ordering the arraignment of the private
respondents to the said informations. This is considering that no word of protestation was heard from the petitioner
when she waited for nine (9) months for the DOJ to resolve the private respondents petition for review.
As a result of the assailed Orders issued by public respondent, the private respondents were arraigned for homicide
and attempted homicide.33
The petitioners contention that the RTC was deprived of its authority to act on and resolve the motion of the Provincial
Prosecutor for the withdrawal of the Second Amended Information for homicide and the retention of the Amended
Information for murder and attempted murder is not correct. Indeed, the Provincial Prosecutor filed a motion in the RTC
for the withdrawal of the Second Amended Information for homicide and for the reinstatement of the Amended
Information for murder on December 4, 2002. Were it not for the temporary restraining order issued by the CA in CAG.R. No. 73035, the RTC would have resolved the same one way or the other.
The People of the Philippines was not estopped by the Prosecutors insistence on May 21, 2002 that the petitioners
and the other accused be arraigned on June 6, 2002 despite the pending petition for review of petitioners Juan Napao,
et al. and the motion for reconsideration of the private respondent before the Secretary of Justice. The fact of the
matter is that during the hearing of June 6, 2002, the Prosecutors moved for the deferment of the consideration of the
Provincial Prosecutors motion for the withdrawal of the Second Amended Information for homicide because, in the
meantime, the private complainant had filed a motion for the reconsideration of the Justice Secretarys Resolution No.
258. The latter cannot be stripped of his authority to act on and resolve the aforesaid motion of the private complainant
on the Prosecutors insistence that the accused be arraigned on June 6, 2002. Indeed, under Section 7 of DOJ
Circular No. 70, the Secretary of Justice may resolve the said motion despite the arraignment of the petitioners:
SECTION 7. Action on the petition. The Secretary of Justice may dismiss the petition outright if he finds the same to
be patently without merit or manifestly intended for delay, or when the issues raised therein are too unsubstantial to
require consideration.
If an information has been filed in court pursuant to the appealed resolution, the petition shall not be given due course
if the accused had already been arraigned. Any arraignment made after the filing of the petition shall not bar the
Secretary of Justice from exercising his power of review.
IN LIGHT OF ALL THE FOREGOING, the petition is DENIED for lack of merit.
SO ORDERED.

ROMEO J. CALLEJO, SR.

Associate Justice

Republic of the Philippines

SUPREME COURT
Manila
SECOND DIVISION
G.R. No. 162336

February 1, 2010

HILARIO P. SORIANO, Petitioner,

vs.
PEOPLE OF THE PHILIPPINES, BANGKO SENTRAL NG PILIPINAS (BSP), PHILIPPINE DEPOSIT INSURANCE
CORPORATION (PDIC), PUBLIC PROSECUTOR ANTONIO C.BUAN, and STATE PROSECUTOR ALBERTO R.
FONACIER, Respondents.

DECISION
DEL CASTILLO, J.:
A bank officer violates the DOSRI2 law when he acquires bank funds for his personal benefit, even if such acquisition
was facilitated by a fraudulent loan application. Directors, officers, stockholders, and their related interests cannot be
allowed to interpose the fraudulent nature of the loan as a defense to escape culpability for their circumvention of
Section 83 of Republic Act (RA) No. 337.3
Before us is a Petition for Review on Certiorari4 under Rule 45 of the Rules of Court, assailing the September 26, 2003
Decision5 and the February 5, 2004 Resolution 6 of the Court of Appeals (CA) in CA-G.R. SP No. 67657. The
challenged Decision disposed as follows:
WHEREFORE, premises considered, the instant petition for certiorari is hereby DENIED.7
Factual Antecedents
Sometime in 2000, the Office of Special Investigation (OSI) of the Bangko Sentral ng Pilipinas (BSP), through its
officers,8 transmitted a letter9 dated March 27, 2000 to Jovencito Zuo, Chief State Prosecutor of the Department of
Justice (DOJ). The letter attached as annexes five affidavits, 10 which would allegedly serve as bases for filing criminal
charges for Estafa thru Falsification of Commercial Documents, in relation to Presidential Decree (PD) No. 1689, 11 and
for Violation of Section 83 of RA 337, as amended by PD 1795, 12 against, inter alia, petitioner herein Hilario P. Soriano.
These five affidavits, along with other documents, stated that spouses Enrico and Amalia Carlos appeared to have an
outstanding loan of P8 million with the Rural Bank of San Miguel (Bulacan), Inc. (RBSM), but had never applied for nor
received such loan; that it was petitioner, who was then president of RBSM, who had ordered, facilitated, and received
the proceeds of the loan; and that the P8 million loan had never been authorized by RBSM's Board of Directors and no
report thereof had ever been submitted to the Department of Rural Banks, Supervision and Examination Sector of the
BSP. The letter of the OSI, which was not subscribed under oath, ended with a request that a preliminary investigation
be conducted and the corresponding criminal charges be filed against petitioner at his last known address.
Acting on the letter-request and its annexes, State Prosecutor Albert R. Fonacier proceeded with the preliminary
investigation. He issued a subpoena with the witnesses affidavits and supporting documents attached, and required
petitioner to file his counter-affidavit. In due course, the investigating officer issued a Resolution finding probable cause
and correspondingly filed two separate informations against petitioner before the Regional Trial Court (RTC) of
Malolos, Bulacan.13
The first Information,14 dated November 14, 2000 and docketed as Criminal Case No. 237-M-2001, was for estafa
through falsification of commercial documents, under Article 315, paragraph 1(b), of the Revised Penal Code (RPC), in
relation to Article 172 of the RPC and PD 1689. It basically alleged that petitioner and his co-accused, in abuse of the
confidence reposed in them as RBSM officers, caused the falsification of a number of loan documents, making it
appear that one Enrico Carlos filled up the same, and thereby succeeded in securing a loan and converting the loan
proceeds for their personal gain and benefit.15 The information reads:
That in or about the month of April, 1997, and thereafter, in San Miguel, Bulacan, and within the jurisdiction of this
Honorable Court, the said accused HILARIO P. SORIANO and ROSALINDA ILAGAN, as principals by direct
participation, with unfaithfulness or abuse of confidence and taking advantage of their position as President of the
Rural Bank of San Miguel (Bulacan), Inc. and Branch Manager of the Rural Bank of San Miguel San Miguel Branch
[sic], a duly organized banking institution under Philippine Laws, conspiring, confederating and mutually helping one
another, did then and there, willfully and feloniously falsify loan documents consisting of undated loan
application/information sheet, credit proposal dated April 14, 1997, credit proposal dated April 22, 1997, credit
investigation report dated April 15, 1997, promissory note dated April 23, 1997, disclosure statement on loan/credit
transaction dated April 23, 1997, and other related documents, by making it appear that one Enrico Carlos filled up the
application/information sheet and filed the aforementioned loan documents when in truth and in fact Enrico Carlos did
not participate in the execution of said loan documents and that by virtue of said falsification and with deceit and intent
to cause damage, the accused succeeded in securing a loan in the amount of eight million pesos (PhP8,000,000.00)
from the Rural Bank of San Miguel San Ildefonso branch in the name of Enrico Carlos which amount of PhP8 million
representing the loan proceeds the accused thereafter converted the same amount to their own personal gain and
benefit, to the damage and prejudice of the Rural Bank of San Miguel San Ildefonso branch, its creditors, the Bangko
Sentral ng Pilipinas, and the Philippine Deposit Insurance Corporation.

CONTRARY TO LAW.16
The other Information17 dated November 10, 2000 and docketed as Criminal Case No. 238-M-2001, was for violation of
Section 83 of RA 337, as amended by PD 1795. The said provision refers to the prohibition against the so-called
DOSRI loans. The information alleged that, in his capacity as President of RBSM, petitioner indirectly secured an P8
million loan with RBSM, for his personal use and benefit, without the written consent and approval of the bank's Board
of Directors, without entering the said transaction in the bank's records, and without transmitting a copy of the
transaction to the supervising department of the bank. His ruse was facilitated by placing the loan in the name of an
unsuspecting RBSM depositor, one Enrico Carlos.18 The information reads:
That in or about the month of April, 1997, and thereafter, and within the jurisdiction of this Honorable Court, the said
accused, in his capacity as President of the Rural Bank of San Miguel (Bulacan), Inc., did then and there, willfully and
feloniously indirectly borrow or secure a loan with the Rural Bank of San Miguel San Ildefonso branch, a domestic
rural banking institution created, organized and existing under Philippine laws, amounting to eight million pesos
(PhP8,000,000.00), knowing fully well that the same has been done by him without the written consent and approval of
the majority of the board of directors of the said bank, and which consent and approval the said accused deliberately
failed to obtain and enter the same upon the records of said banking institution and to transmit a copy thereof to the
supervising department of the said bank, as required by the General Banking Act, by using the name of one depositor
Enrico Carlos of San Miguel, Bulacan, the latter having no knowledge of the said loan, and one in possession of the
said amount of eight million pesos (PhP8,000,000.00), accused converted the same to his own personal use and
benefit, in flagrant violation of the said law.
CONTRARY TO LAW.19
Both cases were raffled to Branch 79 of the RTC of Malolos, Bulacan. 20
On June 8, 2001, petitioner moved to quash 21 these informations on two grounds: that the court had no jurisdiction
over the offense charged, and that the facts charged do not constitute an offense.
On the first ground, petitioner argued that the letter transmitted by the BSP to the DOJ constituted the complaint and
hence was defective for failure to comply with the mandatory requirements of Section 3(a), Rule 112 of the Rules of
Court, such as the statement of address of petitioner and oath and subscription. 22 Moreover, petitioner argued that the
officers of OSI, who were the signatories to the "letter-complaint," were not authorized by the BSP Governor, much
less by the Monetary Board, to file the complaint. According to petitioner, this alleged fatal oversight violated Section
18, pars. (c) and (d) of the New Central Bank Act (RA 7653).
On the second ground, petitioner contended that the commission of estafa under paragraph 1(b) of Article 315 of the
RPC is inherently incompatible with the violation of DOSRI law (as set out in Section 83 23 of RA 337, as amended by
PD 1795),24 hence a person cannot be charged for both offenses. He argued that a violation of DOSRI law requires the
offender to obtain a loan from his bank, without complying with procedural, reportorial, or ceiling requirements. On the
other hand, estafa under par. 1(b), Article 315 of the RPC requires the offender to misappropriate or convert something
that he holds in trust, or on commission, or for administration, or under any other obligation involving the duty to
return the same.25
Essentially, the petitioner theorized that the characterization of possession is different in the two offenses. If petitioner
acquired the loan as DOSRI, he owned the loaned money and therefore, cannot misappropriate or convert it as
contemplated in the offense of estafa. Conversely, if petitioner committed estafa, then he merely held the money in
trust for someone else and therefore, did not acquire a loan in violation of DOSRI rules.
Ruling of the Regional Trial Court
In an Order26 dated August 8, 2001, the trial court denied petitioner's Motion to Quash for lack of merit. The lower court
agreed with the prosecution that the assailed OSI letter was not the complaint-affidavit itself; thus, it need not comply
with the requirements under the Rules of Court. The trial court held that the affidavits, which were attached to the OSI
letter, comprised the complaint-affidavit in the case. Since these affidavits were duly subscribed and sworn to before a
notary public, there was adequate compliance with the Rules. The trial court further held that the two offenses were
separate and distinct violations, hence the prosecution of one did not pose a bar to the other.27
Petitioners Motion for Reconsideration was likewise denied in an Order dated September 5, 2001. 28

Aggrieved, petitioner filed a Petition for Certiorari29 with the CA, reiterating his arguments before the trial court.
Ruling of the Court of Appeals
The CA denied the petition on both issues presented by petitioner.
On the first issue, the CA determined that the BSP letter, which petitioner characterized to be a fatally infirm complaint,
was not actually a complaint, but a transmittal or cover letter only. This transmittal letter merely contained a summary
of the affidavits which were attached to it. It did not contain any averment of personal knowledge of the events and
transactions that constitute the elements of the offenses charged. Being a mere transmittal letter, it need not comply
with the requirements of Section 3(a) of Rule 112 of the Rules of Court. 30
The CA further determined that the five affidavits attached to the transmittal letter should be considered as the
complaint-affidavits that charged petitioner with violation of Section 83 of RA 337 and for Estafa thru Falsification of
Commercial Documents. These complaint-affidavits complied with the mandatory requirements set out in the Rules of
Court they were subscribed and sworn to before a notary public and subsequently certified by State Prosecutor
Fonacier, who personally examined the affiants and was convinced that the affiants fully understood their sworn
statements.31
Anent the second ground, the CA found no merit in petitioner's argument that the violation of the DOSRI law and the
commission of estafa thru falsification of commercial documents are inherently inconsistent with each other. It
explained that the test in considering a motion to quash on the ground that the facts charged do not constitute an
offense, is whether the facts alleged, when hypothetically admitted, constitute the elements of the offense charged.
The appellate court held that this test was sufficiently met because the allegations in the assailed informations, when
hypothetically admitted, clearly constitute the elements of Estafa thru Falsification of Commercial Documents and
Violation of DOSRI law.32
Petitioners Motion for Reconsideration33 was likewise denied for lack of merit.
Hence, this petition.
Issues
Restated, petitioner raises the following issues34 for our consideration:
I
Whether the complaint complied with the mandatory requirements provided under Section 3(a), Rule 112 of the Rules
of Court and Section 18, paragraphs (c) and (d) of RA 7653.
II
Whether a loan transaction within the ambit of the DOSRI law (violation of Section 83 of RA 337, as amended) could
also be the subject of Estafa under Article 315 (1) (b) of the Revised Penal Code.
III
Is a petition for certiorari under Rule 65 the proper remedy against an Order denying a Motion to Quash?
IV
Whether petitioner is entitled to a writ of injunction.
Our Ruling
The petition lacks merit.
First Issue:
Whether the complaint complied with the mandatory requirements provided under Section 3(a), Rule 112 of

the Rules of Court and Section 18, paragraphs (c) and (d) of
Republic Act No. 7653
Petitioner moved to withdraw the first issue from the instant petition
On March 5, 2007, the Court noted 35 petitioner's Manifestation and Motion for Partial Withdrawal of the Petition 36dated
February 7, 2007. In the said motion, petitioner informed the Court of the promulgation of a Decision entitled Soriano v.
Hon. Casanova,37 which also involved petitioner and similar BSP letters to the DOJ. According to petitioner, the said
Decision allegedly ruled squarely on the nature of the BSP letters and the validity of the sworn affidavits attached
thereto. For this reason, petitioner moved for the partial withdrawal of the instant petition insofar as it involved the issue
of "whether or not a court can legally acquire jurisdiction over a complaint which failed to comply with the mandatory
requirements provided under Section 3(a), Rule 112 of the Rules of Court and Section 18, paragraphs (c) and (d) of
RA 7653".38
Given that the case had already been submitted for resolution of the Court when petitioner filed his latest motion, and
that all respondents had presented their positions and arguments on the first issue, the Court deems it proper to rule
on the same.
In Soriano v. Hon. Casanova, the Court held that the affidavits attached to the BSP transmittal letter complied with the
mandatory requirements under the Rules of Court.
To be sure, the BSP letters involved in Soriano v. Hon. Casanova39 are not the same as the BSP letter involved in the
instant case. However, the BSP letters in Soriano v. Hon. Casanova and the BSP letter subject of this case are similar
in the sense that they are all signed by the OSI officers of the BSP, they were not sworn to by the said officers, they all
contained summaries of their attached affidavits, and they all requested the conduct of a preliminary investigation and
the filing of corresponding criminal charges against petitioner Soriano. Thus, the principle of stare decisis dictates that
the ruling in Soriano v. Hon. Casanova be applied in the instant case once a question of law has been examined and
decided, it should be deemed settled and closed to further argument. 40
We held in Soriano v. Hon. Casanova, after a close scrutiny of the letters transmitted by the BSP to the DOJ, that these
were not intended to be the complaint, as envisioned under the Rules. They did not contain averments of personal
knowledge of the events and transactions constitutive of any offense. The letters merely transmitted for preliminary
investigation the affidavits of people who had personal knowledge of the acts of petitioner. We ruled that these
affidavits, not the letters transmitting them, initiated the preliminary investigation. Since these affidavits were
subscribed under oath by the witnesses who executed them before a notary public, then there was substantial
compliance with Section 3(a), Rule 112 of the Rules of Court.
Anent the contention that there was no authority from the BSP Governor or the Monetary Board to file a criminal case
against Soriano, we held that the requirements of Section 18, paragraphs (c) and (d) of RA 7653 did not apply because
the BSP did not institute the complaint but merely transmitted the affidavits of the complainants to the DOJ.
We further held that since the offenses for which Soriano was charged were public crimes, authority holds that it can
be initiated by "any competent person" with personal knowledge of the acts committed by the offender. Thus, the
witnesses who executed the affidavits clearly fell within the purview of "any competent person" who may institute the
complaint for a public crime.
The ruling in Soriano v. Hon. Casanova has been adopted and elaborated upon in the recent case of Santos-Concio v.
Department of Justice.41 Instead of a transmittal letter from the BSP, the Court in Santos-Concio was faced with an
NBI-NCR Report, likewise with affidavits of witnesses as attachments. Ruling on the validity of the witnesses sworn
affidavits as bases for a preliminary investigation, we held:
The Court is not unaware of the practice of incorporating all allegations in one document denominated as "complaintaffidavit." It does not pronounce strict adherence to only one approach, however, for there are cases where the extent
of ones personal knowledge may not cover the entire gamut of details material to the alleged offense. The private
offended party or relative of the deceased may not even have witnessed the fatality, in which case the peace officer or
law enforcer has to rely chiefly on affidavits of witnesses. The Rules do not in fact preclude the attachment of a referral
or transmittal letter similar to that of the NBI-NCR. Thus, in Soriano v. Casanova, the Court held:
A close scrutiny of the letters transmitted by the BSP and PDIC to the DOJ shows that these were not intended to be

the complaint envisioned under the Rules. It may be clearly inferred from the tenor of the letters that the officers
merely intended to transmit the affidavits of the bank employees to the DOJ. Nowhere in the transmittal letters is there
any averment on the part of the BSP and PDIC officers of personal knowledge of the events and transactions
constitutive of the criminal violations alleged to have been made by the accused. In fact, the letters clearly stated that
what the OSI of the BSP and the LIS of the PDIC did was to respectfully transmit to the DOJ for preliminary
investigation the affidavits and personal knowledge of the acts of the petitioner. These affidavits were subscribed under
oath by the witnesses who executed them before a notary public. Since the affidavits, not the letters transmitting
them, were intended to initiate the preliminary investigation, we hold that Section 3(a), Rule 112 of the Rules of Court
was substantially complied with.
Citing the ruling of this Court in Ebarle v. Sucaldito, the Court of Appeals correctly held that a complaint for purposes of
preliminary investigation by the fiscal need not be filed by the offended party. The rule has been that, unless the
offense subject thereof is one that cannot be prosecuted de oficio, the same may be filed, for preliminary
investigation purposes, by any competent person. The crime of estafa is a public crime which can be initiated by "any
competent person." The witnesses who executed the affidavits based on their personal knowledge of the acts
committed by the petitioner fall within the purview of "any competent person" who may institute the complaint for a
public crime. x x x (Emphasis and italics supplied)
A preliminary investigation can thus validly proceed on the basis of an affidavit of any competent person, without the
referral document, like the NBI-NCR Report, having been sworn to by the law enforcer as the nominal complainant. To
require otherwise is a needless exercise. The cited case of Oporto, Jr. v. Judge Monserate does not appear to dent this
proposition. After all, what is required is to reduce the evidence into affidavits, for while reports and even raw
information may justify the initiation of an investigation, the preliminary investigation stage can be held only after
sufficient evidence has been gathered and evaluated which may warrant the eventual prosecution of the case in
court.42
Following the foregoing rulings in Soriano v. Hon. Casanova and Santos-Concio v. Department of Justice, we hold that
the BSP letter, taken together with the affidavits attached thereto, comply with the requirements provided under
Section 3(a), Rule 112 of the Rules of Court and Section 18, paragraphs (c) and (d) of RA 7653.
Second Issue:
Whether a loan transaction within the ambit of the DOSRI law (violation of Section 83 of RA 337, as amended) could
be the subject of Estafa under Article 315 (1) (b) of the
Revised Penal Code
The second issue was raised by petitioner in the context of his Motion to Quash Information on the ground that the
facts charged do not constitute an offense. 43 It is settled that in considering a motion to quash on such ground, the test
is "whether the facts alleged, if hypothetically admitted, would establish the essential elements of the offense charged
as defined by law. The trial court may not consider a situation contrary to that set forth in the criminal complaint or
information. Facts that constitute the defense of the petitioner[s] against the charge under the information must be
proved by [him] during trial. Such facts or circumstances do not constitute proper grounds for a motion to quash the
information on the ground that the material averments do not constitute the offense". 44
We have examined the two informations against petitioner and we find that they contain allegations which, if
hypothetically admitted, would establish the essential elements of the crime of DOSRI violation and estafa thru
falsification of commercial documents.
In Criminal Case No. 238-M-2001 for violation of DOSRI rules, the information alleged that petitioner Soriano was the
president of RBSM; that he was able to indirectly obtain a loan from RBSM by putting the loan in the name of depositor
Enrico Carlos; and that he did this without complying with the requisite board approval, reportorial, and ceiling
requirements.
In Criminal Case No. 237-M-2001 for estafa thru falsification of commercial documents, the information alleged that
petitioner, by taking advantage of his position as president of RBSM, falsified various loan documents to make it
appear that an Enrico Carlos secured a loan of P8 million from RBSM; that petitioner succeeded in obtaining the loan
proceeds; that he later converted the loan proceeds to his own personal gain and benefit; and that his action caused
damage and prejudice to RBSM, its creditors, the BSP, and the PDIC.

Significantly, this is not the first occasion that we adjudge the sufficiency of similarly worded informations. In Soriano v.
People,45 involving the same petitioner in this case (but different transactions), we also reviewed the sufficiency of
informations for DOSRI violation and estafa thru falsification of commercial documents, which were almost identical,
mutatis mutandis, with the subject informations herein. We held in Soriano v. People that there is no basis for the
quashal of the informations as "they contain material allegations charging Soriano with violation of DOSRI rules and
estafa thru falsification of commercial documents".
Petitioner raises the theory that he could not possibly be held liable for estafa in concurrence with the charge for
DOSRI violation. According to him, the DOSRI charge presupposes that he acquired a loan, which would make the
loan proceeds his own money and which he could neither possibly misappropriate nor convert to the prejudice of
another, as required by the statutory definition of estafa. 46 On the other hand, if petitioner did not acquire any loan,
there can be no DOSRI violation to speak of. Thus, petitioner posits that the two offenses cannot co-exist. This theory
does not persuade us.
Petitioners theory is based on the false premises that the loan was extended to him by the bank in his own name, and
that he became the owner of the loan proceeds. Both premises are wrong.
The bank money (amounting to P8 million) which came to the possession of petitioner was money held in trust or
administration by him for the bank, in his
fiduciary capacity as the President of said bank. 47 It is not accurate to say that petitioner became the owner of theP8
million because it was the proceeds of a loan. That would have been correct if the bank knowingly extended the loan to
petitioner himself. But that is not the case here. According to the information for estafa, the loan was supposed to be
for another person, a certain "Enrico Carlos"; petitioner, through falsification, made it appear that said "Enrico Carlos"
applied for the loan when in fact he ("Enrico Carlos") did not. Through such fraudulent device, petitioner obtained the
loan proceeds and converted the same. Under these circumstances, it cannot be said that petitioner became the legal
owner of the P8 million. Thus, petitioner remained the banks fiduciary with respect to that money, which makes it
capable of misappropriation or conversion in his hands.
The next question is whether there can also be, at the same time, a charge for DOSRI violation in such a situation
wherein the accused bank officer did not secure a loan in his own name, but was alleged to have used the name of
another person in order to indirectly secure a loan from the bank. We answer this in the affirmative. Section 83 of RA
337 reads:
Section 83. No director or officer of any banking institution shall, either directly or indirectly, for himself or as the
representative or agent of others, borrow any of the deposits of funds of such bank, nor shall he become a guarantor,
indorser, or surety for loans from such bank to others, or in any manner be an obligor for moneys borrowed from the
bank or loaned by it, except with the written approval of the majority of the directors of the bank, excluding the director
concerned. Any such approval shall be entered upon the records of the corporation and a copy of such entry shall be
transmitted forthwith to the Superintendent of Banks. The office of any director or officer of a bank who violates the
provisions of this section shall immediately become vacant and the director or officer shall be punished by
imprisonment of not less than one year nor more than ten years and by a fine of not less than one thousand nor more
than ten thousand pesos. x x x
The prohibition in Section 83 is broad enough to cover various modes of borrowing.[48] It covers loans by a bank
director or officer (like herein petitioner) which are made either: (1) directly, (2) indirectly, (3) for himself, (4) or as the
representative or agent of others. It applies even if the director or officer is a mere guarantor, indorser or surety for
someone else's loan or is in any manner an obligor for money borrowed from the bank or loaned by it. The covered
transactions are prohibited unless the approval, reportorial and ceiling requirements under Section 83 are complied
with. The prohibition is intended to protect the public, especially the depositors,[49] from the overborrowing of bank
funds by bank officers, directors, stockholders and related interests, as such overborrowing may lead to bank failures.
[50] It has been said that "banking institutions are not created for the benefit of the directors [or officers]. While
directors have great powers as directors, they have no special privileges as individuals. They cannot use the assets of
the bank for their own benefit except as permitted by law. Stringent restrictions are placed about them so that when
acting both for the bank and for one of themselves at the same time, they must keep within certain prescribed lines
regarded by the legislature as essential to safety in the banking business". 51
A direct borrowing is obviously one that is made in the name of the DOSRI himself or where the DOSRI is a named
party, while an indirect borrowing includes one that is made by a third party, but the DOSRI has a stake in the
transaction.52 The latter type indirect borrowing applies here. The information in Criminal Case 238-M-2001 alleges

that petitioner "in his capacity as President of Rural Bank of San Miguel San Ildefonso branch x x x indirectly
borrow[ed] or secure[d] a loan with [RBSM] x x x knowing fully well that the same has been done by him without the
written consent and approval of the majority of the board of directors x x x, and which consent and approval the said
accused deliberately failed to obtain and enter the same upon the records of said banking institution and to transmit a
copy thereof to the supervising department of the said bank x x x by using the name of one depositor Enrico Carlos x x
x, the latter having no knowledge of the said loan, and once in possession of the said amount of eight million pesos
(P8 million), [petitioner] converted the same to his own personal use and benefit".53
The foregoing information describes the manner of securing the loan as indirect; names petitioner as the benefactor of
the indirect loan; and states that the requirements of the law were not complied with. It contains all the required
elements54 for a violation of Section 83, even if petitioner did not secure the loan in his own name.
The broad interpretation of the prohibition in Section 83 is justified by the fact that it even expressly covers loans to
third parties where the third parties are aware of the transaction (such as principals represented by the DOSRI), and
where the DOSRIs interest does not appear to be beneficial but even burdensome (such as in cases when the DOSRI
acts as a mere guarantor or surety). If the law finds it necessary to protect the bank and the banking system in such
situations, it will surely be illogical for it to exclude a case like this where the DOSRI acted for his own benefit, using the
name of an unsuspecting person. A contrary interpretation will effectively allow a DOSRI to use dummies to circumvent
the requirements of the law.
In sum, the informations filed against petitioner do not negate each other.
Third Issue:
Is a Rule 65 petition for certiorari the proper remedy against an Order denying a Motion to Quash?
This issue may be speedily resolved by adopting our ruling in Soriano v. People, 55 where we held:
In fine, the Court has consistently held that a special civil action for certiorari is not the proper remedy to assail the
denial of a motion to quash an information. The proper procedure in such a case is for the accused to enter a plea, go
to trial without prejudice on his part to present the special defenses he had invoked in his motion to quash and if after
trial on the merits, an adverse decision is rendered, to appeal therefrom in the manner authorized by law. Thus,
petitioners should not have forthwith filed a special civil action for certiorari with the CA and instead, they should have
gone to trial and reiterated the special defenses contained in their motion to quash. There are no special or exceptional
circumstances in the present case that would justify immediate resort to a filing of a petition for certiorari. Clearly, the
CA did not commit any reversible error, much less, grave abuse of discretion in dismissing the petition. 56
Fourth Issue:
Whether petitioner is entitled to a writ of injunction
The requisites to justify an injunctive relief are: (1) the right of the complainant is clear and unmistakable; (2) the
invasion of the right sought to be protected is material and substantial; and (3) there is an urgent and paramount
necessity for the writ to prevent serious damage. A clear legal right means one clearly founded in or granted by law or
is "enforceable as a matter of law." Absent any clear and unquestioned legal right, the issuance of an injunctive writ
would constitute grave abuse of discretion.57 Caution and prudence must, at all times, attend the issuance of an
injunctive writ because it effectively disposes of the main case without trial and/or due process. 58In Olalia v. Hizon,59 the
Court held as follows:
It has been consistently held that there is no power the exercise of which is more delicate, which requires greater
caution, deliberation and sound discretion, or more dangerous in a doubtful case, than the issuance of an injunction. It
is the strong arm of equity that should never be extended unless to cases of great injury, where courts of law cannot
afford an adequate or commensurate remedy in damages.
Every court should remember that an injunction is a limitation upon the freedom of action of the [complainant] and
should not be granted lightly or precipitately. It should be granted only when the court is fully satisfied that the law
permits it and the emergency demands it.
Given this Court's findings in the earlier issues of the instant case, we find no compelling reason to grant the injunctive
relief sought by petitioner.

WHEREFORE, the petition is DENIED. The assailed September 26, 2003 Decision as well as the February 5, 2004
Resolution of the Court of Appeals in CA-G.R. SP No. 67657 are AFFIRMED. Costs against petitioner.
SO ORDERED.
MARIANO C. DEL CASTILLO
Associate Justice

Republic of the Philippines

SUPREME COURT
Manila
SECOND DIVISION
G.R. No. 164673

January 15, 2010

SAMUEL U. LEE and MAYBELLE LEE LIM, Petitioners,

vs.
KBC BANK N.V., Respondent.
DECISION
CARPIO, J.:
The Case
This is a petition1 for review on certiorari under Rule 45 of the Rules of Court. The petition challenges the 10 February
2004 Decision2 and 27 July 2004 Resolution3 of the Court of Appeals in CA-G.R. SP No. 78004. The Court of Appeals
set aside the 26 March 2003 Order4 of the Regional Trial Court (RTC), National Capital Judicial Region, Branch 58,
Makati City, in Criminal Case Nos. 02-344-45.
The Facts
Midas Diversified Export Corporation (MDEC) obtained a $1,400,000 loan from KBC Bank N.V. (KBC Bank). KBC
Bank is a Belgian corporation licensed to do business in the Philippines. On 12 August 1997, Samuel U. Lee (Lee),
assistant treasurer and director of MDEC, executed a promissory note in favor of KBC Bank and a deed of assignment
transferring all of MDECs rights over Confirmed Purchase Order No. MTC-548 to KBC Bank. Confirmed Purchase
Order No. MTC-548 was allegedly dated 15 July 1997, issued by Otto Versand, a company based in Germany, and
covered a shipment of girls basic denim jeans amounting to $1,863,050.
MDEC obtained another loan, amounting to $65,000, from KBC Bank. On 14 November 1997, Maybelle L. Lim (Lim),
treasurer and assistant secretary of MDEC, executed a promissory note in favor of KBC Bank and a deed of
assignment transferring all of MDECs rights over Confirmed Purchase Order No. WC-128 to KBC Bank. Confirmed
Purchase Order No. WC-128 was allegedly dated 1 October 1997, issued by Otto Versand, and covered a shipment of
boys bermuda jeans amounting to $841,500.
On 23 December 1997, Lim renewed the 12 August 1997 promissory note and issued a notice of renewal and
drawdown certificate to KBC Bank. On 29 December 1997, Lim executed an amended deed of assignment transferring
all of MDECs rights over Confirmed Purchase Order No. MTC-548 to KBC Bank.
MDEC was considered in default in paying the $65,000 loan on 30 January 1998. Under a facility agreement between
KBC Bank and MDEC, any default in payment of any obligation under the agreement would render MDEC in default
with regard to the $65,000 loan MDEC defaulted in paying two other obligations under the agreement. MDEC also
failed to pay the $1,400,000 loan when it became due on 9 February 1998.

On 17 March 1998, KBC Bank sent a letter to Otto Versand verifying the validity of Confirmed Purchase Order Nos.
MTC-548 and WC-128. On 19 March 1998, Otto Versand sent a facsimile message to KBC Bank stating that (1) it did
not issue the purchase orders, (2) it did not order or receive the items covered by the purchase orders, and (3) it would
not pay MDEC any amount.
In a complaint-affidavit5 dated 21 April 1998, Liza M. Pajarillo, manager of the corporate division of KBC Bank, charged
Lee and Lim of estafa. In his Resolution6 dated 27 November 2001, State Prosecutor Josefino A. Subia (State
Prosecutor Subia) found the existence of probable cause and recommended that two counts of estafa be filed against
Lee and Lim. State Prosecutor Subia stated that:
After a careful evaluation of the evidence presented by the Bank, as well as of the respondents, we find the existence
of a probable cause to indict respondents Samuel Lee and Maybelle Lee Lim.
It is an established fact that the confirmed purchase order nos. MTC-548 and WC-128 presented with the Bank by the
Midas thru respondents Samuel Lee and Maybelle Lee Lim were false and spurious, having been unequivocably
repudiated and/or disowned by Otto Versand, Germany, the foreign buyer who allegedly issued the same, as
evidenced by a telefax message sent to the Bank by Otto Versand. Evidently, respondent Samuel Lee signed the
following documents, to wit: the "conforme" portion of the US$2.0 million short-term trade facility, the promissory note
and the corresponding deed of assignment both dated August 12, 1997, covering the confirmed purchase order no[.]
MTC-548, while respondent Maybelle Lee Lim signed in the promissory note and the corresponding deed of
assignment both dated Nov. 14, 1997, the renewed promissory note and the notice of renewal and drawdown
certificate both dated Dec. 23, 1997. Respondents Samuel Lee and Maybelle Lee Lim, thus cannot escape indictment,
aside from signing those relevant loan documents, as they also clearly helped one another in fraudulently representing
to the Bank that indeed said confirmed two (2) purchased [sic] orders does [sic] exists [sic] and that Midas have [sic]
their [sic] rights, titles and interests thereto. With their fraudulent representation, they were able to entice or induce the
Bank to extend [to] them the loan of USD$1.4 million and USD$ 65,000 under the short-term trade facility previously
granted to them.7
Accordingly, two informations for estafa against Lee and Lim were filed with the RTC. After finding probable cause,
Judge Winlove M. Dumayas (Judge Dumayas) of the RTC issued warrants of arrest against Lee and Lim.
Lee and Lim filed a petition 8 for review dated 26 April 2002 with the Department of Justice. Lee and Lim challenged
State Prosecutor Subias 27 November 2001 Resolution and 17 April 2002 Order denying their motion for
reconsideration. They claimed that:
I. THE RESOLUTIONS OF 27 NOVEMBER 2001 AND 17 APRIL 2002 MERELY RELIED ON HEARSAY EVIDENCE
WHICH CANNOT BE THE BASIS FOR A FINDING OF A PROBABLE CAUSE.
II. THE ASSAILED RESOLUTIONS WERE ISSUED BASED ONLY ON THE UNCORROBORATED ALLEGATIONS OF
PAJARILLO THAT LEE AND LIM MADE FRAUDULENT REPRESENTATIONS TO [KBC BANK].
III. THE ASSAILED RESOLUTIONS ERRED IN HOLDING LEE AND LIM TO BE CRIMINALLY LIABLE DESPITE THE
TWO LOANS CREATING MERELY CIVIL LIABILITY ON THE PART OF MIDAS. 9
In his Resolution10 dated 12 July 2002, Secretary Hernando B. Perez (Secretary Perez) directed the withdrawal of the
informations filed against Lee and Lim. Secretary Perez held that the facsimile message constituted hearsay evidence:
The twin charges of estafa are primarily anchored on respondents alleged fraudulent representations to [KBC Bank]
that the two purchase orders were fake or sham. To prove this point, Ms. Pajarillo of [KBC Bank] claims that she
received a fax message from a representative of Otto Versand, stating that the latter company did not issue the
purchase orders mentioned. There was no sworn statement from a responsible officer of Otto Versand presented to
attest to the allegation that the subject purchase orders were fake. Since Ms. Pajarillo did not have personal
knowledge of the fact that the subject purchase orders were in fact fake, her testimony cannot be the basis for finding
probable cause against respondents. Ms. Pajarillo can testify only to those facts that she knew of her personal
knowledge. Admittedly, she derived knowledge of the supposed spurious character of the purchase orders from a mere
fax copy of a message that [KBC Bank] received from a certain representative of Otto Versand in Germany, someone
who she did not even know personally. Unfortunately, this fax copy is hearsay evidence and therefore, inadmissible to
prove the truth of what it contains (Pastor vs. Gaspar, 2 Phil 592). 11(Emphasis supplied)
KBC Bank filed a motion12 for reconsideration dated 2 August 2002 with the Department of Justice.

Lee and Lim had not been arraigned. In a motion 13 dated 18 October 2002 and filed with the RTC, Assistant City
Prosecutor Nora C. Sibucao (Assistant City Prosecutor Sibucao) prayed for the withdrawal of the informations filed
against Lee and Lim. Assistant City Prosecutor Sibucao stated that:
The Prosecution, through the undersigned Trial Prosecutor, unto the Honorable Court, most respectfully moves and
prays for the withdrawal of Information filed in the above-entitled cases in view of the resolution of the Department of
Justice promulgated on July 12, 2002 reversing the resolution of the City Prosecutor of Makati City.14
The RTCs Ruling
In his one-page Order15 dated 26 March 2003, Judge Dumayas granted Assistant City Prosecutor Sibucaos motion to
withdraw the informations against Lee and Lim. Judge Dumayas held that:
This Court, after an in-depth scrutiny of the arguments raised by the prosecution and private complainant, finds the
contentions of the prosecution to be sufficient and meritorious.
Accordingly, the Motion to Withdraw Information filed by the Prosecution is hereby granted and the two (2) informations
for the crime of Estafa penalized under par. 2 (a) of the Revised Penal Code are hereby withdrawn from the docket of
this court.16
KBC Bank filed with the Court a petition 17 for review on certiorari under Rule 45 of the Rules of Court. KBC Bank
claimed that:
I.
The court a quo committed reversible error in issuing the questioned Order without specifying its legal basis.
II.
The court a quo committed reversible error in prematurely acting upon the Makati Prosecutors Motion to Withdraw of
Information.
III.
The court a quo committed reversible error in finding that no probable cause exists to hold respondents for trial for
estafa under Article 315, par. 2(a) and in granting the Makati Prosecutors Motion to Withdraw Information. 18
In a Resolution19 dated 23 June 2003, the Court referred the petition to the Court of Appeals pursuant to Section 6, 20
Rule 56 of the Rules of Court. In his Resolution 21 dated 19 November 2003, Secretary Simeon A. Datumanong denied
KBC Banks 2 August 2002 motion for reconsideration.
The Court of Appeals Ruling
In its 10 February 2004 Decision, the Court of Appeals set aside Judge Dumayas 26 March 2003 Order. The Court of
Appeals held that:
It has long been established that the filing of a complaint or information in Court initiates a criminal action. The Court
thereby acquires jurisdiction over the case, which is the authority to hear and determine the case. When after the filing
of the complaint or information, a warrant for the arrest of the accused is issued by the trial court and the accused
either voluntarily submitted himself to the Court or was duly arrested, the Court thereby acquired jurisdiction over the
person of the accused.
xxxx
The trial judge practically concurred with the findings of the Secretary of Justice that the "fax copy is hearsay evidence
and therefore, inadmissible to prove the truth that it contains", contrary to the well-reasoned findings of the
investigating prosecutor. It is emphasized that a preliminary investigation is not the occasion for the full and exhaustive
display of the parties evidence; it is for the presentation of such evidence only as may engender a well-grounded belief
that an offense has been committed and that the accused is probably guilty thereof.

The issue of admissibility or inadmissibility of evidence is a matter of defense that is best ventilated in a full-blown trial;
preliminary investigation is not the occasion for the exhaustive display of presentation of evidence. 22
Hence, the present petition.

The Issues
In their petition, Lee and Lim raised as issues that:
I
THE COURT EXCEEDED ITS AUTHORITY IN PASSING UPON THE ISSUE OF WHETHER OR NOT THERE WAS
PRIMA FACIE EVIDENCE OF ESTAFA AGAINST THE PETITIONERS, AN ISSUE THAT WAS PENDING BEFORE
THE SECRETARY OF JUSTICE
xxxx
II
QUESTION IS NOT ONE OF ADMISSIBILITY OF EVIDENCE BUT THE NEED IN PRELIMINARY INVESTIGATION
FOR EVIDENCE OF VALUE TO ESTABLISH PROBABLE CAUSE
xxxx
III
RESPONDENT COURT DID NOT PREMATURELY ALLOW THE WITHDRAWAL OF THE INFORMATIONS
xxxx
IV
THE TRIAL COURT DID NOT ABDICATE ITS DUTY TO DETERMINE THE SUFFICIENCY OF THE
PROSECUTIONS REASON FOR WITHDRAWING THE INFORMATIONS. 23
The Courts Ruling
The petition is unmeritorious.
Lee and Lim claim that the Court of Appeals erred when it reviewed the findings of Secretary Perez. They stated that:
[T]he Court of Appeals cannot indirectly review the findings of the Secretary under the pretext of correcting the
actuation of the trial court. x x x
[T]he only ruling before the Court of Appeals is the ruling of the trial court x x x.
But the Court of Appeals ignored the fact that the case before it is not one for the review of the final order of the
Secretary of Justice, acting as a quasi-judicial officer, which is governed by Rule 43 of the Rules of Court. The actual
case filed with it was rather a petition for review on certiorari of the dismissal order of the trial court under Rule 45. 24
The Court is not impressed. The Court of Appeals reviewed Judge Dumayas 26 March 2003 Order, not Secretary
Perezs 12 July 2002 Resolution. The Court of Appeals held that Judge Dumayas erred when he failed to make his
own evaluation and merely relied on Secretary Perezs recommendation that there was no probable cause. The Court
of Appeals stated that:
In a more recent case, the Supreme Court ruled that:
"A judge acts with grave abuse of discretion when he grants a prosecutors motion to dismiss the criminal charges

against an accused on the basis solely of the recommendation of the Secretary of Justice his reliance on the
prosecutors averment that the Secretary of Justice had recommended the dismissal of the case against the petitioner
is an abdication of the trial courts duty and jurisdiction to determine a prima facie case in blatant violation of the
Courts pronouncement in Crespo vs. Mogul."
When the trial judge issued its Order of February 14, 2002 directing the issuance of warrants of arrest against the
respondents, he clearly found probable cause to sustain the filing of criminal complaints against the latter. The
issuance of a warrant of arrest is not a ministerial function of the court it calls for the exercise of judicial discretion
on the part of the issuing magistrate.
If the trial court judge finds it appropriate to dismiss the Informations, the same should be based upon his own
personal individual conviction that there is no case against the accused/respondents. To rely solely on the
recommendation of the Secretary of Justice, to say the least, is an abdication of the judge[]s duty and jurisdiction to
determine a prima facie case. What was imperatively required was the trial judges own assessment of just evidence, it
not being sufficient for the valid and proper exercise of judicial discretion merely to accept the prosecutions word for its
supposed insufficiency.25
Lee and Lim claim that the Court of Appeals erred when it ruled that the admissibility of the facsimile message is a
matter best ventilated in a full-blown trial. They stated that:
At any rate, the Court of Appeals also said in its decision that the issue of admissibility of evidence assailed as hearsay
is a matter of defense to be ventilated in a full blown trial. It held that preliminary investigation is not the occasion for
exhaustive display of evidence and the issue of admissibility or inadmissibility of evidence is a matter of defense to be
ventilated at the trial.
But the Secretary of Justices rejection of the "fax copy" of Otto Versands letter as hearsay evidence merely affirmed
petitioners right to due process in a preliminary investigation. x x x
xxxx
Ms. Pajarillo authenticated it by stating under oath that she received it. The cause for its rejection is the fact that its
contents are purely hearsay since Ms. Pajarillo who testified about them had no personal knowledge of the fact that
the purchase orders were false. The author of the fax message did not swear under oath to the truth of the statement
in the document contrary to what section 3 (e) of Rule 112 mandates.
The Office of the Solicitor General agreed with the petitioners. In the comment dated October 28, 2003 that it filed with
the Court of Appeals, it said:
xxxx
20. In this case, the Secretary of Justices realistic judicial appraisal of the merits of petitioners complaint-affidavit
show that its evidence of estafa is insufficient for lack of proof of the requisite element of deceit. So much so that if the
case were tried, the trial court would be bound to order an acquittal. 26
The Court is not impressed. Whether the facsimile message is admissible in evidence and whether the element of
deceit in the crime of estafa is present are matters best ventilated in a full-blown trial, not in the preliminary
investigation. In Andres v. Justice Secretary Cuevas,27 the Court held that:
[A preliminary investigation] is not the occasion for the full and exhaustive display of [the prosecutions] evidence. The
presence or absence of the elements of the crime is evidentiary in nature and is a matter of defense that may be
passed upon after a full-blown trial on the merits.
In fine, the validity and merits of a partys defense or accusation, as well as the admissibility of testimonies and
evidence, are better ventilated during trial proper than at the preliminary investigation level. 28 (Emphasis supplied)
Lee and Lim claim that the Court of Appeals erred when it ruled that Judge Dumayas failed to make his own evaluation
and merely relied on Secretary Perezs recommendation that there was no probable cause. They stated that:
Contrary to the Court of Appeals[] ruling, the trial court made an effort to evaluate the merit of the prosecutions motion
to withdraw the informations. It evaluated the merits of both the prosecutions motion and respondent banks opposition

to the motion. x x x
Clearly, it cannot be said that the trial court abandoned its responsibility of making an independent assessment of the
sufficiency of the prosecution motion [sic]. Indeed, it scrutinized the arguments of respondent bank just as it did the
arguments of the prosecution in order to determine for itself whether or not the withdrawal of the informations was
warranted.29
The Court is not impressed. Judge Dumayas failed to make his own evaluation in granting the motion to withdraw the
informations. Judge Dumayas 26 March 2003 Order states in full:
This Court, after an in-depth scrutiny of the arguments raised by the prosecution and private complainant, finds the
contentions of the prosecution to be sufficient and meritorious.
Accordingly, the Motion to Withdraw Information filed by the Prosecution is hereby granted and the two (2) informations
for the crime of Estafa penalized under par. 2 (a) of the Revised Penal Code are hereby withdrawn from the docket of
this court.
In Co v. Lim,30 the Court held that:
Once a case is filed with the court, any disposition of it rests on the sound discretion of the court. The trial court is not
bound to adopt the resolution of the Secretary of Justice, since it is mandated to independently evaluate or assess the
merits of the case. Reliance on the resolution of the Secretary of Justice alone would be an abdication of its duty and
jurisdiction to determine a prima facie case. The trial court may make an independent assessment of the merits of the
case based on the affidavits and counter-affidavits, documents, or evidence appended to the Information; the records
of the public prosecutor, which the court may order the latter to produce before the court; or any evidence already
adduced before the court by the accused at the time the motion is filed by the public prosecutor.
xxxx
[T]he trial judge did not positively state that the evidence presented against the respondents was insufficient
for a prima facie case, nor did the aforequoted Order include a discussion of the merits of the case based on
an evaluation or assessment of the evidence on record. In other words, the dismissal of the case was based upon
considerations other than the judges own personal individual conviction that there was no case against the
respondents. Thus, the trial judge improperly relinquished the discretion that he was bound to exercise, and the Orders
dated 11 February 2004 and 29 June 2004 are invalid for having been issued in grave abuse of discretion. (Emphasis
supplied)
In Baltazar v. Chua,31 the Court held that:
Considering that the trial court has the power and duty to look into the propriety of the prosecutions motion to dismiss,
with much more reason is it for the trial court to evaluate and to make its own appreciation and conclusion, whether the
modification of the charges and the dropping of one of the accused in the information, as recommended by the Justice
Secretary, is substantiated by evidence. This should be the state of affairs, since the disposition of the case such as
its continuation or dismissal or exclusion of an accused is reposed in the sound discretion of the trial court.
In the case under consideration, the City Prosecutor indicted Jaime and Jovito for the crimes of murder and frustrated
murder. However, upon review, the Secretary of Justice downgraded the charges to homicide and frustrated homicide.
The Secretary also dropped Jaime from the charges. This resolution prompted the City Prosecutor to file a
Manifestation and Motion for the Withdrawal of the Informations for Murder and Frustrated Murder and for the
Admission of New Informations for Homicide and Frustrated Homicide against Jovito only, which was granted by Judge
Cruz in his Order dated 18 November 1997. Judge Cruz, however, failed to make an independent assessment of
the merits of the cases and the evidence on record or in the possession of the public prosecutor. In granting
the motion of the public prosecutor to withdraw the Informations, the trial court never made any assessment
whether the conclusions arrived at by the Secretary of Justice was supported by evidence. It did not even take
a look at the bases on which the Justice Secretary downgraded the charges against Jovito and excluded
Jaime therefrom.32 (Emphasis supplied)1avvphi1
In Ark Travel Express v. The Presiding Judge of Makati,33 the Court held that:
It is settled that when confronted with a motion to withdraw an Information on the ground of lack of probable cause

based on a resolution of the Secretary of the Department of Justice, the bounden duty of the trial court is to make an
independent assessment of the merits of such motion. Having acquired jurisdiction over the case, the trial court is not
bound by such resolution but is required to evaluate it before proceeding further with the trial and should embody
such assessment in the order disposing the motion.
The subject MTC Orders do not show that the MTC made an independent assessment of the merits of the
Motion to Withdraw Informations. x x x
The MTC should have made an independent evaluation and embodied its assessment in at least one of its
assailed orders.34 (Emphasis supplied)
In Ledesma v. Court of Appeals,35 the Court held that:
Once a complaint or information is filed in court, any disposition of the case such as its dismissal or its continuation
rests on the sound discretion of the court. Trial judges are thus required to make their own assessment of whether the
secretary of justice committed grave abuse of discretion in granting or denying the appeal, separately and
independently of the prosecutions or the secretarys evaluation that such evidence is insufficient or that no probable
cause to hold the accused for trial exists. They should embody such assessment in their written order disposing
of the motion.
xxxx
The trial courts order is inconsistent with our repetitive calls for an independent and competent assessment of the
issue(s) presented in the motion to dismiss. The trial judge was tasked to evaluate the secretarys recommendation
finding the absence of probable cause to hold petitioner criminally liable for libel. He failed to do so. He merely ruled to
proceed with the trial without stating his reasons for disregarding the secretarys recommendation. 36 (Emphasis
supplied)
In the present case, Judge Dumayas, in his 26 March 2003 Order, did not (1) positively state that the evidence against
Lee and Lim is insufficient, (2) include a discussion of the merits of the case, (3) assess whether Secretary Perezs
conclusion is supported by evidence, (4) look at the basis of Secretary Perezs recommendation, (5) embody his
assessment in the order, and (6) state his reasons for granting the motion to withdraw the informations.
Judge Dumayas failure to make his own evaluation of the merits of the case violates KBC Banks right to due process
and constitutes grave abuse of discretion. Judge Dumayas 26 March 2003 Order granting the motion to withdraw the
informations is void.37
WHEREFORE, the petition is DENIED. The Court AFFIRMS the 10 February 2004 Decision and 27 July 2004
Resolution of the Court of Appeals in CA-G.R. SP No. 78004. The case is REMANDED to the Regional Trial Court,
National Capital Judicial Region, Branch 58, Makati City for evaluation on whether probable cause exists to hold the
accused for trial.
SO ORDERED.
ANTONIO T. CARPIO
Associate Justice

Republic of the Philippines

SUPREME COURT
Manila
SECOND DIVISION
G.R. No. 150185

May 27, 2004

TERESITA TANGHAL OKABE, petitioner,

vs.
HON. PEDRO DE LEON GUTIERREZ, in his capacity as Presiding Judge of RTC, Pasay City, Branch 119;
PEOPLE OF THE PHILIPPINES; and CECILIA MARUYAMA, respondents.
DECISION
CALLEJO, SR., J.:
Before us is a petition for review on certiorari, under Rule 45 of the Rules of Court, as amended, that part of the
Decision1 of the Court of Appeals in CA-G.R. SP No. 60732 dismissing her petition for certiorari under Rule 65 of the
Rules of Court, as amended, for the nullification of the August 25 and 28, 2000 Orders of the respondent judge in
Criminal Case No. 00-0749.
The Antecedents
Cecilia Maruyama executed a fifteen-page affidavit-complaint 2 and filed the same with the Office of the City Prosecutor
of Pasay City, on December 29, 1999, charging Lorna Tanghal and petitioner Teresita Tanghal Okabe, a.k.a. Shiela
Okabe, with estafa. In her affidavit, Maruyama alleged, inter alia, that on December 11, 1998, she entrusted
Y11,410,000 with the peso equivalent of P3,993,500 to the petitioner, who was engaged in the business of "door-todoor delivery" from Japan to the Philippines. It was alleged that the petitioner failed to deliver the money as agreed
upon, and, at first, denied receiving the said amount but later returned only US$1,000 through Lorna Tanghal.
During the preliminary investigation, the complainant, respondent Maruyama, submitted the affidavit of her witnesses,
namely, Hermogena Santiago, Wilma Setsu and Marilette G. Izumiya and other documentary evidence. In her affidavit,
Setsu alleged that the money which was entrusted to the petitioner for delivery to the Philippines belonged to her and
her sister Annie Hashimoto, and their mother Hermogena Sanchez-Quicho, who joined respondent Maruyama in her
complaint against petitioner Okabe and Tanghal. Respondent Maruyama, likewise, submitted a reply 3 to the petitioners
counter-affidavit. After the requisite preliminary investigation, 2nd Assistant City Prosecutor Joselito J. Vibandor came
out with a resolution dated March 30, 2000, finding probable cause for estafa against the petitioner.4 Attached to the
resolution, which was submitted to the city prosecutor for approval, was the Information 5 against the petitioner and
Maruyamas affidavit-complaint. The city prosecutor approved the resolution and the Information dated March 30, 2000
attached thereto.6
On May 15, 2000, an Information against the petitioner was filed in the Regional Trial Court of Pasay City, docketed as
Criminal Case No. 00-0749. The case was raffled to Branch 119 of the court presided by Judge Pedro de Leon
Gutierrez.7 The accusatory portion of the Information reads:
That on or about December 12, 1998 in Pasay City, Metro Manila, Philippines, and within the jurisdiction of this
Honorable Court, the above-named accused defrauded Cecilia Maruyama and Conchita Quicho, complainant herein,
in the following manner, to wit: said accused received in trust from Cecilia Maruyama the amount of Japanese Yen
1141 (sic) with peso equivalent to P3,839,465.00 under obligation to deliver the money to Conchita Quicho at the NAIA

International Airport, Pasay City, immediately upon accused arrival from Japan, but herein accused once in possession
of the same, did, then and there willfully, unlawfully and feloniously misappropriate and convert to her own personal
benefit the said amount, and despite demands accused failed and refused to do so, to the damage and prejudice of
the complainants in the aforesaid amount.
Contrary to law.8
Appended to the Information was the affidavit-complaint of respondent Maruyama and the resolution of Investigating
Prosecutor Vibandor. On May 19, 2000, the trial court issued a warrant for the arrest of the petitioner with a
recommended bond of P40,000. On June 15, 2000, the petitioner posted a personal bail bond in the said amount, duly
approved by Judge Demetrio B. Macapagal, the Presiding Judge of Branch 79 of the RTC of Quezon City, who
forthwith recalled the said warrant. The approved personal bail bond of the petitioner was transmitted to the RTC of
Pasig City on June 21, 2000. Upon her request, the petitioner was furnished with a certified copy of the Information,
the resolution and the criminal complaint which formed part of the records of the said case. The petitioner left the
Philippines for Japan on June 17, 2000 without the trial courts permission, and returned to the Philippines on June 28,
2000. She left the Philippines anew on July 1, 2000, and returned on July 12, 2000.
On July 14, 2000, the trial court issued an Order setting the petitioners arraignment and pre-trial at 2:00 p.m. of July
16, 2000. On the same day, the private prosecutor filed an urgent ex parte motion for the issuance of the hold
departure order, alleging as follows:
3. It has come to the knowledge of private complainant that there is an impending marriage within the Philippines of
either the son or daughter of the above-named accused and that the above-named accusedwho has businesses in
Japan, and is presently in Japanwill soon exit Japan and enter the Philippines to precisely attend said wedding;
4. Given [a] the bail was fixed at merely P40,000.00 and [b] the considerable financial capability of the accused, it is a
foregone conclusion that the above-named accused will, upon arrest, readily and immediately post bond, and leave for
Japanthereby frustrating and rendering inutile the administration of criminal justice in our country. The speed with
which accused Teresita Sheila Tanghal Okabe can post bond and leave for Japaneffectively evading arraignment
and pleathus necessitates the immediate issuance of a Hold Departure Order even before her arrival here in the
Philippines;9
The trial court issued an order on the same day, granting the motion of the private prosecutor for the issuance of a hold
departure order and ordering the Commission on Immigration and Deportation (CID) to hold and prevent any attempt
on the part of the petitioner to depart from the Philippines. 10 For her part, the petitioner filed on July 17, 2000 a verified
motion for judicial determination of probable cause and to defer proceedings/arraignment, alleging that the only
documents appended to the Information submitted by the investigating prosecutor were respondent Maruyamas
affidavit-complaint for estafa and the resolution of the investigating prosecutor; the affidavits of the witnesses of the
complainant, the respondents counter-affidavit and the other evidence adduced by the parties were not attached
thereto. The petitioner further alleged that the documents submitted by the investigating prosecutor were not enough
on which the trial court could base a finding of probable cause forestafa against her. She further averred that
conformably to the rulings of this Court in Lim v. Felix11 and Roberts, Jr. v. Court of Appeals,12 it behooved the
investigating prosecutor to submit the following to the trial court to enable it to determine the presence or absence of
probable cause: (a) copies of the affidavits of the witnesses of the complainant; (b) the counter-affidavit of Okabe and
those of her witnesses; (c) the transcripts of stenographic notes taken during the preliminary investigation; and, (d)
other documents presented during the said investigation.
On July 19, 2000, the petitioner filed a Very Urgent Motion To Lift/Recall Hold Departure Order dated July 17, 2000
and/or allow her to regularly travel to Japan alleging, thus:
3. Accused is (sic) widow and the legitimate mother of three (3) children, two (2) of whom are still minors, namely:
3.1. Okabe, Jeffrey-18 years old born on 13 August 1981.
3.2. Okabe, Masatoshi-14 years old and born on 16 October 1985, 3rd year High School student at Hoshikuki, Chiba
City, Matsugaoka, High School, residing at Chiba City, Chuo-Ku, Yahagi-cho, 205, Telephone No. 043-224-5804.
3.3. Okabe, Tomoki-13 years old and born on 13 March 1986, 2nd year High School student at Hoshikuki, Chiba City,
Matsugaoka, High School, residing at Chiba City, Chuo-Ku, Yahagi-cho, 205, Telephone No. 043-224-5804.

3.4. The accused has to attend the Parents Teachers Association (PTA) at the Hoshikuki High School where her two
(2) minor sons aforesaid are presently enrolled and studying because Okabe, Masatoshis graduation will take place
on 26 July 2000.
3.5. The two (2) minor children of the accused absolutely depend their support (basic necessities) for foods, clothings,
medicines, rentals, schooling and all other expenses for their survival to their legitimate mother who is the accused
herein.
3.6. The issuance of the hold departure order (HDO) will impair the inherent custodial rights of the accused as the
legitimate mother over these two (2) minor children which is repugnant to law.
3.7. The issuance of the hold departure order (HDO) will unduly restrict the accused to her custodial rights and
visitation over her aforesaid minor children who are permanently living in Japan.
3.8. The issuance of the hold departure order (HDO) will unduly deprived (sic) these minor children to their right to
obtain education and survival.
4. Accuseds only source of income and livelihood is door-to-door delivery from Japan to the Philippines and vice versa
which has been taking place for a very long period of time and in the process she has been constantly departing from
the Philippines on a weekly basis and arriving in Japan on the same frequency, as evidenced by xerox copies of the
pages of her Philippine Passports which are hereto attached as Annexes "A," "A-1," "A-2" up to "A-30," respectively. To
deprive her of this only source of her livelihood to which the aforesaid two (2) minor children are deriving their very
survival in a foreign land will (sic) tantamount to oppression rather than prosecution and depriving the said minor sons
of their right to live even before trial on the merits of this case that will (sic) tantamount to the destruction of the future
of these minor children.13
The private prosecutor opposed the petitioners motions during the hearing on July 21, 2000 which was also the date
set for her arraignment. The hearing of the motions as well as the arraignment was reset to 2:00 p.m. of July 26, 2000.
On the said date, the petitioner filed a manifestation objecting to her arraignment prior to the resolution of her pending
motions. She alleged that her arraignment for the crime charged should not be made a condition for the granting of her
motion to recall the hold departure order issued against her. The arraignment of the petitioner was again reset to 2:00
p.m. of August 28, 2000, pending the resolution of her two motions. On August 25, 2000, the petitioner filed a motion
for the postponement of her arraignment alleging that, in case the trial court ruled adversely thereon, she would refuse
to enter a plea and seek relief from the appellate court. The court denied the petitioners motions on the following
grounds:
(a) Based on its personal examination and consideration of the Information, the affidavit-complaint of respondent
Maruyama and the resolution of the investigating prosecutor duly approved by the city prosecutor, the court found
probable cause for the petitioners arrest. Since the petitioners motion for a determination of probable cause was
made after the court had already found probable cause and issued a warrant for the petitioners arrest, and after the
latter filed a personal bail bond for her provisional liberty, such motion was a mere surplusage;
(b) When the petitioner posted a personal bail bond for her provisional liberty, she thereby waived her right to question
the courts finding of the existence of probable cause for her arrest and submitted herself to the jurisdiction of the court,
more so when she filed the motion for the lifting of the hold departure order the court issued, and the motion to defer
the proceedings and her arraignment; and
(c) The hold departure order issued by the trial court was in accord with Supreme Court Circular No. 39-97 dated June
19, 1997, as well as the ruling of this Court in Manotoc, Jr. v. Court of Appeals.14
When the case was called for the petitioners arraignment at 2:00 p.m., on August 28, 2000, she refused to plead. 15
Her counsel advised her, in open court, not to enter a plea and, with leave of court, left the courtroom. The court then
entered a not guilty plea for the petitioner.16 It also issued an order, on the said date, setting the pre-trial and initial
presentation of the evidence of the prosecution at 8:30 a.m. of September 20, 2000. 17
The petitioner then filed with the Court of Appeals a petition for certiorari under Rule 65 of the Rules of Court with a
plea for a writ of preliminary injunction. The case was docketed as CA-G.R. SP No. 60732. The petitioner ascribed the
following errors to the trial court:
I

RESPONDENT COURT GRAVELY ERRED WHEN IT ISSUED WARRANT OF ARREST DESPITE OF (SIC) LACK OF
PROBABLE CAUSE
II
RESPONDENT COURT HAS VIOLATED THE RIGHT OF THE PETITIONER TO DUE PROCESS
III
RESPONDENT COURT HAS ALREADY PRE-JUDGED THE CONVICTION OF THE PETITIONER FOR ESTAFA
IV
RESPONDENT COURT HAS EXHIBITED ITS APPARENT PARTIALITY TOWARDS THE PROSECUTION AND
AGAINST THE PETITIONER
V
RESPONDENT COURT GRAVELY ERRED WHEN IT DENIES (SIC) THE MOTION FOR JUDICIAL DETERMINATION
OF PROBABLE CAUSE PURSUANT TO THE DOCTRINE OF ROBERTS, JR.
VI
RESPONDENT COURT GRAVELY ERRED WHEN IT DENIES (SIC) THE LIFTING/RECALL OF THE HDO AND/OR
ALLOWING THE PETITIONER TO TRAVEL TO JAPAN REGULARLY FOR HUMANITARIAN CONSIDERATION
VII
RESPONDENT COURT COMMITTED GRAVE ABUSE OF DISCRETION AMOUNTING TO LACK OF JURISDICTION
WHEN IT ISSUED THE QUESTIONED ORDERS18
On January 31, 2001, the CA rendered a Decision 19 partially granting the petition in that the assailed order of the trial
court denying the petitioners motion to lift/recall the hold departure order was set aside. However, the petitioners
motion for reconsideration of the trial courts decision was denied and her petition for the nullification of the August 25,
2000 Order of the respondent judge was dismissed. The CA ruled that by posting bail and praying for reliefs from the
trial court, the petitioner waived her right to assail the respondent judges finding of the existence of probable cause.
The appellate court cited the ruling of this Court in Cojuangco, Jr. v. Sandiganbayan.20 Thus, the appellate court
affirmed the assailed order of the RTC, based on the respondent judges personal examination of respondent
Maruyamas affidavit-complaint, the resolution of the investigating prosecutor and the Information approved by the city
prosecutor, a finding of probable cause was in order. However, the appellate court allowed the petitioner to travel to
Japan under the following conditions:
(1) That petitioner post a bond double the amount of her alleged monetary liability under the Information filed against
her, as recommended by the Office of the Solicitor General;
(2) That petitioner inform respondent Court of each and all of her travel itinerary prior to leaving the country;
(3) That petitioner make periodic reports with respondent Court;
(4) That petitioner furnish respondent Court with all the addresses of her possible place of residence, both here and in
Japan; and
(5) Such other reasonable conditions which respondent Court may deem appropriate under the circumstances. 21
The appellate court did not resolve the issue of whether the trial court had prejudged the case and was partial to the
prosecution. The decretal portion of the decision of the CA reads:
WHEREFORE, premises considered, the instant special civil action for certiorari is hereby PARTIALLY GRANTED
insofar as the denial of petitioners Motion to Lift/Recall Hold Departure Order dated 14 July, 2000 and/or Allow the
accused to Regularly Travel to Japan is concerned. In all other respect, the same is hereby DENIED.

SO ORDERED.22
On March 6, 2001, the petitioner filed a motion for a partial reconsideration of the decision of the CA contending that
the appellate court erred in applying the ruling of this court in Cojuangco, Jr. v. Court of Appeals 23 instead of Section
26, Rule 114 of the Revised Rules on Criminal Procedure. The petitioner posited that the said rule, which took effect on
December 1, 2000, before the court rendered its decision, had superseded the ruling of this Court in the Cojuangco
case. However, the appellate court held that Section 26, Rule 114 of the Revised Rules on Criminal Procedure cannot
be applied retroactively, because the petitioner had posted bail on June 15, 2000 before the Revised Rules on Criminal
Procedure took effect.
Hence, the instant petition for review on certiorari for the reversal of the decision and resolution of the CA and praying
that after due proceedings, judgment be rendered in her favor, thus:
WHEREFORE, it is respectfully prayed of this Honorable Supreme Court that after due proceedings judgment be
rendered in favor of the petitioner and against the respondents as follows:
(a) GIVING DUE COURSE to the instant petition;
(b) ORDERING the REVERSAL and PARTIALLY SETTING ASIDE of the Decision promulgated on 31 January 2001
(Annex "A" hereof) of the Honorable Court of Appeals in CA-G.R. SP No. 60732 as well as its Resolution promulgated
on 27 September 2001 (Annex "B" hereof);
(c) ORDERING the DISMISSAL of Crim. Case No. 00-0749 for lack of probable cause;
(d) DECLARING the entire proceedings in Crim. Case No. 00-0749 as null and void;
(e) ORDERING the private respondents to pay the petitioners the following amount:
(i) at least P1,000,000.00 as moral damages;
(ii) at least P1,000,000.00 as exemplary damages;
(iii) at least P500,000.00 as attorneys fees and for other expenses of litigation.
(f) ORDERING the private respondent to pay the costs of this suit.
(g) Petitioner further prays for such other reliefs just and equitable under the premises. 24
The petitioner asserts that the CA committed the following reversible errors:
I
THE HONORABLE COURT OF APPEALS MADE A REVERSIBLE ERROR WHEN IT COMPLETELY DISREGARDED
THE APPLICATION OF SECTION 26, RULE 114 OF THE REVISED RULES ON CRIMINAL PROCEDURE WHICH
TOOK EFFECT ON 01 DECEMBER 2000 WHICH IS FAVORABLE TO THE PETITIONER/ACCUSED.
II
THE HONORABLE COURT OF APPEALS MADE A REVERSIBLE ERROR IN RULING THAT "WHATEVER
INFIRMITY THERE WAS IN THE ISSUANCE OF THE WARRANT OF ARREST, THE SAME WAS CURED WHEN
PETITIONER VOLUNTARILY SUBMITTED TO THE RESPONDENT COURTS JURISDICTION WHEN SHE POSTED
BAIL AND FILED MOTIONS SEEKING AFFIRMATIVE RELIEF SUCH AS MOTION TO LIFT/RECALL HOLD
DEPARTURE ORDER AND TO ALLOW PETITIONER TO TRAVEL REGULARLY TO JAPAN (Last paragraph, Page 9
DECISION dated 31 January 2001)."
III
THE HONORABLE COURT OF APPEALS MADE A REVERSIBLE ERROR WHEN IT RELIED UPON THE RULING IN
THE CASE OF COJUANGCO, JR. VS. SANDIGANBAYAN, [300 SCRA 367 (1998)] WHEN IN FACT SAID RULING IS
NOW OBSOLETE AND NO LONGER APPLICABLE.

IV
THE HONORABLE COURT OF APPEALS MADE A REVERSIBLE ERROR IN RULING THAT RESPONDENT COURT
COMPLIED WITH THE CONSTITUTIONAL REQUIREMENTS ON THE ISSUANCE OF WARRANT OF ARREST
WITHOUT PROBABLE CAUSE, WHEN THE RESPONDENT COURT MERELY RELIED ON [THE] (i) COMPLAINTAFFIDAVIT OF CECILIA MARUYAMA; (ii) RESOLUTION OF THE INVESTIGATING PROSECUTOR; AND (iii)
CRIMINAL INFORMATION.
V
THE HONORABLE COURT OF APPEALS MADE A REVERSIBLE ERROR WHEN IT FAILED TO RULE ON THE
PARTIALITY OF THE RESPONDENT JUDGE IN HANDLING THE CASE BELOW WHICH IS VIOLATIVE OF THE
PETITIONERS RIGHT TO DUE PROCESS.
VI
THE FILING OF CRIM. CASE NO. 4297 (MTC, ANGAT, BULACAN) FOR ESTAFA ENTITLED "PEOPLE VS. SHEILA
OKABE"; CIVIL CASE NO. 331-M-98 (RTC, MALOLOS, BULACAN) FOR SUM OF MONEY WITH PRELIMINARY
ATTACHMENT ENTITLED "CONCHITA SANCHEZ-QUICHO VS. SHEILA TERESITA TANGHAL OKABE"; AND CRIM.
CASE NO. 00-07-19 (RTC, PASAY CITY, BRANCH 119) ENTITLED "PEOPLE VS. TERESITA TANGHAL OKABE"
CONSTITUTE A VIOLATION OF THE RULE ON NON-FORUM SHOPPING.25
By way of comment, the Office of the Solicitor General refuted the petitioners assigned errors, contending as follows:
I
The Court of Appeals did not commit a reversible error in not applying Section 26, Rule 114 of the Revised Rules on
Criminal Procedure.
II
The Court of Appeals did not commit a reversible error in ruling that the infirmity, if any, in the issuance by the
respondent Judge of the warrant of arrest against petitioner was cured when petitioner voluntarily submitted to the trial
courts jurisdiction when she posted bail and filed motions seeking for affirmative reliefs from the trial court, such as the
motion to lift/recall Hold Departure Order (HDO) and to allow petitioner to travel regularly to Japan.
III
The Court of Appeals did not commit a reversible error in applying the ruling in the Cojuangco case.
IV
The Court of Appeals did not commit a reversible error in finding that respondent Judge complied with the
constitutional requirements on the issuance of a warrant of arrest.
V
The Court of Appeals did not commit a reversible error when it did not rule on the partiality of the respondent Judge in
handling Criminal Case No. 00-0749.
VI
The Honorable Court of Appeals did not commit a reversible error when it did not rule on petitioners claim of forum
shopping.26
The Court shall resolve the assigned errors simultaneously as they are interrelated.
The petitioner asserts that the respondent judge could not have determined the existence of probable cause for her
arrest solely on the resolution of the investigating prosecutor and the undated affidavit-complaint of respondent
Maruyama. She posits that the respondent judge should have ordered the investigating prosecutor to submit the

affidavits of the witnesses of respondent Maruyama and the latters documentary evidence, as well as the counteraffidavit of the petitioner and the transcripts of the stenographic notes, if any, taken during the preliminary investigation.
The petitioner adds that the respondent judge should have personally reviewed the said documents, conformably to
the rulings of this Court in Lim v. Felix,27 Roberts, Jr. v. Court of Appeals 28 and Ho v. People,29 before determining the
presence or absence of probable cause. She posits that the respondent judge acted with grave abuse of discretion
amounting to excess or lack of jurisdiction in denying her motion for a determination of probable cause, and the
alternative motion for a dismissal of the case against her for lack of probable cause.
The petitioner further asserts that the appellate court erred in affirming the ruling of the respondent judge that, by
posting a personal bail bond for her provisional liability and by filing several motions for relief, she thereby voluntarily
submitted herself to the jurisdiction of the trial court and waived her right to assail the infirmities that infected the trial
courts issuance of the warrant for her arrest. She avers that the appellate courts reliance on the ruling of this Court in
Cojuangco, Jr. v. Sandiganbayan30 is misplaced, and submits that the appellate court should have applied Section 26,
Rule 114 of the Revised Rules of Court retroactively, as it rendered the ruling of this Court in the Cojuangco, Jr. case
obsolete.
The Office of the Solicitor General, on the other hand, asserts that the respondent judge did not commit any grave
abuse of discretion when he found probable cause against the petitioner for estafa, and thereafter issued a warrant for
her arrest. It argues that the respondent judge personally determined the existence of probable cause independently of
the certification of the investigating prosecutor, and only after examining the Information, the resolution of the
investigating prosecutor, as well as the affidavit-complaint of the private complainant. It asserts that such documents
are sufficient on which to anchor a finding of probable cause. It insists that the appellate court correctly applied the
ruling of this Court in the Cojuangco, Jr. v. Court of Appeals case, and that the respondent judge complied with both
the requirements of the constitution and those set forth in the Rules of Court before issuing the said warrant. 31
We agree with the contention of the petitioner that the appellate court erred in not applying Section 26, Rule 114 of the
Revised Rules on Criminal Procedure, viz:
SEC. 26. Bail not a bar to objections on illegal arrest, lack of or irregular preliminary investigation. An application for
or admission to bail shall not bar the accused from challenging the validity of his arrest or the legality of the warrant
issued therefor, or from assailing the regularity or questioning the absence of a preliminary investigation of the charge
against him, provided that he raises them before entering his plea. The court shall resolve the matter as early as
practicable but not later than the start of the trial of the case.
It bears stressing that Section 26, Rule 114 of the Revised Rules on Criminal Procedure is a new one, intended to
modify previous rulings of this Court that an application for bail or the admission to bail by the accused shall be
considered as a waiver of his right to assail the warrant issued for his arrest on the legalities or irregularities thereon. 32
The new rule has reverted to the ruling of this Court in People v. Red.33 The new rule is curative in nature because
precisely, it was designed to supply defects and curb evils in procedural rules. Hence, the rules governing curative
statutes are applicable. Curative statutes are by their essence retroactive in application. 34Besides, procedural rules as
a general rule operate retroactively, even without express provisions to that effect, to cases pending at the time of their
effectivity, in other words to actions yet undetermined at the time of their effectivity.35 Before the appellate court
rendered its decision on January 31, 2001, the Revised Rules on Criminal Procedure was already in effect. It
behooved the appellate court to have applied the same in resolving the petitioners petition for certiorari and her motion
for partial reconsideration.
Moreover, considering the conduct of the petitioner after posting her personal bail bond, it cannot be argued that she
waived her right to question the finding of probable cause and to assail the warrant of arrest issued against her by the
respondent judge. There must be clear and convincing proof that the petitioner had an actual intention to relinquish her
right to question the existence of probable cause. 36 When the only proof of intention rests on what a party does, his act
should be so manifestly consistent with, and indicative of, an intent to voluntarily and unequivocally relinquish the
particular right that no other explanation of his conduct is possible. 37 In this case, the records show that a warrant was
issued by the respondent judge in Pasay City for the arrest of the petitioner, a resident of Guiguinto, Bulacan. When
the petitioner learned of the issuance of the said warrant, she posted a personal bail bond to avert her arrest and
secure her provisional liberty. Judge Demetrio B. Macapagal of the RTC of Quezon City approved the bond and issued
an order recalling the warrant of arrest against the petitioner. Thus, the posting of a personal bail bond was a matter of
imperative necessity to avert her incarceration; it should not be deemed as a waiver of her right to assail her arrest. So
this Court ruled in People v. Red:38
The present defendants were arrested towards the end of January, 1929, on the Island and Province of Marinduque

by order of the judge of the Court of First Instance of Lucena, Tayabas, at a time when there were no court sessions
being held in Marinduque. In view of these circumstances and the number of the accused, it may properly be held that
the furnishing of the bond was prompted by the sheer necessity of not remaining in detention, and in no way implied
their waiver of any right, such as the summary examination of the case before their detention. That they had no
intention of waiving this right is clear from their motion of January 23, 1929, the same day on which they furnished a
bond, and the fact that they renewed this petition on February 23, 1929, praying for the stay of their arrest for lack of
the summary examination; the first motion being denied by the court on January 24, 1929 (G.R. No. 33708, page 8),
and the second remaining undecided, but with an order to have it presented in Boac, Marinduque.
Therefore, the defendants herein cannot be said to have waived the right granted to them by section 13, General
Order No. 58, as amended by Act No. 3042.39
Moreover, the next day, or on June 16, 2000, the petitioner, through counsel, received certified true copies of the
Information, the resolution of the investigating prosecutor, the affidavit-complaint of the private complainant,
respondent Maruyama, and a certification from the branch clerk of court that only the Information, resolution and
affidavit-complaint formed part of the entire records of the case. The next day, June 17, 2000, the petitioner, through
counsel, filed a verified motion for judicial determination of probable cause and to defer the proceedings and her
arraignment. All the foregoing are inconsistent with a waiver of her right to assail the validity of her arrest and to
question the respondent judges determination of the existence of probable cause for her arrest.
Neither can the petitioners filing of a motion for the lifting of the hold departure order and for leave to go to Japan be
considered a waiver of her right to assail the validity of the arrest warrant issued by the respondent judge. It bears
stressing that when the petitioner filed the motion to lift the hold departure order issued against her by the respondent
judge, her motion for a determination of probable cause was still unresolved. She sought a lifting of the hold departure
order on July 14, 2000 and filed a motion for leave to go to Japan, to give the respondent judge an opportunity to
reconsider the said order, preparatory to assailing the same in the appellate court in case her motion was denied.
The issue that now comes to fore is whether or not the respondent judge committed a grave abuse of his discretion
amounting to excess or lack of jurisdiction in issuing his August 25, 2000 Order. By grave abuse of discretion is meant
such patent and gross abuse of discretion as to amount to an evasion of positive duty or a virtual refusal to perform a
duty enjoined by law, or to act at all in contemplation of law, as where the power is exercised in an arbitrary and
despotic manner by reasons of passion or personal hostility. 40 Hence, when the court has jurisdiction over the case, its
questioned acts, even if its findings are not correct, would at most constitute errors of law and not abuse of discretion
correctible by the extraordinary remedy of certiorari.41
We agree with the petitioner that before the RTC judge issues a warrant of arrest under Section 6, Rule 112 of the
Rules of Court42 in relation to Section 2, Article III of the 1987 Constitution, the judge must make a personal
determination of the existence or non-existence of probable cause for the arrest of the accused. The duty to make
such determination is personal and exclusive to the issuing judge. He cannot abdicate his duty and rely on the
certification of the investigating prosecutor that he had conducted a preliminary investigation in accordance with law
and the Rules of Court, as amended, and found probable cause for the filing of the Information.
Under Section 1, Rule 112 of the Rules on Criminal Procedure, the investigating prosecutor, in conducting a
preliminary investigation of a case cognizable by the RTC, is tasked to determine whether there is sufficient ground to
engender a well-founded belief that a crime has been committed and the respondent therein is probably guilty thereof
and should be held for trial. A preliminary investigation is for the purpose of securing the innocent against hasty,
malicious and oppressive prosecution, and to protect him from an open and public accusation of a crime, from the
trouble, expense and anxiety of a public trial.43
If the investigating prosecutor finds probable cause for the filing of the Information against the respondent, he executes
a certification at the bottom of the Information that from the evidence presented, there is a reasonable ground to
believe that the offense charged has been committed and that the accused is probably guilty thereof. Such certification
of the investigating prosecutor is, by itself, ineffective. It is not binding on the trial court. Nor may the RTC rely on the
said certification as basis for a finding of the existence of probable cause for the arrest of the accused. 44
In contrast, the task of the presiding judge when the Information is filed with the court is first and foremost to determine
the existence or non-existence of probable cause for the arrest of the accused. Probable cause is meant such set of
facts and circumstances which would lead a reasonably discreet and prudent man to believe that the offense charged
in the Information or any offense included therein has been committed by the person sought to be arrested. 45 In
determining probable cause, the average man weighs facts and circumstances without resorting to the calibrations of

the rules of evidence of which he has no technical knowledge. He relies on common sense. 46 A finding of probable
cause needs only to rest on evidence showing that more likely than not a crime has been committed and that it was
committed by the accused. Probable cause demands more than bare suspicion, it requires less than evidence which
would justify conviction.47
The purpose of the mandate of the judge to first determine probable cause for the arrest of the accused is to insulate
from the very start those falsely charged of crimes from the tribulations, expenses and anxiety of a public trial:
It must be stressed, however, that in these exceptional cases, the Court took the extraordinary step of annulling
findings of probable cause either to prevent the misuse of the strong arm of the law or to protect the orderly
administration of justice. The constitutional duty of this Court in criminal litigations is not only to acquit the innocent
after trial but to insulate, from the start, the innocent from unfounded charges. For the Court is aware of the strains of a
criminal accusation and the stresses of litigation which should not be suffered by the clearly innocent. The filing of an
unfounded criminal information in court exposes the innocent to severe distress especially when the crime is not
bailable. Even an acquittal of the innocent will not fully bleach the dark and deep stains left by a baseless accusation
for reputation once tarnished remains tarnished for a long length of time. The expense to establish innocence may also
be prohibitive and can be more punishing especially to the poor and the powerless. Innocence ought to be enough and
the business of this Court is to shield the innocent from senseless suits right from the start. 48
In determining the existence or non-existence of probable cause for the arrest of the accused, the RTC judge may rely
on the findings and conclusions in the resolution of the investigating prosecutor finding probable cause for the filing of
the Information. After all, as the Court held in Webb v. De Leon,49 the judge just personally reviews the initial
determination of the investigating prosecutor finding a probable cause to see if it is supported by substantial
evidence.50 However, in determining the existence or non-existence of probable cause for the arrest of the accused,
the judge should not rely solely on the said report.51 The judge should consider not only the report of the investigating
prosecutor but also the affidavit/affidavits 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 preliminary investigation, if
any, submitted to the court by the investigating prosecutor upon the filing of the Information. 52 Indeed, in Ho v. People,53
this Court held that:
Lastly, it is not required that the complete or entire records of the case during the preliminary investigation be
submitted to and examined by the judge. We do not intend to unduly burden trial courts by obliging them to examine
the complete records of every case all the time simply for the purpose of ordering the arrest of an accused. What is
required, rather, is that the judge must have sufficient supporting documents (such as the complaint, affidavits,
counter-affidavits, sworn statements of witnesses or transcripts of stenographic notes, if any) upon which to make his
independent judgment or, at the very least, upon which to verify the findings of the prosecutor as to the existence of
probable cause. The point is: he cannot rely solely and entirely on the prosecutors recommendation, as Respondent
Court did in this case. Although the prosecutor enjoys the legal presumption of regularity in the performance of his
official duties and functions, which in turn gives his report the presumption of accuracy, the Constitution, we repeat,
commands the judge to personally determine probable cause in the issuance of warrants of arrest. This Court has
consistently held that a judge fails in his bounden duty if he relies merely on the certification or the report of the
investigating officer.54
The rulings of this Court are now embedded in Section 8(a), Rule 112 of the Revised Rules on Criminal Procedure
which provides that an Information or complaint filed in court shall be supported by the affidavits and counter-affidavits
of the parties and their witnesses, together with the other supporting evidence of the resolution:
SEC. 8. Records. (a) Records supporting the information or complaint. An information or complaint filed in court shall
be supported by the affidavits and counter-affidavits of the parties and their witnesses, together with the other
supporting evidence and the resolution on the case.
If the judge is able to determine the existence or non-existence of probable cause on the basis of the records
submitted by the investigating prosecutor, there would no longer be a need to order the elevation of the rest of the
records of the case. However, if the judge finds the records and/or evidence submitted by the investigating prosecutor
to be insufficient, he may order the dismissal of the case, or direct the investigating prosecutor either to submit more
evidence or to submit the entire records of the preliminary investigation, to enable him to discharge his duty. 55 The
judge may even call the complainant and his witness to themselves answer the courts probing questions to determine
the existence of probable cause. 56 The rulings of this Court in Soliven v. Makasiar 57 and Lim v. Felix58 are now
embodied in Section 6, Rule 112 of the Revised Rules on Criminal Procedure, with modifications, viz:

SEC. 6. When warrant of arrest may issue. (a) By the Regional Trial Court. Within ten (10) days from the filing of
the complaint or information, the judge shall personally evaluate the resolution of the prosecutor and its supporting
evidence. He may immediately dismiss the case if the evidence on record clearly fails to establish probable cause. If
he finds probable cause, he shall issue a warrant of arrest, or a commitment order if the accused has already been
arrested pursuant to a warrant issued by the judge who conducted the preliminary investigation or when the complaint
or information was filed pursuant to section 7 of this Rule. In case of doubt on the existence of probable cause, the
judge may order the prosecutor to present additional evidence within five (5) days from notice and the issue must be
resolved by the court within thirty (30) days from the filing of the complaint of information.
In this case, the investigating prosecutor submitted to the respondent judge only his resolution after his preliminary
investigation of the case and the affidavit-complaint of the private complainant, and failed to include the affidavits of the
witnesses of the private complainant, and the latters reply affidavit, the counter-affidavit of the petitioner, as well as the
evidence adduced by the private complainant as required by case law, and now by Section 8(a), Rule 112 of the
Revised Rules on Criminal Procedure. The aforecited affidavits, more specifically the fax message of Lorna Tanghal
and the document signed by her covering the amount of US$1,000, are of vital importance, as they would enable the
respondent judge to properly determine the existence or non-existence of probable cause.
First. When respondent Maruyama handed the money to the petitioner, she did not require the latter to sign a
document acknowledging receipt of the amount. The petitioner avers that it is incredible that Maruyama would entrust
P3,993,500 in Japanese Yen to her without even requiring her to sign a receipt therefor, especially since respondent
Maruyama was not even the owner of the money;
Second. The affidavit of Hermogena Santiago, a witness of the respondent, is unreliable, because it is based on
information relayed to her by Lorna Tanghal that she (Tanghal) saw the petitioner carrying a Louis Vuitton bag while on
board a Mitsubishi L300 van with the petitioner. It appears that Tanghal failed to submit any counter-affidavit to the
investigating prosecutor;
Third. The affidavit of Marilette G. Izumiya, another witness of the respondent, is also unreliable, as it was based on
information relayed to her by Thelma Barbiran, who used to work for the petitioner as a housemaid, that she (Barbiran)
had in her possession a fax message from Lorna Tanghal, implicating the petitioner in the crime charged. Barbiran did
not execute any affidavit;
Fourth. There is no indication in the resolution of the investigating prosecutor that the petitioner received the fax
message of Lorna Tanghal;
Fifth. The private complainant claims that the petitioner tried to reimburse the P3,993,500 by remitting US$1,000 to
her. However, the latter admitted in her affidavit-complaint that the document evidencing the remittance was signed by
Lorna Tanghal, not by the petitioner. The petitioner claimed that Lorna Tanghal had to remit US$1,000 to respondent
Maruyama because the latter made it appear to Tanghal that the police authorities were about to arrest the petitioner,
and Tanghal was impelled to give the amount to respondent Maruyama to avert her arrest and incarceration;
Sixth. In her counter-affidavit, the petitioner alleged that respondent Maruyama had no case against her because the
crime charged in the latters affidavit-complaint was the same as that filed against her in the Metropolitan Trial Court of
Bulacan, which was withdrawn by the complainant herself;
Seventh. The investigating prosecutor stated in his resolution that the private complainant established the element of
deceit. However, the crime charged against the petitioner as alleged in the Information is estafa with abuse of
confidence.
In sum, then, we find and so declare that the respondent judge committed a grave abuse of his discretion amounting to
excess or lack of jurisdiction in finding probable cause for the petitioners arrest in the absence of copies of the
affidavits of the witnesses of the private complainant and her reply affidavit, the counter-affidavit of the petitioner, and
the evidence adduced during the preliminary investigation before the investigating prosecutor.
In view of the foregoing disquisitions, there is no more need to resolve the other issues raised by the petitioner.
IN LIGHT OF ALL THE FOREGOING, the petition is GRANTED. The assailed decision of the Court of Appeals
isREVERSED and SET ASIDE. The assailed Orders dated August 25 and 28, 2000 and the Warrant of Arrest issued
by the respondent judge in Criminal Case No. 00-0749 are SET ASIDE. The records are REMANDED to the Regional
Trial Court of Pasay City, Branch 119. The respondent judge is hereby DIRECTED to determine the existence or non-

existence of probable cause for the arrest of the petitioner based on the complete records, as required under Section
8(a), Rule 112 of the Revised Rules on Criminal Procedure.
SO ORDERED.