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FULL CASES PART 1 JURISDICTION A.VENUE IN CRIMINAL CASES-JURISDICTIONAL FIRST DIVISION MANUEL S.

ISIP, Petitioner, - versus PEOPLE OF THE style="font-size: 14pt; font-family: \"Times New Roman\"; color: black;"PHILIPPINES, Respondent. x- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - x DECISION CHICO-NAZARIO, J.: Before us is a Petition for Review on Certiorari under Rule 45 of the Rules of Court, which seeks to set aside the Decision[1] of the Court of Appeals dated 26 October 2004 in CA-G.R. CR No. 21275 entitled, People of the Philippines v. Manuel S. Isip and Marietta M. Isip to the extent that it affirmed with modifications petitioner Manuel S. Isips conviction for Estafa in Criminal Case No. 136-84 of the Regional Trial Court (RTC), Branch XVII, Cavite City, and its Amended Decision[2] dated 26 October 2005 denying his Partial Motion for Reconsideration. The antecedents are the following: Petitioner was charged with Estafa in Criminal Case No. 136-84 before Branch XVII of the RTC of Cavite City, under the following information: That on or about March 7, 1984, in the City of Cavite, Republic of the Philippines and within the jurisdiction of this Honorable Court, the above-named accused, received from Leonardo A. Jose one (1) seven carat diamond (mens ring), valued at P200,000.00, for the purpose of selling the same on commission basis and to deliver the proceeds of the sale thereof or return the jewelry if not sold, on or before March 15, 1984, but the herein accused once in possession of the above-described articles, with intent to defraud and with grave abuse of confidence, did, then and there, willfully, unlawfully and feloniously misappropriate, misapply and convert the same to his own personal use and benefit and notwithstanding repeated demands made by Leonardo A. Jose for the return of the jewelry or the delivery of the proceeds of the sale thereof, failed to do so, to the damage and prejudice of the aforesaid Leonardo A. Jose in the abovestated amount of P200,000.00, Philippine Currency.[3]

Petitioners wife, Marietta M. Isip, was indicted before the same court for seven counts of Violation of Batas Pambansa Blg. 22, otherwise known as the Bouncing Checks Law. The cases were docketed as Criminal Cases No. 146-84, 147-84, 148-84, 149-84, 155-84, 156-84 and 157-84. The accusatory portion of the information in Criminal Case No. 146-84 reads: That on or about March 27, 1984, in the City of Cavite, Republic of the Philippines and within the jurisdiction of this Honorable Court, the above-named accused, knowing fully well that her account with the bank is insufficient, did, then and there, willfully, unlawfully, feloniously and knowingly issue Pacific Banking Corporation Check No. 518672 in the amount of P562,000.00, in payment for assorted pieces of jewelry, received from Leonardo A. Jose, which check upon presentation with the drawee bank for payment was dishonored for insufficiency of funds and notwithstanding repeated demands made by Leonardo A. Jose for the redemption of the said check, accused refused and still refuses to do so, to the damage and prejudice of the aforesaid Leonardo A. Jose in the above-stated amount of P562,000.00, Philippine Currency.[4]

The six other Informations are similarly worded except for the date when the offense was committed, the number and amount of the check. The pertinent data in the other informations are as follows:
Crim. Case No. 147-84 148-84 149-84 155-84 156-84 157-84 Date of Commission 17 March 1984 30 March 1984 12 March 1984 25 March 1984 29 March 1984 1 April 1984 No. of Check 518644 518645 030086[5] 518674 518646 518669 Amount of Check P50,000.00 P50,000.00 P150,000.00 P95,000.00 P90,000.00 P25,000.00

The spouses Isip were likewise charged before the same court with five (5) counts of Estafa. The cases were docketed as Criminal Cases No. 256-84, 257-84, 260-84, 261-84 and 378-84. The Estafa charged in Crim. Case No. 256-84 was allegedly committed as follows: That on or about March 20, 1984, in the City of Cavite, Republic of the Philippines and within the jurisdiction of this Honorable Court, the above-named accused, conspiring, confederating together and mutually helping one another, received from one Leonardo A. Jose the following pieces of jewelry, to wit: one (1) set dome shape ring and earrings valued at P120,000.00, with the obligation of selling the same on commission basis and deliver the proceeds of the sale thereof or return them if not sold, on or before March 21, 1984, but the herein accused, once in possession of the said jewelry by means of false pretenses, with intent to defraud and with grave abuse of confidence, did, then and there, willfully, unlawfully and feloniously misappropriate, misapply and convert them to their own personal use and benefit and paid the same with Check Nos. 518646 and 518669, dated March 29, 1984 and April 1, 1984, respectively, in the amount of P90,000 and P25,000, respectively, which upon presentation with the bank was dishonored for insufficiency of funds and notwithstanding repeated demands made by Leonardo A. Jose for the redemption of the said check, failed to do so, to his damage and prejudice in the abovestated amount of P120,000.00, Philippine Currency.[6] Except for the description and value of the pieces of jewelry involved, date of receipt and agreed date of return, and the number, date and amount of the checks issued in payment thereof, the four other informations are similarly worded. The specifics thereof are as follows:
Crim. Case No. Value of Jewelry P150,000 P95,000 P562,000 P200,000 Date of Receipt 03-07-84 03-20-84 03-20-84 02-03-84 Agreed Date of Return 03-30-84 03-27-84 03-27-84 Check No./Date Amount

257-84 260-84 261-84 378-84

030086/03-12-84 518647/03-25-84 518672/03-27-84 518644/03-17-84 518645/03-30-84

P150,000 P95,000 P562,000 P50,000 P50,000

When arraigned on the charges, petitioner and Marietta Isip pleaded not guilty. There being only one complainant in all the cases, joint trial of the cases followed. The versions of the prosecution and the defense, as taken by the Court of Appeals in the parties respective briefs, are the following: i) Prosecution Version. Sometime in 1982, appellant spouses Manuel and Marietta Isip were introduced to complainant Atty. Leonardo Jose. The introduction was made by complainants father, Nemesio, business associate of the Isips. Nemesio and the Isips were then engaged in the buy and sell of pledged and unredeemed jewelry pawned by gambling habitus (pp. 8-16, tsn, June 8, 1993). Needing a bigger capital to finance the growing operation, the Isips convinced complainant to be their capitalist, a proposition to which complainant acceded to (p. 14, ibid). Thus, the operation went smoothly that was before February, 1984 (pp. 14-18, tsn, ibid). On February 3, 1984, at complainants residence in Caridad, Cavite City, appellant spouses received from complainant a 6 carat mens ring valued at P200,000.00 with the condition that they are going to sell said jewelry x x x on commission basis for P200,000.00 and if they are not able to sell the same, they have to return the ring if sold on or before March 3, 1984 (p. 8, tsn, October 15, 1993). On March 3, 1984, the Isips did not return the ring or the proceeds thereof. Instead, Marietta Isip issued two (2) personal checks dated March 17 and 30, 1984, respectively, for P50,000.00 each as partial payment for the jewelry. The receipt of the jewelry was acknowledged by Marietta Isip with Manuel acting as a witness (pp. 911, tsn, ibid). This particular mens ring is the subject of Criminal Case No. 378-84 for Estafa while Check Nos. 518644 and 518645 (Pacific Banking Corp.) dated March 17 and 30, respectively, are the subject of Criminal Case Nos. 147-84 and 148-84. In the morning of March 7, 1984, the Isip couple went again to complainants residence in Caridad, Cavite City where complainant delivered one (1) Choker Pearl with 35 pieces of south sea pearls with diamond worth P150,000.00. The condition was that the proceeds be turned over to complainant on or before March 30, 1984 (pp. 27-29, tsn, ibid). March 30, 1984 came, but instead of turning over the proceeds or return the Choker Pearl, Mrs. Isip issued a check dated March 12, 1984 for P150,000.00 (RCBC check No. 030086) as payment (p. 34, ibid). This is the subject of Criminal Case No. 254-84 for Estafa against the spouses and Criminal Case No. 149-84 for violation of BP 22 against Marietta Isip. In the afternoon of the same day, Mr. Manuel Isip went to complainants residence in Cavite City and got from the latter a mens ring (7 carats) worth P200,000.00. Mr. Isip signed a receipt with the condition that he return the ring or deliver the proceeds, if sold, on or before March 15, 1984. March 15, 1984 came, but Mr. Isip sought an extension which fell due on April 7, 1984. April 7, 1984 came and went by, but Mr. Isip defaulted (pp. 41-46, tsn, ibid). The above is the subject matter of Criminal Case No. 136-84 for Estafa against Manuel Isip. On March 20, 1984, the Isips went again to Cavite City and got from complainant one (1) Dome shaped ring with matching earring with diamonds valued at P120,000.00. As with their previous agreement, the item was to be returned or the proceeds of the sale be delivered on March 21, 1984 (pp. 48-52, tsn, ibid). The following morning, however, Mrs. Isip issued two (2) personal checks (Check Nos. 518646 and 518669 dated March 29, 1984 for P90,000.00 and P25,000.00, respectively) in payment for the Dome shaped ring (p. 53, tsn, ibid). This is the subject of Criminal Case No. 256084 for Estafa against the spouses Isip and Criminal Case Nos. 156-84 and and (sic) 157-84 for Violation of BP 22 against Marietta Isip. At noontime on the same day, the Isip couple went back to the residence of complainant and got from him one (1) collar heart shaped necklace and one (1) baguette necklace worth P95,000.00 (p. 60, tsn, ibid). As agreed upon, Marietta Isip signed a receipt with the condition that the jewelry or the proceeds thereof be delivered to complainant on March 27, 1984. The Isips defaulted and instead, Mrs. Isip issued a check (Check No. 518647) dated March 27, 1984 in the amount of P90,000.00 (pp. 3-5, tsn, October 22, 1993). The subject pieces of jewelry are the subject of Criminal Case No. 260-84 for Estafa against the Isip couple and Criminal Case No. 155-84 for Violation of BP 22 against Marietta Isip. Again, in the early evening of March 20, 1984, the Isips went to complainant informing him that Balikbayan doctors are having a convention in Vigan, Ilocos Sur saying that, that was the most opportune time to sell jewelries. Assorted pieces of jewelry were delivered to Mrs. Isip as reflected in a receipt duly signed by her (Exhibit O) acknowledging the value thereof to the tune of P562,000.00. Exhibit O contained the promise that the jewelry or proceeds thereof will be delivered on March 27, 1984. Inspite of the promise contained in Exhibit O, Mrs. Isip issued a postdated check (Check No. 51867) dated March 27, 1984 in the amount of P562,000.00 as payment for the assorted pieces of jewelry (pp. 8-12, tsn, October 22, 1993). This is the subject matter of Criminal Case No. 261-84 for Estafa against the couple and Criminal Case No. 146-84 against Marietta Isip for Violation of BP 22. All of the checks covered by the above transactions were deposited on April 6, 1984 (p. 14, tsn, ibid), but all of them bounced for being drawn against insufficient funds. Demand letters sent to the couple proved futile (pp. 15-20, ibid). ii) Defense Version. During all the times material to these cases, complainant Leonardo Jose, who had his residence at Room 411, 4th Floor, Plaza Towers Condominium on (sic) 3375 Guerrero Street, Ermita, Manila, but claims he had his ancestral home at 506 P. Burgos Street, Caridad, Cavite, was an employee of the Bureau of Customs, having been so since 1964 (Tr., 6/8/93, 7). Upon the other hand, appellants Manuel S. Isip (Manuel hereafter) and Marietta M. Isip (Marietta hereafter) are spouses, residents at 3635 M. Arellano Street, Bacood, Sta. Mesa, Manila (Tr., 8/29/93, 4) and engaged in various business undertakings in Pampanga, Nueva Ecija, Baguio City, Olongapo City and Bataan (Tr., Idem, 9; Tr., 10/2/95, 13) appellant Manuel, in the brokerage and trucking business; while appellant Marietta, in that of selling jewelry and financing, as well as in PX goods, real estate and cars, which she started when she was still single (Tr., Idem, 9-10; Tr., 10/2/95, 12). In 1982, at the casino in Olongapo City, appellant Marietta started obtaining jewelry from losing or financially-strapped players which she repledged as security for financing she obtained from one Nemesio Jose, father of complainant Leonardo Jose (Tr., Idem, 11-12; Tr., Idem, 14). After about a year, when Nemesio Jose ran short of capital, he referred appellants to his son, complainant Leonardo Jose, with address at the Plaza Towers Condominium aforesaid for needed financing (Tr., Idem, 13-14; Tr., Idem, 17-19). Beginning early 1983, at complainants residence at Plaza Tower Condominium in Manila, appellant Marietta, accompanied by her husband who participated only as a witness, started having transactions with complainant who, on different dates in February, March and April, 1984, extended various amounts to her for which appellant Marietta pledged jewelry which, in turn, were agreed

between her and complainant to be sold on commission and to turn over the proceeds thereof or return the jewelry to complainant (Tr., Idem, 16-18). In the course of the transactions, appellant Marietta had issued several checks to complainant as guarantee for the payment of the subject jewelry which have either been paid or redeemed, had returned the unsold jewelry to complainant and had conveyed, by way of payment for other jewelry, some personal properties, like brass and antics, and real properties in Balanga, Bataan and Mabalacat, Pampanga, to complainant who caused the same to be registered in the names of his son, Christian Jose, and his wife, Zenaida Jose (Exhibits 1, 2, 2-A, 3, 4, 5, 6, 6-A, 7, 7-A), with the result that all the obligations of appellants to complainant have already been paid for or offset (Tr., Idem, 23; Tr., Idem, 24, 34-36, 37-39; Tr., 3/4/96, 7-8). Also, all the checks that appellant Marietta issued which were initially dishonored have already been (sic) (Tr., 10/2/95, 25-30; Tr., 3/4/96, 8-9). In fact, complainant caused the dismissal of some cases he filed against appellants. Complainant however failed to return some of the redeemed and/or paid checks issued to him by appellant Marietta on the pretext that he did not bring them (Tr., 3/4/96, 20). Inasmuch as appellant Marietta incurred some default in payment and complainant suspected that she would not be able to redeem the checks or pay for the pledged jewelry, complainant demanded that appellants sign certain documents to avoid any misunderstanding, with threat of prosecution before the Cavite courts if they do not comply (Tr., Idem, 19-20; Tr., 3/4/96, 5-6). So, in order to maintain good relations with complainant, appellant Marietta signed the document acknowledging obligations to him in one sitting, which appellant Manuel witnessed (Tr., Idem, 21-22). Later, appellants learned that, although all the transactions were entered into in Manila, complainant filed the cases herein before the Cavite Regional Trial Court (Tr., Idem, 23-24).[7]

On style="font-size: 14pt; line-height: 150%;"November 25, 1996, the trial court rendered its decision, the dispositive portion thereof reading: WHEREFORE, in view of the foregoing, the Court finds the accused Dra. Marietta M. Isip guilty beyond reasonable doubt of a (sic) violation of B.P. 22 in Crim. Cases Nos. 146-84, 147-84, 148-84, 149-84, 155-84, 156-84 and 157-84 and she is hereby sentenced to undergo imprisonment of One (1) year of prision correctional (sic) in each case; and of Estafa in the following Crim. Cases: No. 256-84 where she is sentenced to undergo imprisonment of, from Twelve (12) years of prision mayor, as minimum, to Twenty (20) years of reclusion temporal, as maximum, and to indemnify the complainant Atty. Leonardo Jose the amount of P120,000.00 for the value of the articles misappropriated; Crim. Case No. 257-84 where she is sentenced to undergo imprisonment of, from Twelve (12) years of prision mayor, as minimum, to Twenty (20) years of reclusion temporal, as maximum, and to indemnify the complainant Atty. Leonardo Jose the amount of P150,000.00; Crim. Case No. 260-84 where she is sentenced to undergo imprisonment of, from Eight (8) years and One (1) day of prision mayor, as minimum, to Seventeen (17) years of reclusion temporal, as maximum, and to indemnify the complainant Atty. Leonardo Jose the amount of P95,000.00; Crim. Case No. 261-84 where she is sentenced to undergo imprisonment of, from Twelve (12) years and One (1) day of reclusion temporal, as minimum, to Twenty (20) years of reclusion temporal, as maximum, and to indemnify the complainant Atty. Leonardo Jose the amount of P562,000.00; Crim. Case No. 378-84 where she is sentenced to undergo imprisonment of, from Twelve (12) years and One (1) day of reclusion temporal, as minimum, to Twenty (20) years of reclusion temporal, as maximum, and to indemnify the complainant Atty. Leonardo Jose the amount of P200,000.00 and to pay the costs. Likewise, accused Manuel Isip is acquitted in Crim. Cases Nos. 256-84, 257-84, 260-84, 261-84 and 378-84. However, in Crim. Case No. 136-84, he is hereby found guilty of Estafa and he is hereby sentenced to undergo imprisonment of, from Twelve (12) years and One (1) day of reclusion temporal, as minimum, to Twenty (20) years of reclusion temporal, as maximum, to indemnify the complainant Atty. Leonardo Jose in the amount of P200,000.00 value of the jewelry misappropriated, and to pay the costs.[8]

In ruling the way it did, the RTC found that the transactions involved in these cases were sufficiently shown to have taken place at complainant Atty. Leonardo Joses ancestral house in style="font-size: 14pt; line-height: 150%;"Cavite style="font-size: 14pt; line-height: 150%;"City when the latter was on leave of absence from the Bureau of Customs where he was connected. It said the defense failed to substantially prove its allegations that the transactions occurred in style="font-size: 14pt; line-height: 150%;"Manila, particularly in the Towers Condominium, and that complainant is a resident of Bigasan, style="font-size: 14pt; line-height: 150%;"Makati. It added that the testimony of Marietta Isip that the money with which the complainant initially agreed to finance their transactions was withdrawn from the Sandigan Finance in style="font-size: 14pt; line-height: 150%;"Cavite style="font-size: 14pt; line-height: 150%;"City further refuted the defenses claim that the transactions happened in style="font-size: 14pt; line-height: 150%;"Manila. The trial court likewise found the defenses contention, that the obligations were already paid and set-off with the turnover to complainant of personal and real properties, to be untenable for it is contrary to human nature to demand payment when the same had already been made and the alleged set-offs were for other cases which were settled amicably and subsequently dismissed upon motion of the City Prosecutors Office at the instance of the complainant. The trial court was convinced that accused Marietta Isip misappropriated the pieces of jewelry involved in Criminal Cases No. 256-84, 257-84, 260-84, 261-84 and 37884 and violated Batas Pambansa Blg. 22 when she issued the checks mentioned in Criminal Cases No. 146-84, 147-84, 148-84, 149-84, 155-84, 156-84 and 157-84. As to petitioner, the trial court acquitted him in Criminal Cases No. 256-84, 257-84, 260-84, 261-84 and 378-84 finding him to have acted as a mere witness when he signed the receipts involved in said cases, but found him liable in Criminal Case No. 136-84 for misappropriating a 7-carat diamond mens ring which he secured from the complainant. Aggrieved, petitioner and spouse appealed to the Court of Appeals assigning the following as errors: -ITHE TRIAL COURT ERRED IN TAKING COGNIZANCE OF AND DECIDING THE CASES AGAINST APPELLANTS AND IN NOT DISMISSING THE SAME UPON THE GROUND THAT NONE OF THE ESSENTIAL INGREDIENTS OF THE OFFENSES CHARGED THEREIN WAS COMMITTED WITH (SIC) ITS TERRITORIAL JURISDICTION. - II THE TRIAL COURT, ASSUMING IT HAD JURISDICTION OVER THE CASES BELOW, ERRD IN NOT HOLDING THAT NO CRIMINAL LIABILITY UNDER BATAS PAMBANSA BLG. 22 WAS INCURRED BY APPELLANT MARIETTA M. ISIP FOR THE ISSUANCE OF THE SUBJECT CHECKS INASMUCH AS SAID CHECKS WERE ISSUED AS MERE GUARANTY FOR OBLIGATIONS INCURRED. - III THE TRIAL COURT, ASSUMING ANY INCIPIENT LIABILITY FOR THE CRIME OF ESTAFA HAD BEEN INCURRED BY APPELLANTS IN THE PREMISES, ERRED IN NOT HOLDING THAT SUCH INCIPIENT LIABILITY HAD BEEN EXTINGUISHED BY PAYMENTS/REDEMPTIONS MADE AND/OR NOVATION ENTERED INTO BETWEEN COMPLAINANT AND SAID APPELLANTS. - IV THE TRIAL COURT ERRED IN FINDING APPELLANTS MANUEL S. ISIP AND MARIETTA M. ISIP GUILTY BEYOND REASONABLE DOUBT OF THE CRIMES OF ESTAFA AND VIOLATION OF BATAS PAMBANSA BLG. 22 RESPECTFULLY IMPUTED UPON THEM AND IN NOT ACQUITTING THEM UPON THE GROUND THAT THEIR GUILT THEREOF, OR OF ANY CRIME FOR THAT MATTER, HAD NOT BEEN ESTABLISHED BEYOND REASONABLE DOUBT AND/OR THAT THE LIABILITY INCURRED BY THEM, IF ANY, IS MERELY CIVIL.[9]

Before the Court of Appeals could have decided the case, Marietta Isip died thereby extinguishing her criminal and civil liability, if any. In a decision promulgated style="font-size: 14pt; line-height: 150%;"26 October 2004, the Court of Appeals disposed of the case as follows:

WHEREFORE, the appealed decision of the Regional Trial Court of Cavite City (Branch XVII) 1. In Crim. Case No. 136-84 is AFFIRMED with the MODIFICATIONS that the sentence imposed on accused-appellant Manuel S. Isip shall be two (2) years of prision correccional, as minimum, to twenty (20) years of reclusion temporal, as maximum, and that the sum of P200,000.00 he was ordered to pay to Leonardo A. Jose shall bear interest at the legal rate from filing of the information until fully paid; 2. In Crim. Cases Nos. 146-84, 147-84, 148-84, 149-84, 155-84, 156-84 and 157-84 is REVERSED and accused-appellant Marietta M. Isip ACQUITTED of the crimes charged; and 3. In Crim. Cases Nos. 256-84, 257-84, 260-84, 261-84 and 378-84 is REVERSED and accused-appellants Manuel S. Isip and Marietta M. Isip ACQUITTED of the crimes charged, but ordering them to pay to Leonardo A. Jose, jointly and severally, the sums of P120,000.00, P150,000.00, P95,000.00, P562,000.00 and P200,000.00 representing the amounts involved in said cases, plus interest thereon at the legal rate from filing of the information until fully paid.[10]

The Court of Appeals upheld the lower courts finding that the venue was properly laid and that the checks were delivered by the two accused and/or that the transactions transpired at complainants ancestral home in style="font-size: 14pt; line-height: 150%;"Cavite style="font-size: 14pt; line-height: 150%;"City, and that, consequently, the offenses charged took place within its territorial jurisdiction. With respect to the seven counts of violation of Batas Pambansa Blg. 22, the appellate court acquitted Marietta Isip of the charges on the ground that since the checks involved were issued prior to style="font-size: 14pt; line-height: 150%;"8 August 1984, the dishonor thereof did not give rise to a criminal liability pursuant to Ministry Circular No. 4 of the Ministry of Justice. As to the Estafa cases (Criminal Cases No. 256-84, 257-84, 260-84, 261-84 and 378-84), the Court of Appeals ruled that since the checks issued by Marietta Isip as payment for the pieces of jewelry were dishonored, there was no payment to speak of. It also found the defenses claim of redemption/dacion en pago that real and personal properties were conveyed to complainant who executed affidavits of desistance and caused the dismissal of some of the cases to be unmeritorious. However, the appellate court ruled that though novation does not extinguish criminal liability, it may prevent the rise of such liability as long at it occurs prior to the filing of the criminal information in court. In these five cases, it ruled that there was novation because complainant accepted the checks issued by Marietta Isip as payment for the pieces of jewelry involved in said cases. Consequently, the Court of Appeals acquitted style="font-size: 14pt; line-height: 150%;"Marietta and petitioner,[11] but held them liable to complainant for the value of the jewelry involved. As regards Criminal Case No. 136-84 for estafa against petitioner, the appellate court affirmed the trial courts ruling of conviction. It found petitioners claims that he did not receive the jewelry worth P200,000.00 mentioned in the information; that the receipt he issued for said jewelry was among those documents which were forced upon him to sign under threat of criminal prosecution; and that he signed the same to preserve his friendship with complainant, to be not persuasive. On style="font-size: 14pt; line-height: 150%;"17 November 2004, petitioner, for himself and in representation of his deceased wife, Marietta Isip, filed a Partial Motion for Reconsideration insofar as it affirmed his conviction in Criminal Case No. 136-84 and adjudged him civilly liable, jointly and severally, with Marietta Isip in Criminal Cases No. 256-84, 257-84, 260-84, 261-84 and 378-84.[12] On style="font-size: 14pt; line-height: 150%;"26 October 2005, the Court of Appeals, taking into account the death of Marietta M. Isip prior to the promulgation of its decision, rendered an Amended Decision with the following dispositive portion: WHEREFORE, the decision dated October 26, 2004 is AMENDED in respect to par. 3 of the dispositive portion thereof which shall now read as follows: 3. In Crim. Cases Nos. 256-84, 257-84, 260-84, 261-84 and 378-84 is REVERSED, accused-appellants Manuel S. Isip and Marietta M. Isip ACQUITTED of the crimes charged and the civil aspect of those cases DISMISSED.[13]

Petitioner is now before us appealing his conviction in Criminal Case No. 136-84. He raises the following issues: First WHETHER OR NOT THE TRIAL COURT HAD JURISDICTION OVER THE OFFENSE IMPUTED TO PETITIONER AND FOR WHICH HE WAS CONVICTED; Second WHETHER THE EVIDENCE SUFFICIENTLY SHOWS THAT PETITIONER RECEIVED THE SUBJECT OF SAID OFFENSE OR THAT HE RECEIVED IT IN CAVITE CITY; and Third, WHETHER THE INCIPIENT CRIMINAL LIABILITY ARISING FROM SAID OFFENSE, IS (sic) ANY, WAS EXTINGUISHED BY NOVATION.

On the first issue, petitioner maintains that the RTC had no jurisdiction over the estafa charge in Criminal Case No. 136-84 and it is pure speculation and conjectural, if not altogether improbable or manifestly absurd, to suppose that any of the essential elements of the Estafa charged in Criminal Case No. 136-84 took place in style="fontsize: 14pt; line-height: 150%;"Cavite style="font-size: 14pt; line-height: 150%;"City. First, he states that the residence of the parties is immaterial and that it is the situs of the transaction that counts. He argues that it is non sequitur that simply because complainant had an alleged ancestral house in Caridad, style="font-size: 14pt; line-height: 150%;"Cavite, complainant actually lived there and had the transactions there with him when he and his late wife were actual residents of style="font-size: 14pt; lineheight: 150%;"Manila. Mere convenience suggests that their transaction was entered into in style="font-size: 14pt; line-height: 150%;"Manila. He adds that the source of the fund used to finance the transactions is likewise inconsequential because it is where the subject item was delivered and received by petitioner and/or where it was to be accounted for that determines venue where Estafa, if any, may be charged and tried. Second, he further argues that it does not follow that because complainant may have been on leave from the Bureau of Customs, the transactions were necessarily entered into during that leave and in style="font-size: 14pt; line-height: 150%;"Cavite style="font-size: 14pt; line-height: 150%;"City. He asserts that there is no competent proof showing that during his leave of absence, he stayed in style="font-size: 14pt; line-height: 150%;"Cavite style="font-size: 14pt; line-height: 150%;"City; and that the transactions involved, including the subject of Criminal Case 136-84 covering roughly the period from February to April 1984, coincided with his alleged leave. The concept of venue of actions in criminal cases, unlike in civil cases, is jurisdictional.[14] The place where the crime was committed determines not only the venue of the action but is an essential element of jurisdiction.[15] It is a fundamental rule that for jurisdiction to be acquired by courts in criminal cases, the offense should have been committed or any one of its essential ingredients should have taken place within the territorial jurisdiction of the court. Territorial jurisdiction in criminal cases is the territory where the court has jurisdiction to take cognizance or to try the offense allegedly committed therein by the accused. Thus, it cannot take jurisdiction over a person charged with an offense allegedly committed outside of that limited territory. Furthermore, the jurisdiction of a court over the criminal case is determined by the allegations in the complaint or information. And once it is so shown, the court may validly take cognizance of the case. However, if the evidence adduced during the trial shows that the offense was committed somewhere else, the court should dismiss the action for want of jurisdiction.[16] In the case at bar, we, like the RTC and the Court of Appeals, are convinced that the venue was properly laid in the RTC of Cavite City. The complainant had sufficiently shown that the transaction covered by Criminal Case No. 136-84 took place in his ancestral home in style="font-size: 14pt; line-height: 150%;"Cavite style="font-size: 14pt; line-height: 150%;"City when he was on approved leave of absence[17] from the Bureau of Customs. Since it has been shown that venue was properly laid, it is now

petitioners task to prove otherwise, for it is his claim that the transaction involved was entered into in style="font-size: 14pt; line-height: 150%;"Manila. The age-old but familiar rule that he who alleges must prove his allegations applies.[18] In the instant case, petitioner failed to establish by sufficient and competent evidence that the transaction happened in style="font-size: 14pt; line-height: 150%;"Manila. Petitioner argues that since he and his late wife actually resided in style="font-size: 14pt; line-height: 150%;"Manila, convenience alone unerringly suggests that the transaction was entered into in style="font-size: 14pt; line-height: 150%;"Manila. We are not persuaded. The fact that style="font-size: 14pt; line-height: 150%;"Cavite style="font-size: 14pt; line-height: 150%;"City is a bit far from style="font-size: 14pt; line-height: 150%;"Manila does not necessarily mean that the transaction cannot or did not happen there. Distance will not prevent any person from going to a distant place where he can procure goods that he can sell so that he can earn a living. This is true in the case at bar. It is not improbable or impossible for petitioner and his wife to have gone, not once, but twice in one day, to style="font-size: 14pt; line-height: 150%;"Cavite style="font-size: 14pt; line-height: 150%;"City if that is the number of times they received pieces of jewelry from complainant. Moreover, the fact that the checks issued by petitioners late wife in all the transactions with complainant were drawn against accounts with banks in style="font-size: 14pt; line-height: 150%;"Manila or style="font-size: 14pt; line-height: 150%;"Makati likewise cannot lead to the conclusion that the transactions were not entered into in style="font-size: 14pt; line-height: 150%;"Cavite style="font-size: 14pt; line-height: 150%;"City. It is axiomatic that when it comes to credibility, the trial courts assessment deserves great weight, and is even conclusive and binding, if not tainted with arbitrariness or oversight of some fact or circumstance of weight and influence. The reason is obvious. Having the full opportunity to observe directly the witnesses deportment and manner of testifying, the trial court is in a better position than the appellate court to evaluate properly testimonial evidence.[19] It is to be pointed out that the findings of fact of the trial court have been affirmed by the Court of Appeals. It is settled that when the trial courts findings have been affirmed by the appellate court, said findings are generally conclusive and binding upon this Court.[20] In the case at bar, we find no compelling reason to reverse the findings of the trial court, as affirmed by the Court of Appeals, and to apply the exception. We so hold that there is sufficient evidence to show that the particular transaction took place in style="font-size: 14pt; line-height: 150%;"Cavite style="font-size: 14pt; line-height: 150%;"City. On the second issue, petitioner contends that the Court of Appeals holding that the ring subject of Crim. Case No. 136-84 was delivered to and received by petitioner is seriously flawed. He argues that assuming he signed the receipt evidencing delivery of the ring, not due to the threat of prosecution but merely to preserve his friendship with complainant, the fact remains that there is no showing that the ring was actually delivered to him. Petitioner insists there is no competent evidence that the ring subject of Criminal Case No. 136-84 was ever actually received by, or delivered to, him. We find his contentions untenable. The finding of the Court of Appeals that petitioner received the ring subject of Criminal Case No. 136-84 is supported by the evidence on record. The acknowledgment receipt[21] executed by petitioner is very clear evidence that he received the ring in question. Petitioners claim that he did not receive any ring and merely executed said receipt in order to preserve his friendship with the complainant deserves scant consideration. Petitioner, an astute businessman as he is, knows the significance, import and obligation of what he executed and signed. The following disputable presumptions weigh heavily against petitioner, namely: (a) That a person intends the ordinary consequences of his voluntary act; (b) That a person takes ordinary care of his concerns; (c) That private transactions have been fair and regular; and (d) That the ordinary course of business has been followed [22] Thus, it is presumed that one does not sign a document without first informing himself of its contents and consequences. We know that petitioner understood fully well the ramification of the acknowledgment receipt he executed. It devolves upon him then to overcome these presumptions. We, however, find that he failed to do so. Aside from his self-serving allegation that he signed the receipt to preserve his friendship with complainant, there is no competent evidence that would rebut said presumptions. It is clear from the evidence that petitioner signed the acknowledgment receipt when he received the ring from complainant in style="font-size: 14pt; line-height: 150%;"Cavite style="font-size: 14pt; line-height: 150%;"City. Petitioners argument that he did not receive the subject ring[23] is further belied by the testimony of his wife when the latter testified that said ring was borrowed by him on style="font-size: 14pt; line-height: 150%;"7 March 1984.[24] In all, the delivery of the ring and the transaction regarding the same occurred in style="font-size: 14pt; line-height: 150%;"Cavite style="font-size: 14pt; line-height: 150%;"City. Anent the third issue, petitioner argues that, assuming gratia argumenti that any criminal liability was incurred by petitioner respecting the ring subject of Criminal Case No. 136-84, the same was incipient, at best, and was effectively extinguished by novation. The personal and real properties delivered/conveyed to complainant were more than sufficient to cover or offset whatever balance remained of the obligations incurred as shown by the fact that complainant executed Affidavits of Desistance and caused the dismissal of some of the cases filed. He maintains that the Court of Appeals did not apply the rule of novation as regards the ring subject of Criminal Case No. 136-84 because it rejected his denial of receipt of said ring and his claim that he signed the receipt supposedly covering the same under threat of prosecution and merely to preserve their good relations. He claims the Court should not have denied the application of the rule of novation on said case because the rejected initial claim (that he did not receive the ring and that he signed the receipt to preserve their good relations) was but an alternative defense and its rejection is not a reason to deny the application of the novation rule in said case. We agree with the Court of Appeals that novation[25] cannot be applied in Criminal Case No. 136-84. The claim of petitioner that the personal and real properties conveyed to complainant and/or to his family were more than sufficient to cover or offset whatever balance remained of the obligations incurred has no basis. If it were true that the properties delivered to complainant were sufficient, the latter would have caused the dismissal of all, not some as in this instance, the cases against petitioner and his late wife. This, complainant did not do for the simple reason that the properties conveyed to him were not enough to cover all the obligations incurred by petitioner and his deceased wife. Complainant testified that the properties he received were in settlement of cases other than the cases being tried herein.[26] In particular, he said that petitioner and his spouse settled eight cases which were subsequently dismissed when they delivered properties as payment.[27] It follows then that the obligations incurred by petitioner and his spouse were not yet settled when the criminal cases herein tried were filed. His contention, that the Court of Appeals did not apply the rule of novation in Criminal Case No. 136-84 because it rejected or did not believe his (alternative) defense of denial, is untenable. The main reason why the Court of Appeals did not apply novation in said case was that not all the elements of novation are present. For novation to take place, four essential requisites have to be met, namely, (1) a previous valid obligation; (2) an agreement of all parties concerned to a new contract; (3) the extinguishment of the old obligation; and (4) the birth of a valid new obligation. In Criminal Case No. 136-84, only the first element is extant. What distinguishes this case from Criminal Cases No. 256-84, 257-84, 260-84, 261-84 and 378-84, where the Court of Appeals applied the rule of novation, was that there were checks issued as payment, though subsequently dishonored, for the pieces of jewelry involved. In Criminal Case No. 136-84, it is very clear that neither petitioner nor his wife issued any check as payment for the subject ring that could have extinguished his old obligation and brought to life a new obligation. From the allegations of the information in Criminal Case No. 136-84, it is clear that petitioner was charged with Estafa under Article 315, paragraph 1(b), of the Revised Penal Code. The elements of estafa with abuse of confidence are: (1) the offender receives the money, goods or other personal property in trust, or on commission, or for administration, or under any other obligation involving the duty to deliver, or to return, the same; (2) the offender misappropriates or converts such money or property or denies receiving such money or property; (3) the misappropriation or conversion or denial is to the prejudice of another; and (4) the offended party demands that the offender return the money or property.[28] All these are present in this case. Petitioner received from complainant a seven-carat diamond (mens ring), valued at P200,000.00, for the purpose of selling the same on commission basis and to deliver the proceeds of the sale thereof or return the jewelry if not sold. Petitioner misappropriated or converted said ring for his own benefit and even denied receiving the same. Despite repeated demands from complainant, petitioner failed to return the ring or the proceeds of the sale thereof causing damage and prejudice to complainant in the amount of P200,000.00. style="text-decoration: none;" As to the penalty imposed by the Court of Appeals on petitioner, we find the same to be in order.

WHEREFORE, the decision and amended decision of the Court of Appeals in CA-G.R. No. 21275 dated style="font-size: 14pt; line-height: 150%;"26 October 2004 dated style="font-size: 14pt; line-height: 150%;"26 October 2005, respectively, are AFFIRMED. SO ORDERED. B. JURISDICTION TO ISSUE HOLD DEPARTURE ORDERS BERNADETTE MONDEJAR, complainant, vs. JUDGE MARINO S. BUBAN, MTCC, Tacloban City Branch 1, respondent. RESOLUTION KAPUNAN, J.: In a sworn letter complaint dated May 31, 1999, complainant Bernadette Mondejar charged Judge Marino S. Buban, MTCC, Tacloban City, Branch 1, with gross ignorance of the law, partiality, serious irregularity and grave misconduct relative to Criminal Case No. 98-07-CR-133 entitled People of the Philippines v. Bernadette Mondejar and Arlette Mondejar for violation of Batas Pambansa Blg. 22. She alleged that respondent judge issued a hold departure order against her on October 23, 1998 in violation of Supreme Court Circular No. 39-97 which provides that hold departure orders shall be issued only in criminal cases within the exclusive jurisdiction of the Regional Trial Courts. She further alleged that respondent judge did not give her an opportunity to be heard before issuing the questioned order. When required to comment on the matter, respondent judge admitted having issued said order because he was not aware of the Supreme Court Circular No. 39-97. He alleged that he was not furnished a copy of the circular and managed to secure a copy only after he instructed his legal researcher to get one from the Executive Judge of the Regional Trial Court of Tacloban City. Accordingly, on April 14, 1997, he issued an order lifting and setting aside the hold departure order dated October 23, 1998. As regards the issue of denial of due process, respondent judge averred that complainant and her counsel were duly notified of the scheduled hearing but neither appeared on said date. The Court Administrator after finding that respondent judge erred in issuing the assailed hold departure order, recommended that he be severely reprimanded with a stern warning that a repetition of the same or similar act in the future shall be dealt with more severely. The recommendation of the Court Administrator is well-taken. Circular No. 39-97 limits the authority to issue hold-departure orders to criminal cases within the jurisdiction of second level courts. Paragraph No. 1 of the said circular specifically provides that hold-departure orders shall be issued only in criminal cases within the exclusive jurisdiction of the regional trial courts. Clearly then, criminal cases within the exclusive jurisdiction of first level courts do not fall within the ambit of the circular, and it was an error on the part of respondent judge to have issued one in the instant case. Canon 3, Rule 3.01 of the Code of Judicial Conduct exhorts judges to be faithful to the law and maintain professional competence. The Court, in exercising administrative supervision of all lower courts, has not been remised in reminding the members of the bench to exert due diligence in keeping abreast with the development in law and jurisprudence. Besides, Circular No. 39-97 is not a new circular. It was circularized in 1997 and violation of which has been accordingly dealt with in numerous cases before the Court. Herein judge, therefore, cannot be excused for his infraction. Judges should always be vigilant in their quest for new developments in the law so they could discharge their duties and functions with zeal and fervor. In recent cases,[1] involving similar violations, this Court imposed the penalty of reprimand on erring judges. Hence, the same penalty should be imposed on respondent judge. WHEREFORE, Judge Marino S. Buban is hereby REPRIMANDED with the warning that a repetition of the same and similar acts in the future will be dealt with more severely. SO ORDERED. C. JURISDICTION DETERMINED BY THE ALLEGATIONS OFTHECOMPLAINT THIRD DIVISION VICENTE FOZ, JR. and DANNY G. FAJARDO, Petitioners, - versus PEOPLE OF THE w:st="on"PHILIPPINES, Respondent. x-----------------------------------------------------------------------------------------x DECISION PERALTA, J.: Before the court is a petition for review on certiorari under Rule 45 of the Rules of Court assailing the Decision[1] of the Court of Appeals (CA), Cebu City, dated November 24, 2004 in CA-G.R. CR No. 22522, which affirmed the Decision of the Regional Trial Court (RTC), Branch 23, Iloilo City, dated December 4, 1997 in Criminal Case No. 44527 finding petitioners guilty beyond reasonable doubt of the crime of libel. Also assailed is the CA Resolution[2] dated April 8, 2005 denying petitioners' motion for reconsideration. In an Information[3] dated October 17, 1994 filed before the RTC of Iloilo City, petitioners Vicente Foz, Jr. and Danny G. Fajardo were charged with the crime of libel committed as follows: That on or about the 5th day of July, 1994 in the City of Iloilo, Philippines and within the jurisdiction of this court, both the accused as columnist and Editor-Publisher, respectively, of Panay News, a daily publication with a considerable circulation in the City of Iloilo and throughout the region, did then and there willfully, unlawfully and feloniously with malicious intent of impeaching the virtue, honesty, integrity and reputation of Dr. Edgar Portigo, a physician and medical practitioner in Iloilo City, and with the malicious intent of injuring and exposing said Dr. Edgar Portigo to public hatred, contempt and ridicule, write and publish in the regular issue of said daily publication on July 5, 1994, a certain article entitled MEET DR. PORTIGO, COMPANY PHYSICIAN, quoted verbatim hereunder, to wit: MEET DR. PORTIGO, COMPANY PHYSICIAN PHYSICIAN (sic) are duly sworn to help to do all their best to promote the health of their patients. Especially if they are employed by a company to serve its employees. However, the opposite appears to be happening in the Local San Miguel Corporation office, SMC employees are fuming mad about their company physician, Dr. Portigo, because the latter is not doing well in his sworn obligation in looking after the health problems of employees, reports reaching Aim.. Fire say. One patient, Lita Payunan, wife of employee Wilfredo Payunan, and residing in w:st="on"Burgos, Lapaz, w:st="on"Iloilo City, has a sad tale to say about Dr. Portigo. Her story began September 19 last year when she felt ill and had to go to Dr. Portigo for consultation. The doctor put her under observation, taking seven months to conclude that she had rectum myoma and must undergo an operation. Subsequently, the family sought the services of a Dr. Celis and a Dr. de los Reyes at Doctor's Hospital. Incidentally, where Dr. Portigo also maintains a clinic. Dr. Portigo got angry, sources said, after knowing that the family chose a surgeon (Dr. Celis) on their own without his nod as he had one to recommend.

Lita was operated by Dr. de los Reyes last March and was released from the hospital two weeks after. Later, however, she again complained of difficulty in urinating and defecating[. On] June 24, she was readmitted to the hospital.

The second operation, done by Dr. Portigo's recommendee, was devastating to the family and the patient herself who woke to find out her anus and vagina closed and a hole with a catheter punched on her right side. This was followed by a bad news that she had cancer. Dr. Portigo recommended another operation, this time to bore another hole on the left side of Lita. But a Dr. Rivera to whom he made the referral frankly turned it down because it would only be a waste of money since the disease was already on the terminal state. The company and the family spent some P150,000.00 to pay for the wrong diagnosis of the company physician. My sympathy for Lita and her family. May the good Lord, Healer of all healers, be on your side, May the Healer of all healers likewise touch the conscience of physicians to remind them that their profession is no license for self-enrichment at the expense of the poor. But, sad to say, Lita passed away, July 2, 1994. Lita is not alone. Society is replete with similar experience where physicians treat their patients for profits. Where physicians prefer to act like agents of multinational corporations prescribing expensive drugs seen if there are equivalent drugs sold at the counter for much lower price. Yes, Lita, we also have hospitals, owned by a so-called charitable religious institutions and so-called civic groups, too greedy for profits. Instead of promoting baby-and mother-friendly practices which are cheaper and more effective, they still prefer the expensive yet unhealthy practices. The (sic) shun breast feeding and promote infant milk formula although mother's milk is many times cheaper and more nutrious (sic) than the brands they peddle. These hospitals separate newly born from their moms for days, conditioning the former to milk formula while at the same time stunting the mother's mammalia from manufacturing milk. Kadiri to death! My deepest sympathy to the bereaved family of Mrs. Lita Payunan who died July 2, 1994, Her body lies at the Payunan residence located at w:st="on"236-G Burgos St., Lapaz, w:st="on"Iloilo City. May you rest in peace, Inday Lita. wherein said Dr. Portigo was portrayed as wanting in high sense of professional integrity, trust and responsibility expected of him as a physician, which imputation and insinuation as both accused knew were entirely false and malicious and without foundation in fact and therefore highly libelous, offensive and derogatory to the good name, character and reputation of the said Dr. Edgar Portigo. CONTRARY TO LAW.[4]

Upon being arraigned[5] on March 1, 1995, petitioners, assisted by counsel de parte, pleaded not guilty to the crime charged in the Information. Trial thereafter ensued. On December 4, 1997, the RTC rendered its Decision[6] finding petitioners guilty as charged. The dispositive portion of the Decision reads: WHEREFORE, in the light of the facts obtaining and the jurisprudence aforecited, JUDGMENT is hereby rendered finding both accused Danny Fajardo and Vicente Foz, Jr. GUILTY BEYOND REASONABLE DOUBT for the crime of Libel defined in Article 353 and punishable under Article 355 of the Revised Penal Code, hereby sentencing aforenamed accused to suffer an indeterminate penalty of imprisonment of Three (3) Months and Eleven (11) Days of Arresto Mayor, as Minimum, to One (1) Year, Eight (8) Months and Twenty-One (21) Days of Prision Correccional, as Maximum, and to pay a fine of P1,000.00 each.[7]

Petitioners' motion for reconsideration was denied in an Order[8] dated February 20, 1998. Dissatisfied, petitioners filed an appeal with the CA. On November 24, 2004, the CA rendered its assailed Decision which affirmed in toto the RTC decision.

Petitioners filed a motion for reconsideration, which the CA denied in a Resolution dated Hence, herein petition filed by petitioners based on the following grounds:

April 8, 2005.

I. THE COURT OF APPEALS ERRED IN FINDING THE SUBJECT ARTICLE LIBELOUS WITHIN THE MEANING AND INTENDMENT OF ARTICLE 353 OF THE REVISED PENAL CODE. II. THE COURT OF APPEALS ERRED IN FINDING THE EXISTENCE OF MALICE IN THIS CASE AND IN NOT FINDING THAT THE SUBJECT ARTICLE IS CONSTITUTIONALLY PROTECTED AS PRIVILEGED COMMUNICATIONS. III. THE COURT OF APPEALS ERRED IN AFFIRMING THE CONVICTION OF PETITIONER FAJARDO WHO HAPPENS TO BE MERELY PUBLISHER OF PANAY NEWS AND COULD NOT POSSIBLY SHARE ALL THE OPINIONS OF THE NEWSPAPER'S OPINION COLUMNISTS.[9]

Petitioners argue that the CA erred in finding that the element of defamatory imputation was satisfied when petitioner Foz, as columnist, portrayed Dr. Portigo as an incompetent doctor and an opportunist who enriched himself at the expense of the poor. Petitioners pose the question of whether a newspaper opinion columnist, who sympathizes with a patient and her family and expresses the family's outrage in print, commits libel when the columnist criticizes the doctor's competence or lack of it, and such criticism turns out to be lacking in basis if not entirely false. Petitioners claim that the article was written in good faith in the belief that it would serve the public good. They contend that the CA erred in finding the existence of malice in the publication of the article; that no malice in law or actual malice was proven by the prosecution; and that the article was printed pursuant to the bounden duty of the press to report matters of public interest. Petitioners further contend that the subject article was an opinion column, which was the columnists exclusive views; and that petitioner Fajardo, as the editor and publisher of Panay News, did not have to share those views and should not be held responsible for the crime of libel. The Solicitor General filed his Comment, alleging that only errors of law are reviewable by this Court in a petition for review on certiorari under Rule 45; that petitioners are raising a factual issue, i.e., whether or not the element of malice required in every indictment for libel was established by the prosecution, which would require the weighing anew of the evidence already passed upon by the CA and the RTC; and that factual findings of the CA, affirming those of the RTC, are accorded

finality, unless there appears on records some facts or circumstance of weight which the court may have overlooked, misunderstood or misappreciated, and which, if properly considered, may alter the result of the case a situation that is not, however, obtaining in this case. In their Reply, petitioners claim that the first two issues presented in their petition do not require the evaluation of evidence submitted in court; that malice, as an element of libel, has always been discussed whenever raised as an issue via a petition for review on certiorari. Petitioners raise for the first time the issue that the information charging them with libel did not contain allegations sufficient to vest jurisdiction in the RTC of Iloilo City. The Court finds that the threshold issue for resolution is whether or not the RTC of Iloilo City, Branch 23, had jurisdiction over the offense of libel as charged in the Information dated October 17, 1994. The Court notes that petitioners raised for the first time the issue of the RTC's jurisdiction over the offense charged only in their Reply filed before this Court and finds that petitioners are not precluded from doing so. In Fukuzume v. People,[10] the Court ruled: It is noted that it was only in his petition with the CA that Fukuzume raised the issue of the trial courts jurisdiction over the offense charged. Nonetheless, the rule is settled that an objection based on the ground that the court lacks jurisdiction over the offense charged may be raised or considered motu proprio by the court at any stage of the proceedings or on appeal. Moreover, jurisdiction over the subject matter in a criminal case cannot be conferred upon the court by the accused, by express waiver or otherwise, since such jurisdiction is conferred by the sovereign authority which organized the court, and is given only by law in the manner and form prescribed by law. While an exception to this rule was recognized by this Court beginning with the landmark case of Tijam vs. Sibonghanoy, wherein the defense of lack of jurisdiction by the court which rendered the questioned ruling was considered to be barred by laches, we find that the factual circumstances involved in said case, a civil case, which justified the departure from the general rule are not present in the instant criminal case.[11] The Court finds merit in the petition. Venue in criminal cases is an essential element of jurisdiction. The Court held in Macasaet v. People[12] that: It is a fundamental rule that for jurisdiction to be acquired by courts in criminal cases the offense should have been committed or any one of its essential ingredients took place within the territorial jurisdiction of the court. Territorial jurisdiction in criminal cases is the territory where the court has jurisdiction to take cognizance or to try the offense allegedly committed therein by the accused. Thus, it cannot take jurisdiction over a person charged with an offense allegedly committed outside of that limited territory. Furthermore, the jurisdiction of a court over the criminal case is determined by the allegations in the complaint or information. And once it is so shown, the court may validly take cognizance of the case. However, if the evidence adduced during the trial show that the offense was committed somewhere else, the court should dismiss the action for want of jurisdiction. (Emphasis supplied.)[13]

Article 360 of the Revised Penal Code, as amended by Republic Act No. 4363, provides the specific rules as to the venue in cases of written defamation, to wit: Article 360. Persons responsible.Any person who shall publish, exhibit or cause the publication or exhibition of any defamation in writing or by similar means, shall be responsible for the same. The author or editor of a book or pamphlet, or the editor or business manager of a daily newspaper, magazine or serial publication, shall be responsible for the defamations contained therein to the same extent as if he were the author thereof. The criminal action and civil action for damages in cases of written defamations, as provided for in this chapter shall be filed simultaneously or separately with the court of first instance of the province or city where the libelous article is printed and first published or where any of the offended parties actually resides at the time of the commission of the offense: Provided, however, That where one of the offended parties is a public officer whose office is in the City of Manila at the time of the commission of the offense, the action shall be filed in the Court of First Instance of the City of Manila or of the city or province where the libelous article is printed and first published, and in case such public officer does not hold office in the City of Manila, the action shall be filed in the Court of First Instance of the province or city where he held office at the time of the commission of the offense or where the libelous article is printed and first published and in case one of the offended parties is a private individual, the action shall be filed in the Court of First Instance of the province or city where he actually resides at the time of the commission of the offense or where the libelous matter is printed and first published x x x. (Emphasis supplied.)

In Agbayani v. Sayo,[14] the rules on venue in Article 360 were restated as follows: 1. Whether the offended party is a public official or a private person, the criminal action may be filed in the Court of First Instance of the province or city where the libelous article is printed and first published. 2. If the offended party is a private individual, the criminal action may also be filed in the Court of First Instance of the province where he actually resided at the time of the commission of the offense. 3. If the offended party is a public officer whose office is in w:st="on"Manila at the time of the commission of the offense, the action may be filed in the Court of First Instance of Manila. 4. If the offended party is a public officer holding office outside of w:st="on"Manila, the action may be filed in the Court of First Instance of the province or city where he held office at the time of the commission of the offense.[15] Applying the foregoing law to this case, since Dr. Portigo is a private individual at the time of the publication of the alleged libelous article, the venue of the libel case may be in the province or city where the libelous article was printed and first published, or in the province where Dr. Portigo actually resided at the time of the commission of the offense. The relevant portion of the Information for libel filed in this case which for convenience the Court quotes again, to wit: That on or about the 5th day of July, 1994 in the City of Iloilo, Philippines and within the jurisdiction of this court, both the accused as columnists and Editor-Publisher, respectively, of Panay News, a daily publication with a considerable circulation in the City of Iloilo and throughout the region, did then and there willfully, unlawfully and feloniously with malicious intent of impeaching the virtue, honesty, integrity and reputation of Dr. Edgar Portigo, a physician and medical practitioner in Iloilo City, and with the malicious intent of injuring and exposing said Dr. Edgar Portigo to public hatred, contempt and ridicule, write and publish in the regular issue of said daily publication on July 5, 1994, a certain article entitled MEET DR. PORTIGO, COMPANY PHYSICIAN.... The allegations in the Information that Panay News, a daily publication with a considerable circulation in the City of w:st="on"Iloilo and throughout the region only showed that w:st="on"Iloilo was the place where Panay News was in considerable circulation but did not establish that the said publication was printed and first published in w:st="on"Iloilo City. In Chavez v. Court of Appeals,[16] which involved a libel case filed by a private individual with the RTC of Manila, a portion of the Information of which reads:

That on or about March 1995, in the City of Manila, Philippines, the said accused [Baskinas and Manapat] conspiring and confederating with others whose true names, real identities and present whereabouts are still unknown and helping one another, with malicious intent of impeaching the honesty, virtue, character and reputation of one FRANCISCO I. CHAVEZ, former Solicitor General of the Philippines, and with the evident purpose of injuring and exposing him to public ridicule, hatred and contempt, did then and there willfully, unlawfully and maliciously cause to be published in Smart File, a magazine of general circulation in Manila, and in their respective capacity as Editor-in-Chief and Author-Reporter, ....[17] the Court ruled that the Information did not sufficiently vest jurisdiction in the RTC of Manila to hear the libel charge in consonance with Article 360. The Court made the following disquisition: x x x Still, a perusal of the Information in this case reveals that the word published is utilized in the precise context of noting that the defendants cause*d+ to be published in 'Smart File', a magazine of general circulation in Manila. The Information states that the libelous articles were published in Smart File, and not that they were published in w:st="on"Manila. The place w:st="on"Manila is in turn employed to situate where Smart File was in general circulation, and not where the libel was published or first printed. The fact that Smart File was in general circulation in Manila does not necessarily establish that it was published and first printed in Manila, in the same way that while leading national dailies such as the Philippine Daily Inquirer or the Philippine Star are in general circulation in Cebu, it does not mean that these newspapers are published and first printed in Cebu. Indeed, if we hold that the Information at hand sufficiently vests jurisdiction in Manila courts since the publication is in general circulation in w:st="on"Manila, there would be no impediment to the filing of the libel action in other locations where Smart File is in general circulation. Using the example of the Inquirer or the Star, the granting of this petition would allow a resident of Aparri to file a criminal case for libel against a reporter or editor in Jolo, simply because these newspapers are in general circulation in Jolo. Such a consequence is precisely what Rep. Act No. 4363 sought to avoid.[18] In Agustin v. Pamintuan,[19] which also involved a libel case filed by a private individual, the Acting General Manager of the Baguio Country Club, with the RTC of Baguio City where the Information therein alleged that the libelous article was published in the Philippine Daily Inquirer, a newspaper of general circulation in the City of Baguio and the entire Philippines, the Court did not consider the Information sufficient to show that Baguio City was the venue of the printing and first publication of the alleged libelous article. Article 360 of the Revised Penal Code as amended provides that a private individual may also file the libel case in the RTC of the province where he actually resided at the time of the commission of the offense. The Information filed against petitioners failed to allege the residence of Dr. Portigo. While the Information alleges that Dr. Edgar Portigo is a physician and medical practitioner in w:st="on"Iloilo City, such allegation did not clearly and positively indicate that he was actually residing in w:st="on"Iloilo City at the time of the commission of the offense. It is possible that Dr. Portigo was actually residing in another place. Again, in Agustin v. Pamintuan,[20] where the Information for libel alleged that the offended party was the Acting General Manager of the Baguio Country Club and of good standing and reputation in the community, the Court did not find such allegation sufficient to establish that the offended party was actually residing in Baguio City. The Court explained its ruling in this wise: The residence of a person is his personal, actual or physical habitation or his actual residence or place of abode provided he resides therein with continuity and consistency; no particular length of time of residence is required. However, the residence must be more than temporary. The term residence involves the idea of something beyond a transient stay in the place; and to be a resident, one must abide in a place where he had a house therein. To create a residence in a particular place, two fundamental elements are essential: The actual bodily presence in the place, combined with a freely exercised intention of remaining there permanently or for an indefinite time. While it is possible that as the Acting General Manager of the Baguio Country Club, the petitioner may have been actually residing in w:st="on"Baguio City, the Informations did not state that he was actually residing therein when the alleged crimes were committed. It is entirely possible that the private complainant may have been actually residing in another place. One who transacts business in a place and spends considerable time thereat does not render such person a resident therein. Where one may have or own a business does not of itself constitute residence within the meaning of the statute. Pursuit of business in a place is not conclusive of residence there for purposes of venue.[21]

Settled is the rule that jurisdiction of a court over a criminal case is determined by the allegations of the complaint or information, and the offense must have been committed or any one of its essential ingredients took place within the territorial jurisdiction of the court.[22] Considering that the Information failed to allege the venue requirements for a libel case under Article 360, the Court finds that the RTC of Iloilo City had no jurisdiction to hear this case. Thus, its decision convicting petitioners of the crime of libel should be set aside for want of jurisdiction without prejudice to its filing with the court of competent jurisdiction. WHEREFORE, the petition is GRANTED. The Decision dated November 24, 2004 and the Resolution dated April 8, 2005 of the Court of Appeals in CA-G.R. CR No. 22522 are SET ASIDE on the ground of lack of jurisdiction on the part of the Regional Trial Court, Branch 23, w:st="on"Iloilo City. Criminal Case No. 44527 is DISMISSED without prejudice. SO ORDERED. D. JURISDICTION OF THE SANDIGANBAYAN PEOPLE OF THE w:st="on"PHILIPPINES, Petitioner, -versusSANDIGANBAYAN (third division) and VICTORIA AMANTE, Respondents. x-----------------------------------------------------------------------------------------x DECISION PERALTA, J.: Before this Court is a petition[1] under Rule 45 of the Rules of Court seeking to reverse and set aside the Resolution[2] of the Sandiganbayan (Third Division) dated February 28, 2005 dismissing Criminal Case No. 27991, entitled People of the Philippines v. Victoria Amante for lack of jurisdiction. The facts, as culled from the records, are the following: Victoria Amante was a member of the Sangguniang Panlungsod of w:st="on"Toledo City, w:st="on"Province of Cebu at the time pertinent to this case. On January 14, 1994, she was able to get hold of a cash advance in the amount of P71,095.00 under a disbursement voucher in order to defray seminar expenses of the Committee on Health and Environmental Protection, which she headed. As of December 19, 1995, or after almost two years since she obtained the said cash advance, no liquidation was made. As such, on December 22, 1995, Toledo City Auditor Manolo V. Tulibao issued a demand letter to respondent Amante asking the latter to settle her unliquidated cash advance within seventy-two hours from receipt of the same demand letter. The Commission on Audit, on May 17, 1996, submitted an investigation report to the Office of the Deputy Ombudsman for Visayas (OMB-Visayas), with the recommendation that respondent Amante be further investigated to ascertain whether appropriate charges could be filed against her under Presidential Decree (P.D.) No. 1445, otherwise known as The Auditing Code of the Philippines. Thereafter, the OMB-Visayas, on

September 30, 1999, issued a Resolution recommending the filing of an Information for Malversation of Public Funds against respondent Amante. The Office of the Special Prosecutor (OSP), upon review of the OMB-Visayas' Resolution, on April 6, 2001, prepared a memorandum finding probable cause to indict respondent Amante. On May 21, 2004, the OSP filed an Information[3] with the Sandiganbayan accusing Victoria Amante of violating Section 89 of P.D. No. 1445, which reads as follows: That on or about December 19, 1995, and for sometime prior or subsequent thereto at Toledo City, Province of Cebu, Philippines, and within the jurisdiction of this Honorable Court, the abovenamed accused VICTORIA AMANTE, a high-ranking public officer, being a member of the Sangguniang Panlungsod of Toledo City, and committing the offense in relation to office, having obtained cash advances from the City Government of Toledo in the total amount of SEVENTY-ONE THOUSAND NINETYFIVE PESOS (P71,095.00), Philippine Currency, which she received by reason of her office, for which she is duty-bound to liquidate the same within the period required by law, with deliberate intent and intent to gain, did then and there, wilfully, unlawfully and criminally fail to liquidate said cash advances of P71,095.00, Philippine Currency, despite demands to the damage and prejudice of the government in aforesaid amount. CONTRARY TO LAW.

The case was raffled to the Third Division of the Sandiganbayan. Thereafter, Amante filed with the said court a MOTION TO DEFER ARRAIGNMENT AND MOTION FOR REINVESTIGATION[4] dated November 18, 2004 stating that the Decision of the Office of the Ombudsman (Visayas) dated September 14, 1999 at Cebu City from of an incomplete proceeding in so far that respondent Amante had already liquidated and/or refunded the unexpected balance of her cash advance, which at the time of the investigation was not included as the same liquidation papers were still in the process of evaluation by the Accounting Department of Toledo City and that the Sandiganbayan had no jurisdiction over the said criminal case because respondent Amante was then a local official who was occupying a position of salary grade 26, whereas Section 4 of Republic Act (R.A.) No. 8249 provides that the Sandiganbayan shall have original jurisdiction only in cases where the accused holds a position otherwise classified as Grade 27 and higher, of the Compensation and Position Classification Act of 1989, R.A. No. 6758. The OSP filed its Opposition[5] dated December 8, 2004 arguing that respondent Amante's claim of settlement of the cash advance dwelt on matters of defense and the same should be established during the trial of the case and not in a motion for reinvestigation. As to the assailed jurisdiction of the Sandiganbayan, the OSP contended that the said court has jurisdiction over respondent Amante since at the time relevant to the case, she was a member of the Sangguniang Panlungsod of w:st="on"Toledo City, therefore, falling under those enumerated under Section 4 of R.A. No. 8249. According to the OSP, the language of the law is too plain and unambiguous that it did not make any distinction as to the salary grade of city local officials/heads. The Sandiganbayan, in its Resolution[6] dated February 28, 2005, dismissed the case against Amante, the dispositive portion of which reads:

WHEREFORE, IN VIEW OF ALL THE FOREGOING, this case is hereby dismissed for lack of jurisdiction. The dismissal, however, is without prejudice to the filing of this case to the proper court. The Motion for Reinvestigation filed by the movant is hereby considered moot and academic. SO ORDERED. Hence, the present petition. Petitioner raises this lone issue: WHETHER OR NOT THE SANDIGANBAYAN HAS JURISDICTION OVER A CASE INVOLVING A SANGGUNIANG PANLUNGSOD MEMBER WHERE THE CRIME CHARGED IS ONE COMMITTED IN RELATION TO OFFICE, BUT NOT FOR VIOLATION OF RA 3019, RA 1379 OR ANY OF THE FELONIES MENTIONED IN CHAPTER II, SECTION 2, TITLE VII OF THE REVISED PENAL CODE. In claiming that the Sandiganbayan has jurisdiction over the case in question, petitioner disputes the former's appreciation of this Court's decision in Inding v. Sandiganbayan.[7] According to petitioner, Inding did not categorically nor implicitly constrict or confine the application of the enumeration provided for under Section 4(a)(1) of P.D. No. 1606, as amended, exclusively to cases where the offense charged is either a violation of R.A. No. 3019, R.A. No. 1379, or Chapter II, Section 2, Title VII of the Revised Penal Code. Petitioner adds that the enumeration in Section (a)(1) of P.D. No. 1606, as amended by R.A. No. 7975 and R.A. No. 8249, which was made applicable to cases concerning violations of R.A. No. 3019, R.A. No. 1379 and Chapter II, Section 2, Title VII of the Revised Penal Code, equally applies to offenses committed in relation to public office. Respondent Amante, in her Comment[8] dated January 16, 2006, averred that, with the way the law was phrased in Section 4 of P.D. No. 1606, as amended, it is obvious that the jurisdiction of the Sandiganbayan was defined first, enumerating the several exceptions to the general rule, while the exceptions to the general rule are provided in the rest of the paragraph and sub-paragraphs of Section 4. Therefore, according to respondent Amante, the Sandiganbayan was correct in ruling that the latter has original jurisdiction only over cases where the accused is a public official with salary grade 27 and higher; and in cases where the accused is public official below grade 27 but his position is one of those mentioned in the enumeration in Section 4(a)(1)(a) to (g) of P.D. No. 1606, as amended and his offense involves a violation of R.A. No. 3019, R.A. No. 1379 and Chapter II, Section 2, Title VII of the Revised Penal Code; and if the indictment involves offenses or felonies other than the three aforementioned statutes, the general rule that a public official must occupy a position with salary grade 27 and higher in order that the Sandiganbayan could exercise jurisdiction over him must apply. The same respondent proceeded to cite a decision[9] of this Court where it was held that jurisdiction over the subject matter is conferred only by the Constitution or law; it cannot be fixed by the will of the parties; it cannot be acquired through, or waived, enlarged or diminished by, any act or omission of the parties, neither is it conferred by acquiescence of the court. In its Reply[10] dated March 23, 2006, the OSP reiterated that the enumeration of public officials in Section 4(a)(1) to (a) to (g) of P.D. No. 1606 as falling within the original jurisdiction of the Sandiganbayan should include their commission of other offenses in relation to office under Section 4(b) of the same P.D. No. 1606. It cited the case of Esteban v. Sandiganbayan, et al.[11] wherein this Court ruled that an offense is said to have been committed in relation to the office if the offense is intimately connected with the office of the offender and perpetrated while he was in the performance of his official functions. The petition is meritorious. The focal issue raised in the petition is the jurisdiction of the Sandiganbayan. As a background, this Court had thoroughly discussed the history of the conferment of jurisdiction of the Sandiganbayan in Serana v. Sandiganbayan, et al.,[12] thus: x x x The Sandiganbayan was created by P.D. No. 1486, promulgated by then President Ferdinand E. Marcos on June 11, 1978. It was promulgated to attain the highest norms of official conduct required of public officers and employees, based on the concept that public officers and employees shall serve with the highest degree of responsibility, integrity, loyalty and efficiency and shall remain at all times accountable to the people.[13] P.D. No. 1486 was, in turn, amended by P.D. No. 1606 which was promulgated on December 10, 1978. P.D. No. 1606 expanded the jurisdiction of the Sandiganbayan.[14]

10

P.D. No. 1606 was later amended by P.D. No. 1861 on March 23, 1983, further altering the Sandiganbayan jurisdiction. R.A. No. 7975 approved on March 30, 1995 made succeeding amendments to P.D. No. 1606, which was again amended on February 5, 1997 by R.A. No. 8249. Section 4 of R.A. No. 8249 further modified the jurisdiction of the Sandiganbayan. x x x

Specifically, the question that needs to be resolved is whether or not a member of the Sangguniang Panlungsod under Salary Grade 26 who was charged with violation of The Auditing Code of the w:st="on"Philippines falls within the jurisdiction of the Sandiganbayan. This Court rules in the affirmative. The applicable law in this case is Section 4 of P.D. No. 1606, as amended by Section 2 of R.A. No. 7975 which took effect on May 16, 1995, which was again amended on February 5, 1997 by R.A. No. 8249. The alleged commission of the offense, as shown in the Information was on or about December 19, 1995 and the filing of the Information was on May 21, 2004. The jurisdiction of a court to try a criminal case is to be determined at the time of the institution of the action, not at the time of the commission of the offense.[15] The exception contained in R.A. 7975, as well as R.A. 8249, where it expressly provides that to determine the jurisdiction of the Sandiganbayan in cases involving violations of R.A. No. 3019, as amended, R.A. No. 1379, and Chapter II, Section 2, Title VII of the Revised Penal Code is not applicable in the present case as the offense involved herein is a violation of The Auditing Code of the Philippines. The last clause of the opening sentence of paragraph (a) of the said two provisions states: Sec. 4. Jurisdiction. -- The Sandiganbayan shall exercise exclusive original jurisdiction in all cases involving: A. Violations of Republic Act No. 3019, as amended, other known as the Anti-Graft and Corrupt Practices Act, Republic Act No. 1379, and Chapter II, Section 2, Title VII, Book II of the Revised Penal Code, where one or more of the accused are officials occupying the following positions in the government, whether in a permanent, acting or interim capacity, at the time of the commission of the offense: The present case falls under Section 4(b) where other offenses and felonies committed by public officials or employees in relation to their office are involved. Under the said provision, no exception is contained. Thus, the general rule that jurisdiction of a court to try a criminal case is to be determined at the time of the institution of the action, not at the time of the commission of the offense applies in this present case. Since the present case was instituted on May 21, 2004, the provisions of R.A. No. 8249 shall govern. Verily, the pertinent provisions of P.D. No. 1606 as amended by R.A. No. 8249 are the following: Sec. 4. Jurisdiction. -- The Sandiganbayan shall exercise original jurisdiction in all cases involving: A. Violations of Republic Act No. 3019, as amended, otherwise known as the Anti-Graft and Corrupt Practices Act, Republic Act No. 1379, and Chapter II, Section 2, Title VII of the Revised Penal Code, where one or more of the principal accused are officials occupying the following positions in the government, whether in a permanent, acting or interim capacity, at the time of the commission of the offense: (1) Officials of the executive branch occupying the positions of regional director and higher, otherwise classified as grade 27 and higher, of the Compensation and Position Classification Act of 1989 (Republic Act No. 6758), specifically including: (a) Provincial governors, vice-governors, members of the sangguniang panlalawigan and provincial treasurers, assessors, engineers, and other city department heads; (b) City mayors, vice-mayors, members of the sangguniang panlungsod, city treasurers, assessors, engineers, and other city department heads. (c) Officials of the diplomatic service occupying the position of consul and higher; (d) Philippine army and air force colonels, naval captains, and all officers of higher rank; (e) PNP chief superintendent and PNP officers of higher rank; (f) City and provincial prosecutors and their assistants, and officials and prosecutors in the Office of the Ombudsman and Special Prosecutor; (g) Presidents, directors or trustees, or managers of government-owned or controlled corporations, state universities or educational institutions or foundations; (2) Members of Congress and officials thereof classified as Grade 27 and up under the Compensation and Position Classificat ion Act of 1989; (3) Members of the judiciary without prejudice to the provisions of the Constitution; (4) Chairmen and members of Constitutional Commissions, without prejudice to the provisions of the Constitution; and (5) All other national and local officials classified as Grade 27 and higher under the Compensation and Position Classification Act of 1989. B. Other offenses or felonies, whether simple or complexed with other crimes committed by the public officials and employees mentioned in subsection (a) of this section in relation to their office. C. Civil and criminal cases filed pursuant to and in connection with Executive Order Nos. 1, 2, 14 and 14-A. The above law is clear as to the composition of the original jurisdiction of the Sandiganbayan. Under Section 4(a), the following offenses are specifically enumerated: violations of R.A. No. 3019, as amended, R.A. No. 1379, and Chapter II, Section 2, Title VII of the Revised Penal Code. In order for the Sandiganbayan to acquire jurisdiction over the said offenses, the latter must be committed by, among others, officials of the executive branch occupying positions of regional director and higher, otherwise classified as Grade 27 and higher, of the Compensation and Position Classification Act of 1989. However, the law is not devoid of exceptions. Those that are classified as Grade 26 and below may still fall within the jurisdiction of the Sandiganbayan provided that they hold the positions thus enumerated by the same law. Particularly and exclusively enumerated are provincial governors, vice-governors, members of the sangguniang panlalawigan, and provincial treasurers, assessors, engineers, and other provincial department heads; city mayors, vice-mayors, members of the sangguniang panlungsod, city treasurers, assessors, engineers , and other city department heads; officials of the diplomatic service occupying the position as consul and higher; Philippine army and air force colonels, naval captains, and all officers of higher rank; PNP chief superintendent and PNP officers of higher rank; City and provincial prosecutors and their assistants, and officials and prosecutors in the Office of the Ombudsman and special prosecutor; and presidents, directors or trustees, or managers of government-owned or controlled corporations, state universities or educational institutions or foundations. In connection therewith, Section 4(b) of the same law provides that other offenses or felonies committed by public officials and employees mentioned in subsection (a) in relation to their office also fall under the jurisdiction of the Sandiganbayan. By simple analogy, applying the provisions of the pertinent law, respondent Amante, being a member of the Sangguniang Panlungsod at the time of the alleged commission of an offense in relation to her office, falls within the original jurisdiction of the Sandiganbayan. However, the Sandiganbayan, in its Resolution, dismissed the case with the following ratiocination: x x x the ruling of the Supreme Court in the Inding case, stating that the Congress' act of specifically including the public officials therein mentioned, obviously intended cases mentioned in Section 4 (a) of P.D. No. 1606, as amended by Section 2 of R.A. No. 7975, when committed by the officials enumerated in (1)(a) to (g) thereof, regardless of their salary grades, to be tried by the Sandiganbayan. Obviously, the Court was referring to cases involving violation of R.A. No. 3019, R.A. No. 1379 and Chapter II, Section 2, Title VII of the Revised Penal Code only because they are the specific cases mentioned in Section 4 (a) of P.D. No. 1606 as amended, so that when they are committed even by public officials below salary grade '27', provided they belong to the enumeration, jurisdiction would fall under the Sandiganbayan. When the offense committed however, falls under Section 4(b) or 4(c) of P.D. No. 1606 as amended, it should be emphasized that the general qualification that the public official must belong to grade '27' is a requirement so that the Sandiganbayan could exercise original jurisdiction over him. Otherwise, jurisdiction would fall to the proper regional or municipal trial court.

11

In the case at bar, the accused is a Sangguniang Panlungsod member, a position with salary grade '26'. Her office is included in the enumerated public officials in Section 4(a) (1) (a) to (g) of P.D. No. 1606 as amended by Section 2 of R.A. No. 7975. However, she is charged with violation of Section 89 of The Auditing Code of the w:st="on"Philippines which is not a case falling under Section 4(a) but under Section 4(b) of P.D. No. 1606 as amended. This being the case, the principle declared in Inding is not applicable in the case at bar because as stated, the charge must involve a violation of R.A. No. 3019, R.A. No. 1379 or Chapter II, Section 2, Title VII of the Revised Penal Code. Therefore, in the instant case, even if the position of the accused is one of those enumerated public officials under Section 4(a)(1)(a) to (g), since she is being prosecuted of an offense not mentioned in the aforesaid section, the general qualification that accused must be a public official occupying a position with salary grade '27' is a requirement before this Court could exercise jurisdiction over her. And since the accused occupied a public office with salary grade 26, then she is not covered by the jurisdiction of the Sandiganbayan. Petitioner is correct in disputing the above ruling of the Sandiganbayan. Central to the discussion of the Sandiganbayan is the case of Inding v. Sandiganbayan[16] where this Court ruled that the officials enumerated in (a) to (g) of Section 4(a)(1) of P. D. No. 1606, as amended are included within the original jurisdiction of the Sandiganbayan regardless of salary grade. According to petitioner, the Inding case did not categorically nor implicitly constrict or confine the application of the enumeration provided for under Section 4(a)(1) of P.D. No. 1606, as amended, exclusively to cases where the offense charged is either a violation of R.A. No. 3019, R.A. No. 1379, or Chapter II, Section 2, Title VII of the Revised Penal Code. This observation is true in light of the facts contained in the said case. In the Inding case, the public official involved was a member of the Sangguniang Panlungsod with Salary Grade 25 and was charged with violation of R.A. No. 3019. In ruling that the Sandiganbayan had jurisdiction over the said public official, this Court concentrated its disquisition on the provisions contained in Section 4(a)(1) of P.D. No. 1606, as amended, where the offenses involved are specifically enumerated and not on Section 4(b) where offenses or felonies involved are those that are in relation to the public officials' office. Section 4(b) of P.D. No. 1606, as amended, provides that: b. Other offenses or felonies committed by public officials and employees mentioned in subsection (a) of this section in relation to their office. A simple analysis after a plain reading of the above provision shows that those public officials enumerated in Section 4(a) of P.D. No. 1606, as amended, may not only be charged in the Sandiganbayan with violations of R.A. No. 3019, R.A. No. 1379 or Chapter II, Section 2, Title VII of the Revised Penal Code, but also with other offenses or felonies in relation to their office. The said other offenses and felonies are broad in scope but are limited only to those that are committed in relation to the public official or employee's office. This Court had ruled that as long as the offense charged in the information is intimately connected with the office and is alleged to have been perpetrated while the accused was in the performance, though improper or irregular, of his official functions, there being no personal motive to commit the crime and had the accused not have committed it had he not held the aforesaid office, the accused is held to have been indicted for an offense committed in relation to his office.[17] Thus, in the case of Lacson v. Executive Secretary,[18] where the crime involved was murder, this Court held that: The phrase other offenses or felonies is too broad as to include the crime of murder, provided it was committed in relation to the accuseds official functions. Thus, under said paragraph b, what determines the Sandiganbayans jurisdiction is the official position or rank of the offender that is, whether he is one of those public officers or employees enumerated in paragraph a of Section 4. x x x. Also, in the case Alarilla v. Sandiganbayan,[19] where the public official was charged with grave threats, this Court ruled: x x x In the case at bar, the amended information contained allegations that the accused, petitioner herein, took advantage of his official functions as municipal mayor of Meycauayan, Bulacan when he committed the crime of grave threats as defined in Article 282 of the Revised Penal Code against complainant Simeon G. Legaspi, a municipal councilor. The Office of the Special Prosecutor charged petitioner with aiming a gun at and threatening to kill Legaspi during a public hearing, after the latter had rendered a privilege speech critical of petitioners administration. Clearly, based on such allegations, the crime charged is intimately connected with the discharge of petitioners official functions. This was elaborated upon by public respondent in its April 25, 1997 resolution wherein it held that the accused was performing his official duty as municipal mayor when he attended said public hearing and that accuseds violent act was precipitated by complainants criticism of his administration as the mayor or chief executive of the municipality, during the latters privilege speech. It was his response to private complainants attack to his office. If he was not the mayor, he would not have been irritated or angered by whatever private complainant might have said during said privilege speech. Thus, based on the allegations in the information, the Sandiganbayan correctly assumed jurisdiction over the case. Proceeding from the above rulings of this Court, a close reading of the Information filed against respondent Amante for violation of The Auditing Code of the w:st="on"Philippines reveals that the said offense was committed in relation to her office, making her fall under Section 4(b) of P.D. No. 1606, as amended. According to the assailed Resolution of the Sandiganbayan, if the intention of the law had been to extend the application of the exceptions to the other cases over which the Sandiganbayan could assert jurisdiction, then there would have been no need to distinguish between violations of R.A. No. 3019, R.A. No. 1379 or Chapter II, Section 2, Title VII of the Revised Penal Code on the one hand, and other offenses or felonies committed by public officials and employees in relation to their office on the other. The said reasoning is misleading because a distinction apparently exists. In the offenses involved in Section 4(a), it is not disputed that public office is essential as an element of the said offenses themselves, while in those offenses and felonies involved in Section 4(b), it is enough that the said offenses and felonies were committed in relation to the public officials or employees' office. In expounding the meaning of offenses deemed to have been committed in relation to office, this Court held: In Sanchez v. Demetriou *227 SCRA 627 (1993)+, the Court elaborated on the scope and reach of the term offense committed in relation to *an accuseds+ office by referring to the principle laid down in Montilla v. Hilario [90 Phil 49 (1951)], and to an exception to that principle which was recognized in People v. Montejo [108 Phil 613 (1960)]. The principle set out in Montilla v. Hilario is that an offense may be considered as committed in relation to the accuseds office if the offense cannot exist without the office such that the office *is+ a constituent element of the crime x x x. In People v. Montejo, the Court, through Chief Justice Concepcion, said that although public office is not an element of the crime of murder in *the+ abstract, the facts in a particular case m ay show that x x x the offense therein charged is intimately connected with *the accuseds+ respective offices and was perpetrated while they were in the performance, though improper or irregular, of their official functions. Indeed, [the accused] had no personal motive to commit the crime and they would not have committed it had they not held their aforesaid offices. x x x[20]

Moreover, it is beyond clarity that the same provision of Section 4(b) does not mention any qualification as to the public officials involved. It simply stated, public officials and employees mentioned in subsection (a) of the same section. Therefore, it refers to those public officials with Salary Grade 27 and above, except those specifically enumerated. It is a well-settled principle of legal hermeneutics that words of a statute will be interpreted in their natural, plain and ordinary acceptation and signification,[21] unless it is evident that the legislature intended a technical or special legal meaning to those words.[22] The intention of the lawmakers who are, ordinarily, untrained philologists and lexicographers to use statutory phraseology in such a manner is always presumed.[23] WHEREFORE, the Petition dated April 20, 2005 is hereby GRANTED and the Resolution of the Sandiganbayan (Third Division) dated February 28, 2005 is NULLIFIED and SET ASIDE. Consequently, let the case be REMANDED to the Sandiganbayan for further proceedings. SO ORDERED.

12

HANNAH EUNICE D. SERANA vs SANDIGANBAYAN --------------------------------------------------x DECISION REYES, R.T., J.: CAN the Sandiganbayan try a government scholar** accused, along with her brother, of swindling government funds? MAAARI bang litisin ng Sandiganbayan ang isang iskolar ng bayan, at ang kanyang kapatid, na kapwa pinararatangan ng estafa ng pera ng bayan? The jurisdictional question is posed in this petition for certiorari assailing the Resolutions[1] of the Sandiganbayan, Fifth Division, denying petitioners motion to quash the information and her motion for reconsideration. The Antecedents Petitioner Hannah Eunice D. Serana was a senior student of the University of the Philippines-Cebu. A student of a state university is known as a government scholar. She was appointed by then President Joseph Estrada on style="font-size: 14pt; line-height: 150%;" lang="EN-GB"December 21, 1999 as a student regent of UP, to serve a one-year term starting style="font-size: 14pt; line-height: 150%;" lang="EN-GB"January 1, 2000 and ending on style="font-size: 14pt; line-height: 150%;" lang="ENGB"December 31, 2000. In the early part of 2000, petitioner discussed with President Estrada the renovation of Vinzons Hall Annex in UP Diliman.[2] On style="font-size: 14pt; line-height: 150%;" lang="EN-GB"September 4, 2000, petitioner, with her siblings and relatives, registered with the Securities and Exchange Commission the Office of the Student Regent Foundation, Inc. (OSRFI).[3] One of the projects of the OSRFI was the renovation of the Vinzons Hall Annex.[4] President Estrada gave Fifteen Million Pesos (P15,000,000.00) to the OSRFI as financial assistance for the proposed renovation. The source of the funds, according to the information, was the Office of the President. The renovation of Vinzons Hall Annex failed to materialize.[5] The succeeding student regent, Kristine Clare Bugayong, and Christine Jill De Guzman, Secretary General of the KASAMA sa U.P., a system-wide alliance of student councils within the state university, consequently filed a complaint for Malversation of Public Funds and Property with the Office of the Ombudsman.[6] On July 3, 2003, the Ombudsman, after due investigation, found probable cause to indict petitioner and her brother Jade Ian D. Serana for estafa, docketed as Criminal Case No. 27819 of the Sandiganbayan.[7] The Information reads: The undersigned Special Prosecution Officer style="" lang="EN-GB"III, Office of the Special Prosecutor, hereby accuses HANNAH EUNICE D. SERANA and style="" lang="ENGB"JADE IAN D. SERANA of the crime of Estafa, defined and penalized under Paragraph 2(a), Article 315 of the Revised Penal Code, as amended committed as follows: That on October, 24, 2000, or sometime prior or subsequent thereto, in Quezon City, Metro Manila, Philippines, and within the jurisdiction of this Honorable Court, abovenamed accused, HANNAH EUNICE D. SERANA, a high-ranking public officer, being then the Student Regent of the University of the Philippines, Diliman, Quezon City, while in the performance of her official functions, committing the offense in relation to her office and taking advantage of her position, with intent to gain, conspiring with her brother, style="" lang="EN-GB"JADE IAN D. SERANA, a private individual, did then and there wilfully, unlawfully and feloniously defraud the government by falsely and fraudulently representing to former President Joseph Ejercito Estrada that the renovation of the Vinzons Hall of the University of the Philippines will be renovated and renamed as President Joseph Ejercito Estrada Student Hall, and for which purpose accused HANNAH EUNICE D. SERANA requested the amount of FIFTEEN style="" lang="EN-GB"MILLION PESOS (P15,000,000.00), Philippine Currency, from the Office of the President, and the latter relying and believing on said false pretenses and misrepresentation gave and delivered to said accused Land Bank Check No. 91353 dated October 24, 2000 in the amount of FIFstyle="" lang="EN-GB"TEEN MILLION PESOS (P15,000,000.00), which check was subsequently encashed by accused Jade Ian D. Serana on October 25, 2000 and misappropriated for their personal use and benefit, and despite repeated demands made upon the accused for them to return aforesaid amount, the said accused failed and refused to do so to the damage and prejudice of the government in the aforesaid amount. CONTRARY TO LAW. (Underscoring supplied) Petitioner moved to quash the information. She claimed that the Sandiganbayan does not have any jurisdiction over the offense charged or over her person, in her capacity as UP student regent. Petitioner claimed that Republic Act (R.A.) No. 3019, as amended by R.A. No. 8249, enumerates the crimes or offenses over which the Sandiganbayan has jurisdiction.[8] It has no jurisdiction over the crime of estafa.[9] It only has jurisdiction over crimes covered by Title style="font-size: 14pt; line-height: 150%;" lang="EN-GB"VII, Chapter II, Section 2 (Crimes Committed by Public Officers), Book II of the Revised Penal Code (RPC). Estafa falling under Title X, Chapter VI (Crimes Against Property), Book II of the RPC is not within the Sandiganbayans jurisdiction. She also argued that it was President Estrada, not the government, that was duped. Even assuming that she received the P15,000,000.00, that amount came from Estrada, not from the coffers of the government.[10] Petitioner likewise posited that the Sandiganbayan had no jurisdiction over her person. As a student regent, she was not a public officer since she merely represented her peers, in contrast to the other regents who held their positions in an ex officio capacity. She added that she was a simple student and did not receive any salary as a student regent. She further contended that she had no power or authority to receive monies or funds. Such power was vested with the Board of Regents (BOR) as a whole. Since it was not alleged in the information that it was among her functions or duties to receive funds, or that the crime was committed in connection with her official functions, the same is beyond the jurisdiction of the Sandiganbayan citing the case of Soller v. Sandiganbayan.[11] The Ombudsman opposed the motion.[12] It disputed petitioners interpretation of the law. Section 4(b) of Presidential Decree (P.D.) No. 1606 clearly contains the catch-all phrase in relation to office, thus, the Sandiganbayan has jurisdiction over the charges against petitioner. In the same breath, the prosecution countered that the source of the money is a matter of defense. It should be threshed out during a full-blown trial.[13] According to the Ombudsman, petitioner, despite her protestations, was a public officer. As a member of the BOR, she had the general powers of administration and exercised the corporate powers of UP. Based on Mechems definition of a public office, petitioners stance that she was not compensated, hence, not a public officer, is erroneous. Compensation is not an essential part of public office. Parenthetically, compensation has been interpreted to include allowances. By this definition, petitioner was compensated.[14] Sandiganbayan Disposition

13

In a Resolution dated style="font-size: 14pt; line-height: 150%;" lang="EN-GB"November 14, 2003, the Sandiganbayan denied petitioners motion for lack of merit.[15] It ratiocinated: The focal point in controversy is the jurisdiction of the Sandiganbayan over this case. It is extremely erroneous to hold that only criminal offenses covered by Chapter II, Section 2, Title style=""VII, Book II of the Revised Penal Code are within the jurisdiction of this Court. As correctly pointed out by the prosecution, Section 4(b) of R.A. 8249 provides that the Sandiganbayan also has jurisdiction over other offenses committed by public officials and employees in relation to their office. From this provision, there is no single doubt that this Court has jurisdiction over the offense of estafa committed by a public official in relation to his office. Accused-movants claim that being merely a member in representation of the student body, she was never a public officer since she never received any compensation nor does she fall under Salary Grade 27, is of no moment, in view of the express provision of Section 4 of Republic Act No. 8249 which provides: Sec. 4. Jurisdiction The Sandiganbayan shall exercise exclusive original jurisdiction in all cases involving: (A) x x x

(1) Officials of the executive branch occupying the positions of regional director and higher, otherwise classified as Grade 27 and higher, of the Compensation and Position Classification Act of 1989 (Republic Act No. 6758), specifically including: xxxx (g) Presidents, directors or trustees, or managers of government-owned or controlled corporations, state universities or educational institutions or foundations. (Italics supplied) It is very clear from the aforequoted provision that the Sandiganbayan has original exclusive jurisdiction over all offenses involving the officials enumerated in subsection (g), irrespective of their salary grades, because the primordial consideration in the inclusion of these officials is the nature of their responsibilities and functions. Is accused-movant included in the contemplated provision of law? A meticulous review of the existing Charter of the University of the Philippines reveals that the Board of Regents, to which accused-movant belongs, exclusively exercises the general powers of administration and corporate powers in the university, such as: 1) To receive and appropriate to the ends specified by law such sums as may be provided by law for the support of the university; 2) To prescribe rules for its own government and to enact for the government of the university such general ordinances and regulations, not contrary to law, as are consistent with the purposes of the university; and 3) To appoint, on recommendation of the President of the University, professors, instructors, lecturers and other employees of the University; to fix their compensation, hours of service, and such other duties and conditions as it may deem proper; to grant to them in its discretion leave of absence under such regulations as it may promulgate, any other provisions of law to the contrary notwithstanding, and to remove them for cause after an investigation and hearing shall have been had. It is well-established in corporation law that the corporation can act only through its board of directors, or board of trustees in the case of non-stock corporations. The board of directors or trustees, therefore, is the governing body of the corporation. It is unmistakably evident that the Board of Regents of the University of the style=""Philippines is performing functions similar to those of the Board of Trustees of a non-stock corporation. This draws to fore the conclusion that being a member of such board, accused-movant undoubtedly falls within the category of public officials upon whom this Court is vested with original exclusive jurisdiction, regardless of the fact that she does not occupy a position classified as Salary Grade 27 or higher under the Compensation and Position Classification Act of 1989. Finally, this court finds that accused-movants contention that the same of P15 Million was received from former President Estrada and not from the coffers of the government, is a matter a defense that should be properly ventilated during the trial on the merits of this case.[16] On style="font-size: 14pt; line-height: 150%;" lang="EN-GB"November 19, 2003, petitioner filed a motion for reconsideration.[17] The motion was denied with finality in a Resolution dated style="font-size: 14pt; line-height: 150%;" lang="EN-GB"February 4, 2004.[18] Issue Petitioner is now before this Court, contending that THE RESPONstyle="font-size: 14pt; line-height: 150%;" lang="EN-GB"DENT COURT COMMITTED GRAVE ABUSE OF DISCRETION AMOUNTING TO Lstyle="font-size: 14pt; line-height: 150%;" lang="EN-GB"ACK style="font-size: 14pt; line-height: 150%;" lang="EN-GB"AND/OR EXCESS OF JURISDICTION IN NOT QUASHING THE INFORMATION style="font-size: 14pt; line-height: 150%;" lang="EN-GB"AND DISMISING THE CASE NOstyle="font-size: 14pt; lineheight: 150%;" lang="EN-GB"TWITHSTANDING THAT IS style="font-size: 14pt; line-height: 150%;" lang="EN-GB"HAS NO JURISDICTION OVER THE OFFENSE CHARGED IN THE INFORMATION.[19] In her discussion, she reiterates her four-fold argument below, namely: (a) the Sandiganbayan has no jurisdiction over estafa; (b) petitioner is not a public officer with Salary Grade 27 and she paid her tuition fees; (c) the offense charged was not committed in relation to her office; (d) the funds in question personally came from President Estrada, not from the government. Our Ruling The petition cannot be granted. Preliminarily, the denial of a motion to quash is not correctible by certiorari. We would ordinarily dismiss this petition for certiorari outright on procedural grounds. Well-established is the rule that when a motion to quash in a criminal case is denied, the remedy is not a petition for certiorari, but for petitioners to go to trial, without prejudice to reiterating the special defenses invoked in their motion to quash.[20] Remedial measures as regards interlocutory orders, such as a motion to quash, are frowned upon and often dismissed.[21] The evident reason for this rule is to avoid multiplicity of appeals in a single action.[22] In Newsweek, Inc. v. Intermediate Appellate Court,[23] the Court clearly explained and illustrated the rule and the exceptions, thus:

14

As a general rule, an order denying a motion to dismiss is merely interlocutory and cannot be subject of appeal until final judgment or order is rendered. (Sec. 2 of Rule 41). The ordinary procedure to be followed in such a case is to file an answer, go to trial and if the decision is adverse, reiterate the issue on appeal from the final judgment. The same rule applies to an order denying a motion to quash, except that instead of filing an answer a plea is entered and no appeal lies from a judgment of acquittal. This general rule is subject to certain exceptions. If the court, in denying the motion to dismiss or motion to quash, acts without or in excess of jurisdiction or with grave abuse of discretion, then certiorari or prohibition lies. The reason is that it would be unfair to require the defendant or accused to undergo the ordeal and expense of a trial if the court has no jurisdiction over the subject matter or offense, or is not the court of proper venue, or if the denial of the motion to dismiss or motion to quash is made with grave abuse of discretion or a whimsical and capricious exercise of judgment. In such cases, the ordinary remedy of appeal cannot be plain and adequate. The following are a few examples of the exceptions to the general rule. In De Jesus v. Garcia (19 SCRA 554), upon the denial of a motion to dismiss based on lack of jurisdiction over the subject matter, this Court granted the petition for certiorari and prohibition against the City Court of Manila and directed the respondent court to dismiss the case. In Lopez v. City Judge (18 SCRA 616), upon the denial of a motion to quash based on lack of jurisdiction over the offense, this Court granted the petition for prohibition and enjoined the respondent court from further proceeding in the case.

In Enriquez v. Macadaeg (84 Phil. 674), upon the denial of a motion to dismiss based on improper venue, this Court granted the petition for prohibition and enjoined the respondent judge from taking cognizance of the case except to dismiss the same. In Manalo v. Mariano (69 SCRA 80), upon the denial of a motion to dismiss based on bar by prior judgment, this Court granted the petition for certiorari and directed the respondent judge to dismiss the case. In Yuviengco v. Dacuycuy (105 SCRA 668), upon the denial of a motion to dismiss based on the Statute of Frauds, this Court granted the petition for certiorari and dismissed the amended complaint. In Tacas v. Cariaso (72 SCRA 527), this Court granted the petition for certiorari after the motion to quash based on double jeopardy was denied by respondent judge and ordered him to desist from further action in the criminal case except to dismiss the same. In People v. Ramos (83 SCRA 11), the order denying the motion to quash based on prescription was set aside on certiorari and the criminal case was dismissed by this Court.[24] We do not find the Sandiganbayan to have committed a grave abuse of discretion. The jurisdiction of the Sandiganbayan is set by P.D. No. 1606, as amended, not by R.A. No. 3019, as amended. We first address petitioners contention that the jurisdiction of the Sandiganbayan is determined by Section 4 of R.A. No. 30 19 (The Anti-Graft and Corrupt Practices Act, as amended). We note that petitioner refers to Section 4 of the said law yet quotes Section 4 of P.D. No. 1606, as amended, in her motion to quash before the Sandiganbayan.[25] She repeats the reference in the instant petition for certiorari[26] and in her memorandum of authorities.[27]

We cannot bring ourselves to write this off as a mere clerical or typographical error. It bears stressing that petitioner repeated this claim twice despite corrections made by the Sandiganbayan.[28] Her claim has no basis in law. It is P.D. No. 1606, as amended, rather than R.A. No. 3019, as amended, that determines the jurisdiction of the Sandiganbayan. A brief legislative history of the statute creating the Sandiganbayan is in order. The Sandiganbayan was created by P.D. No. 1486, promulgated by then President Ferdinand E. Marcos on June 11, 1978. It was promulgated to attain the highest norms of official conduct required of public officers and employees, based on the concept that public officers and employees shall serve with the highest degree of responsibility, integrity, loyalty and efficiency and shall remain at all times accountable to the people.[29] P.D. No. 1486 was, in turn, amended by P.D. No. 1606 which was promulgated on December 10, 1978. P.D. No. 1606 expanded the jurisdiction of the Sandiganbayan.[30] P.D. No. 1606 was later amended by P.D. No. 1861 on March 23, 1983, further altering the Sandiganbayan jurisdiction. R.A. No. 7975 approved on March 30, 1995 made succeeding amendments to P.D. No. 1606, which was again amended on February 5, 1997 by R.A. No. 8249. Section 4 of R.A. No. 8249 further modified the jurisdiction of the Sandiganbayan. As it now stands, the Sandiganbayan has jurisdiction over the following: Sec. 4. Jurisdiction. - The Sandiganbayan shall exercise exclusive original jurisdiction in all cases involving: A. Violations of Republic Act No. 3019, as amended, other known as the Anti-Graft and Corrupt Practices Act, Republic Act No. 1379, and Chapter II, Section 2, Title VII, Book II of the Revised Penal Code, where one or more of the accused are officials occupying the following positions in the government, whether in a permanent, acting or interim capacity, at the time of the commission of the offense: (1) Officials of the executive branch occupying the positions of regional director and higher, otherwise classified as Grade 27 and higher, of the Compensation and Position Classification Act of 989 (Republic Act No. 6758), specifically including: (a) heads; (b) (c) City mayor, vice-mayors, members of the sangguniang panlungsod, city treasurers, assessors, engineers, and other city department heads; Provincial governors, vice-governors, members of the sangguniang panlalawigan, and provincial treasurers, assessors, engineers, and other city department

Officials of the diplomatic service occupying the position of consul and higher; (d) (e) Philippine army and air force colonels, naval captains, and all officers of higher rank; Officers of the Philippine National Police while occupying the position of provincial director and those holding the rank of senior superintended or higher;

(f)

City and provincial prosecutors and their assistants, and officials and prosecutors in the Office of the Ombudsman and special prosecutor;

15

(g) (2) (3) (4) (5)

Presidents, directors or trustees, or managers of government-owned or controlled corporations, state universities or educational institutions or foundations. Members of Congress and officials thereof classified as Grade 27 and up under the Compensation and Position Classification Act of 1989; Members of the judiciary without prejudice to the provisions of the Constitution; Chairmen and members of Constitutional Commission, without prejudice to the provisions of the Constitution; and All other national and local officials classified as Grade 27 and higher under the Compensation and Position Classification Act of 1989.

B. Other offenses of felonies whether simple or complexed with other crimes committed by the public officials and employees mentioned in subsection a of this section in relation to their office. C. Civil and criminal cases filed pursuant to and in connection with Executive Order Nos. 1, 2, 14 and 14-A, issued in 1986.

In cases where none of the accused are occupying positions corresponding to Salary Grade 27 or higher, as prescribed in the said Republic Act No. 6758, or military and PNP officer mentioned above, exclusive original jurisdiction thereof shall be vested in the proper regional court, metropolitan trial court, municipal trial court, and municipal circuit trial court, as the case may be, pursuant to their respective jurisdictions as provided in Batas Pambansa Blg. 129, as amended. The Sandiganbayan shall exercise exclusive appellate jurisdiction over final judgments, resolutions or order of regional trial courts whether in the exercise of their own original jurisdiction or of their appellate jurisdiction as herein provided. The Sandiganbayan shall have exclusive original jurisdiction over petitions for the issuance of the writs of mandamus, prohibition, certiorari, habeas corpus, injunctions, and other ancillary writs and processes in aid of its appellate jurisdiction and over petitions of similar nature, including quo warranto, arising or that may arise in cases filed or which may be filed under Executive Order Nos. 1, 2, 14 and 14-A, issued in 1986: Provided, That the jurisdiction over these petitions shall not be exclusive of the Supreme Court. The procedure prescribed in Batas Pambansa Blg. 129, as well as the implementing rules that the Supreme Court has promulgated and may thereafter promulgate, relative to appeals/petitions for review to the Court of Appeals, shall apply to appeals and petitions for review filed with the Sandiganbayan. In all cases elevated to the Sandiganbayan and from the Sandiganbayan to the Supreme Court, the Office of the Ombudsman, through its special prosecutor, shall represent the People of the Philippines, except in cases filed pursuant to Executive Order Nos. 1, 2, 14 and 14-A, issued in 1986. In case private individuals are charged as co-principals, accomplices or accessories with the public officers or employees, including those employed in governmentowned or controlled corporations, they shall be tried jointly with said public officers and employees in the proper courts which shall exercise exclusive jurisdiction over them. Any provisions of law or Rules of Court to the contrary notwithstanding, the criminal action and the corresponding civil action for the recovery of civil liability shall, at all times, be simultaneously instituted with, and jointly determined in, the same proceeding by the Sandiganbayan or the appropriate courts, the filing of the criminal action being deemed to necessarily carry with it the filing of the civil action, and no right to reserve the filing such civil action separately from the criminal action shall be recognized: Provided, however, That where the civil action had heretofore been filed separately but judgment therein has not yet been rendered, and the criminal case is hereafter filed with the Sandiganbayan or the appropriate court, said civil action shall be transferred to the Sandiganbayan or the appropriate court, as the case may be, for consolidation and joint determination with the criminal action, otherwise the separate civil action shall be deemed abandoned. Upon the other hand, R.A. No. 3019 is a penal statute approved on August 17, 1960. The said law represses certain acts of public officers and private persons alike which constitute graft or corrupt practices or which may lead thereto.[31] Pursuant to Section 10 of R.A. No. 3019, all prosecutions for violation of the said law should be filed with the Sandiganbayan.[32] R.A. No. 3019 does not contain an enumeration of the cases over which the Sandiganbayan has jurisdiction. In fact, Section 4 of R.A. No. 3019 erroneously cited by petitioner, deals not with the jurisdiction of the Sandiganbayan but with prohibition on private individuals. We quote: Section 4. Prohibition on private individuals. (a) It shall be unlawful for any person having family or close personal relation with any public official to capitalize or exploit or take advantage of such family or close personal relation by directly or indirectly requesting or receiving any present, gift or material or pecuniary advantage from any other person having some business, transaction, application, request or contract with the government, in which such public official has to intervene. Family relation shall include the spouse or relatives by consanguinity or affinity in the third civil degree. The word close personal relation shall include close personal friendship, social and fraternal connections, and professional employment all giving rise to intimacy which assures free access to such public officer. (b) It shall be unlawful for any person knowingly to induce or cause any public official to commit any of the offenses defined in Section 3 hereof. In fine, the two statutes differ in that P.D. No. 1606, as amended, defines the jurisdiction of the Sandiganbayan while R.A. No. 3019, as amended, defines graft and corrupt practices and provides for their penalties. Sandiganbayan has jurisdiction over the offense of estafa. Relying on Section 4 of P.D. No. 1606, petitioner contends that estafa is not among those crimes cognizable by the Sandiganbayan. We note that in hoisting this argument, petitioner isolated the first paragraph of Section 4 of P.D. No. 1606, without regard to the succeeding paragraphs of the said provision. The rule is well-established in this jurisdiction that statutes should receive a sensible construction so as to avoid an unjust or an absurd conclusion.[33] Interpretatio talis in ambiguis semper fienda est, ut evitetur inconveniens et absurdum. Where there is ambiguity, such interpretation as will avoid inconvenience and absurdity is to be adopted. Kung saan mayroong kalabuan, ang pagpapaliwanag ay hindi dapat maging mahirap at katawa-tawa. Every section, provision or clause of the statute must be expounded by reference to each other in order to arrive at the effect contemplated by the legislature.[34] The intention of the legislator must be ascertained from the whole text of the law and every part of the act is to be taken into view.[35] In other words, petitioners interpretation lies in direct opposition to the rule that a statute must be interpreted as a whole under the principle that the best interpreter of a statute is the statute itself.[36] Optima statuti interpretatrix est ipsum statutum. Ang isang batas ay marapat na bigyan ng kahulugan sa kanyang kabuuan sa ilalim ng prinsipyo na ang pinakamainam na interpretasyon ay ang mismong batas. Section 4(B) of P.D. No. 1606 reads:

16

B. Other offenses or felonies whether simple or complexed with other crimes committed by the public officials and employees mentioned in subsection a of this section in relation to their office. Evidently, the Sandiganbayan has jurisdiction over other felonies committed by public officials in relation to their office. We see no plausible or sensible reason to exclude estafa as one of the offenses included in Section 4(B) of P.D. No. 1606. Plainly, estafa is one of those other felonies. The jurisdiction is simply subject to the twin requirements that (a) the offense is committed by public officials and employees mentioned in Section 4(A) of P.D. No. 1606, as amended, and that (b) the offense is committed in relation to their office. In Perlas, Jr. v. People,[37] the Court had occasion to explain that the Sandiganbayan has jurisdiction over an indictment for estafa versus a director of the National Parks Development Committee, a government instrumentality. The Court held then:

The National Parks Development Committee was created originally as an Executive Committee on January 14, 1963, for the development of the Quezon Memorial, Luneta and other national parks (Executive Order No. 30). It was later designated as the National Parks Development Committee (NPDC) on February 7, 1974 (E.O. No. 69). On January 9, 1966, Mrs. Imelda R. Marcos and Teodoro F. Valencia were designated Chairman and Vice-Chairman respectively (E.O. No. 3). Despite an attempt to transfer it to the Bureau of Forest Development, Department of Natural Resources, on December 1, 1975 (Letter of Implementation No. 39, issued pursuant to PD No. 830, dated November 27, 1975), the NPDC has remained under the Office of the President (E.O. No. 709, dated July 27, 1981). Since 1977 to 1981, the annual appropriations decrees listed NPDC as a regular government agency under the Office of the President and allotments for its maintenance and operating expenses were issued direct to NPDC (Exh. 10-A, Perlas, Item Nos. 2, 3). The Sandiganbayans jurisdiction over estafa was reiterated with greater firmness in Bondoc v. Sandiganbayan.[38] Pertinent parts of the Courts ruling in Bondoc read: Furthermore, it is not legally possible to transfer Bondocs cases to the Regional Trial Court, for the simple reason that th e latter would not have jurisdiction over the offenses. As already above intimated, the inability of the Sandiganbayan to hold a joint trial of Bondocs cases and those of the government employees separately charged for the same crimes, has not altered the nature of the offenses charged, as estafa thru falsification punishable by penalties higher than prision correccional or imprisonment of six years, or a fine of P6,000.00, committed by government employees in conspiracy with private persons, including Bondoc. These crimes are within the exclusive, original jurisdiction of the Sandiganbayan. They simply cannot be taken cognizance of by the regular courts, apart from the fact that even if the cases could be so transferred, a joint trial would nonetheless not be possible. Petitioner UP student regent is a public officer. Petitioner also contends that she is not a public officer. She does not receive any salary or remuneration as a UP student regent. This is not the first or likely the last time that We will be called upon to define a public officer. In Khan, Jr. v. Office of the Ombudsman, We ruled that it is difficult to pin down the definition of a public officer.[39] The 1987 Constitution does not define who are public officers. Rather, the varied definitions and concepts are found in different statutes and jurisprudence. In Aparri v. Court of Appeals,[40] the Court held that: A public office is the right, authority, and duty created and conferred by law, by which for a given period, either fixed by law or enduring at the pleasure of the creating power, an individual is invested with some portion of the sovereign functions of the government, to be exercise by him for the benefit of the public ([Mechem Public Offices and Officers,] Sec. 1). The right to hold a public office under our political system is therefore not a natural right. It exists, when it exists at all only because and by virtue of some law expressly or impliedly creating and conferring it (Mechem Ibid., Sec. 64). There is no such thing as a vested interest or an estate in an office, or even an absolute right to hold office. Excepting constitutional offices which provide for special immunity as regards salary and tenure, no one can be said to have any vested right in an office or its salary (42 Am. Jur. 881). In Laurel v. Desierto,[41] the Court adopted the definition of Mechem of a public office: A public office is the right, authority and duty, created and conferred by law, by which, for a given period, either fixed by law or enduring at the pleasure of the creating power, an individual is invested with some portion of the sovereign functions of the government, to be exercised by him for the benefit of the public. The individual so invested is a public officer.[42] Petitioner claims that she is not a public officer with Salary Grade 27; she is, in fact, a regular tuition fee-paying student. This is likewise bereft of merit. It is not only the salary grade that determines the jurisdiction of the Sandiganbayan. The Sandiganbayan also has jurisdiction over other officers enumerated in P.D. No. 1606. In Geduspan v. People,[43] We held that while the first part of Section 4(A) covers only officials with Salary Grade 27 and higher, its second part specifically includes other executive officials whose positions may not be of Salary Grade 27 and higher but who are by express provision of law placed under the jurisdiction of the said court. Petitioner falls under the jurisdiction of the Sandiganbayan as she is placed there by express provision of law.[44] Section 4(A)(1)(g) of P.D. No. 1606 explictly vested the Sandiganbayan with jurisdiction over Presidents, directors or trustees, or managers of government-owned or controlled corporations, state universities or educational institutions or foundations. Petitioner falls under this category. As the Sandiganbayan pointed out, the BOR performs functions similar to those of a board of trustees of a non-stock corporation.[45] By express mandate of law, petitioner is, indeed, a public officer as contemplated by P.D. No. 1606. Moreover, it is well established that compensation is not an essential element of public office.[46] At most, it is merely incidental to the public office.[47] Delegation of sovereign functions is essential in the public office. An investment in an individual of some portion of the sovereign functions of the government, to be exercised by him for the benefit of the public makes one a public officer.[48] The administration of the UP is a sovereign function in line with Article XIV of the Constitution. UP performs a legitimate governmental function by providing advanced instruction in literature, philosophy, the sciences, and arts, and giving professional and technical training.[49] Moreover, UP is maintained by the Government and it declares no dividends and is not a corporation created for profit.[50] The offense charged was committed in relation to public office, according to the Information. Petitioner likewise argues that even assuming that she is a public officer, the Sandiganbayan would still not have jurisdiction over the offense because it was not committed in relation to her office.

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According to petitioner, she had no power or authority to act without the approval of the BOR. She adds there was no Board Resolution issued by the BOR authorizing her to contract with then President Estrada; and that her acts were not ratified by the governing body of the state university. Resultantly, her act was done in a private capacity and not in relation to public office. It is axiomatic that jurisdiction is determined by the averments in the information.[51] More than that, jurisdiction is not affected by the pleas or the theories set up by defendant or respondent in an answer, a motion to dismiss, or a motion to quash.[52] Otherwise, jurisdiction would become dependent almost entirely upon the whims of defendant or respondent.[53] In the case at bench, the information alleged, in no uncertain terms that petitioner, being then a student regent of U.P., while in the performance of her official functions, committing the offense in relation to her office and taking advantage of her position, with intent to gain, conspiring with her brother, style="font-size: 14pt; line-height: 150%;" lang="EN-GB"JADE IAN D. style="font-size: 14pt; line-height: 150%;" lang="EN-GB"SERANA, a private individual, did then and there wilfully, unlawfully and feloniously defraud the government x x x. (Underscoring supplied) Clearly, there was no grave abuse of discretion on the part of the Sandiganbayan when it did not quash the information based on this ground. Source of funds is a defense that should be raised during trial on the merits. It is contended anew that the amount came from President Estradas private funds and not from the government coffers. Petitioner insists the charge has no leg to stand on. We cannot agree. The information alleges that the funds came from the Office of the President and not its then occupant, President Joseph Ejercito Estrada. Under the information, it is averred that petitioner requested the amount of Fifteen Million Pesos (P15,000,000.00), Philippine Currency, from the Office of the President, and the latter relying and believing on said false pretenses and misrepresentation gave and delivered to said accused Land Bank Check No. 91353 dated October 24, 2000 in the amount of Fifteen Million Pesos (P15,000,000.00). Again, the Court sustains the Sandiganbayan observation that the source of the P15,000,000 is a matter of defense that should be ventilated during the trial on the merits of the instant case.[54] A lawyer owes candor, fairness and honesty to the Court. As a parting note, petitioners counsel, Renato G. dela Cruz, misrepresented his reference to Section 4 of P.D. No. 1606 as a quotation from Section 4 of R.A. No. 3019. A review of his motion to quash, the instant petition for certiorari and his memorandum, unveils the misquotation. We urge petitioners counsel to observe Canon 10 of the Code of Professional Responsibility, specifically Rule 10.02 of the Rules stating that a lawyer shall not misquote or misrepresent. The Court stressed the importance of this rule in Pangan v. Ramos,[55] where Atty Dionisio D. Ramos used the name Pedro D.D. Ramos in connection with a criminal case. The Court ruled that Atty. Ramos resorted to deception by using a name different from that with which he was authorized. We severely reprimanded Atty. Ramos and warned that a repetition may warrant suspension or disbarment.[56] We admonish petitioners counsel to be more careful and accurate in his citation. A lawyers conduct before the court should be characterized by candor and fairness.[57] The administration of justice would gravely suffer if lawyers do not act with complete candor and honesty before the courts.[58] WHEREFORE, the petition is DENIED for lack of merit. SO ORDERED.

E. JURISDICTION OF THE OMBUDSMAN [G.R. No. 149311. February 11, 2005] THE DEPARTMENT OF JUSTICE, through SECRETARY HERNANDO PEREZ, THE NATIONAL BUREAU OF INVESTIGATION through DIRECTOR REYNALDO WYCOCO, STATE PROSECUTORS LEO B. DACERA III, MISAEL M. LADAGA AND MARY JOSEPHINE P. LAZARO, petitioners, vs. HON. HERMOGENES R. LIWAG, in his capacity as Presiding Judge Branch 55, Regional Trial Court, Manila, PANFILO M. LACSON, MICHAEL RAY B. AQUINO, respondents. DECISION AZCUNA, J.: This is a petition for certiorari and prohibition filed by the Department of Justice (DOJ), and the National Bureau of Investigation (NBI) under it, seeking to challenge the Order dated June 22, 2001 and the Writ of Preliminary Injunction dated June 25, 2001 issued by the late Judge Hermogenes R. Liwag of Branch 55 of the Regional Trial Court of Manila in Civil Case No. 01-100934. The facts are as follows: Alleging that she was a former undercover agent of the Presidential Anti-Organized Crime Task Force (PAOCTF) and the Philippine National Police (PNP) Narcotics Group, Mary Ong filed a complaint-affidavit on January 8, 2001 before the Ombudsman against PNP General Panfilo M. Lacson, PNP Colonel Michael Ray B. Aquino, other highranking officials of the PNP, and several private individuals. Her complaint-affidavit gave rise to separate cases involving different offenses imputed to respondents Lacson and Aquino. The cases were docketed as OMB Case Nos. 4-01-00-76, 4-01-00-77, 4-01-00-80, 4-01-00-81, 4-01-00-82, and 4-01-00-84. The Ombudsman found the complaint-affidavit of Mary Ong sufficient in form and substance and thus required the respondents therein to file their counter-affidavits on the charges. On February 28, 2001, said respondents submitted their counter-affidavits and prayed that the charges against them be dismissed. Subsequently, on March 9, 2001, Mary Ong and other witnesses executed sworn statements before the NBI, alleging the same facts and circumstances revealed by Mary Ong in her complaint-affidavit before the Ombudsman.[1] NBI Director Reynaldo Wycoco, in a letter dated May 4, 2001 addressed to then Secretary of Justice Hernando Perez, recommended the investigation of Lacson, Aquino, other PNP officials, and private individuals for the following alleged crimes: a.) kidnapping for ransom of Zeng Jia Xuan, Hong Zhen Quiao, Zeng Kang Pang, James Wong and Wong Kam Chong; b.) murder of Wong Kam Chong; and c.) kidnapping for ransom and murder of Chong Hiu Ming.[2] In the said letter, Director Wycoco likewise manifested that this recommendation was made after taking the sworn statements of Mary Ong and other witnesses such as Chong Kam Fai, Zeng Kang Pang, and Quenna Yuet Yuet. The sworn statements of these witnesses were attached to the letter.[3] On May 7, 2001, a panel of prosecutors from the DOJ sent a subpoena to Lacson, Aquino and the other persons named in the witnesses sworn statements. Lacson and Aquino received the subpoena on May 8, 2001. The subpoena directed them to submit their counter-affidavits and controverting evidence at the scheduled preliminary investigation on the complaint filed by the NBI on May 18, 2001 at the DOJ Multi-Purpose Hall. However, Lacson and Aquino, through their counsel, manifested in a letter dated May 18, 2001, that the DOJ panel of prosecutors should dismiss the complaint filed therewith by Mary Ong since there are complaints pending before the Ombudsman alleging a similar set of facts against the same respondents. Furthermore, they claimed that according to the Courts ruling in Uy v. Sandiganbayan,[4] the

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Ombudsman has primary jurisdiction over criminal cases cognizable by the Sandiganbayan and, in the exercise of this primary jurisdiction, he may take over, at any stage, from any investigatory agency of Government, the investigation of such cases involving public officials, including police and military officials such as private respondents.[5] The DOJ construed the aforesaid letter as a motion to dismiss and, on May 28, 2001, denied the dismissal of the cases before it through an Order that stated the following as basis of the denial: It appearing that the subject letter is essentially a motion to dismiss which is not allowed under the Revised Rules of Criminal Procedure[;] It appearing further that respondents rank and/or civil service classification has no bearing in the determination of jurisdiction as the crimes charg ed herein do not involve violation of the Anti-Graft and Corrupt Practices Act, Unlawfully Acquired Property [or] Bribery, nor are they related to respondents discharge of their official duties; It appearing finally that paragraph 2 of the Joint Circular of the Office of the Ombudsman and the Department of Justice No. 95-001 dated October 5, 1995, provides that offenses committed not in relation to office and cognizable by the regular courts shall be investigated and prosecuted by the Office of the Provincial/City Prosecutor which shall rule thereon with finality;[6] On the very same day that the DOJ issued the aforesaid Order, the Solicitor General received a copy of a petition for prohibition filed by Lacson and Aquino before the Regional Trial Court (RTC) of Manila. In the said petition for prohibition, Lacson and Aquino maintained that the DOJ has no jurisdiction to conduct a preliminary investigation on the complaints submitted by Mary Ong and the other witnesses. They argued that by conducting a preliminary investigation, the DOJ was violating the Ombudsmans mandate of having the primary and exclusive jurisdiction to investigate criminal cases cognizable by the Sandiganbayan. Again, they relied on Uy v. Sandiganbayan to bolster their claim. On June 22, 2001, Judge Liwag issued the Order herein assailed prohibiting the Department of Justice from conducting the preliminary investigation against Lacson and Aquino. A Writ of Preliminary Injunction was likewise issued by the trial court. The dispositive portion of the Order reads as follows: WHEREFORE, premises considered, the Petition for Prohibition is hereby GRANTED, and accordingly a Writ of Preliminary Injunction is hereby ISSUED, enjoining the respondents and their subordinates, agents[,] and other persons acting in their behalf, individually and collectively, from conducting a preliminary investigation in IS No. 2001-402, insofar as petitioners here are concerned, and directing the petitioners to file their counter-affidavits in said case until such time that the Office of the Ombudsman shall have disclaimed jurisdiction over the offenses subject matter of the investigations before it, or until such Office shall have categorized the said offenses as being committed by the petitioners not in relation to their respective offices. Let the corresponding Writ of Preliminary Injunction, therefore, issue without bond, as there is no showing whatsoever in the pleadings of the parties that the respondents will suffer any injury by reason of the issuance of the writ prayed for, in accordance with Section 4(b), Rule 58 of the Rules of Civil Procedure. SO ORDERED. [7] Hence, this petition was filed before this Court by the DOJ, through then Secretary Hernando Perez, the NBI, through Director Reynaldo Wycoco, and the panel of prosecutors designated by the DOJ to conduct the preliminary investigation of I.S. No. 2001-402. In their petition, they raise the following issues: I PUBLIC RESPONDENT COMMITTED GRAVE ABUSE OF DISCRETION IN DISREGARDING THE CRYSTAL CLEAR AUTHORITY OF PETITIONERS DOJ AND THE PANEL OF STATE PROSECUTORS TO CONDUCT PRELIMINARY INVESTIGATION PURSUANT TO ADMINISTRATIVE ORDER NO. 08, SERIES OF 1990 OF THE OFFICE OF THE OMBUDSMAN AND SECTION 4 OF RULE 112 OF THE RULES OF COURT. II PUBLIC RESPONDENT COMMITTED GRAVE ABUSE OF DISCRETION IN RULING THAT THE OFFICE OF THE OMBUDSMAN HAS TAKEN OVER THE NBI COMPLAINT FILED WITH THE DOJ; AND IN IGNORING THE FACT THAT PRIVATE RESPONDENTS FAILED TO AVAIL OF AN ADEQUATE ADMINISTRATIVE REMEDY BEFORE THE FILING OF A PETITION FOR PROHIBITION. III PUBLIC RESPONDENT COMMITTED GRAVE ABUSE OF DISCRETION IN CONSIDERING THE NBI COMPLAINT FILED WITH THE DOJ AND THE COMPLAINT-AFFIDAVIT FILED BY MARY ONG BEFORE THE OFFICE OF THE OMBUDSMAN AS INVOLVING ABSOLUTELY THE SAME OFFENSES, RESPONDENTS AND ALLEGED VICTIMS. IV PUBLIC RESPONDENT COMMITTED GRAVE ABUSE OF DISCRETION IN GRANTING RELIEF TO RESPONDENT MICHAEL RAY B. AQUINO DESPITE THE GLARING FACT THAT HE IS CHARGED WITH SEPARATE AND DISTINCT OFFENSES BEFORE THE OFFICE OF THE OMBUDSMAN AND THE DOJ. V PUBLIC RESPONDENT COMMITTED GRAVE ABUSE OF DISCRETION IN PREJUDGING THE MAIN CASE FOR PROHIBITION BY GRANTING THE SAME DESPITE THE FACT THAT HEARINGS IN THE CASE WERE ONLY HELD FOR THE PURPOSE OF DETERMINING THE MERIT OF THE PRAYER FOR THE ISSUANCE OF A WRIT OF PRELIMINARY INJUNCTION.[8] A perusal of the issues raised reveals that the present petition puts forth one central question to be resolved: whether or not the DOJ has jurisdiction to conduct a preliminary investigation despite the pendency before the Ombudsman of a complaint involving the same accused, facts, and circumstances. The addition of other names in the second proceedings does not alter the nature thereof as being principally directed against the respondents herein in connection with substantially the same set of facts alleged. First, however, a threshold question has to be resolved. Petitioners came to this Court without filing a motion before the trial court to reconsider the assailed Order. They maintain that it was imperative for them to do so for the sake of the speedy administration of justice and that this is all the more compelling, in this case, considering that this involves the high-ranking officers of the PNP and the crimes being charged have already attracted nationwide attention. Indeed, this Court finds that time is of the essence in this case. At stake here may not only be the safety of witnesses who risked life and limb to give their statements to the authorities, but also the rights of the respondents, who may need to clear their names and reputations of the accusations against them. Procedural laws are adopted not as ends in themselves but as means conducive to the realization of justice. The rules of procedure are not to be applied when such application would clearly defeat the very rationale for their conception and existence.[9] Now, to the merits. The authority of the DOJ to conduct a preliminary investigation is based on the provisions of the 1987 Administrative Code under Chapter I, Title III, Book IV, governing the DOJ, which states: Section 1. Declaration of policy. It is the declared policy of the State to provide the government with a principal law agency which shall be both its legal counsel and prosecution arm; administer the criminal justice system in accordance with the accepted processes thereof consisting in the investigation of the crimes, prosecution of offenders and administration of the correctional system; . . . Section 3. Powers and Functions. To accomplish its mandate, the Department shall have the following powers and functions: ... (2) Investigate the commission of crimes, prosecute offenders and administer the probation and correction system; ... Furthermore, Section 1 of the Presidential Decree 1275, effective April 11, 1978, provides: Section 1. Creation of the National Prosecution Service; Supervision and Control of the Secretary of Justice. There is hereby created and established a National Prosecution Service under the supervision and control of the Secretary of Justice, to be composed of the Prosecution Staff in the Office of the Secretary of Justice and such number of Regional State Prosecution Offices, and Provincial and City Fiscals Offices as are hereinafter provided, which shall be prim arily responsible for the investigation and prosecution of all cases involving violations of penal laws. Respondents Lacson and Aquino claim that the Ombudsman has primary jurisdiction over the cases filed against them, to the exclusion of any other investigatory agency of Government pursuant to law and existing jurisprudence. They rely on the doctrine in Uy v. Sandiganbayan aforementioned, and contend that the Ombudsman, in the exercise of the said primary jurisdiction, may take over, at any stage, from any investigatory agency of Government, the investigation of cases involving public officials, including police and military officials. They likewise claim that it should be deemed that the Ombudsman has already taken over the investigation of these cases, considering that there are already pending complaints filed therewith involving the same accused, facts and circumstances. Section 15, Republic Act No. 6640, known as the Ombudsman Act of 1989, provides: Sec. 15. Powers, Functions and Duties. The Office of the Ombudsman shall have the following powers, functions and duties:

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(1) Investigate and prosecute on its own or on complaint by any person, any act or omission of any public officer or employee, office or agency, when such act or omission appears to be illegal, unjust, improper or inefficient. It has primary jurisdiction over cases cognizable by the Sandiganbayan and, in the exercise of this primary jurisdiction, it may take over, at any stage, from any investigatory agency of Government, the investigation of such cases; .[10] The question is whether or not the Ombudsman has in effect taken over the investigation of the case or cases in question to the exclusion of other investigatory agencies, including the DOJ. In granting the petition for prohibition, RTC Judge Liwag gave the following rationale: Since the Ombudsman has taken hold of the situation of the parties in the exercise of its primary jurisdiction over the matter, it is the feeling of this Court that the respondents cannot insist on conducting a preliminary investigation on the same matter under the pretext of a shared and concurrent authority. In the final analysis, the resolution on the matter by the Ombudsman is final. In the preliminary investigation conducted by the Ombudsman itself, the other investigative agencies of the Government have no power and right to add an input into the Ombudsmans investigation. Only in matters where the other investigative agencies are expressly allowed by the Ombudsman to make preliminary investigation may such agencies conduct the investigation, subject to the final decision of the Ombudsman. That is the situation. It is not otherwise. To allow the respondents to meddle with the investigation of similar cases being investigated by the Ombudsman would put them to a higher plane than the source of their powers with respect to such cases. This is, of course, anathema to orderly judicial procedures. This is contrary to ordinary common sense. It would certainly be presumpt[u]ous, if not ridiculous, for the Department of Justice to be making recommendation as to its preliminary investigation to the Ombudsman in matters being handled by such Office itself. Such recommendation would be pre-emptive of the actions of the said Office. Such a situation must thus be disallowed. The public respondents capitalized on the fact that the Ombudsman may take over, at any stage, from any investigative agency of the Government, the investigation of cases involving public officials, including police and military officials such as the petitioners. It is the feeling of this Court that the respondents cannot find comfort in that provision of the law. That situation presupposes the conduct by other Government agencies of preliminary investigations involving public officials in cases not theretofore being taken cognizance of by the Ombudsman. If the Ombudsman, as in the case, has already taken hold of the situation of the parties, it cannot take over, at any stage of the proceedings, the investigation being conducted by another agency. It has the case before it. Rudimentary common sense and becoming respect for power and authority would thus require the respondents to desist from interfering with the case already handled by the Ombudsman. Indeed, as conceded by the respondents, they are deputized prosecutors by the Ombudsman. If that is so, and that is the truth, the exercise by the principal of the powers negates absolutely the exercise by the agents of a particular power and authority. The hierarchy of powers must be remembered. The principle of agency must be recalled.[11] Section 13, Article XI of the Constitution specifically vests in the Office of the Ombudsman the plenary power to investigate any malfeasance, misfeasance or non-feasance of public officers or employees.[12] To discharge its duty effectively, the Constitution endowed the Office of the Ombudsman with special features which puts it a notch above other grievance-handling, investigate bodies. First and foremost, it extended independence to the Ombudsman and insulated it from the intrusions of partisan politics. Thus, the Constitution provided for stringent qualification requirements for the selection of the Ombudsman and his deputies, i.e., they should be natural-born citizens, of recognized probity and independence and must not have been candidates for any elective office in the immediately preceding election.[13] The Ombudsman and his deputies were given the rank and salary equal to that of the Chairman and Members, respectively, of the Constitutional Commissions, with a prohibition for any decrease in their salary during their term of office.[14] They were given a fixed term of seven years, without reappointment.[15] Upon their cessation from office, they are prohibited from running for any elective office in the immediately succeeding election.[16] Finally, unlike other investigative bodies, the Constitution granted the Office of the Ombudsman fiscal autonomy.[17] Clearly, all these measures are intended to enhance the independence of the Office of the Ombudsman. The Office of the Ombudsman was likewise envisioned by the Constitution to serve as the principal and primary complaints and action center for the aggrieved layman baffled by the bureaucratic maze of procedures. For this purpose, it was granted more than the usual powers given to prosecutors. It was vested with the power to investigate complaints against a public office or officer on its own initiative, even without a formal complaint lodged before it.[18] It can inquire into acts of government agencies and public servants based on reports in the media and those which come to his attention through sources other than a complaint. The method of filing a complaint with the Ombudsman is direct, informal, speedy and inexpensive. All that may be required from a complainant is sufficient information detailing the illegal or improper acts complained of. The ordinary citizen, who has become increasingly dependent on public agencies, is put to minimal expense and difficulty in getting his complaint acted on by the Office of the Ombudsman. Vis--vis other prosecutors, the exercise by the Ombudsman of its power to investigate public officials is given preference over other bodies. As aforementioned, Congress itself acknowledged the significant role played by the Office of Ombudsman when it enacted Republic Act No. 6770. Section 15 (1) of said law gives the Ombudsman primary jurisdiction over cases cognizable by the Sandiganbayan and authorizes him to take over, at any stage, from any investigatory agency, the investigation of such cases. This power to take over a case at any time is not given to other investigative bodies. All this means that the power of the Ombudsman to investigate cases cognizable by the Sandiganbayan is not co-equal with other investigative bodies, such as the DOJ. The Ombudsman can delegate the power but the delegate cannot claim equal power. Clearly, therefore, while the DOJ has general jurisdiction to conduct preliminary investigation of cases involving violations of the Revised Penal Code, this general jurisdiction cannot diminish the plenary power and primary jurisdiction of the Ombudsman to investigate complaints specifically directed against public officers and employees. The Office of the Ombudsman is a constitutional creation. In contrast, the DOJ is an extension of the executive department, bereft of the constitutional independence granted to the Ombudsman. Petitioners cannot seek sanctuary in the doctrine of concurrent jurisdiction. While the doctrine of concurrent jurisdiction means equal jurisdiction to deal with the same subject matter,[19] the settled rule is that the body or agency that first takes cognizance of the complaint shall exercise jurisdiction to the exclusion of the others.[20] Thus, assuming there is concurrent jurisdiction between the Ombudsman and the DOJ in the conduct of preliminary investigation, this concurrence is not to be taken as an unrestrained freedom to file the same case before both bodies or be viewed as a contest between these bodies as to which will first complete the investigation. In the present case, it is the Ombudsman before whom the complaint was initially filed. Hence, it has the authority to proceed with the preliminary investigation to the exclusion of the DOJ. None of the cases previously decided by this Court involved a factual situation similar to that of the present case. In Cojuangco, Jr. v. Presidential Commission on Good Government (PCGG),[21] the Court upheld the special authority of the PCGG to conduct the preliminary investigation of ill-gotten wealth cases pursuant to Executive Order No. 1, issued by then President Aquino, creating the PCGG. While the Court emphasized in Cojuangco that the power of the Ombudsman to conduct a preliminary investigation over said cases is not exclusive but a shared authority, the complaints for the alleged misuse of coconut levy funds were filed directly with the PCGG. No complaint was filed with the Office of the Ombudsman. Moreover, a close scrutiny of said case will disclose that the Court recognized the primary, albeit shared, jurisdiction of the Ombudsman to investigate all ill-gotten wealth cases.[22] In fact, it ordered the PCGG to desist from proceeding with the preliminary investigation as it doubted the impartiality of the PCGG to conduct the investigation after it had previously caused the issuance of sequestration orders against petitioners assets. In Sanchez v. Demetriou,[23] the Presidential Anti-Crime Commission filed a complaint with the DOJ against petitioner Mayor Sanchez for the rape-slay of Sarmenta and the killing of Gomez. After the DOJ panel prosecutors conducted the preliminary investigation, a warrant of arrest was issued and the corresponding Informations were filed in court by the DOJ prosecutors. Petitioner claimed that it is only the Ombudsman who has the power to conduct investigation of cases involving public officers like him. The Court reiterated its previous ruling that the authority to investigate and prosecute illegal acts of public officers is not an exclusive authority of the Ombudsman but a shared authority. However, it will be noted that the complaint for preliminary investigation in that case was filed solely with the DOJ. In Aguinaldo v. Domagas,[24] a letter-complaint charging petitioners with sedition was filed with the Office of the Provincial Prosecutor in Cagayan. After investigation by the DOJ panel of prosecutors, the corresponding Information was filed in court. The pertinent issue raised by petitioners was whether the prosecutors can file the said Information without previous authority from the Ombudsman. The Court ruled in the affirmative and reiterated its ruling regarding the shared authority of the DOJ to investigate the case. Again, it should be noted that the complaint in that case was addressed solely to the provincial prosecutor. The same factual scenario obtains in the cases of Natividad v. Felix[25] and Honasan v. Panel of Investigating Prosecutors of the DOJ[26] where the letter-complaint against petitioners public officers were brought alone to the DOJ prosecutors for investigation. In sum, in none of the aforecited cases was the complaint filed ahead with the Office of the Ombudsman for preliminary investigation. Hence, there was no simultaneous exercise of power between two coordinate bodies and no risk of conflicting findings or orders. In stark contrast with the present case, Mary Ong filed a complaint against respondents initially with the Office of the Ombudsman for preliminary investigation which was immediately acted on by said Office. For reasons not readily apparent on the records, she thereafter refiled substantially the same complaint with the NBI and the DOJ. Not only this. The subsequent assumption of jurisdiction by the DOJ in the conduct of preliminary investigation over the cases filed against the respondents would not promote an orderly administration of justice. Although a preliminary investigation is not a trial, it is not a casual affair either. A preliminary investigation is an inquiry or proceeding for the purpose of determining whether there is sufficient ground to engender a well-founded belief that a crime has been committed and the respondent is probably guilty

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thereof and should be held for trial.[27] When one is hailed before an investigative body on specific charges, the very act of filing said complaint for preliminary investigation immediately exposes the respondent and his family to anxiety, humiliation and expense. To allow the same complaint to be filed successively before two or more investigative bodies would promote multiplicity of proceedings. It would also cause undue difficulties to the respondent who would have to appear and defend his position before every agency or body where the same complaint was filed. This would leave hapless litigants at a loss as to where to appear and plead their cause or defense. There is yet another undesirable consequence. There is the distinct possibility that the two bodies exercising jurisdiction at the same time would come up with conflicting resolutions regarding the guilt of the respondents. Finally, the second investigation would entail an unnecessary expenditure of public funds, and the use of valuable and limited resources of Government, in a duplication of proceedings already started with the Ombudsman. From all the foregoing, it is clear that petitioners have not shown any grave abuse of discretion tantamount to lack or excess of jurisdiction committed by the respondent Judge. WHEREFORE, the petition is DISMISSED. No costs. SO ORDERED. G.R. No. 163586 January 27, 2009 SHARON CASTRO, Petitioner, vs. HON. MERLIN DELORIA, as Presiding Judge, Regional Trial Court, Branch 65, Guimaras; the COA-Region VI, represented by its Director; and HON. COURT OF APPEALS, Respondents. DECISION AUSTRIA-MARTINEZ, J.: Before the Court is a Petition for Certiorari under Rule 65 of the Rules of Court filed by Sharon Castro (petitioner) to assail the July 22, 2003 Decision1 of the Court of Appeals (CA) which dismissed CA-G.R. SP No. 69350; and the March 26, 2004 CA Resolution2 which denied the motion for reconsideration. The facts are of record. On May 31, 2000, petitioner was charged by the Ombudsman before the Regional Trial Court (RTC), Branch 65, Guimaras, with Malversation of Public Funds, under an Information which reads, as follows: That on or about the 17th day of August 1998, and for sometime prior thereto, in the Municipality of Buenavista, Province of Guimaras, Philippines and within the jurisdiction of the this Honorable Court, abovenamed accused, a public officer, being the Revenue Officer I of the Bureau of Internal Revenue, Buenavista, Guimaras and as such, was in the custody and possession of public funds in the amount of P556,681.53, Philippine Currency, representing the value of her collections and other accountabilities, for which she is accountable by reason of the duties of her office, in such capacity and committing the offense in relation to office, taking advantage of her public position, with deliberate intent, and with intent to gain, did then and there willfully, unlawfully and feloniously appropriate, take, misappropriate, embezzle and convert to her own personal use and benefit said amount of P556,681.53, and despite notice and demands made upon her account for said public funds, she has failed to do so, to the damage and prejudice of the government. CONTRARY TO LAW.3 Petitioner pleaded NOT GUILTY when arraigned on February 16, 2001. On August 31, 2001, petitioner filed a Motion to Quash on the grounds of lack of jurisdiction and lack of authority of the Ombudsman to conduct the preliminary investigation and file the Information. Petitioner argued that the Information failed to allege her salary grade -- a material fact upon which depends the jurisdiction of the RTC. Citing Uy v. Sandiganbayan,4 petitioner further argued that as she was a public employee with salary grade 27, the case filed against her was cognizable by the RTC and may be investigated and prosecuted only by the public prosecutor, and not by the Ombudsman whose prosecutorial power was limited to cases cognizable by the Sandiganbayan.5 The RTC denied the Motion to Quash in an Order6 dated September 7, 2001. It held that the jurisdiction of the RTC over the case did not depend on the salary grade of petitioner, but on the penalty imposable upon the latter for the offense charged.7 Moreover, it sustained the prosecutorial authority of the Ombudsman in the case, pointing out that in Uy, upon motion for clarification filed by the Ombudsman, the Court set aside its August 9, 1999 Decision and issued a March 20, 2001 Resolution expressly recognizing the prosecutorial and investigatory authority of the Ombudsman in cases cognizable by the RTC. The RTC further held that the Motion to Quash was contrary to Sec. 1, Rule 117, for it was filed after petitioner pleaded not guilty under the Information.8 Petitioner filed a Motion for Reconsideration,9 which the RTC denied in its December 18, 2001 Order.10 Petitioner filed a petition for certiorari11 with the CA, but the latter dismissed the petition in the Decision under review. Petitioners motion for reconsideration12 was also denied. Hence, the present petition, confining the issues to the following: 1. Whether or not the Ombudsman, as of May 31, 2000, when the Information for Malvesation of Public Funds was instituted against the Petitioner, had the authority to file the same in light of this Supreme Courts ruling in the First "Uy vs. Sandiganbayan" case, which declared that the prosecutorial powers of the Ombudsman is limited to cases cognizable by the Sandiganbayan. 2. Whether or not the clarificatory Resolution issued by the Supreme Court dated February 22, 2001 in the Uy vs. Sandiganbayan case can be made applicable to the Petitioner-Accused, without violating the constitutional provision on ex-post facto laws and denial of the accused to due process.13 Petitioner contends that from the time of the promulgation on August 9, 1999 of the Decision of the Court in Uy up to the time of issuance on March 20, 2001 of the Resolution of the Court in the same case, the prevailing jurisprudence was that the Ombudsman had no prosecutorial powers over cases cognizable by the RTC. As the investigation and prosecution against petitioner was conducted by the Ombudsman beginning April 26, 2000, then the August 9, 1999 Decision in Uy was applicable, notwithstanding that the said decision was set aside in the March 20, 2001 Resolution of the Court in said case. Hence, the Information that was filed against petitioner was void for at that time the Ombudsman had no investigatory and prosecutorial powers over the case. The petition lacks merit. The petition calls to mind Office of the Ombudsman v. Enoc,14 wherein accused Ruben Enoc, et al. invoked the August 9, 1999 Decision of the Court in Uy15 in a motion to dismiss the 11 counts of malversation that were filed against them by the Ombudsman before the RTC. The RTC granted the motion but upon petition filed by the Ombudsman, the Court reversed the RTC and held: In turn, petitioner filed a Manifestation invoking the very same resolution promulgated on March 20, 2001 in Uy v. Sandiganbayan reconsidering the ruling that the prosecutory power of the Ombudsman extended only to cases cognizable by the Sandiganbayan. Indeed, this Court has reconsidered the said ruling and held that the Ombudsman has powers to prosecute not only graft cases within the jurisdiction of the Sandiganbayan but also those cognizable by the regular courts. It held: The power to investigate and to prosecute granted by law to the Ombudsman is plenary and unqualified. It pertains to any act or omission of any public officer or employee when such act or omission appears to be illegal, unjust, improper or inefficient. The law does not make a distinction between cases cognizable by the Sandiganbayan and those cognizable by regular courts. It has been held that the clause "any illegal act or omission of any public official" is broad enough to embrace any crime committed by a public officer or employee. The reference made by RA 6770 to cases cognizable by the Sandiganbayan, particularly in Section 15(1) giving the Ombudsman primary jurisdiction over cases cognizable by the Sandiganbayan, and Section 11(4) granting the Special Prosecutor the power to conduct preliminary investigation and prosecute criminal cases within the jurisdiction of the Sandiganbayan, should not be construed as confining the scope of the investigatory and prosecutory power of the Ombudsman to such cases. Section 15 of RA 6770 gives the Ombudsman primary jurisdiction over cases cognizable by the Sandiganbayan. The law defines such primary jurisdiction as authorizing the Ombudsman "to take over, at any stage, from any investigatory agency of the government, the investigation of such cases." The grant of this authority does not necessarily imply the exclusion from its jurisdiction of cases involving public officers and employees cognizable by other courts. The exercise by the Ombudsman of his primary jurisdiction over cases cognizable by the Sandiganbayan is not incompatible with the discharge of his duty to investigate and prosecute other offenses committed by public

21

officers and employees. Indeed, it must be stressed that the powers granted by the legislature to the Ombudsman are very broad and encompass all kinds of malfeasance, misfeasance and non-feasance committed by public officers and employees during their tenure of office. Moreover, the jurisdiction of the Office of the Ombudsman should not be equated with the limited authority of the Special Prosecutor under Section 11 of RA 6770. The Office of the Special Prosecutor is merely a component of the Office of the Ombudsman and may only act under the supervision and control and upon authority of the Ombudsman. Its power to conduct preliminary investigation and to prosecute is limited to criminal cases within the jurisdiction of the Sandiganbayan. Certainly, the lawmakers did not intend to confine the investigatory and prosecutory power of the Ombudsman to these types of cases. The Ombudsman is mandated by law to act on all complaints against officers and employees of the government and to enforce their administrative, civil and criminal liability in every case where the evidence warrants. To carry out this duty, the law allows him to utilize the personnel of his office and/or designate any fiscal, state prosecutor or lawyer in the government service to act as special investigator or prosecutor to assist in the investigation and prosecution of certain cases. Those designated or deputized to assist him work under his supervision and control. The law likewise allows him to direct the Special prosecutor to prosecute cases outside the Sandiganbayans jurisdiction in accordance with Section 11(4c) of RA 6770. We, therefore, hold that the Ombudsman has authority to investigate and prosecute Criminal Case Nos. 374(97) to 385(97) against respondents in the RTC, Branch 19 of Digos, Davao Del Sur even as this authority is not exclusive and is shared by him with the regular prosecutors. WHEREFORE, the order, dated October 7, 2000, of the Regional Trial Court, branch 19 of Digos, Davao del Sur is SET ASIDE and Criminal Case Nos. 374(97) to 385(97) are hereby REINSTATED and the Regional Trial Court is ORDERED to try and decide the same. (Emphasis supplied) Similarly relevant is the case of Office of Ombudsman v. Hon. Breva,16 in which, citing the August 9, 1999 Decision in Uy, the RTC dismissed a criminal complaint that was filed before it by the Ombudsman. The Court reversed the RTC, for, "given the Courts Uy ruling under its March 20, 2001 Resolution, the trial courts assailed Orders x x x are, in hindsight, without legal support and must, therefore, be set aside." It is settled, therefore, that the March 20, 2001 Resolution in Uy, that the Ombudsman has prosecutorial powers in cases cognizable by the RTC, extends even to criminal information filed or pending at the time when its August 9, 1999 Decision was the operative ruling on the issue. Petitioner would argue, however, that the March 20, 2001 Resolution in Uy cannot have retroactive effect, for otherwise it would amount to "an ex-post facto law, which is constitutionally proscribed."17 Petitioner is grasping at straws. A judicial interpretation of a statute, such as the Ombudsman Act, constitutes part of that law as of the date of its original passage. Such interpretation does not create a new law but construes a pre-existing one; it merely casts light upon the contemporaneous legislative intent of that law.18 Hence, the March 20, 2001 Resolution of the Court in Uy interpreting the Ombudsman Act is deemed part of the law as of the date of its effectivity on December 7, 1989. Where a judicial interpretation declares a law unconstitutional or abandons a doctrinal interpretation of such law, the Court, recognizing that acts may have been performed under the impression of the constitutionality of the law or the validity of its interpretation, has consistently held that such operative fact cannot be undone by the mere subsequent declaration of the nullity of the law or its interpretation; thus, the declaration can only have a prospective application.19 But where no law is invalidated nor doctrine abandoned, a judicial interpretation of the law should be deemed incorporated at the moment of its legislation.20 In the present case, the March 20, 2001 Resolution in Uy made no declaration of unconstitutionality of any law nor did it vacate a doctrine long held by the Court and relied upon by the public. Rather, it set aside an erroneous pubescent interpretation of the Ombudsman Act as expressed in the August 9, 1999 Decision in the same case. Its effect has therefore been held by the Court to reach back to validate investigatory and prosecutorial processes conducted by the Ombudsman, such as the filing of the Information against petitioner. With the foregoing disquisition, the second issue is rendered moot and academic. WHEREFORE, the petition is DISMISSED for lack of merit. No costs. SO ORDERED. F. REVIEW OF DECISIONS OF THE OMBUDSMAN LUWALHATI R. ANTONINO, Petitioner, - versus YNARES-SANTIAGO, J., Chairperson, style=""HON. OMBUDSMAN ANIANO A. DESIERTO, ROSALITA T. NUEZ, AUSTRIA-MARTINEZ, AUGUSTUS L. MOMONGAN, JUDGE ABEDNEGO O. ADRE, PEDRO G. NALANGAN, CHICO-NAZARIO, ASTERIA E. CRUZABRA, JULIO C. DIAZ and AGAPITO BORINAGA, NACHURA, and Respondents. REYES, JJ. Promulgated: December 18, 2008 x------------------------------------------------------------------------------------x G.R. No. 144492 Present:

DECISION NACHURA, J.:

Before this Court is a Petition for Certiorari[1] under Rule 65 of the Rules of Civil Procedure filed by petitioner, former Congresswoman Luwalhati R. Antonino (petitioner) of the First Congressional District of South Cotabato which includes General Santos City (city), assailing that portion of the Resolution[2] dated January 20, 1999 of the Office of the Ombudsman (Ombudsman) dismissing the case against private respondents, former city Mayor Rosalita T. Nuez (Mayor Nuez), Department of Environment and Natural Resources (DENR) Regional Executive Director for Region XI Augustus L. Momongan (Momongan), Regional Trial Court (RTC) Judge Abednego O. Adre (Judge Adre), former City Legal Officer Pedro G. Nalangan III (Nalangan), Register of Deeds Asteria E. Cruzabra (Cruzabra), Land Management Officer III of the Provincial Environment and Natural Resources Office (PENRO) of South Cotabato Julio C. Diaz (Diaz) and Regional Technical Director of the DENR for Region XI Agapito Borinaga (Borinaga) (respondents). The facts, as narrated by the Ombudsman, are as follows: Presidential Proclamation No. 168 was issued by then President Diosdado Macapagal on style=""October 3, 1963 (Record, pp. 23-24). The pertinent provision of which states that:

22

do hereby withdraw from sale or settlement and reserve for recreational and health resort site purposes, under the administration of the municipality of General Santos, subject to private rights, if any there be, a certain parcel of land of the public domain situated in the said municipality and more particularly described as follows: Mr-1160-D Municipal Reservation The Municipal Government of style=""General style=""Santos style=""Magsaysay style=""Park A parcel of land (as shown on plan Mr-1160-D) situated in the barrio of Dadiangas, style=""Municipality of style=""General Santos, style=""province of style=""Cotabato. x x x containing an area of 52,678 square meters. On January 22, 1968, Republic Act No. 5412 (Record, pp. 25-26), known as the Charter of the City of General Santos was enacted creating the City of General Santos where it is provided that The National Government hereby cedes to the City of General Santos the ownership and possession to all lands of the public domain within the city. Later, said Act was amended by Republic Act No. 6386 on August 16, 1971 (Record, pp. 27-28) wherein it read that The disposition of all lands of the public domain within the city shall be in accordance with the provisions of Commonwealth Act Numbered One hundred forty-one, as amended: Provided, That all incomes and receipts derived from such disposition shall accrue exclusively to the city as provided in this Act. On the other hand, the property subject of Presidential Proclamation No. 168 was thereafter subdivided into three lots, namely: Lot Y-1 with an area of 18,695 square meters, Lot X containing 15,020 square meters and Lot Y-2 with 18,963 square meters, or a total of 52,678 square meters which is still equivalent to the original area. However, on style=""February 25, 1983, former President Ferdinand E. Marcos issued Proclamation No. 2273 amending Proclamation No. 168 (Record, pp. 29-31), which provides that: do hereby exclude from the operation of Proclamation No. 168 dated October 3, 1963, which established the recreational and health resort reservation situated in the Municipality of General Santos, now General Santos City, Island of Mindanao, certain portions of the land embraced therein and declare the same open to disposition under the provisions of the Public Land Act, which parcels of land are more particularly described as follows: style=""Lot Y-1, MR-1160-D (style=""Magsaysay style=""Park) A PARCEL OF LAND (Lot Y-1, MR-1160-D, style=""Magsaysay style=""Park) situated in the style=""Municipality of style=""General Santos, now style=""General style=""Santos style=""City, style=""Island of style=""Mindanao. x x x containing an area of EIGHTEEN THOUSAND SIX HUNDRED NINETY-FIVE (18,695) SQUARE METERS. x x x style=""Lot Y-2, MR-1160-D (style=""Magsaysay style=""Park) A PARCEL OF LAND (Lot Y-2, MR-1160-D, style=""Magsaysay style=""Park) situated in the style=""Municipality of style=""General Santos, now style=""General style=""Santos style=""City, style=""Island of style=""Mindanao. x x x containing an area of EIGHTEEN THOUSAND NINE HUNDRED SIXTY-THREE (18,963) SQUARE METERS. x x x Thus, leaving only Lot X as that covered by Presidential Proclamation No. 168 and is therefore reserved for recreational and health resort site purposes. As a result of such exclusion, the Heirs of Cabalo Kusop applied for Free Patent with the District Land Office and consequently Certificates of Title were issued sometime in 1983. In 1984, two cases were filed by the local government of style=""General style=""Santos style=""City against the said Heirs of Kusop for Declaration of Nullity of Titles and, on the other hand, the Heirs of Kusop filed a case against the said local government for Injunction and Damages. The said three cases were consolidated before the style=""Regional style=""Trial style=""Court style=""of style=""General Santos style=""City, Branch 22, presided by respondent Judge Abednego Adre. On May 23, 1991, the Sangguniang Panlungsod of General Santos City passed Resolution No. 87, Series of 1991, entitled Resolution Approving the Compromise Agreement to be entered into by and between the City Government of General Santos represented by the City Mayor and the Heirs of Cabalo Kusop, re: Magsaysay Park (Record, pp. 1506-1507). Significant provisions of the said Compromise Agreement (Record, pp. 33-39) state that: 1. The subject matter of this agreement are Lots Y-1, MR-1160-D and Y-2, MR-1160-D with combined area of THIRTY-SEVEN THOUSAND SIX HUNDRED FIFTYEIGHT (37,658) SQUARE METERS, and from this the HEIRS AND BENEFICIARIES shall receive a total net area of TWENTY THOUSAND (20,000) SQUARE METERS and to the CITY shall pertain the remainder of SEVENTEEN THOUSAND SIX HUNDRED FIFTY-EIGHT (17,658) SQUARE METERS which if added to Lot X, MR-1160-D, previously donated to the CITY as stated in par. 7 of the WHEREAS clause, with an area of FIFTEEN THOUSAND AND TWENTY (15,020) SQUARE METERS (located in between Lots Y-1 and Y-2), the CITY shall retain a total area of THIRTY TWO THOUSAND SIX HUNDRED SEVENTY-EIGHT (32,678) SQUARE METERS. Said Compromise Agreement was signed by respondent City Mayor Rosalita Nuez, assisted by respondent Pepito Nalangan III, and the heirs and beneficiaries of Cabalo Kusop. As a consequence of the said Compromise Agreement, respondent Judge Abednego Adre issued an Order (Record, pp. 40-52), covering the three pending cases, on style=""May 6, 1992, the dispositive portion of which states: ACCORDINGLY, finding the foregoing Compromise Agreement in conformity with Article 6 in correlation with Article 1306 of th e Civil Code of the style=""Philippines, the same is hereby APPROVED and ADOPTED as judgment in these cases. The parties are enjoined to faithfully comply therewith. A Writ of Execution was accordingly issued on style=""November 28, 1995. However, on July 22, 1997, acting upon the Motion for Exclusion of an Extraneous Subject from the Coverage of the Judgment thereof and the Motion for Issuance of Clarificatory Order submitted by the Heirs of Cabalo Kusop and jointly by CENR Officer and Regional Technical Di rector of DENR, respectively, respondent Judge issued another Order [assailed RTC Order] (Record, pp. 53-59) in the above-cited three cases, stating that: ACCORDINGLY, based on all the foregoing facts, law and jurisprudence, the motion for exclusion of Lot X, MR-1160-D comprising an area of 15,020 SQUARE METERS is GRANTED. The movants heirs of Kusop are, however, enjoined to donate to the City of General Santos in keeping with the intent and spirit of the compromise agreement. On style=""July 23, 1997, the following private respondents applied for Miscellaneous Sales Patent over portions of Lot X, to be divided as follows (refer to affidavits, Record, pp. 60-75):

23

Applicants style="text-decoration: none;" 1. Mad Guaybar 2. Oliver Guaybar 3. Jonathan Guaybar 4. Alex Guaybar 5. Jack Guiwan 6. Nicolas Ynot 7. Carlito Flaviano III 8. Jolito Poralan 9. Miguela Cabi-ao 10. Jose Rommel Saludar 11. Joel Teves 12. Rico Altizo 13. Johnny Medillo 14. Martin Saycon 15. Arsenio delos Reyes, Jr. 16. Jose Bomez

Area applied - 999 sq. m.; - 999 sq. m.; - 999 sq. m.; - 999 sq. m.; - 999 sq. m.; - 999 sq. m.; - 999 sq. m.; - 999 sq. m.; - 999 sq. m.; - 999 sq. m.; - 999 sq. m.; - 999 sq. m.; - 999 sq. m.; - 999 sq. m.; - 510 sq. m.; and, - 524 sq. m.

The following day, style=""July 24, 1997, public respondent Cesar Jonillo, as Deputy Land Management Inspector, recommended for the approval of the survey authority requested by the above-named private respondents for Lot X (Record, p. 418). Within the same day, the Survey Authority was issued to private respondents by public respondent CENR Officer Renato Rivera (Record, p. 419). As a result of which, Lot X was subdivided into 16 lots (refer to subdivision plan, Record, p. 32). On August 2, 1997, respondent City Mayor Rosalita T. Nuez, assisted by respondent City Legal Officer Pedro Nalangan III issued 1st Indorsements (refer to application documents, Record, pp. 421-500) addressed to CENRO, DENR for portions of Lot X applied by private respondents and stated therein that this office interposes no objection to whatever legal proceedings your office may pursue on application covering portions thereof after the Regional Trial Court, General Santos City, Branch 22 excluded Lot X, MR-1160-D from the coverage of the Compromise Judgment dated May 6, 1992 per said courts order dated July 22, 1997. Thereupon, public respondents Cesar Jonillo and City Assessor Leonardo Dinopol, together with recommendation for approval from respondent Rivera, submitted an appraisal of lots X-1 to X-16 stating therein the appraisal amount of P100.00 per square meter and existing improvements of residential light house per lot with an appraised value ranging from P20,000.00 to P50,000.00 (refer to application papers, Record, pp. 421-500). Subsequently, on August 4, 1997, respondent Cesar Jonillo prepared a letter-report addressed to the Regional Executive Director of DENR for each of the sixteen (16) applicants recommending for the private sale of the subject lots to the above-named applicants-respondents, without public auction (refer to sample letter-report of recommendation in favor of Rico Altizo, Record, p. 77). Respondent CENR Officer, Renato Rivera, also issued recommendation letters for each of the sixteen applicants addressed to the PENR Officer for the approval of the appraisal of the subject lots and of the private sale (please refer to sample recommendation letter in favor of Rico Altiz[o], Record, p. 78). A notice of sale was issued by respondent Julio Diaz also on the same date stating therein that on style=""September 5, 1997 the subject lot/s will be sold (Record, p. 79). On style=""September 18, 1997, the following Certificates of Titles were issued by the Register of Deeds of General Santos City, respondent Asteria Cruzabra, which titles were also signed by respondent Augustus Momongan, as DENR Regional Executive Director, to wit: style="textstyle="textstyle="textName of Owner decoration: none;" decoration: decoration: none;" OCT No. none;" Record Lot No. Page No. style="text-decoration: none;" 1. Mad Guaybar P-6393-A X-1 80-82; 2. Oliver Guaybar 3. Jonathan Guaybar 4. Alex Guaybar 5. Jack Guiwan 6. Nicolas Ynot 7. Carlito Flaviano III P-6392 P-6389-A P-6393 P-6399 P-6388-A P-6389 X-2 X-3 X-4 X-5 X-6 X-7 83-85; 86-88; 89-91; 92-94; 95-97; 98-100;

24

8. Jolito Poralan 9. Miguela Cabi-ao 10. Jose Rommel Saludar 11. Joel Teves 12. Rico Altizo 13. Johnny Medillo 14. Martin Saycon 15. Arsenio delos Reyes 16. Jose Bomez

P-6391 P-6392-A P-6388 P-6396 P-6395 P-6390 P-6394-A P-6395-A P-6394

X-8 X-9 X-10 X-11 X-12 X-13 X-14 X-15 X-16

101-103; 104-106; 107-109; 110-112; 113-115; 116-117; 118-120; 121-123; 124-127.

Sometime on September 24 and 25, 1997, except for lots X-6, X-7, X-15 and X-16, the above-named registered owners sold their lots, through their attorney-in-fact, respondent Atty. Nilo Flaviano, to the AFP-Retirement and Separation Benefits System (AFP-RSBS) in the amount of Two Million Nine Hundred Ninety-Seven Thousand Pesos (P2,997,000.00) per 999 sq. m. lot (Record, pp. 127-150). Then, Transfer Certificate of Title Nos. T-81051 to 81062 were issued in the name of the vendee on style=""September 25, 1997 (Record, pp. 151-173). On the other hand, the registered owners of lot numbers X-6 and X-7 executed a Deed of Exchange with AFP-RSBS, represented by respondent Jose Ramiscal, Jr., consenting to the exchange of lots X-6 and X-7 with lots Y-1-A-1 and Y-1-A-2, respectively, the latter two lots being owned by AFP-RSBS (Record, pp. 175-178). While lots X15 and X-16 were exchanged with one office unit or condo unit to be given or ceded to respondent Nilo Flaviano (Record, pp. 179-182).[3]

Based on the foregoing, petitioner filed a verified complaint-affidavit[4] before the Ombudsman against the respondents together with Cesar Jonillo (Jonillo), Renato Rivera (Rivera), Mad Guaybar, Oliver Guaybar, Jonathan Guaybar, Alex Guaybar, Jack Guiwan, Carlito Flaviano III, Nicolas Ynot, Jolito Poralan, Miguela Cabi-ao, Jose Rommel Saludar, Joel Teves, Rico Altizo, Johnny Medillo, Martin Saycon, Arsenio de los Reyes, and Jose Bomez (Mad Guaybar and his companions), Gen. Jose Ramiscal, Jr. (Gen. Ramiscal), Wilfredo Pabalan (Pabalan), and Atty. Nilo Flaviano (Atty. Flaviano) (indicted) for violation of Paragraphs (e), (g) and (j), Section 3 of Republic Act (R.A.) No. 3019,[5] as amended, and for malversation of public funds or property through falsification of public documents. The Ombudsman's Ruling In the assailed Resolution dated January 20, 1999, the Ombudsman held that Mayor Nuez and Nalangan, among others, entered into the Compromise Agreement on behalf of the city and pursuant to the authority granted to them by the Sangguniang Panlungsod by virtue of Resolution No. 87; hence, it is not the sole responsibility of Mayor Nuez and Nalangan but of the entire Sangguniang Panlungsod. Moreover, the Ombudsman opined that the validity of the Compromise Agreement had been settled when the Office of the Solicitor General (OSG) and the RTC found it to be in order. The Ombudsman also ruled that the Order of Judge Adre was made in accordance with the facts of the case, while Diaz, Borinaga, Momongan and Cruzabra were found to have regularly performed their official functions. Accordingly, the charges against the respondents were dismissed. Thus, the case was disposed in this wise: WHEREFORE, PREMISES CONSIDERED, this Office finds and so holds that the following crimes were committed and that respondents, whose names appear below, are probably guilty thereof: 1. 2. CESAR JONILLO sixteen (16) counts of Falsification of public document to the sixteen (16) recommendation reports submitted; RENATO RIVERA sixteen (16) counts of Falsification of public document relative to the sixteen (16) reports submitted, all dated August 4, 1997;

3. MAD GUAYBAR, OLIVER GUAYBAR, JONATHAN GUAYBAR, ALEX GUAYBAR, JACK GUIWAN, CARLITO FLAVIANO III, NICOLAS YNOT, JOLITO PORALAN, MIGUELA CABI-AO, JOSE ROMMEL SALUDAR, JOEL TEVES, RICO ALTIZO, JOHNNY MED[I]LLO, MARTIN SAYCON, ARSENIO DE LOS REYES, and JOSE BOMEZ in conspiracy with public respondents CESAR JONILLO and RENATO RIVERA one (1) count each for private respondents and sixteen (16) counts each for public respondents for violation of Section 3(e) of RA 3019; 4. JOSE RAMISCAL, JR., WILFREDO PABALAN, NILO FLAVIANO as conspirators for twelve (12) counts of falsification of public documents relative to the twelve (12) unilateral Deeds of Sale; 5. MAD GUAYBAR, OLIVER GUAYBAR, JONATHAN GUAYBAR, ALEX GUAYBAR, JACK GUIWAN, JOLITO PORALAN, MIGUELA CABI-AO, JOSE ROMMEL SALUDAR, [J]OEL TEVES, RICO ALTIZO, JOHNNY MEDILLO, MARTIN SAYSON one (1) count each as conspirator in the falsification of public document relative to the corresponding unilateral Deed of Sale executed by their agent in their behalf; 6. JOSE RAMISCAL, JR., WILFREDO PABALAN and NILO FLAVIANO twelve (12) counts of violation of section 3(e) of RA 3019 for short-changing the government inn the correct amount of taxes due for the sale of Lot-X to AFP-RSBS; and 7. MAD GUAYBAR, OLIVER GUAYBAR, JONATHAN GUAYBAR, ALEX GUAYBAR, JACK GUIWAN, JOLITO PORALAN, MIGUELA CABI-AO, JOSE ROMMEL SALUDAR, [J]OEL TEVES, RICO ALTIZO, JOHNNY MEDILLO, MARTIN SAYSON one (1) count each of violation of section 3(e) of RA 3019 as conspirator in short-changing the government in the payment of taxes for the sale of Lot-X to AFP-RSBS. Let the herein attached Informations against aforementioned respondents be filed with the proper courts. Charges against respondents ROSALITA NUEZ, AUGUSTUS MOMONGAN, ABEDNEGO ADRE, ASTERIA CRUZABRA, PEDRO NALANGAN III, JULIO DIAZ and AGAPITO BORINAGA are hereby DISMISSED, without prejudice to the filing of criminal cases against private respondents, for offenses committed not in conspiracy with the herein public respondents, by the proper parties-in-interest. SO RESOLVED.[6]

On style="font-size: 14pt; line-height: 150%;"February 4, 2000, petitioner filed a Motion for Reconsideration which was, however, denied by the Ombudsman in his Order[7] dated style="font-size: 14pt; line-height: 150%;"April 26, 2000. The Ombudsman held that since the criminal Informations were already filed against the

25

aforementioned indicted and the cases were already pending before the Sandiganbayan and the regular courts of style="font-size: 14pt; line-height: 150%;"General style="font-size: 14pt; line-height: 150%;"Santos style="font-size: 14pt; line-height: 150%;"City, the Ombudsman had lost jurisdiction over the said case. The Sole Issue Hence, this Petition, on the sole ground that: THE OMBUDSMAN COMMITTED GRAVE ABUSE OF DISCRETION, AMOUNTING TO LACK OR IN EXCESS OF JURISDICTION IN THE EXERCISE OF HIS PROSECUTORY FUNCTIONS, BY DISMISSING THE CHARGES AGAINST THE RESPONDENTS DESPITE CLEAR AND CONVINCING EVIDENCE OF DIRECT PARTICIPATION AND INVOLVEMENT IN THE CONSPIRACY TO CHEAT AND DEFRAUD THE CITY GOVERNMENT OF GENERAL SANTOS CITY THROUGH THE ILLEGAL DISPOSITION OF LOT X OF THE MAGSAYSAY PARK IN VIOLATION OF LAW AND ITS CHARTER.[8]

Petitioner avers that the Ombudsman ignored substantial evidence pointing to the existence of a conspiracy among all the respondents and those indicted, which led to the illegal and fraudulent disposition of Lot X of the style="font-size: 14pt; line-height: 150%;"Magsaysay style="font-size: 14pt; line-height: 150%;"Park. To prove her claim of a grand conspiracy, petitioner outlines the individual participation, cooperation and involvement of each respondent, as follows: 1. The assailed RTC Order issued by Judge Adre on style="font-size: 14pt; line-height: 150%;"July 22, 1997 was part of the grand scheme and was made the basis for the filing of the miscellaneous sales applications of Mad Guaybar and his companions. The same Order was likewise used by Mayor Nuez and Nalangan as the reason for interposing no objection to the said applications. The assailed RTC Order was issued by Judge Adre almost five (5) years after his Judgment based on the Compromise Agreement had long become final; thus, it was issued with grave abuse of discretion and in gross ignorance of the law. Judge Adre, therefore, violated Section 3(e) of R.A. No. 3019. 2. Mayor Nuez and Nalangan knew or ought to have known, by reason of their respective offices and as administrators of the properties of the city, that Lot X of the style="font-size: 14pt; line-height: 150%;"Magsaysay style="font-size: 14pt; line-height: 150%;"Park is owned by the city and reserved as health and recreation site. Yet, Nalangan's Comment, filed before Judge Adre issued the assailed RTC Order, stated that per verification, there was no existing donation from the Heirs of Cabalo Kusop to the city. Likewise, in their 1st Indorsement dated style="font-size: 14pt; line-height: 150%;"August 2, 1997, instead of opposing the applications of Mad Guaybar and his companions, Mayor Nuez and Nalangan endorsed the same and interposed no objection thereto. Said Indorsement was part of the grand conspiracy and was utilized as a front for the resale of the said property to AFP-RSBS, to the injury of the city. Petitioner submits that Mayor Nuez and Nalangan also violated Section 3(e) of R.A. No. 3019. 3. After Mayor Nuez and Nalangan issued their 1st Indorsement on style="font-size: 14pt; line-height: 150%;"August 2, 1997 and after Jonillo submitted his falsified report on style="font-size: 14pt; line-height: 150%;"August 4, 1997, Diaz, on the same date, scheduled the sale of Lot X to Mad Guaybar and his companions on style="font-size: 14pt; line-height: 150%;"September 5, 1997. Thus, Diaz issued notices of sale of the subdivided lots of Lot X on style="font-size: 14pt; line-height: 150%;"September 5, 1997 without public auction and at the disadvantageous price recommended by Rivera. Therefore, Diaz, as a co-conspirator, should be similarly charged with Jonillo and Rivera for violation of Section 3(e) of R.A. No. 3019 and for falsification of public documents. 4. Borinaga, conspiring with Rivera, filed on style="font-size: 14pt; line-height: 150%;"June 9, 1997 the Motion for Issuance of a Clarificatory Order before Judge Adre, which led to the issuance by the latter of the assailed RTC Order. Borinaga and Rivera likewise represented to the RTC that upon verification, they did not find in the records any deed of donation executed by the Heirs of Cabalo Kusop. Borinaga should be held liable as an active participant in a grand scheme to defraud the city. 5. Momongan, by the nature of his office, knew that Lot X is not disposable and alienable and is, therefore, not a proper subject of a sales patent application. Despite such knowledge and based on the falsified reports of Jonillo and Rivera, Momongan allowed Lot X to be subdivided and sold to Mad Guaybar and his companions by approving their miscellaneous sales application and issuing the Original Certificates of Title (OCTs) covering the subdivided lots of Lot X. In sum, Momongan adopted as his own the false reports, and granted unwarranted benefit and advantage to Mad Guaybar and his companions, to the injury of the city. 6. While the function of Cruzabra in the registration of documents and titles may be considered as ministerial, the circumstances under which the titles were issued in the names of Mad Guaybar and his companions and eventually, in the name of AFP-RSBS, indicate that Cruzabra was aware and was part of the grand conspiracy to defraud the city. Each of the sixteen (16) OCTs was transcribed and signed by Cruzabra on style="font-size: 14pt; line-height: 150%;"September 22, 1997. On the same date, Atty. Flaviano claimed and received the owners' copies of the OCTs; Mad Guaybar and his companions executed a Joint Special Power of Attorney (SPA) authorizing Atty. Flaviano to be their attorney-in-fact, for the purpose of selling their respective lots; and Cruzabra registered and annotated said SPA in their respective titles. On style="font-size: 14pt; line-height: 150%;"September 25, 1997, Atty. Flaviano registered with Cruzabra twelve (12) Deeds of Absolute Sale in favor of AFP-RSBS, after paying the Bureau of Internal Revenue (BIR) on the same day the capital gains tax and documentary stamp tax due thereon. On the same day, Cruzabra canceled the OCTs and issued, in lieu thereof, twelve (12) Transfer Certificates of Title (TCTs) in favor of AFP-RSBS. The remaining four (4) lots were transferred and registered in the name of AFPRSBS on style="font-size: 14pt; line-height: 150%;"October 10, 1997 by virtue of deeds of exchange executed by the registered owners in favor of the former. Petitioner submits that Cruzabra could not have been unaware of the restrictions; instead, she allowed the transfer and registration of the said lots to AFP-RSBS so swiftly, that it could only be interpreted as part of the scheme to defraud the city.[9] In sum, petitioner ascribes to the Ombudsman grave abuse of discretion in the exercise of his investigatory and prosecutory functions, by completely ignoring and disregarding the pieces of substantial evidence which clearly establish the existence of a common design among the respondents and those indicted in the fraudulent sale and disposition of Lot X of the style="font-size: 14pt; line-height: 150%;"Magsaysay style="font-size: 14pt; line-height: 150%;"Park. On the other hand, respondents separately raise their respective defenses against petitioner's claims, as follows: 1. The Ombudsman, through the Office of the Special Prosecutor (OSP), contends that, in effect, petitioner is asking this Court to review the pieces of evidence gathered by the Ombudsman during the preliminary investigation. This is not proper. In Espinosa v. Office of the Ombudsman[10] and Young v. Office of the Ombudsman,[11] this Court accorded highest respect for the factual findings of the Ombudsman, absent a clear case of grave abuse of discretion. The OSP claims that the Ombudsman did not commit grave abuse of discretion because the respondents, based on their counter-affidavits, have valid and legal justifications, sufficient for the Ombudsman to exculpate them from the charges.[12] 2. Cruzabra avers that there is no showing that conspiracy exists between her and other respondents charged before the Ombudsman. Petitioner's allegations with respect to Cruzabra refer to recorded transactions which are legal acts. Such allegations did not discuss how the alleged conspiracy was committed; they are merely conjectures and bare allegations. Inasmuch as conspiracy cannot be presumed, and there is no convincing evidence to support such allegations, the Ombudsman did not commit grave abuse of discretion. Lastly, Cruzabra claims that the canceled OCTs do not contain any restriction to transfer the respective lots to AFP-RSBS. As such, Cruzabra submits that it would be most unfair if she would be made a part of the alleged conspiracy simply because she exercised her ministerial functions as Register of Deeds.[13] 3. Momongan alleges, among others, that as Regional Executive Director of the DENR, he is duly authorized to sign patents and reconstituted patents. Since the standard procedure and processes were complied with, Momongan simply relied on his subordinates and on their good faith. He argues that he acted in accordance with law, department guidelines, rules and regulations, and that to require him to scrutinize every phase of a report of a subordinate is a very tall order.[14]

26

4. Judge Adre manifests that in the Joint Resolution[15] of the Senate Committees on Accountability of Public Officers and Investigation (Blue Ribbon) and National Defense and Security, dated style="font-size: 14pt; line-height: 150%;"December 23, 1998, not one of the respondents was recommended for prosecution in connection with the irregularity involving the style="font-size: 14pt; line-height: 150%;"Magsaysay style="font-size: 14pt; line-height: 150%;"Park. Judge Adre claims that he acted properly, and even sought the opinion of the OSG before the Compromise Agreement was approved. However, Judge Adre narrated that due to the vagaries of politics, the judgment lay dormant, as no motion for execution was filed by then Mayor Adelbert Antonino, husband of petitioner, after Mayor Nuez lost in the elections. Subsequently, the writ was not issued as the Heirs of Cabalo Kusop did not execute any deed of donation in favor of the city. He declared that the RTC did not lose jurisdiction over the case when the Motions for Clarification and Exclusion were filed; thus, the issuance of the assailed RTC Order excluding Lot X and enjoining the Heirs of Cabalo Kusop from donating the same to the city in keeping with the intent and spirit of the compromise agreement, was proper.[16] 5. Borinaga posits that the Ombudsman's factual findings need not be disturbed, as they are not attended by grave abuse of discretion. He maintains that he acted in accordance with law; that as the Regional Technical Director is not required to go to the premises of the land subject of miscellaneous applications, and he may rely on the data submitted by the CENRO and reviewed by the PENRO.[17] Moreover, Borinaga argues that the Motion for Reconsideration of petitioner assailing the Ombudsman's Resolution was filed out of time.[18] The Certification[19] dated October 1, 2003, issued by Severo A. Sotto, Records Officer IV of the Office of the Ombudsman, shows that petitioner was personally served with a copy of the assailed Resolution on February 24, 1999 by Jose Ruel Bermejo, Process Server, and she filed her Motion for Reconsideration only on February 4, 2000. 6. Diaz opines that there is no substantial evidence to prove that he participated in a grand scheme to unlawfully dispose of the lots covered by Lot X. He vouches that when he issued the notice of sale, he did so on the basis of the requisite documents submitted to his office.[20] 7. Mayor Nuez and Nalangan contend that Mayor Nuez did not violate the Charter of the City, because when she entered into the Compromise Agreement with the Heirs of Cabalo Kusop, she was authorized by the Sangguniang Panlungsod under Resolution No. 87, series of 1991, after almost one (1) year of committee and public hearings. The same was also referred to the OSG, which recommended its approval. When the Heirs of Cabalo Kusop filed a Motion for Exclusion of Lot X, Nalangan had no recourse but to tell the truth that, indeed, he found no deed of donation made in favor of the city. While they admit to have issued Indorsements, they made it clear that the DENR shall undertake only what is legally feasible. Mayor Nuez and Nalangan asseverate that they had no intention of giving up the claim of the city over Lot X, as they even filed a case against Mad Guaybar and his companions.[21] Our Ruling The instant Petition lacks merit. Section 27 of R.A. No. 6770 (The Ombudsman Act of 1989)[22] provides: SEC. 27. Effectivity and Finality of Decisions. (1) All provisionary orders of the Office of the Ombudsman are immediately effective and executory.

A motion for reconsideration of any order, directive or decision of the Office of the Ombudsman must be filed within five (5) days after receipt of written notice and shall be entertained only on any of the following grounds: (1) New evidence has been discovered which materially affects the order, directive or decision;

(2) Errors of law or irregularities have been committed prejudicial to the interest of the movant. The motion for reconsideration shall be resolved within three (3) days from filing: Provided, That only one motion for reconsideration shall be entertained.

Other than the statement of material dates wherein petitioner claimed that she received through counsel the assailed Resolution of the Ombudsman on January 21, 2000, she failed to establish that her Motion for Reconsideration was indeed filed on time, and thus, failed to refute the assertion of the respondents based on the aforementioned Certification that petitioner was personally served a copy of the assailed Resolution on February 24, 1999. There are a number of instances when rules of procedure are relaxed in the interest of justice. However, in this case, petitioner did not proffer any explanation at all for the late filing of the motion for reconsideration. After the respondents made such allegation, petitioner did not bother to respond and meet the issue head-on. We find no justification why the Ombudsman entertained the motion for reconsideration, when, at the time of the filing of the motion for reconsideration the assailed Resolution was already final. Even only on the basis of this fatal procedural infirmity, the instant Petition ought to be dismissed. And on the substantive issue raised, the petition is likewise bereft of merit. Under Sections 12 and 13, Article XI of the 1987 Constitution, and pursuant to R.A. No. 6770, the Ombudsman has the power to investigate and prosecute any act or omission of a public officer or employee when such act or omission appears to be illegal, unjust, improper or inefficient.[23] Well-settled is the rule that this Court will not ordinarily interfere with the Ombudsman's exercise of his investigatory and prosecutory powers without good and compelling reasons that indicate otherwise. The rule is based not only upon respect for the investigatory and prosecutory powers granted by the Constitution to the Office of the Ombudsman, but upon practicality as well. A contrary rule would encourage innumerable petitions seeking dismissal of investigatory proceedings conducted by the Ombudsman, which would grievously hamper the functions of the office and the courts, in much the same way that courts would be swamped by a deluge of cases if they have to review the exercise of discretion on the part of public prosecutors each time they decide to file an information or dismiss a complaint by a private complainant.[24] Of course, this rule is not absolute. The aggrieved party may file a petition for certiorari under Rule 65 of the Rules of Court when the finding of the Ombudsman is tainted with grave abuse of discretion amounting to lack or excess of jurisdiction, as what the petitioner did in this case, consistent with our ruling in Collantes v. Marcelo,[25] where we laid down the following exceptions to the rule: 1. 2. 3. 4. 5. 6. 7. 8. When necessary to afford adequate protection to the constitutional rights of the accused; When necessary for the orderly administration of justice or to avoid oppression or multiplicity of actions; When there is a prejudicial question that is sub judice; When the acts of the officer are without or in excess of authority; Where the prosecution is under an invalid law, ordinance or regulation; When double jeopardy is clearly apparent; Where the court has no jurisdiction over the offense; Where it is a case of persecution rather than prosecution;

27

9. 10.

Where the charges are manifestly false and motivated by the lust for vengeance; When there is clearly no prima facie case against the accused and a motion to quash on that ground has been denied.

Grave abuse of discretion exists where a power is exercised in an arbitrary, capricious, whimsical or despotic manner by reason of passion or personal hostility so patent and gross as to amount to evasion of positive duty or virtual refusal to perform a duty enjoined by, or in contemplation of law.[26] The alleged grave abuse of discretion imputed to the Ombudsman is found wanting in this case. Thus, this Court finds no reason to deviate from the general rule. We concur with the disquisition of GIO I Rubillar-Arao in dismissing the charges against respondents, as approved by Ombudsman Desierto, thus: Hence, without ruling on the validity of the titles, this Office is constrained to limit its evaluation of the issue on the participation of each respondent in the titling of Lot X, whether the same would constitute a violation of RA 3019 and/or other illegal acts. 1. Respondent Abednego Adre His participation extends only to his issuance of an Order excluding Lot-X from the coverage of the Compromise Agreement.

A review of the terms and conditions of the subject Compromise Agreement confirms the Order of the respondent that indeed Lot X was excluded. The Order of respondent judge was made in accordance with the facts of the case. It is even noteworthy that respondent judge assisted in preserving the claim of the government of style=""General style=""Santos style=""City over Lot X by enjoining the donation of said property by the private respondents. 2. Respondents Nuez and Nalangan Said respondents participation in the titling of Lot-X was when they issued or caused the issuance of Indorsements stating therein that this office (Office of the Mayor) interposes no objection to whatever legal proceedings your (CENRO) office may pursue on the application covering portions thereof (Lot-X). The contents of the Indorsements, as quoted above, cannot be construed as a waiver on the part of style=""General style=""Santos style=""City on its claim over LotX. On the contrary, it has given DENR the authority to take the necessary legal proceedings relative to the titling of the property. Moreover, it should be taken into account that DENR has the responsibility, authority and the power to grant alienable and disposable lands to deserving claimants. Based on these circumstances, there is no evidence to prove that respondents Nuez and Nalangan gave unwarranted benefit to the claimants by issuing said Indorsements. In fact, they protected the interest of the government over Lot-X by immediately filing a case for nullification of titles upon knowing of the issuances thereof. xxxx [5.] Public respondents Julio C. Diaz, Agapito Borinaga, Augustus L. Momongan, Asteria E. Cruzabra Based on the evidences on record, these respondents were in the regular performance of their official functions. Their participation in the titling of Lot-X was due to the fact that the documents for titling were submitted to their respective offices as a matter of course, and there is nothing that they can do but to follow the established procedure upon finding that all the documents for titling were submitted.[27]

Indeed, while the Ombudsman's discretion in determining the existence of probable cause is not absolute, nonetheless, petitioner must prove that such discretion was gravely abused in order to warrant the reversal of the Ombudsman's findings by this Court. In this respect, petitioner fails.[28] Moreover, the elements of the offense, essential for the conviction of an accused under Section 3(e), R. A. No. 3019, are as follows: (1) (2) (3) (4) (5) The accused is a public officer or a private person charged in conspiracy with the former; The said public officer commits the prohibited acts during the performance of his or her official duties, or in relation to his or her public functions; That he or she causes undue injury to any party, whether the government or a private party; Such undue injury is caused by giving unwarranted benefits, advantage or preference to such parties; and That the public officer has acted with manifest partiality, evident bad faith or gross inexcusable neglect.[29]

Thus, in order to be held guilty of violating Section 3(e), R. A. No. 3019, the act of the accused that caused undue injury must have been done with evident bad faith or with gross inexcusable negligence. Bad faith per se is not enough for one to be held liable under the law; bad faith must be evident. Bad faith does not simply connote bad moral judgment or negligence. There must be some dishonest purpose or some moral obliquity and conscious doing of a wrong, a breach of a sworn duty through some motive or intent or ill will. It partakes of the nature of fraud. It contemplates a state of mind affirmatively operating with furtive design or some motive of self-interest, or ill will for ulterior purposes. On the other hand, gross negligence is characterized by the want of even slight care, acting or omitting to act in a willful or intentional manner displaying a conscious indifference to consequences as far as other persons may be affected.[30] As found by the Ombudsman and based on the records, there is no showing of evident bad faith and/or gross negligence in the respective acts of the respondents. It must be stressed that it is good faith, not bad faith, which is presumed, as the chapter on Human Relations of the Civil Code directs every person, inter alia, to observe good faith, which springs from the fountain of good conscience.[31] Finally, petitioner speaks of conspiracy among the respondents and those indicted. However, as found by the Ombudsman, such conspiracy alleged in the complaint was not supported by ample evidence. At best, the evidence adduced was not clear as to respondents' participation in the acts in question. Actori incumbit onus probandithe burden of proof rests with the plaintiff or the prosecution. The inherent weakness of complainant's case is not a ground for the Ombudsman to conduct preliminary investigation.[32] For it is fundamental that conspiracy cannot be presumed. Conspiracy must be proved by direct evidence or by proof of the overt acts of the accused, before, during and after the commission of the crime charged indicative of a common design.[33] This, the petitioner sadly failed to establish. All told, the Ombudsman did not act with grave abuse of discretion in dismissing the criminal complaint against respondents. WHEREFORE, the petition is DISMISSED. No costs. SO ORDERED.

28

G. PROCEDURE BEFORE THE OMBUDSMAN A.M. No. MTJ-05-1581 February 28, 2005 PETER L. SESBREO, complainant, vs. JUDGE GLORIA B. AGLUGUB, Metropolitan Trial Court, Branch 2, San Pedro, Laguna, Respondent. RESOLUTION TINGA, J.: Peter L. Sesbreo filed a Verified Complaint1 dated March 2, 2004 against respondent judge, Hon. Gloria B. Aglugub, charging the latter with Gross Ignorance of the Law, Neglect of Duty and Conduct Prejudicial to the Best Interest of the Service relative to Criminal Case No. 39806 entitled People v. Enrique Marcelino, et al. It appears that complainant filed three (3) separate complaints against Enrique Marcelino (Marcelino), Susan Nuez (Nuez), Edna Tabazon (Tabazon) and Fely Carunungan (Carunungan), all from the Traffic Management Unit of San Pedro, Laguna, for Falsification, Grave Threats and Usurpation of Authority. The three (3) cases were assigned to respondent judges branch and subsequently consolidated for disposition. After conducting a preliminary examination, respondent issued a Consolidated Resolution2 dated May 6, 2003, dismissing the cases for Falsification and Grave Threats for lack of probable cause, and setting for arraignment the case for Usurpation of Authority. Except for Marcelino who failed to appear during the arraignment, all of the accused were arraigned. Respondent judge issued a warrant for Marcelinos arrest. Subsequently, complainant filed a Private Complainants Urgent Manifestation3 dated February 6, 2004 alleging that the accused were also charged with violation of Republic Act No. 104 (R.A. 10) and praying that warrants of arrest be likewise issued against all of the accused. Acting upon this manifestation, respondent judge issued an Order5 dated February 12, 2004 stating that a charge for violation of R.A. 10 was indeed alleged in the complaint for Usurpation of Authority but was not resolved due to oversight. However, since the statute only applies to members of seditious organizations engaged in subversive activities pursuant to People v. Lidres,6 and considering that the complaint failed to allege this element, respondent judge found no probable cause and dismissed the charge for violation of R.A. 10. Further, citing Sec. 6(b), Rule 112 of the Revised Rules of Criminal Procedure (Rules), respondent judge denied complainants prayer for the issuance of warrants of arrest against the accused and ordered the records forwarded to the Provincial Prosecutors Office (PPO) for review.1a\^/phi1.net Thereafter, complainants counsel, Atty. Raul Sesbreo (Atty. Sesbreo), filed a Motion for Reconsideration and Urgent Ex-Parte Motion for Issuance of Warrant of Arrest Against Non-Appearing Accused. Respondent judge, however, did not act on these motions allegedly because the court had already lost jurisdiction over the case by then. The PPO affirmed respondents order and remanded the case to the court for further proceedings on the charge of Usurpation of Authority. During the hearing of the case on February 14, 2004, Tabazon, Carunungan and Nuez did not appear. Atty. Sesbreo, however, did not move for the issuance of warrants of arrest against them. Neither did he object to the cancellation of the scheduled hearing. The foregoing circumstances brought about the filing of the instant administrative complaint. Complainant contends that respondent judge violated Sec. 6(b), Rule 112 of the Rules when she refused to issue warrants of arrest against the accused. Complainant also faults respondent judge for allegedly motu proprio reconsidering her Consolidated Resolution dated May 6, 2003 and failing to order its transmittal to the Office of the Ombudsman within ten (10) days. In her Comment With Motion To Dismiss The Administrative Complaint7 dated March 26, 2004, respondent judge counters that the issuance of a warrant of arrest is discretionary upon the judge. Since she found no indication that the accused would abscond, she found it unnecessary to issue the warrant. Moreover, under Republic Act No. 6770, otherwise known as the Ombudsman Act of 1989, the PPO has been designated as the Deputized Ombudsman Prosecutor. The PPO can take action on similar cases for review and appropriate action. Thus, she acted in accordance with law when she forwarded the records of the case to the PPO for review and not to the Office of the Ombudsman as complainant insists. Respondent judge further accuses complainant and Atty. Sesbreo of falsification, and the latter of violation of Rule 1.01 and Rule 10.01 of the Code of Professional Responsibility. Allegedly, the affidavit which was attached to the instant verified complaint was not notarized by Atty. Raul Corro as indicated therein. Further, Atty. Sesbreo was allegedly convicted of Homicide and may have been suspended from the practice of law. Complainant reiterates his allegations in his Complainants Reply To Respondents Comment Dated March 26, 20048 dated May 11, 2004. He further contends that there is no provision in the Ombudsman Act of 1989 specifically deputizing the PPO to be the "Deputized Ombudsman Prosecutor" as respondent judge contends. He adds that respondent judge failed to comply with Administrative Order No. 8 since she has yet to forward her resolution to the Deputy Ombudsman. Moreover, complainant points out that the affidavit attached to his complaint was notarized by Atty. Corro as certified by a member of the latters staff. Complainant also disproves respondent judges allegation that Atty. Sesbreo is in the habit of filing administrative complaints against judges, explaining that the latter merely acted as counsel for litigants who filed administrative complaints against certain judges. In another Verified Complaint9 filed on March 18, 2004, complainant further charges respondent with violating Sec. 9(b), Rule 112 of the Rules. Respondent Judge filed a Comment With Motion To Dismiss Administrative Complaint10 dated May 7, 2004 clarifying that contrary to complainants allegation, she did not conduct a preliminary investigation in the case for Usurpation of Authority. What was submitted for preliminary investigation was the charge for violation of R.A. 10. It was her resolution dismissing the charge for violation of R.A. 10 which was transmitted to the PPO for appropriate action. However, since the charges for violation of R.A. 10 and Usurpation of Authority were contained in a single complaint, respondent judge deemed it proper to forward the entire records to the PPO. Complainant filed a Complainants Reply To Respondents Comment Dated May 7, 200411 dated May 20, 2004 substantially reiterating his allegations. The Verified Complaint filed on March 18, 2004 was treated as a supplemental complaint per the notation in the Memorandum12 dated June 25, 2004. In sum, complainant asserts that respondent judge erred in conducting a preliminary investigation for the charge of Usurpation of Authority; in not issuing warrants of arrest for failure of the accused to appear during trial; in issuing her Order dated February 12, 2004 dismissing the complaint for violation of R.A. 10; and in transmitting the records of the case to the PPO instead of the Office of the Ombudsman.1awphi1.nt The Office of the Court Administrator recommends that the instant complaint be dismissed for lack of merit but that respondent judge should be reminded to be more circumspect in the performance of her duties.13 It made the following findings: A careful consideration of the records as well as the pertinent rules reveals that there is nothing in the Rules of Criminal Procedure which requires a judge to issue a warrant of arrest for the non-appearance of the accused during the trial. Hence, its issuance rests on the sound discretion of the presiding judge. More so in this case, the private prosecutor did not move for the issuance of such warrant. As regards the next issue, Rep. Act No. 10 penalizes a person who, with or without pretense of official position, shall perform any act pertaining to the Government, or to any person in authority or public officer, without being lawfully entitled to do so, shall be punished with imprisonment of not less than two (2) years nor more than ten (10) years. Violation thereof is cognizable by the Regional Trial Court but subject to preliminary investigation. Respondent judge admitted that she overlooked the charge when she conducted the preliminary examination of the complaints. Nonetheless, after reviewing the case, respondent Judge found no probable cause and ordered the dismissal of the case. Therefore, when respondent Judge motu proprio ordered the dismissal of the case for lack of probable cause, she was acting in accordance with the procedure on preliminary investigation laid down in Sec. 3, Rule 112 of the Rules on Criminal Procedure. Respondent Judge also directed that the records of the case be forwarded to the Provincial Prosecutors Office on review. Sec. 5 of Rule 112 provides that the resolution of the Investigating Judge is subject to review by the provincial or city prosecutor, or the Ombudsman or his deputy, as the case may be. It is respondent Judges contention that the resolution shall be reviewed by the Provincial Prosecutor. She explained that pursuant to the Ombudsman Act of 1989, the Provincial Prosecutor has jurisdiction to take cognizance of the charge of Violation of R.A. No. 10. However, Sec. 31 of Rep. Act No. 6770 or "The Ombudsman Act of 1989" provides that prosecutors can (be) deputized by the Ombudsman to act as special investigator or prosecutor only on certain cases. Such provision is not applicable to the issue at hand. Therefore, respondent Judge erred when she forwarded the case for review to the Provincial Prosecutors Office. Nonetheless, complainant failed to show that respondent Judge was motivated by bad faith when she issued the assailed order. At most, she is guilty of judicial error for which she could not be held administratively accountable absent any proof of fraud or other evil motive.14 A preliminary investigation is required before the filing of a complaint or information for an offense where the penalty prescribed by law is at least four (4) years, two (2) months and one (1) day without regard to the fine.15 Thus, a preliminary investigation is not required nor was one conducted for the charge of violation of Art. 177 of the Revised Penal Code which is punishable by prision correccional in its minimum and medium periods or from six (6) months and one (1) day to four (4) years and two (2) months.16 This being so, Sec. 9, Rule 112 of the Rules is applicable. Said section provides:

29

Sec. 9. Cases not requiring a preliminary investigation nor covered by the Rule on Summary Procedure. (b) If filed with the Municipal Trial Court.If the complaint or information is filed with the Municipal Trial Court or Municipal Circuit Trial Court for an offense covered by this section, the procedure in section 3(a) of this Rule shall be observed. If within ten (10) days after the filing of the complaint or information, the judge finds no probable cause after personally evaluating the evidence, or after personally examining in writing and under oath the complainant and his witnesses in the form of searching questions and answers, he shall dismiss the same. He may, however, require the submission of additional evidence, within ten (10) days from notice, to determine further the existence of probable cause. If the judge still finds no probable cause despite the additional evidence, he shall, within ten (10) days from its submission or expiration of said period, dismiss the case.l^vvphi1.net When he finds probable cause, he shall issue a warrant of arrest, or a commitment order if the accused had already been arrested, and hold him for trial. However, if the judge is satisfied that there is no necessity for placing the accused under custody, he may issue summons instead of a warrant of arrest. Under the foregoing section, if a complaint or information is filed directly with the Municipal Trial Court, the procedure laid down in Sec. 3(a), Rule 112 of the Rules shall be observed. If the judge finds no sufficient ground to hold the respondent for trial, he shall dismiss the complaint or information. Otherwise, he shall issue a warrant of arrest, or a commitment order if the accused had already been arrested, and hold the latter for trial. However, the judge is given the discretion to merely issue summons instead of a warrant of arrest if he does not find it necessary to place the accused under custody. It is thus not obligatory but merely discretionary upon the investigating judge to issue a warrant for the arrest of the accused even after having personally examined the complainant and his witnesses in the form of searching questions for the determination of whether probable cause exists. Whether it is necessary to place the accused in custody in order not to frustrate the ends of justice is left to the judges sound judgment.17 Moreover, the judge is not required to transmit the records of the case to the prosecutor for review. In this case, respondent judge, following the foregoing procedure, found probable cause to hold the accused for trial for the charge of Usurpation of Authority and forthwith set their arraignment and the pre-trial. There is nothing irregular in the course of action taken by respondent judge. Neither is there merit in complainants contention that respondent judge should have issued a warrant of arrest ag ainst the accused for their failure to appear during the initial presentation of evidence for the prosecution for the charge of Usurpation of Authority. The issuance of a warrant of arrest for non-appearance of the accused during trial is discretionary upon the judge. Indeed, there is nothing in the Rules which requires a judge to issue a warrant of arrest for non-appearance of the accused during trial. Respondent judge concedes, however, that due to oversight, she failed to rule on the charge of violation of R.A. 10 in her Consolidated Resolution dated May 6, 2003. Nonetheless, she asserts in her Comment With Motion To Dismiss Administrative Complaint18 dated May 7, 2004 that she conducted a preliminary investigation for the charge of violation of R.A. 10 and dismissed the charge after taking into consideration the affidavits and evidence presented. Complainant does not dispute the fact that indeed a preliminary investigation was conducted for this charge.19 Thus, when respondent judge dismissed the complaint for violation of R.A. 10, she merely did so to correct an oversight. Furthermore, as the Order dated February 12, 2004 confirms, it was the dismissal of the charge for violation of R.A. 10 that was elevated to the PPO for review. It was imprudent, however, for respondent judge to transmit the entire records of the case to the PPO knowing that the charge for Usurpation of Authority was included in the records of the case. Respondent judge should have ensured that at least one complete set of the records remained in her sala so that the prosecution for Usurpation of Authority would not be held up. Injudicious though her actuation was, we do not agree with complainant that respondent judge was motivated by an evil intent to delay the case. This brings us to the issue of whether respondent should have transmitted her Order dated February 12, 2004 dismissing the charge of violation of R.A. 10 to the Office of the Ombudsman instead of the PPO. Complainant asserts that since the charge of violation of R.A. 10 is cognizable by the Sandiganbayan, the Office of the Ombudsman has the primary jurisdiction to review the resolution of dismissal. This issue is answered by Administrative Order No. 820 entitled Clarifying and Modifying Certain Rules of Procedure of the Ombudsman, which provides "that all prosecutors are now deputized Ombudsman prosecutors." Moreover, "[R]esolutions in Ombudsman cases21 against public officers and employees prepared by a deputized assistant prosecutor shall be submitted to the Provincial or City Prosecutor concerned who shall, in turn, forward the same to the Deputy Ombudsman of the area with his recommendation for the approval or disapproval thereof. The Deputy Ombudsman shall take appropriate final action thereon, including the approval of its filing in the proper regular court or the dismissal of the complaint, if the crime charged is punishable by prision correccional or lower, or fine of not more than P6,000.00 or both. Resolutions involving offenses falling within the jurisdiction of the Sandiganbayan shall be forwarded by the Deputy Ombudsman with his recommendation thereon to the Office of the Ombudsman." Thus, respondent judge did not err and was, in fact, merely acting in accordance with law when she forwarded the case for violation of R.A. 10 to the PPO. The fact that the PPO remanded the case to the court for further proceedings instead of forwarding the same to the Deputy Ombudsman as required by Administrative Order No. 8 is quite another matter. In any event, respondent judge should have taken the necessary steps to remedy the lapse in order to preclude delay in the disposition of the case. In sum, for liability to attach for ignorance of the law, the assailed order, decision or actuation of the judge in the performance of official duties must not only be found to be erroneous but, most importantly, it must be established that he was moved by bad faith, dishonesty or some other like motive. Respondent judges actuations are hardly indicative of bad faith or any motive to delay the case which characterizes the offense of gross ignorance of the law.22 IN VIEW OF THE FOREGOING, the instant complaint is DISMISSED for lack of merit. Respondent Judge Gloria B. Aglugub is ADMONISHED to be more circumspect in the performance of her duties in the future. SO ORDERED.

H. POWER OF THE SECRETARY OF JUSTICE OVER PROSECUTORS G.R. No. 158543 July 21, 2004 ROSALINDA PUNZALAN, RANDALL PUNZALAN and RAINIER PUNZALAN, petitioners, vs. DENCIO DELA PEA and ROBERT CAGARA, respondents. DECISION YNARES-SANTIAGO, J.: Assailed in this petition for review under Rule 45 of the Revised Rules of Court is the June 6, 2002 Decision1 of the Court of Appeals and its May 23, 2003 Resolution which denied petitioners motion for reconsideration. The Punzalan and the Plata families were neighbors in Hulo Bliss, Mandaluyong City. At around 11:00 p.m. of August 13, 1997, Dencio dela Pea, a house boarder of the Platas, was in front of a store near their house when the group of Rainier Punzalan, Randall Punzalan, Ricky Eugenio, Jose Gregorio, Alex "Toto" Ofrin, and several others arrived. Ricky Eugenio shouted at Dela Pea, "Hoy, kalbo, saan mo binili and sumbrero mo?"2 Dela Pea replied, "Kalbo nga ako, ay pinagtatawanan pa ninyo ako."3 Irked by the response, Jose Gregorio slapped Dela Pea while Rainier punched him in the mouth. The group then ganged up on him. In the course of the melee, somebody shouted, "Yariin na yan!"4 Thereafter, Alex "Toto" Ofrin kicked Dela Pea and tried to stab him with a balisong but missed because he was able to run. The group chased him. While Dela Pea was fleeing, he met Robert Cagara, the Platas family driver, who was carrying a gun. He grabbed the gun from Cagara and pointed it to the group chasing him in order to scare them. Michael Plata, who was nearby, intervened and tried to wrestle the gun away from Dela Pea. The gun accidentally went off and hit Rainier Punzalan on the thigh. Shocked, Dela Pea, Cagara and Plata ran towards the latters house and locked themselves in. The group ran after them and when they got to the Platas house, shouted, "Lumabas kayo dyan, putang ina ninyo! Papatayin namin kayo!"5 Dela Pea, Cagara, and Plata left the house through the back door and proceeded to the police station to seek assistance. As a result of the incident, Rainier Punzalan filed a criminal complaint against Michael Plata for Attempted Homicide6 and against Robert Cagara for Illegal Possession of Firearm. In turn, Plata, Cagara and Dela Pea filed several counter-charges7 for grave oral defamation, grave threats, robbery, malicious mischief and slight physical injuries against the Punzalans, including one for Attempted Murder filed by Dela Pea against Rainier and Randall Punzalan and fourteen others (I.S. No. 97-11528); and one for Grave Threats filed by Dela Pea against Alex "Toto" Ofrin (I.S. No. 97-11520-21).

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In their counter-affidavit,8 the Punzalans argued that the charges against them were fabricated in order to dissuade them from testifying in the Attempted Homicide and Illegal Possession of Firearm cases instituted by Rainier against Plata and Cagara, respectively. Subsequently, Robert Cagara also filed a complaint for Grave Oral Defamation, docketed as I.S. No. 97-11522, against Rosalinda Punzalan, mother of Rainier, alleging that on October 16, 1997 at the Office of the Prosecutor of Mandaluyong City, Rosalinda approached him, and within hearing distance of other people, told him, "Hoy Robert, magkanong ibinigay ng mga Plata sa iyo sa pagtestigo? Dodoblehin ko at ipapasok pa kita ng trabaho."9 In her defense, Rosalinda denied having uttered the alleged defamatory statements. On July 28, 1998, the Assistant City Prosecutor of Mandaluyong City dismissed the complaint for Grave Oral Defamation against Rosalinda Punzalan,10 holding that Cagara failed to show that the alleged defamatory statements would cast dishonor, discredit or contempt upon him. He also found that the statements were uttered by Rosalinda in a state of distress and, hence, were not actionable.11 The charge of Attempted Murder against Rainier, Randall and 14 others was also dismissed by the Assistant Prosecutor because complainant Dela Peas claim that he accidentally shot Rainier forms part of the defense of Michael Plata in the Attempted Homicide case previously filed by Rainier against the latter.12 Dela Pea and Cagara separately appealed to the Department of Justice. On March 23, 2000, then Justice Secretary Artemio Tuquero issued a Resolution modifying the July 28, 1998 Joint Resolution of the Assistant City Prosecutor by ordering, among others (1) that the charge of Grave Oral Defamation against Rosalinda Punzalan be downgraded to Slight Oral Defamation; (2) that the charge of Attempted Murder against Rainier, Randall and 14 others be downgraded to Attempted Homicide; and (3) that the charge of Grave Threats against Alex "Toto" Ofrin be downgraded to Other Light Threats. The dispositive portion of the Resolution reads: WHEREFORE, the resolution is hereby MODIFIED. The City Prosecutor of Mandaluyong City is directed to file information for three (3) counts of slight oral defamation against Rosalinda Punzalan; information for two (2) counts [of] other light threats against Alexander "Toto" Ofrin; information for attempted homicide against Alexander "Toto" Ofrin, Rainier Punzalan, Jose Gregorio Lanuzo, Avelino Serrano, Lito dela Cruz, Emmanuel Nobida, Randall Punzalan, Mark Catap, Ricky Eugenio, Alejandro Diez, Vicente Joven Manda, Herson Mendoza, Mark Labrador, Alex Pascua, Edwin Vivar and Raymond Poliquit; information for malicious mischief and theft against Rainier Punzalan, Mark Catap, Alejandro Diez, Jose Gregorio Lanuzo, Alexander "Toto" Ofrin, Herson Mendoza, Emmanuel Nobida, Edwin Vivar, Avelino "Bobby" Serrano, and John Does; and to report action taken within 10 days from receipt hereof. SO ORDERED.13 Petitioners, Rosalinda, Rainier and Randall Punzalan, together with their co-respondents, filed separate motions for reconsideration. On June 6, 2000, the Secretary of Justice set aside the March 23, 2000 Resolution and directed the withdrawal of the Informations against the movants. He ruled, among others, that the Oral Defamation case should be dismissed because the alleged defamatory statements were uttered without malice as Rosalinda was then in a state of shock and anger. Anent the Attempted Homicide case filed by Dela Pea against Rainier, the Secretary held that the allegations in support thereof should first be threshed out in the trial of the Attempted Homicide case filed by Rainier against Michael Plata. He added that Dela Pea failed to prove that Rainier, Randall and his companions intended to kill him. The dispositive portion thereof reads: Wherefore, in view of the foregoing, the appealed resolution is REVERSED. The resolution dated March 23, 2000 is set aside and the City Prosecutor of Mandaluyong City is directed to withdraw the separate informations for slight oral defamation, other light threats, attempted homicide, malicious mischief and theft against all respondents and to report the action taken within ten (10) days from receipt hereof. SO ORDERED.14 Respondents filed a motion for reconsideration of the foregoing Resolution, but the same was denied in a Resolution dated October 11, 2000.15 On January 11, 2001, respondents filed a petition for certiorari with the Court of Appeals praying that the City Prosecutor of Mandaluyong be directed to file one count of Slight Oral Defamation against Rosalinda; one count of Attempted Homicide against Rainier, Randall and 14 others; and two counts of Other Light Threats against Alex "Toto" Ofrin.16 On June 6, 2002, the Court of Appeals rendered judgment as follows: WHEREFORE, premises considered, the petition is granted and the questioned Resolutions of public respondent dated 06 June 2000 and 11 October 2000 are set aside insofar as it directed the withdrawal of informations for slight oral defamation against Rosalinda Punzalan and attempted homicide against the respondents Alexander "Toto" Ofrin, Rainier Punzalan, Jose Gregorio Lanuzo, Avelino Serrano, Lito de la Cruz, Emmanuel Nobido, Randall Punzalan, Mark Catap, Ricky Eugenio, Alejandro Diez, Vicente "Joven" Manda, Herson Mendoza, Mark Labrador, Alex Pascua, Edwin Vivar, and Raymond Poliquit. The resolution dated 06 June 2000 and 11 October 2000 is hereby affirmed insofar as it directed the withdrawal of information for two (2) counts of other light threats against Alexander "Toto" Ofrin. SO ORDERED.17 Petitioners motion for reconsideration was denied.18 Hence, the instant petition raising the following assignment of errors: I THE HONORABLE COURT OF APPEALS COMMITTED GRAVE AND SERIOUS REVERSIBLE ERROR IN SETTING ASIDE THE RESOLUTIONS OF THE HONORABLE SECRETARY OF JUSTICE DATED JUNE 6, 2000 AND OCTOBER 11, 2000. II THE HONORABLE COURT OF APPEALS SERIOUSLY ERRED IN HOLDING THAT THERE IS SUFFICIENT EVIDENCE TO SHOW THAT, MORE LIKELY THAN NOT, SLIGHT ORAL DEFAMATION HAD BEEN COMMITTED AND WAS COMMITTED BY HEREIN PETITIONER ROSALINDA PUNZALAN. III THE HONORABLE COURT OF APPEALS GRAVELY ERRED IN HOLDING THAT THE ALLEGATIONS OF RESPONDENTS AND THEIR WITNESSES, WHICH SHOULD BE GIVEN WEIGHT, ARE SUFFICIENT TO PROVE INTENT TO KILL SUCH THAT PETITIONERS RANDALLL AND RAINIER PUNZALAN MUST BE PROSECUTED FOR ATTEMPTED HOMICIDE.19 The issue to be resolved in this petition is whether or not there is sufficient evidence to sustain a finding of probable cause against petitioner Rosalinda Punzalan for Slight Oral Defamation and against petitioners Randall and Rainier Punzalan for Attempted Homicide. The petition is impressed with merit. The pertinent law in relation to this case is Section 1 of Rule 65 of the Rules of Court, which provides: Section 1. Petition for certiorari. When any tribunal, board or officer exercising judicial or quasi-judicial functions has acted without or in excess of its or his jurisdiction, or with grave abuse of discretion amounting to lack or excess of its or his jurisdiction, and there is no appeal, or any plain speedy, and adequate remedy in the ordinary course of law, a person aggrieved thereby may file a verified petition in the proper court, alleging the facts with certainty and praying that judgment be rendered annulling or modifying the proceedings of such tribunal, board or officer, and granting such incidental reliefs as law and justice may require. A petition for certiorari is the proper remedy when any tribunal, board, or officer exercising judicial or quasi-judicial functions has acted without or in excess of its jurisdiction, or with grave abuse of discretion amounting to lack or excess of jurisdiction and there is no appeal, nor any plain, speedy, and adequate remedy at law. Where the error is in the judges findings and conclusions or to cure erroneous conclusions of law and fact, appeal is the remedy.20 Lack of jurisdiction and excess of jurisdiction are distinguished thus: the respondent acts without jurisdiction if he does not have the legal power to determine the case; where the respondent, being clothed with the power to determine the case, oversteps his authority as determined by law, he is performing a function in excess of his jurisdiction.21 In the case of Meat Packing Corp. v. Sandiganbayan,22 it was held that grave abuse of discretion implies a capricious and whimsical exercise of judgment as is equivalent to lack of jurisdiction, or, when the power is exercised in an arbitrary or despotic manner by reason of passion or personal hostility, and it must be so patent and gross as to amount to an evasion of positive duty enjoined or to act at all in contemplation of law. It is not sufficient that a tribunal, in the exercise of its power, abused its discretion; such abuse must be grave.23 We now resolve whether the Secretary of Justice committed grave abuse of discretion in his Resolutions dated June 6, 2000 and October 11, 2000. Under the Revised Administrative Code, the Secretary of Justice exercises the power of direct control and supervision over the decisions or resolutions of the prosecutors. "Supervision and control" includes the authority to act directly whenever a specific function is entrusted by law or regulation to a subordinate; to direct the performance of duty; and to approve, revise or modify acts and decision of subordinate officials or units.24 In the case of People v. Peralta,25 we reiterated the rule that the right to prosecute vests the prosecutor with a wide range of discretion the discretion of whether, what and whom to charge, the exercise of which depends on a variety of factors which are best appreciated by prosecutors. Likewise, in the case of Hegerty v. Court of Appeals,26 we declared that: A public prosecutor, by the nature of his office, is under no compulsion to file a criminal information where no clear legal justification has been shown, and no sufficient evidence of guilt nor prima facie case has been presented by the petitioner.

31

We need only to stress that the determination of probable cause during a preliminary investigation or reinvestigation is recognized as an executive function exclusively of the prosecutor. An investigating prosecutor is under no obligation to file a criminal action where he is not convinced that he has the quantum of evidence at hand to support the averments. Prosecuting officers have equally the duty not to prosecute when after investigation or reinvestigation they are convinced that the evidence adduced was not sufficient to establish a prima facie case. Thus, the determination of the persons to be prosecuted rests primarily with the prosecutor who is vested with discretion in the discharge of this function. Thus, the question of whether or not to dismiss a complaint is within the purview of the functions of the prosecutor and, ultimately, that of the Secretary of Justice. The reasons of the Secretary of Justice in directing the City Prosecutor to withdraw the informations for slight oral defamation against Rosalinda Punzalan and for attempted homicide against the other respondents other than Rosalinda Punzalan is determinative of whether or not he committed grave abuse of discretion. First, in the charge of slight oral defamation, the records show that the defamatory remarks were uttered within the Office of the City Prosecutor of Mandaluyong City. The Court of Appeals in its Decision dated June 6, 2002 stated the settled rule that the assessment of the credibility of witnesses is best left to the trial court in view of its opportunity to observe the demeanor and conduct of the witnesses on the stand. The City Prosecutor, the proper officer at the time of the occurrence of the incident, is the best person to observe the demeanor and conduct of the parties and their witnesses and determine probable cause whether the alleged defamatory utterances were made within the hearing distance of third parties. The investigating prosecutor found that no sufficient evidence existed. The Secretary of Justice in his Resolution affirmed the decision of the City Prosecutor. As to the charge of attempted homicide against the herein petitioners other than Rosalinda Punzalan, the Secretary of Justice resolved to dismiss the complaint because it was in the nature of a countercharge. The Department of Justice in a Resolution dated June 18, 1998 had already directed that Dencio Dela Pea be likewise investigated for the charge of attempted homicide in connection with the shooting incident that occurred on August 13, 1997 making him a party to the case filed by Rainier Punzalan. This resulted in the resolution of the Secretary of Justice that the complaint of herein respondent Dencio Dela Pea should be threshed out in the proceedings relevant to the shooting incident that resulted in the serious injury of herein petitioner Rainier Punzalan. In the case at bar, therefore, the Secretary of Justice did not commit grave abuse of discretion contrary to the finding of the Court of Appeals. It is well-settled in the recent case of Samson, et al. v. Guingona27 that the Court will not interfere in the conduct of preliminary investigations or reinvestigations and leave to the investigating prosecutor sufficient latitude of discretion in the exercise of determination of what constitutes sufficient evidence as will establish probable cause for the filing of information against an offender. Moreover, his findings are not subject to review unless shown to have been made with grave abuse.28 WHEREFORE, the petition is GRANTED. The Decision of the Court of Appeals dated June 6, 2002 and the Resolution dated May 23, 2003 denying petitioners motion for reconsideration are REVERSED and SET ASIDE. The Resolution of the Secretary of Justice, directing the withdrawal of the informations for slight oral defamation and attempted homicide against the petitioners, is REINSTATED. No pronouncement as to costs. SO ORDERED. I. ROLE OF THE OFFICE OF THE SOLICITOR GENERAL IN CRIMINAL CASES PEOPLE OF THE PHILIPPINES, Petitioner, G.R. No. 171175

Present: CORONA,* J., VELASCO, JR.,** LEONARDO-DE CASTRO, BRION,*** and BERSAMIN, JJ.

- versus -

Promulgated: ARTURO F. DUCA, Respondent. October 30, 2009 x------------------------------------------------------------------------------------------x DECISION LEONARDO-DE CASTRO, J.: Before this Court is a petition for certiorari under Rule 65 of the 1997 Rules of Civil Procedure which seeks to set aside and annul the Decision[1] dated November 23, 2005 rendered by the Court of Appeals (CA) in CA-G.R. CR No. 28312. The CA decision reversed the decision[2] of the Regional Trial Court (RTC) of w:st="on"Dagupan City, Branch 44, in Criminal Case No. 2003-0194-D[3] which affirmed an earlier decision[4] of the Municipal Circuit Trial Court of San Fabian-San Jacinto, Pangasinan, convicting respondent Arturo Duca of the crime of falsification under Article 171 of the Revised Penal Code. The facts as found by the CA are quoted as follows: It appears that Arturo Duca, together with his mother, Cecilia Duca, were charged of the crime of Falsification of Official Document defined and penalized under Article 172, in relation to Article 171, paragraph 2 of the Revised Penal Code in an Information which reads: That on or about December 10, 2001 in the Municipality of San Fabian, Province of Pangasinan, Philippines, within the jurisdiction of this Honorable Court, the said accused confederating together and mutually abiding each other, with intent to cause damage, did then and there, willfully, unlawfully and feloniously cause the preparation of a Declaration of Real Property over a bungalow type residential house covered by Property Index No. 013-32-027-01-116131 of the Municipal Assessors Office of San Fabian, Pangasinan by making it appear that the signature appearing on the sworn statement of owner is that of Aldrin F. Duca when the truth of the matter is not because the latter was abroad at that time having arrived in the Philippines only on December 12, 2001, and it was accused Arturo F. Duca who affixed his own signature thereon to the damage and prejudice of the undersigned private complainant Pedro Calanayan. Upon being arraigned, both the accused pleaded not guilty. Then trial on the merits ensued. The evidence for the prosecution shows that sometime in 1999, Pedro Calanayan (hereinafter Calanayan), private complainant herein, filed an action for ejectment and damages against Cecilia F. Duca, Ruel F. Duca, Arsenio F. Duca and Vangie F. Duca before the 4th Municipal Circuit Trial Court (MCTC) of San Fabian-San Jacinto, Pangasinan, docketed as Civil Case No. 960 (SF-99). The case was decided in favor of Calanayan. There being no appeal interposed by the aforesaid defendants, the said decision became final and executory. On November 22, 1999, a writ of execution was issued by the MCTC to enforce the decision. On February 29, 2000, the money judgment was likewise satisfied with the public auction of the lot owned by Cecilia Duca covered by TCT No. 233647. On March 1, 2000, a certificate of sale was issued in favor of Jocelyn Barque, the highest bidder in the auction sale.

32

On October 19, 2001, Cecilia Duca filed an action for the Declaration of Nullity of Execution and Damages with prayer for Writ of Injunction and Temporary Restraining order against Sheriff IV Vinez Hortaleza and Police Officers Roberto Vical, Alejandre Arevalo, Emilio w:st="on"Austria, Victor Quitales, Crisostomo Bonavente and Calanayan. The case was docketed as Civil Case No. 2000-0304-D. When the said case was heard, Cecilia Duca testified to the effect that the house erected on the lot subject of the ejectment case is owned by her son Aldrin Duca. In support of such claim she presented Property Index No. 013-32-027-01-116131 (Exhibit B). At the back of the said exhibit is a sworn statement showing that the current and fair market value of the property, which is a bungalow, is P70,000.00 with the signature affixed on top of the typewritten name Aldrin F. Duca and subscribed and sworn to before Engr. Reynante Baltazar, the Municipal Assessor of San Fabian, Pangasinan, on December 10, 2001. The signature on top of the typewritten name Aldrin F. Duca is that of Arturo Duca. According to the prosecution, Arturo made it appear that the signature is that of his brother Aldrin who was out of the country at that time. Aldrin arrived in the Philippines only on December 12, 2001, as evidenced by a certification from the Bureau of Immigration, w:st="on"Manila. Arturo even made it appear that his Community Tax Certificate (CTC) No. 03841661 issued on December 10, 2001 is that of his brother Aldrin. That because of the misrepresentation, Cecilia and Arturo were able to mislead the RTC such that they were able to get a TRO against Sheriff Hortaleza and the policemen ordering them to stop from evicting the plaintiffs from the property in question. Both accused denied that they falsified the signature of Aldrin Duca. Cecilia testified that she had no participation in the execution as she was in w:st="on"Manila at that time. On the other hand, Arturo testified that the signature atop the name Aldrin Duca was his. However, he intersposed the defense that he was duly authorized by the latter to procure the said tax declaration. On April 3, 2003, the MCTC of San Fabian-San Jacinto rendered a decision, dispositive portion of which reads as follows: WHEREFORE, the Court finds the accused Arturo F. Duca guilty beyond reasonable doubt of the crime of falsification defined and penalized under Article 171 of the Revised Penal Code and hereby imposes upon said accused a prison term of two years, four months and one day to six (6) years of Prision Correccional and a fine of P2,000.00. Accused Cecilia is acquitted for lack of evidence. The accused Arturo F. Duca is hereby ordered to pay to the complaining witness actual damages in the amount of P60,000.00 moral damages of P150,000.00 plus exemplary damages in the amount of P100,000.00 plus cost. SO ORDERED. Dissatisfied with the decision, Arturo Duca appealed. On March 24, 2004, the RTC of Dagupan City, Branch 44, rendered a decision, disposing the case as follows: WHEREFORE, the decision dated April 3, 2003 of the 4th Municipal Circuit Trial Court, San Fabian-San Jacinto, Pangasinan convicting accused Arturo F. Duca of the crime of Falsification defined and penalized under Article 171 of the Revised Penal Code and imposing upon said accused an imprisonment of two years, four months and one day to six (6) years of Prision Correccional and a fine of P2,000.00, and ordering him to pay to the complaining witness actual damages in the amount of P60,000.00, moral damages in the amount of P150,000.00 plus exemplary damages in the amount of P100,000.00 plus cost, is AFFIRMED. x x x. SO ORDERED.[5] Aggrieved with the ruling of the RTC, Duca elevated the case to the CA via a petition for review. On November 23, 2005, the CA promulgated its assailed decision acquitting Duca of the crime charged and reversing the RTC decision. The CA held: However, the prosecution failed to establish the fact that Arturo was not duly authorized by Aldrin in procuring the tax declaration. On the contrary, the defense was able to establish that Arturo Duca was duly authorized by his brother Aldrin to secure a tax declaration on the house erected on the land registered under their mothers name. xxx xxx xxx

From the foregoing testimony, it can be deduced that Arturo could not have falsified the Tax Declaration of Real Property under Property Index No. 013-32-027-01116B1 (Exhibit B) by making it appear that Aldrin Duca, his brother, participated in the accomplishment of the said documen t since he was actually acting for and in behalf of the latter. It must be noted that as early as June 2001, Arturo has already been authorized by Aldrin; albeit verba lly, to register the house in the latters name as he cannot do it personally as he was abroad. This authority of Arturo was confirmed by the latters execution of an Affidavit dated January 19, 2002 confirming the procurement of the said tax declaration (Exhibit 6) as well as a Special Power of attorney executed on June 17, 2002 (Exhibit 7). Thus, what appeared to be defective from the beginning had already been cured so much so that the said document became valid and binding as an official act of Arturo. If Arturo did not state in the Tax Declaration in what capacity he was signing, this deficiency was cured by Aldrins subsequent execution of Exhibits 6 and 7. The RTCs conclusion that the special power of attorney executed by Aldrin was a mere afterthought designed to extricate Artu ro from any criminal liability has no basis since from the very start, it has been duly established by the defense that Aldrin had verbally instructed Arturo to cause the execution of Exhibit B for the purpose of registering his house constructed on his mothers lot for taxation purposes.[6] Hence, the instant petition anchored on this sole ground: PUBLIC RESPONDENT COURT OF APPEALS GRAVELY ABUSED ITS DISCRETION AND HAD ACTED WITHOUT JURISDICTION WHEN IT RESOLVED PRIVATE RESPONDENT ARTURO F. DUCAS APPEAL WITHOUT GIVING THE PEOPLE OF THE PHILIPPINES THROUGH THE OFFICE OF THE SOLICITOR GENERAL THE OPPORTUNITY TO BE HEARD THEREON.[7] Petitioner argues that the prosecution was denied due process when the CA resolved the respondents appeal without notifying the People of the Philippines, through the Solicitor General, of the pendency of the same and without requiring the Solicitor General to file his comment. Petitioner contends that once the case is elevated to the CA or this Court, it is only the Solicitor General who is authorized to bring or defend actions on behalf of the People. Thus, the CA gravely abused its discretion when it acted on respondents appeal without affording the prosecution the opportunity to be heard. Consequently, the decision of the CA acquitting respondent should be considered void for being violative of due process. In his Comment,[8] respondent argues that there was no denial of due process because the prosecution was properly represented by the Office of the Provincial Prosecutor and a private prosecutor who handled the presentation of evidence under the control and supervision of the Provincial Prosecutor. Since the control and supervision conferred on the private prosecutor by the Provincial Prosecutor had not been withdrawn, the Solicitor General could not claim that the prosecution was not afforded a chance to be heard in the CA. According to the respondent, he should not be prejudiced by the Provincial Prosecutors failure to inform the Solicitor General of the pendency of the appeal.

33

The petition is impressed with merit. The authority to represent the State in appeals of criminal cases before the CA and the Supreme Court is solely vested in the Office of the Solicitor General (OSG). Section 35(1), Chapter 12, Title III of Book IV of the 1987 Administrative Code explicitly provides, viz.: SEC. 35. Powers and Functions. The Office of the Solicitor General shall represent the Government of the w:st="on"Philippines, its agencies and instrumentalities and its officials and agents in any litigation, proceeding, investigation or matter requiring the services of lawyers. x x x It shall have the following specific powers and functions: (1) Represent the Government in the Supreme Court and the Court of Appeals in all criminal proceedings; represent the Government and its officers in the Supreme Court and Court of Appeals, and all other courts or tribunals in all civil actions and special proceedings in which the Government or any officer thereof in his official capacity is a party. (emphasis supplied) Jurisprudence has been consistent on this point. In the recent case of Cario v. De Castro,[9] it was held: In criminal proceedings on appeal in the Court of Appeals or in the Supreme Court, the authority to represent the People is vested solely in the Solicitor General. Under Presidential Decree No. 478, among the specific powers and functions of the OSG was to represent the government in the Supreme Court and the Court of Appeals in all criminal proceedings. This provision has been carried over to the Revised Administrative Code particularly in Book IV, Title III, Chapter 12 thereof. Without doubt, the OSG is the appellate counsel of the People of the w:st="on"Philippines in all criminal cases.[10] Likewise, in City Fiscal of Tacloban v. Espina,[11] the Court made the following pronouncement: Under Section 5, Rule 110 of the Rules of Court all criminal actions commenced by complaint or information shall be prosecuted under the direction and control of the fiscal. The fiscal represents the People of the w:st="on"Philippines in the prosecution of offenses before the trial courts at the metropolitan trial courts, municipal trial courts, municipal circuit trial courts and the regional trial courts. However, when such criminal actions are brought to the Court of Appeals or this Court, it is the Solicitor General who must represent the People of the w:st="on"Philippines not the fiscal.[12] And in Labaro v. Panay,[13] the Court held: The OSG is the law office of the Government authorized by law to represent the Government or the People of the Philippines before us and before the Court of Appeals in all criminal proceedings, or before any court, tribunal, body, or commission in any matter, action, or proceeding which, in the opinion of the Solicitor General, affects the welfare of the people as the ends of justice may require.[14] Indeed, in criminal cases, as in the instant case, the Solicitor General is regarded as the appellate counsel of the People of the w:st="on"Philippines and as such, should have been given the opportunity to be heard on behalf of the People. The records show that the CA failed to require the Solicitor General to file his Comment on Ducas petition. A copy of the CA Resolution[15] dated May 26, 2004 which required the filing of Comment was served upon Atty. Jaime Dojillo, Sr. (counsel for Duca), Atty. Villamor Tolete (counsel for private complainant Calanayan) and RTC Judge Crispin Laron. Nowhere was it shown that the Solicitor General had ever been furnished a copy of the said Resolution. The failure of the CA to require the Solicitor General to file his Comment deprived the prosecution of a fair opportunity to prosecute and prove its case. Pertinently, Saldana v. Court of Appeals, et al.[16] ruled as follows: When the prosecution is deprived of a fair opportunity to prosecute and prove its case, its right to due process is thereby violated (Uy vs. Genato, L-37399, 57 SCRA 123 [May 29, 1974]; Serino vs. Zoa, L-33116, 40 SCRA 433 [Aug. 31, 1971]; People vs. Gomez, L-22345, 20 SCRA 293 [May 29, 1967]; People vs. Balisacan, L-26376, 17 SCRA 1119 [Aug. 31, 1966]). The cardinal precept is that where there is a violation of basic constitutional rights, courts are ousted of their jurisdiction. Thus, the violation of the States right to due process raises a serious jurisdiction issue (Gumabon vs. Director of the Bureau of Prisons, L-300026, 37 SCRA 420 [Jan. 30, 1971]) which cannot be glossed over or disregarded at will. Where the denial of the fundamental right of due process is apparent, a decision rendered in disregard of that right is void for lack of jurisdiction (Aducayen vs. Flores, L-30370, [May 25, 1973] 51 SCRA 78; Shell Co. vs. Enage, L-30111-12, 49 SCRA 416 [Feb. 27, 1973]). Any judgment or decision rendered notwithstanding such violation may be regarded as a lawless thing, which can be treated as an outlaw and slain at sight, or ignored wherever it exhibits its head (Aducayen vs. Flores, supra).[17] The State, like the accused, is entitled to due process in criminal cases, that is, it must be given the opportunity to present its evidence in support of the charge. The doctrine consistently adhered to by this Court is that a decision rendered without due process is void ab initio and may be attacked directly or collaterally. A decision is void for lack of due process if, as a result, a party is deprived of the opportunity to be heard.[18] The assailed decision of the CA acquitting the respondent without giving the Solicitor General the chance to file his comment on the petition for review clearly deprived the State of its right to refute the material allegations of the said petition filed before the CA. The said decision is, therefore, a nullity. In Dimatulac v. Villon,[19] we held: 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 offended party, on the other.[20] Further, the CA should have been guided by the following provisions of Sections 1 and 3 of Rule 42 of the 1997 Rules of Court: Sec. 1. How appeal taken; time for filing. A party desiring to appeal from a decision of the Regional Trial Court rendered in the exercise of its appellate jurisdiction may file a verified petition for review with the Court of Appeals, paying at the same time to the clerk of said court the corresponding docket and other lawful fees, depositing the amount of P500.00 for costs, and furnishing the Regional Trial Court and the adverse party with a copy of the petition. The petition shall be filed and served within fifteen (15) days from notice of the decision sought to be reviewed or of the denial of petitioners motion for new trial or reconsideration filed in due time after judgment. Upon proper motion and the payment of the full amount of the docket and other lawful fees and the deposit for costs before the expiration of the reglementary period, the Court of Appeals may grant an additional period of fifteen (15) days only within which to file the petition for review. No further extension shall be granted except for the most compelling reason and in no case to extend fifteen (15) days. Sec. 3. Effect of failure to comply with requirements. The failure of the petitioner to comply with any of the foregoing requirements regarding the payment of the docket and other lawful fees, the deposit for costs, proof of service of the petition, and the contents of and the documents which should accompany the petition shall be sufficient ground for the dismissal thereof. (emphasis supplied)

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Respondent appealed to the CA from the decision of the RTC via a petition for review under Rule 42 of the 1997 Rules of Court. The respondent was mandated under Section 1, Rule 42 of the Rules of Court to serve copies of his petition for review upon the adverse party, in this case, the People of the Philippines through the OSG. Respondent failed to serve a copy of his petition on the OSG and instead served a copy upon the Assistant City Prosecutor of Dagupan City.[21] The service of a copy of the petition on the People of the Philippines, through the Prosecutor would be inefficacious for the reason that the Solicitor General is the sole representative of the People of the Philippines in appeals before the CA and the Supreme Court. The respondents failure to have a copy of his petition served on the People of the Philippines, through the OSG, is a sufficient ground for the dismissal of the petition as provided in Section 3, Rule 42 of the Rules of Court. Thus, the CA has no other recourse but to dismiss the petition. However, the CA, instead of dismissing respondents petition, proceeded to resolve the petition and even acquitted respondent without the Solicitor Generals comment. We, thus, find that the CA committed grave abuse of discretion amounting to lack or excess of jurisdiction in rendering its assailed decision. On a procedural matter, the Court notes that petitioner filed the instant petition for certiorari under Rule 65 without filing a motion for reconsideration with the CA. It is settled that the writ of certiorari lies only when petitioner has no other plain, speedy, and adequate remedy in the ordinary course of law. Thus, a motion for reconsideration, as a general rule, must be filed before the tribunal, board, or officer against whom the writ of certiorari is sought. Ordinarily, certiorari as a special civil action will not lie unless a motion for reconsideration is first filed before the respondent tribunal, to allow it an opportunity to correct its assigned errors.[22] This rule, however, is not without exceptions. In National Housing v. Court of Appeals,[23] we held: However, in Progressive Development Corporation v. Court of Appeals, we held that while generally a motion for reconsideration must first be filed before resorting to certiorari in order to give the lower court an opportunity to rectify its errors, this rule admits of exceptions and is not intended to be applied without considering the circumstances of the case. The filing of a motion for reconsideration is not a condition sine qua non when the issue raised is purely one of law, or where the error is patent or the disputed order is void, or the questions raised on certiorari are the same as those already squarely presented to and passed upon by the lower court.[24] (emphasis supplied) The CA decision being void for lack of due process, the filing of the instant petition for certiorari without a motion for reconsideration is justified. WHEREFORE, the petition for certiorari is hereby GRANTED. The assailed decision of the CA in CA-G.R. CR No. 28312 is hereby SET ASIDE and the case is REMANDED to the CA for further proceedings. The CA is ordered to decide the case with dispatch. SO ORDERED.

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