Republic of the PhilippinesSUPREME COURTManila

Republic of the PhilippinesSUPREME COURTManila

EN BANC

A.M. No. RTJ-05-1909 April 6, 2005COMMUNITY RURAL BANK OF GUIMBA (N. E.), INC., Represented by OLGA M. SAMSON, Complainant, vs.JUDGE TOMAS B. TALAVERA, Regional Trial Court (Branch 28), Cabanatuan City, Nueva Ecija,respondent.

D E C I S I O N

PANGANIBAN, J.:The Constitution expects judges to be embodiments of competence, integrity, probity and independence. They must personify four ins; namely, integrity, independence, industry and intelligence.1 Their judgments must be characterized by excellence, their conduct by ethics, and their outlook by eternity. They are not common individuals whose gross errors "men forgive and time forgets."

The Case and the FactsIn a Complaint-Affidavit dated June 24, 2003, the Community Rural Bank of Guimba (N. E.), Inc. -- through its chief operating officer, Olga M. Samson -- charged Judge Tomas B. Talavera of the Regional Trial Court (Branch 28) of Cabanatuan City, Nueva Ecija, with (1) serious misconduct and/or gross inefficiency and (2) violation of Rules 1.01,2 3.013 and 3.024 of the Code of Judicial Conduct. The Office of the Court Administrator (OCA) summarized the factual antecedents as follows:

"In September 1997, the Bank lodged a complaint with the City Prosecutors Office of Cabanatuan charging several persons (the accused, for brevity) with the offense of Estafa in relation to P.D. Nos. 818 and 1689. After a preliminary investigation, the Investigating Fiscal recommended the filing --of six (6) Informations for Estafa against the accused. These were docketed as Criminal Case Nos. 8760 to 8765 and were raffled to Branches 25, 26, 28, and 86 of RTC, Cabanatuan City. Respondent was the presiding judge of Branch 28 to whom Criminal Case Nos. 8761 and 8763 were raffled.

"On 28 December 1998, the accused appealed the findings of the Investigating Fiscal to the Department of Justice (DOJ, for brevity). On 19 November 1999, the DOJ denied the petition of the accused. Then, the accused filed a Motion for Reconsideration, which was denied by the DOJ through a resolution, dated 15 August 2000. Hence, respondent issued a Warrant of Arrest fixing no bail against the accused.

"On 20 November 2000, the accused filed a Motion for Reinvestigation and to Lift the Issuance of Warrant of Arrest (Motion for Reinvestigation, for brevity). However, neither the Bank nor its counsel was furnished a copy of said Motion. There was also no hearing on the said motion to afford the Bank an opportunity to oppose the same.

"On 4 December 2000, respondent granted the Motion for Reinvestigation without any hearing thereon. Thus, a reinvestigation proceeding was conducted by Assistant Provincial Prosecutor Virgilio Caballero. Again, the Bank was not notified of said proceedings.

"Assistant Provincial Prosecutor Caballero, in his Joint Resolution dated 28 December 2000, reversed the earlier findings of the previous Investigating Fiscal. Thus, on the same day, a Motion to Dismiss was filed by Assistant Provincial Prosecutor Caballero. Neither the bank nor its counsel was notified about the said Motion and no hearing thereon was held to afford the Bank an opportunity to oppose the same.

"Respondent granted the Motion to Dismiss and ordered the release of the accused on 29 December 2000.

"On 11 January 2001, the Bank, arguing that it had been deprived of due process, filed a Motion for Reconsideration with Opposition/Comment to the Motion to Dismiss and Omnibus Motion for the Reinstatement of the Criminal Information and for the Recall of Order for Release.

"Respondent denied the afore-mentioned Motion of the Bank for lack of merit on 23 March 2001. Thus, the Bank filed a Petition for Review under Rule 65 of the Revised Rules of Court with the Court of Appeals.

"In view of the foregoing, Ms. Samson argued that respondent transgressed Sections 2, 5 and 6 of Rule 15 of the Revised Rules of Court, when he granted the Motion for Reinvestigation of the accused and Assistant Provincial Prosecutor Caballeros Motion to Dismiss without notice and hearing in favor of the Bank or its counsel. Furthermore, the granting by respondent of the Motion to Dismiss based solely on the Resolution issued by Assistant Provincial Prosecutor Caballero, without making his own independent findings of the merits of the case, is repugnant to the principle laid down in Crespo vs. Mogul (151 SCRA 462 [30 June 1987]) which held that once a complaint or information is filed in court any disposition or the conviction or acquittal of the accused rests in the sound discretion of the court.

"2. COMMENT/OPPOSITION WITH MOTION TO DISMISS dated 11 August 2003 of Respondent Judge Tomas B. Talavera where he refutes the foregoing Complaint-Affidavit as follows:

"There was no need to set the Motion for Reinvestigation for hearing because the Office of the Provincial Prosecutor who has direct control and supervision of all criminal cases was furnished a copy of said motion. Furthermore, it should be noted that, in the Motion for Reinvestigation filed before the court, the Office of the Provincial Prosecutor through the Assistant Provincial Prosecutor signified his intention not to object to the Motion for Reinvestigation as can be seen from his handwritten note and signature appearing on said motion. Hence, setting the same for hearing would be an exercise in futility and it could just delay the immediate disposition of the case.

"The Office of the Provincial Prosecutor, after the reinvestigation, issued a Joint Resolution dated 28 December 2000 through Assistant Provincial Prosecutor Virgilio Caballero recommending the dismissal of the criminal case. On the basis of said Joint Resolution, a Motion to Dismiss was filed by Assistant Provincial Prosecutor Caballero, which was granted by respondent on 29 December 2003.

"The Motion to Dismiss was not set anymore for hearing because it was filed by the public prosecutor who conducted the reinvestigation. Since the Motion to Dismiss was filed by prosecutor and the same was not prejudicial to the adverse party (the accused), it is just proper for the court to treat the said motion as non-litigious.

"The private prosecutor filed a petition for certiorari before the Court of Appeals seeking to amend and set aside the Order dated 23 March 2003 of Respondent Judge which denied the Motion for Reconsideration of the private complainant. The said petition is still pending before the Court of Appeals. The grounds used by the private complainant in her petition for certiorari are the same grounds in the administrative complaint. Hence, the administrative complaint filed by the private complainant is a violation of the principle on sub judice.

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

"The reasoning of respondent in allowing the Motion for Reinvestigation without notice to private counsel and hearing is erroneous. The said motion is litigious. Therefore, sound judicial discretion should have prompted the respondent to treat said motion as a mere scrap of paper for violating the general rules on motions under Sections 2, 5 and 6 of Rule 15 of the Rules of Court and in view of the principles enunciated in Brizuela vs. Judge Mendiola (A.M. No. RTJ-00-1560 dated 5 July 2000) and Bajet vs. Judge Areola (A.M. No. RTJ-01-1615 dated 19 June 2001). In Brizuela and Bajet, the Supreme Court held that failure to serve notice on the adverse party rendered a litigious motion a mere scrap of paper.

"Furthermore, the rule on sub judice was not violated by complainant. The cause of action and reliefs prayed for in the instant administrative complaint are different from the petition filed by the Bank before the Court of Appeals. The petition filed before the Court of Appeals was filed on the ground of "grave abuse of discretion amounting to lack of jurisdiction, there being no other plain, speedy and adequate remedy in the ordinary course of law, seeking to annul and set aside" respondents Order dated 23 March 2001 denying complainant Banks Motion for Reconsideration of an earlier Order dated 29 December 2000 granting Assistant Provincial Prosecutor Caballeros Motion to Dismiss. On the other hand, the administrative complaint filed by the Bank aims to subject respondent to the appropriate administrative sanctions."5In a Resolution dated October 20, 2004,6 this Court resolved to re-docket the Complaint as a regular administrative matter.

Evaluation and Recommendation of the OCAThe OCA opined that by dismissing the criminal case without giving complainant the opportunity to object to the Motion for Reinvestigation and Motion to Dismiss, respondent showed gross ignorance of the law, for which he should be sanctioned. The OCA added that the presence of the offended party was required in the hearing of a motion to dismiss as much as in the arraignment. The dismissal of the criminal cases covered the litigations civil aspect (recovery of damages by the offended party), which was deemed included in the Information.

Pursuant to Rule 140 of the Rules of Court, the OCA recommended that respondent judge be fined in the amount of P21,000.

On the other hand, the OCA recommended that the charge of gross misconduct be dismissed for lack of substantial evidence. It found no clear proof of malice or wrongful intent on the part of respondent.

The Courts RulingWe agree with the findings and recommendations of the OCA.

Administrative LiabilityCourts exist to dispense and promote justice. Judges are the visible representations of law and justice.7 One of their principal duties is to have an adequate grasp of the Constitution, the law and jurisprudence. Indeed, they must be the embodiments of competence, integrity and independence.8 They owe it to the dignity of the court over which they preside, to the public who depend on them, and to the legal profession to which they belong, to know the very law they are supposed to interpret and apply.9 Party litigants will have great faith in the administration of justice only if judges can demonstrate their grasp of legal principles.10

In the present case, the gross ignorance of respondent judge and his notorious violation of simple legal precepts were clearly shown by his issuance of the Orders dated December 4, 2000 granting the Motion for Reinvestigation of the accused and December 29, 2000 granting the prosecutors Motion to Dismiss.

First, respondent should not have entertained the Motion for Reinvestigation filed by the accused. The former was fully aware that the latter had appealed the unfavorable ruling of the investigating prosecutor to the Department of Justice (DOJ). Respondent judge must have in fact taken that appeal into consideration when he issued a warrant of arrest against all the accused only on September 19, 2000,11 after Justice Secretary Serafin R. Cuevas had denied their Petition for Review and affirmed the presence of prima facie evidence against them.12 Subsequently, on August 15, 2000, the secretary also denied with finality the Motion for Reconsideration filed by the accused.13Inasmuch as the Resolution of the provincial prosecutor has been affirmed by the secretary of justice, the existence of probable cause to hold the accused for trial may be deemed to be the finding of the secretary himself, not merely of the prosecutor who had first investigated the case.14 Therefore, what the prosecutor reviewed and overruled in the reinvestigation was not the actuation and resolution of his predecessor, but of the secretary of justice no less.15

The justice secretarys superior authority in the prosecution of offenses was elucidated upon by this Court inLedesma v. Court of Appeals,16 which we quote:

"Section 39, Chapter 8, Book IV in relation to Sections 5, 8, and 9, Chapter 2, Title III of the [Revised Administrative] Code gives the secretary of justice supervision and control over the Office of the Chief Prosecutor and the Provincial and City Prosecution Offices. The scope of his power of supervision and control is delineated in Section 38, paragraph 1, Chapter 7, Book IV of the Code:

(1) Supervision and Control. Supervision and control shall include authority to act directly whenever a specific function is entrusted by law or regulation to a subordinate; direct the performance of duty; restrain the commission of acts; review, approve, reverse or modify acts and decisions of subordinate officials or units; x x x

x x x x x x x x x

Supervision and control of a department head over his subordinates have been defined in administrative law as follows:

In administrative law, supervision means overseeing or the power or authority of an officer to see that subordinate officers perform their duties. If the latter fail or neglect to fulfill them, the former may take such action or step as prescribed by law to make them perform such duties. Control, on the other hand, means the power of an officer to alter or modify or nullify or set aside what a subordinate officer had done in the performance of his duties and to substitute the judgment of the former for that of the latter.

"Review as an act of supervision and control by the justice secretary over the fiscals and prosecutors finds basis in the doctrine of exhaustion of administrative remedies which holds that mistakes, abuses or negligence committed in the initial steps of an administrative activity or by an administrative agency should be corrected by higher administrative authorities, and not directly by courts. x x x"

The actions of prosecutors are not unlimited; they are subject to review by the secretary of justice who may affirm, nullify, reverse or modify their actions or opinions.17 Consequently the secretary may direct them to file either a motion to dismiss the case or an information against the accused.18In short, the secretary of justice, who has the power of supervision and control over prosecuting officers, is the ultimate authority who decides which of the conflicting theories of the complainants and the respondents should be believed.19 The provincial or city prosecutor has neither the personality nor the legal authority to review or overrule the decision of the secretary.20 This principle is elementary.

Consistent with this administrative superior-subordinate relationship between them, Section 7 of Department Order No. 22321 (the rules governing appeals from resolutions in preliminary investigations or reinvestigations) provides:

Sec. 7. Motion for Reinvestigation. At any time after the appeal has been perfected and before the resolution thereof, the appellant may file a motion for reinvestigation on the ground that new and material evidence has been discovered which appellant could not with reasonable diligence have discovered during the preliminary investigation and which if produced and admitted would probably change the resolution.

From the above-quoted provision, a motion for reinvestigation on the ground of newly discovered evidence must be filed before the justice secretary rules on an appeal from a resolution in a preliminary investigation.

In the present case, the accused filed their Motion for Reinvestigation on November 29, 2000,22 about three months after the August 15, 2000 Resolution of the secretary denying with finality their Motion for Reconsideration of the denial of their Petition for Review. Clearly, therefore, it was grossly erroneous for respondent judge to order the reinvestigation of the case by the prosecutor. This action enabled the latter to reprobate and reverse the secretarys Resolution. In granting the Motion for Reinvestigation, respondent effectively demolished the DOJs power of control and supervision over prosecutors.

Furthermore, the judge perfunctorily granted the Motion for Reinvestigation on the basis of an alleged newly discovered evidence -- a one-page Affidavit executed by Ms Gloria Sacramento, one of the co-accused in the criminal case. The Affidavit,23 dated October 29, 1997, was clearly not newly discovered; it was already known to the accused even during the preliminary investigation. There was no explanation whatsoever as to why this piece of evidence was never presented during the preliminary investigation. Nonetheless, respondent hastily granted the Motion.

Considering that a prima facie case had been found to exist against the accused during the preliminary investigation -- a fact affirmed by the justice secretary -- respondent judge should have exercised great restraint in granting a reinvestigation.24It must be stressed here that a preliminary investigation is essentially prefatory and inquisitorial.25 It is not a trial of the case on the merits and has no purpose except to determine whether a crime has been committed, and whether there is probable cause to believe that the accused is guilty of that crime.26 A preliminary investigation is not the occasion for a full and exhaustive display of the parties evidence, which needs to be presented only to engender a well-grounded belief that an offense has been committed, and that the accused is probably guilty thereof.27Second, in granting the Motion to Dismiss, respondent relied solely on the Resolution of the prosecutor who had conducted the reinvestigation and recommended the dismissal of the case for alleged insufficiency of evidence. The December 29, 2000 Order28 granting the Motion to Dismiss reads in full as follows:

"Finding the Motion to Dismiss in these cases to be meritorious, the same is hereby granted, and Fernando del Rosario and Flordeliza del Rosario, both accused in the above-entitled cases are hereby ordered released unless they are being detained for some other lawful cause.

"Cabanatuan City, December 29, 2000."

This perfunctory Order does not demonstrate an independent evaluation or assessment of the evidence (or the lack thereof) against the accused. In other words, the dismissal of the case was not shown to be based upon the judges own individual conviction that there was no viable case against them.

This Court also observes that respondent acted with undue haste when he granted the Motion on December 29, 2000,29 only a day after the reinvestigation was concluded on December 28, 2000.30 Coupled with the absence of the required evaluation in the Resolution granting the dismissal of the case, this hasty action leads to the indubitable conclusion that the judge did not personally evaluate the parties evidence before acting on the Motion.

Settled is the legal doctrine that the discretion to accede to a Motion to Dismiss filed by the prosecutor rests solely with the court.31 Mere approval of the position taken by the prosecution is not equivalent to the discretion required in cases like this.32 The trial judge must be convinced that there was indeed no sufficient evidence against the accused. Such a conclusion can be arrived at only after a thorough assessment of the prosecution evidence. For a valid and proper exercise of judicial discretion, accepting the prosecutions word that the evidence is insufficient is not enough;33 strictly required of the order disposing of the motion is the trial judges own evaluation of such evidence.34 Once a complaint or an information is filed in court, the judge -- not the prosecutor -- assumes full control of the controversy.35 Thus, a grant of the motion to dismiss is equivalent to a disposition of the case itself,36 a subject clearly within the courts exclusive jurisdiction and competence.37Furthermore, when respondent judge issued the warrants of arrest without bail against all the accused, it is presumed that he had studied the Information and the Resolution of the prosecutor and agreed with the latters findings of probable cause.38 Consequently, the grant of the Motion for Reinvestigation and of the Motion to Dismiss for alleged insufficiency of evidence posed a serious contradiction of the earlier finding of probable cause.

Third, respondent granted the Motions despite the obvious lack of notice to complainant (the private offended party in the criminal

case) and lack of hearing. This lapse effectively deprived it of its day in court.

The Rules of Court require that, with the exception of motions that the court may act upon without prejudicing the rights of the adverse party, every written motion should be set for hearing by the movant. Sections 4, 5 and 6 of Rule 15 of the Rules of Court explicitly require that notices be sent at least three days before the hearing and directed at the parties concerned; and that they state the time and place of hearing of the motion, with proper proof of notice thereof. Without such proof, the motion is considered pro forma; thus, the court cannot act upon it.39The purpose of the notice is to enable the adverse party to appear for its own protection and to contest the motion.40 Elementary due process mandates that the other party be notified of the adverse action of the opposing party,41 so as to avoid a capricious change of mind and to ensure impartiality of the trial.42 Here, the Motions for Reinvestigation and to Dismiss were fatally defective, as neither contained any proper notice of hearing. Respondent thus grossly erred in taking cognizance of these Motions.

In criminal proceedings, the word "party" is held to mean not only the government and the accused, but also other persons who may be affected by the orders issued and/or judgment rendered therein.43Undoubtedly, complainant had an interest in the maintenance of the criminal prosecution.44 Its right to intervene therein was practically beyond question, as it neither instituted a separate civil action nor reserved or waived the right to do so.45 Thus, as the party injured by the crime, it had the right to be heard on a motion that was derogatory to its interest in the civil aspect of the case. Due process46 necessitates that it be afforded this opportunity, especially because of a conflict between the positions of the public prosecutor and of the offended party.

Respondent judge does not deny that no notice was given to complainant. Neither was a hearing conducted before the issuance of the subject Orders. By such failure of notice and hearing, he effectively deprived complainant of the opportunity to appear and to oppose the said Motions. That the offended party, not only the accused, must be accorded due process was explained by the Court in Dimatulac v. Villon, which ruled thus:

"x x x Although the determination of a criminal case before a judge lies within his exclusive jurisdiction and competence, his discretion is not unfettered, but rather must be exercised within reasonable confines. The judges action must not impair the substantial rights of the accused, nor the right of the State and offended party to due process of law.

"Indeed, for justice to prevail, the scales must balance; justice is not to be dispensed for the accused alone. The interests of society and the offended parties which have been wronged must be equally considered. Verily, a verdict of conviction is not necessarily a denial of justice; and an acquittal is not necessarily a triumph of justice, for, to the society offended and the party wronged, it could also mean injustice. Justice then must be rendered even-handedly to both the accused, on one hand, and the State and the offended party, on the other."47All told, respondent showed his lack of understanding, not only of the basic and established superior-subordinate relationship between the secretary of justice and the provincial prosecutors, but also of the functions and duties of the trial court in "the proper scheme of things" in our criminal justice system. The judge similarly failed to attach importance to the standard and fundamental procedure mandated by the Rules of Court and the rudiments of due process. His actions manifested a marked deficiency in his knowledge of the law. Where, as in this case, the legal principle involved is basic, simple and elementary, lack of conversance therewith constitutes gross ignorance of the law.48

Judges are expected to have more than just a modicum acquaintance with the statutes and procedural rules.49 The Code of Judicial Ethics requires them to be embodiments of, among other desirable characteristics, judicial competence.50 They are not common individuals whose gross errors "men forgive and time forgets."51The OCA recommended the penalty of a fine in the amount of P21,000 for respondent judges gross ignorance of the law, which is classified by Rule 140 of the Rules of Court as a serious charge. As to the complaint of serious misconduct, we also adopt the findings of the OCA that no fraud, malice or wrongful intent was imputed, or proved by complainant; hence, respondent cannot be made liable therefor.

WHEREFORE, Judge Tomas B. Talavera is found GUILTY of gross ignorance of the law and is FINEDtwenty one thousand pesos.

He is hereby sternly warned that a repetition of the same or similar infractions in the future shall be dealt with more severely.

SO ORDERED.

Davide, Jr., (Chief Justice), Puno, Quisumbing, Ynares-Santiago, Sandoval-Gutierrez, Carpio, Austria-Martinez, Corona, Carpio-Morales, Callejo, Sr., Azcuna, Tinga, Chico-Nazario, Garcia, J.J., concur.

Case Doctrines:

The secretary of justice, who has the power of supervision and control over prosecuting officers, is the ultimate authority who decides which of the conflicting theories of the complainants and the respondents should be believed. The provincial or city prosecutor has neither the personality nor the legal authority to review or overrule the decision of the secretary.

A preliminary investigation is essentially prefatory and inquisitorial. It is not a trial of the case on the merits and has no purpose except to determine whether a crime has been committed, and whether there is probable cause to believe that the accused is guilty of that crime.

In criminal proceedings, the word party is held to mean not only the government and the accused, but also other persons who may be affected by the orders issued and/or judgment rendered therein. Elementary due process mandates that the other party be notified of the adverse action of the opposing party, so as to avoid a capricious change of mind and to ensure impartiality of the trial.

When a motion is pro forma, the court cannot act upon it.

Facts: Community Rural Bank (Bank) filed a complaint with the prosecutors office of Cabanatuan charging several persons (the accused) with Estafa. After preliminary investigation, 6 informations for estafa were filed, 2 of which were raffled to the branch where respondent, Judge Talavera, presided.

The accused appealed the finding of the Fiscal to the DOJ, which the latter denied, so Judge Talavera issued a warrant of arrest with no bail against the accused.

Later, the accused filed with Judge Talavera a motion for reinvestigation and to lift the warrant of arrest. Bank was not notified of this motion. Judge granted the motion without any hearing thereon. When the reinvestigation was conducted, the Bank was still not notified.

The assistant provincial prosecutor who conducted the reinvestigation reversed the earlier findings of the fiscal. On the same day, a motion to dismiss was filed with Judge, which he granted, and he also ordered the release of the accused. The Bank was never notified of any of these proceedings. Bank then filed an MR arguing it was deprived of due process. It also asked that the criminal information be reinstated. Judge denied this. Hence, Bank filed the present case charging Judge Talavera with (1) serious misconduct and/or gross inefficiency and (2) violation of Rules 1.01, 3.01 and 3.02 of the Code of Judicial Conduct.

Issue:

Whether or not respondent judge is guilty of gross ignorance and violation of simple legal precepts.

Held: Yes. Respondent judge's gross ignorance and violation of simple legal precepts is clearly shown by his issuance of the Orders granting the Motion for Reinvestigation of the accused and the prosecutors Motion to Dismiss.

Motion for ReinvestigationFirst, judge should not have entertained the motion for reinvestigation, since DOJ Secretary Serafin Cuevas already denied with finality the appeal of the accused, finding that there was prima facie evidence against the accused. The secretary of justice, who has the power of supervision and control over prosecuting officers, is the ultimate authority who decides which of the conflicting theories of the complainants and the respondents should be believed. The provincial or city prosecutor has neither the personality nor the legal authority to review or overrule the decision of the secretary.

Section 7 of Department Order No. 223 (the rules governing appeals from resolutions in preliminary investigations or reinvestigations) provides:

Sec. 7. Motion for Reinvestigation. At any time after the appeal has been perfected and before the resolution thereof, the appellant may file a motion for reinvestigation on the ground that new and material evidence has been discovered which appellant could not with reasonable diligence have discovered during the preliminary investigation and which if produced and admitted would probably change the resolution.

Here, the motion for reinvestigation was filed 3 months after the DOJ Secretary already denied their appeal with finality. Clearly, therefore, Judge Talavera was wrong in granting the motion. In granting the Motion for Reinvestigation, respondent effectively demolished the DOJs power of control and supervision over prosecutors.

Newly discovered evidenceAlso, there was no newly discovered evidence. The one-page Affidavit executed by Ms Gloria Sacramento, one of the co-accused in the criminal case. was clearly not newly discovered; it was already known to the accused even during the preliminary investigation. There was no explanation whatsoever as to why this piece of evidence was never presented during the preliminary investigation. Nonetheless, respondent hastily granted the Motion.Preliminary investigationIt must be stressed that a preliminary investigation is essentially prefatory and inquisitorial. It is not a trial of the case on the merits and has no purpose except to determine whether a crime has been committed, and whether there is probable cause to believe that the accused is guilty of that crime. A preliminary investigation is not the occasion for a full and exhaustive display of the parties evidence, which needs to be presented only to engender a well-grounded belief that an offense has been committed, and that the accused is probably guilty thereof.

Motion to DismissSecond, it was also error for the Judge to grant the Motion to Dismiss by relying merely on the resolution of the prosecutor who conducted the reinvestigation. In his Order, he merely stated that the motion to dismiss is meritorious, and nothing more. The Order failed to demonstrate an independent evaluation or assessment of the evidence against the accused.

The Judge acted with undue haste when he granted the Motion only a day after the reinvestigation was concluded. This leads to the conclusion that the judge did not personally evaluate the parties evidence before acting on the Motion.The discretion to grant a Motion to Dismiss rests solely with the court. However, mere approval of the position taken by the prosecution is not equivalent to the discretion required. Once a complaint or an information is filed in court, the judge -- not the prosecutor -- assumes full control of the controversy. A grant of the motion to dismiss is equivalent to a disposition of the case itself, which is a subject clearly within the courts exclusive jurisdiction and competence.

When Judge issued the warrants of arrest without bail against all the accused, it is presumed that he had studied the Information and the Resolution of the prosecutor and agreed with the latters findings of probable cause. Thus, the grant of the Motion for Reinvestigation and of the Motion to Dismiss for alleged insufficiency of evidence posed a serious contradiction of the earlier finding of probable cause.

Pro forma motionsFinally, Judge granted both of the Motions despite the obvious lack of notice to the Bank and lack of hearing. This lapse effectively deprived it of its day in court.

The Rules of Court require that, with the exception of motions that the court may act upon without prejudicing the rights of the adverse party, every written motion should be set for hearing by the movant. Sections 4, 5 and 6 of Rule 15 of the Rules of Court explicitly require that notices be sent at least three days before the hearing and directed at the parties concerned; and that they state the time and place of hearing of the motion, with proper proof of notice thereof. Without such proof, the motion is considered pro forma; thus, the court cannot act upon it.

The purpose of the notice is to enable the adverse party to appear for its own protection and to contest the motion. Elementary due process mandates that the other party be notified of the adverse action of the opposing party, so as to avoid a capricious change of mind and to ensure impartiality of the trial. Here, the Motions for Reinvestigation and to Dismiss were fatally defective, as neither contained any proper notice of hearing. Respondent thus grossly erred in taking cognizance of these Motions.

In criminal proceedings, the word party is held to mean not only the government and the accused, but also other persons who may be affected by the orders issued and/or judgment rendered therein.

Due processUndoubtedly, complainant had an interest in the maintenance of the criminal prosecution. Its right to intervene therein was practically beyond question, as it neither instituted a separate civil action nor reserved or waived the right to do so. Thus, as the party injured by the crime, it had the right to be heard on a motion that was derogatory to its interest in the civil aspect of the case. Due process necessitates that it be afforded this opportunity, especially because of a conflict between the positions of the public prosecutor and of the offended party.All told, respondent showed his lack of understanding, not only of the basic and established superior-subordinate relationship between the secretary of justice and the provincial prosecutors, but also of the functions and duties of the trial court in the proper scheme of things in our criminal justice system.

Judges are expected to have more than just a modicum acquaintance with the statutes and procedural rules. The Code of Judicial Ethics requires them to be embodiments of, among other desirable characteristics, judicial competence. They are not common individuals whose gross errors men forgive and time forgets. Judge was FINED P20,000.00. (Community Rural Bank v. Tomas B. Talavera, 455 SCRA 34, A.M. No. RTJ-05-1909, April 6, 2005)Republic of the PhilippinesSUPREME COURTSECOND DIVISION

G.R. No. 163818 October 20, 2005SEBASTIAN SERAG, LINO NAPAO, THOMIX SEGUMALIAN, JOSE OLIVER SEGUMALIAN, RODOLFO TALANQUINES, ROQUE SANMILLAN, EDGAR STA. CRUZ, ELEAZAR SAOL, NEMESIO PANUGOT, TEODORICO DELA CRUZ, VICENTE DELA CRUZ, ABRAHAM DELA CRUZ* and MARILYN SILFAVAN,Petitioners, vs.COURT OF APPEALS and MA. DAISY SIBYA, Respondents.

D E C I S I O N

CALLEJO, SR., J.:In the wee hours of May 11, 2001, Atty. Jesus Sibya, Jr., a mayoralty candidate in San Joaquin, Iloilo during the 2001 elections, was shot to death in front of his residence. His driver, Norberto Salamat III, was also wounded. The Criminal Investigation and Detection Group in Iloilo City filed a criminal complaint for murder and attempted murder against Lino Napao, then incumbent mayor of San Joaquin, and Sebastian Serag.1 In a Joint Resolution dated May 26, 2001, the Provincial Prosecutor filed two Informations with the Regional Trial Court (RTC) of Guimbal, Iloilo: (1) for Murder with the Use of Unlicensed Firearms, and (2) Attempted Murder with the Use of Unlicensed Firearms against Serag and Napao and seven unidentified persons.2 The cases were docketed as Criminal Case Nos. 925 and 926.

On May 28, 2001, Norberto Salamat III and Ma. Daisy Sibya, the widow of the deceased, filed before the Office of the Provincial Prosecutor a Supplemental Complaint for murder, frustrated murder and violation of Presidential Decree No. 1866 against Serag, Lino Napao, 16 others, and three other unidentified persons.3 On July 26, 2001, the Provincial Prosecutor issued a Joint Resolution finding probable cause for murder and attempted murder with the use of unlicensed firearms against Serag, Lino Napao, Juan Napao and 14 other accused, including those whose identities were earlier unknown.4 The Provincial Prosecutor filed, in the RTC of Guimbal, Iloilo, an Amended Information for Murder5 and an Amended Information for Attempted Murder with the use of unlicensed firearm against the said accused.

Accused Juan Napao and the 14 other additional accused filed on August 16, 2002, a petition for review of the July 26, 2001 Joint Resolution of the Provincial Prosecutor before the Department of Justice (DOJ).6The trial court found probable cause for murder and attempted murder against the accused. Consequently, the court issued an Order7 on September 27, 2001, for the issuance of warrants for the arrest of the accused who were still at large.

Pending the resolution by the Secretary of Justice of the said petition for review, the proceedings were suspended. Subsequently, however, the arraignment of the accused was set on May 21, 2002. It was, thereafter, reset to June 6, 2002 which, by agreement of the prosecution and the defense, was "intransferrable" in character.8 It turned out that the day before (May 20, 2002), the Secretary of Justice had issued Resolution No. 258 affirming with modification, the Joint Resolution of the Provincial Prosecutor, downgrading the charges from Murder to Homicide, and from Attempted Murder to Attempted Homicide, respectively, except as to four of the accused. The Provincial Prosecutor was likewise ordered to amend the Amended Informations accordingly.9 The RTC received a copy of the Resolution on May 27, 2002.

Ma. Daisy Sibya, likewise, received, on May 27, 2002, a copy of the said Resolution. She filed a motion for the reconsideration of the said resolution on June 4, 2002, serving copies thereof on the RTC and the accused-petitioners by registered mail.

In compliance with Resolution No. 258 of the Secretary of Justice, the Provincial Prosecutor filed before the RTC on June 5, 2002 a Motion for Leave to File a Second Amended Information for homicide and attempted homicide in the two cases, and for the court to admit the said second Amended Informations.10 The motion was set for hearing at 2:00 p.m. of June 6, 2002. During the said hearing, the private prosecutors opposed the motion and moved for deferment, contending that the private complainant had earlier filed a motion for reconsideration of Resolution No. 258, and that it would be premature for the Provincial Prosecutor to file a motion for the admission of the Second Amended Information and for the court to admit the same.11 The Provincial Prosecutor joined the motion of the private prosecutors.

However, the RTC verbally granted the motion of the Provincial Prosecutor, and admitted the Second Amended Information for Homicide.12 Criminal Case No. 926 for the attempted homicide was, likewise, dismissed on the ground that it had no jurisdiction over the said case. The RTC further declared that it had not been served with a copy of the private complainants motion for reconsideration. The court forthwith arraigned the accused for homicide, who pleaded not guilty to the crime charged.

On June 6, 2002, the RTC issued its Order13 granting the motion of the Provincial Prosecutor for the admission of the Second Amended Information for Homicide, and ordered the dismissal of Criminal Case No. 926 without prejudice to its re-filing in the Municipal Trial Court (MTC). Accordingly, the Information was re-filed in the MTC, docketed as Criminal Case No. 1604. The accused were arraigned for the said cases.14 Taking into account the finding of the Secretary of Justice, the court held that the finding of probable cause for murder against the accused did not bar it from admitting the Second Amended Information for Homicide. Likewise, the pendency of the private complainants motion for the reconsideration of the May 20, 2002 Resolution of the Secretary of Justice was not a valid reason for the deferment of the arraignment of the accused for homicide. On June 19, 2002, the private prosecutors moved for the reconsideration of the order of the trial court which, however, denied the motion in an Order15 dated July 26, 2002.

The private complainant forthwith assailed the orders of the trial court and the arraignment of the accused on June 6, 2002 via a petition for certiorari in the Court of Appeals (CA). The case was docketed as CA-G.R. SP No. 73035. She insisted that the admission by the RTC of the Second Amended Information downgrading the crime charged therein to Homicide and the arraignment of the accused therein on June 6, 2002 were premature since the Secretary of Justice had not yet resolved her motion for reconsideration of the May 20, 2002 Resolution.

On November 22, 2002, the CA issued a Temporary Restraining Order enjoining the RTC from proceeding with Criminal Case Nos. 925 and 926.16In the meantime, the Secretary of Justice issued a Resolution17 on November 18, 2002, granting the motion for reconsideration of the private complainant, setting aside Resolution No. 258. Consequently, the May 26, 2001 and July 26, 2001 Resolutions of the Provincial Prosecutor were reinstated. The Secretary of Justice opined that the killing of the deceased was, after all, qualified by treachery. He further declared that he was not proscribed from taking cognizance of and resolving the private complainants motion for reconsideration notwithstanding the arraignment of the accused. He directed the Provincial Prosecutor to withdraw the Second Amended Information for Homicide and Attempted Homicide and to file, in lieu thereof, separate Informations for Murder and Attempted Murder, respectively, against the said accused.

On December 5, 2002, the accused-petitioners filed a motion for the reconsideration of the said Resolution.18They argued that, with their arraignment in the RTC and the MTC, the Secretary of Justice should have denied the private complainants motion for reconsideration, conformably with Section 7(2) of DOJ Circular No. 70. However, the Secretary of Justice denied the said motion.

Juan Napao and the other petitioners in the Department of Justice filed a petition for certiorari with the CA assailing the November 18, 2002 Resolution of the Secretary of Justice, and praying for the reinstatement of Resolution No. 258. The case was docketed as CA-G.R. SP No. 77759.

In a Resolution19 dated July 18, 2003, the CA dismissed the petition for failure of the petitioners therein to comply with Section 2, Rule 42 and Section 5, Rule 7 of the Rules of Court, as only one of the petitioners had executed the requisite certificate of non-forum shopping. The petitioners therein filed a motion for the reconsideration of the CA resolution, but the appellate court denied the motion for lack of merit.20On June 3, 2004, Sebastian Serag, et al. filed a petition for review on certiorari with this Court, assailing the Resolutions of the CA in CA-G.R. SP No. 77759. The case was docketed as G.R. No. 163557. In a Resolution dated June 23, 2004, this Court denied the petition for the petitioners failure to show that the appellate court committed any reversible error. The said resolution became final and executory, and entry of judgment was made of record on August 23, 2004.

Meanwhile, on November 22, 2002, the CA issued a Resolution21 in CA-G.R. SP No. 73035 directing the respondents to file their comment on the petition within 10 days from notice thereof.

On November 27, 2002, petitioner Ma. Daisy Sibya filed an Urgent Manifestation and Motion22 with the CA in CA-G.R. SP No. 73035, praying that the appellate court resolve her petition on its merits in light of the November 18, 2002 Resolution of the Secretary of Justice and to set aside the June 6, 2002 arraignment of the private respondents in the trial court. The private respondents opposed the motion on the ground that they had filed a Joint motion for reconsideration of the November 18, 2002 Resolution of the Secretary of Justice, who had yet to resolve the same.23On December 4, 2002, the Provincial Prosecutor filed a Motion with the trial court for the withdrawal of the Second Amended Information for homicide and for the reinstatement of the Amended Information for murder. However, in view of the temporary restraining order issued by the CA in CA-G.R. SP No. 73035, the trial court suspended the proceedings.

On December 16, 2002, the CA issued a Resolution24 in CA-G.R. SP No. 73035 dismissing the petition on the ground that it had become moot and academic in light of the November 18, 2002 Resolution of the Secretary of Justice. Private complainant Ma. Daisy Sibya filed a motion for reconsideration of the said Resolution on the ground that the November 18, 2002 Resolution of the Secretary of Justice could not be implemented unless and until the assailed Orders of the trial court and the arraignment of the accused therein on June 6, 2002 are nullified.25 The private respondents therein opposed the motion on the ground that the petitioner was estopped from assailing their arraignment.

On November 10, 2003, the CA issued a Resolution26 granting the motion of the petitioner in CA-G.R. SP No. 73035 and consequently nullifying the June 6 and July 26, 2002 Orders of the trial court, as well as the arraignment of the private respondents therein on June 6, 2002.

On June 21, 2004, Sebastian Serag, et al. filed a Petition for review on certiorari with this Court assailing the November 10, 2003 Resolution of the CA in CA-G.R. SP No. 73035. The case was docketed as G.R. No. 163818. The petitioners alleged that the CA acted without or in excess of its jurisdiction or with grave abuse of discretion amounting to either lack or excess of jurisdiction in nullifying the June 6, 2002 and July 26, 2002 Orders of the RTC and their arraignment on June 6, 2002 instead of dismissing the petition for being moot and academic.27The petitioners insist that by virtue of the Secretary of Justices November 18, 2002 Resolution, reverting to the original charges of murder and attempted murder, the private respondents petition in the CA had been mooted. They note that the relief prayed for by the petitioner therein (private respondent Sibya) for the retention of the original charges was granted by the Secretary of Justice. They maintain that the CA was correct in dismissing the petition for being moot and academic in its Resolution of

December 16, 2002. The private complainant should have filed the appropriate pleading in the trial court for the implementation of the November 18, 2002 Resolution of the Secretary of Justice, instead of insisting that her petition be resolved on its merits. By its November 10, 2003 Resolution nullifying the assailed Orders of the RTC and the arraignment of the petitioners on June 6, 2002, the CA thereby deprived the RTC of its jurisdiction to act on all pending motions of the Provincial Prosecutor, that is, for the withdrawal of the Second Amended Information for homicide and the reinstatement of the Amended Information for murder. The petitioners insist that the RTC had the authority to delve into and resolve the merits of the Provincial Prosecutors motion for the withdrawal of the Second Amended Information for homicide and the reinstatement of the Amended Information for murder. After all, the trial court has complete control of the case; any disposition therein is subject to its sound discretion and it is not bound by the findings and recommendations of the Secretary of Justice.

The petitioners further claim that their arraignment on June 6, 2002 was on the insistence of the prosecutors, making the setting "intransferrable" whether or not the Secretary of Justice would resolve their petition for review. Thus, the RTC had no other alternative but to proceed with their arraignment. Moreover, the private complainant failed to serve them and the RTC with copies of her motion for reconsideration in the DOJ on or before the said date. The private prosecutors service of the said motion for reconsideration on them (petitioners) and the RTC by registered mail was anomalous, considering the proximity of the law office of the private prosecutors, the defense counsel and the RTC.

Finally, the petitioners emphasize that the private respondent failed to append to her petition in CA-G.R. SP No. 73035 certified true copies of the assailed orders; hence, the appellate court abused its discretion in not dismissing the said petition outright.

In her comment on the petition, the private respondent averred that the instant petition had been mooted by this Courts dismissal of the petitioners petition in G.R. No. 163557.

In reply, the petitioners contend that the subject matter of their petition in CA-G.R. SP No. 77759 was the November 18, 2002 Resolution of the Secretary of Justice, while the subject matter of CA-G.R. SP No. 73035 were the June 6, 2002 and July 26, 2002 Orders of the RTC, as well as the petitioners arraignment on June 6, 2002.

The threshold issues for resolution are the following: (a) whether the petition at bench is barred by the resolution of this Court in G.R. No. 163557 denying due course and dismissing the petition for review on certiorari; and (b) whether the CA committed grave abuse of discretion amounting to excess or lack of jurisdiction in nullifying the June 6, 2002 and July 26, 2002 Orders of the RTC and their arraignment on June 6, 2002 instead of dismissing the petition in CA-G.R. SP No. 73035 for being moot and academic.

On the first issue, we find the contention of the private respondent to be barren of merit. A motion is considered moot when it no longer presents a justiciable controversy because the issues involved have become academic or dead.28 Courts will not determine a moot question in which no practical relief can be granted.29 However, the Court will decide a question otherwise moot and academic if it is capable of repetition, yet evading review.30In the present case, the issues posed by the petitioner in CA-G.R. SP No. 77759 are as follows:

I. RESPONDENT SECRETARY OF JUSTICE GRAVELY ABUSED HIS DISCRETION WHEN HE ACTED ON THE MOTION FOR RECONSIDERATION OF PRIVATE COMPLAINANTS AND IN ISSUING THE ASSAILED RESOLUTION OF NOVEMBER 18, 2002, COMPLETELY REVERSING HIS RESOLUTION 258 OF MAY 20, 2002 IN VIOLATION OF SECTIONS 12(e) AND SEC. 7, PAR. 2 OF ITS OWN DEPARTMENT CIRCULAR NO. 70.

II. IT WAS GRAVE ERROR FOR RESPONDENT SECRETARY OF JUSTICE TO ACT ON THE MOTION FOR RECONSIDERATION OF PRIVATE COMPLAINANTS WHEN HE WAS ALREADY INFORMED THAT THE ACCUSED HAVE ALREADY BEEN ARRAIGNED ON THE SECOND AMENDED INFORMATION BASED ON HIS RESOLUTION 258 OF MAY 20, 2002; DOUBLE JEOPARDY ALREADY ATTACHES.31The Court notes that the CA failed to resolve the said issues on their merits, and instead dismissed the said petition for the petitioners failure to comply with Section 2, Rule 43 and Section 5, Rule 7 of the Rules of Court. The said ruling was affirmed by this Court. On the other hand, the issue raised by the private respondent in her petition in CA-G.R. SP No. 73035 was whether the RTC committed grave abuse of discretion amounting to excess or lack of jurisdiction in nullifying the June 6, 2002 and July 26, 2002 Orders of the RTC, and the arraignment of the petitioners herein on June 6, 2002. Thus, the dismissal by this Court of the petition in G.R. No. 163557 and the consequent affirmance of the November 18, 2002 Resolution of the Secretary of Justice did not render the issues raised in this case moot and academic. This Court has to delve into and resolve the issue of whether the RTC abused its discretion amounting to excess or lack of jurisdiction in granting the Provincial Prosecutors motion for the admission of the Second Amended Information and in proceeding with the petitioners arraignment for homicide. The Secretary of Justice could not have resolved the said issues, as only the CA and this Court on appeal under Rule 45 of the Rules of Court are competent to do so. Thus, the appellate court cannot likewise be blamed for not dismissing the petition in CA-G.R. SP No. 73035 filed by the private respondent for being moot and academic when the Secretary of Justice issued his November 18, 2002 Resolution reversing Resolution No. 258.

The appellate courts nullification of the June 6, 2002 and July 26, 2002 Orders of the RTC and the arraignment of the petitioners on June 6, 2002 are well-founded. Section 13 of DOJ Circular No. 70 reads:

SECTION 13. Motion for reconsideration. The aggrieved party may file a motion for reconsideration within a non-extendible period of ten (10) days from receipt of the resolution on appeal, furnishing the adverse party and the Prosecution Office concerned with copies thereof and submitting proof of such service. No second or further motion for reconsideration shall be entertained.

The private respondent, on May 27, 2002, received a copy of Resolution No. 258 of the Secretary of Justice downgrading the charges from murder and attempted murder to homicide and attempted homicide. She had the right to file a motion for reconsideration of the aforesaid resolution on or before June 6, 2002. Indeed, she filed such motion, through the private prosecutors, by personal delivery to the DOJ on June 4, 2002. Thereafter, it behooved the RTC to suspend the proceedings until after the Secretary of Justice had resolved such motion with finality, including the consideration of the motion of the Provincial Prosecutor for the admission of the Second Amended Information for homicide, the dismissal of Criminal Case No. 926, and the arraignment of the petitioners for homicide. It was, in fact, premature for the Provincial Prosecutor to file such motion for the admission of the Second Amended Information since the Secretary of Justice had not yet resolved the said motion; after all, he may still reconsider Resolution No. 258, which he did on November 18, 2002, effectively reversing his previous ruling affirming the assailed Resolutions of the Provincial Prosecutor on May 26, 2001 and July 26, 2001, and thus reverting to the original charges of murder and attempted murder. As this Court declared in Marcelo v. Court of Appeals:32Consequently, the 5 December 1991 Manifestation and Motion of the petitioners praying for the dismissal of the case and the 10 December 1991 motion of Assistant City Prosecutor Jamolin asking for the withdrawal of the information were prematurely filed, because as to the first, the period of the offended party to appeal from the resolution to the Secretary of Justice had not yet lapsed or even begun, there being no showing of the date the offended party received a copy thereof; and, as to the second, an appeal had in fact been filed on 10 December 1991.

Prudence, if not wisdom or at the very least respect for the authority of the prosecution agency to which the Bersamin court deferred, dictated against a favorable action on the Review Committees resolution until the denial of the appeal or the affirmance of the resolution by the Secretary of Justice. The Bersamin court acted then with precipitate or undue haste in issuing the 13 December 1991 Order granting the petitioners motion to dismiss and Prosecutor Jamolins motion to withdraw the information in Criminal Case No. Q-91-21285.

Accordingly, we rule that the trial court in a criminal case which takes cognizance of an accuseds motion for review of the resolution of the investigating prosecutor or for reinvestigation and defers the arraignment until resolution of the said motion must act on the resolution reversing the investigating prosecutors finding or on a motion to dismiss based thereon only upon proof that such resolution is already final in that no appeal was taken therefrom to the Department of Justice.

Admittedly, the private prosecutors failed to serve the RTC with a copy of their motion for reconsideration by personal delivery, and failed to file a formal motion for the deferment of the hearing of the Provincial Prosecutors motion for the admission of the Second Amended Information for homicide and the arraignment of the petitioners before June 6, 2002. However, the private prosecutors explained that due to time constraints, owing to the ten-day period for filing such motion for reconsideration, such motion had to be hand-carried to the DOJ on June 4, 2002, while copies meant for the RTC and to the accused were sent by registered mail. Furthermore, the RTC was not precluded from taking cognizance of and resolving the oral motion of the private prosecutors for the deferment of the hearing on the Provincial Prosecutors motion for the admission of the Second Amended Information for homicide. After all, under Rule 15, Section 2 of the Rules of Court, motions may be made in open court or in the course of a hearing or trial in the presence of the other party who has the opportunity to object thereto.

In fine, the RTC acted with inordinate and precipitate haste when it granted the Provincial Prosecutors motion for the admission of the Second Amended Information for homicide, ordered the withdrawal of Criminal Case No. 926 for attempted homicide based on Resolution No. 258 of the DOJ Secretary, and arraigned the accused therein for homicide.

As the appellate court correctly pointed out in its November 10, 2003 Resolution:

Public respondent also erroneously found that the pendency of the motion for reconsideration, and the other reasons given, not compelling for the court to defer its action on the motion to admit. Public respondent also questioned the personality of the petitioner, as the private offended party, in actively participating in the criminal prosecution.

As earlier stated, Department Circular No. 70 places the duty upon the appellant and the trial prosecutor to see to it that, pending resolution of the appeal, the proceedings in court are held in abeyance.

Therefore, the pendency of an appeal before the DOJ is enough reason for the deferment of any proceedings in the trial court and petitioner, through the private prosecutors, correctly moved for the deferment of the admission of the second amended informations for homicide and attempted homicide. It should be considered that the motion to defer was even with the conformity of the public prosecutor and the appearance of the private prosecutors is pursuant to Section 16, Rule 110 of the 2000 Rules on Criminal Procedure, to wit:

Intervention of the offended party in criminal action.Where the civil action for recovery of civil liability is instituted in the criminal action pursuant to Rule 111, the offended party may intervene by counsel in the prosecution of the offense.

Besides the oral recitation in open court by the private prosecutors of the grounds cited in the motion to defer the admission of the second amended informations for homicide and attempted homicide, which the public respondent found unprocedural, petitioner was not really given the opportunity to oppose the motion to admit the same informations.

All these facts taken together, there appears to be an undue haste on the part of the public respondent in admitting the second amended informations for homicide and attempted homicide and ordering the arraignment of the private respondents to the said informations. This is considering that no word of protestation was heard from the petitioner when she waited for nine (9) months for the DOJ to resolve the private respondents petition for review.

As a result of the assailed Orders issued by public respondent, the private respondents were arraigned for homicide and attempted homicide.33The petitioners contention that the RTC was deprived of its authority to act on and resolve the motion of the Provincial Prosecutor for the withdrawal of the Second Amended Information for homicide and the retention of the Amended Information for murder and attempted murder is not correct. Indeed, the Provincial Prosecutor filed a motion in the RTC for the withdrawal of the Second Amended Information for homicide and for the reinstatement of the Amended Information for murder on December 4, 2002. Were it not for the temporary restraining order issued by the CA in CA-G.R. No. 73035, the RTC would have resolved the same one way or the other.

The People of the Philippines was not estopped by the Prosecutors insistence on May 21, 2002 that the petitioners and the other accused be arraigned on June 6, 2002 despite the pending petition for review of petitioners Juan Napao, et al. and the motion for reconsideration of the private respondent before the Secretary of Justice. The fact of the matter is that during the hearing of June 6, 2002, the Prosecutors moved for the deferment of the consideration of the Provincial Prosecutors motion for the withdrawal of the Second Amended Information for homicide because, in the meantime, the private complainant had filed a motion for the reconsideration of the Justice Secretarys Resolution No. 258. The latter cannot be stripped of his authority to act on and resolve the aforesaid motion of the private complainant on the Prosecutors insistence that the accused be arraigned on June 6, 2002. Indeed, under Section 7 of DOJ Circular No. 70, the Secretary of Justice may resolve the said motion despite the arraignment of the petitioners:

SECTION 7. Action on the petition. The Secretary of Justice may dismiss the petition outright if he finds the same to be patently without merit or manifestly intended for delay, or when the issues raised therein are too unsubstantial to require consideration.

If an information has been filed in court pursuant to the appealed resolution, the petition shall not be given due course if the accused had already been arraigned. Any arraignment made after the filing of the petition shall not bar the Secretary of Justice from exercising his power of review.

IN LIGHT OF ALL THE FOREGOING, the petition is DENIED for lack of merit.

SO ORDERED.ROMEO J. CALLEJO, SR.

Associate Justice

Republic of the PhilippinesSUPREME COURTManila

SECOND DIVISION

G.R. No. 162336 February 1, 2010HILARIO P. SORIANO, Petitioner, vs.PEOPLE OF THE PHILIPPINES, BANGKO SENTRAL NG PILIPINAS (BSP), PHILIPPINE DEPOSIT INSURANCE CORPORATION (PDIC), PUBLIC PROSECUTOR ANTONIO C.BUAN, and STATE PROSECUTOR ALBERTO R. FONACIER, Respondents.

D E C I S I O N

DEL CASTILLO, J.:A bank officer violates the DOSRI2 law when he acquires bank funds for his personal benefit, even if such acquisition was facilitated by a fraudulent loan application. Directors, officers, stockholders, and their related interests cannot be allowed to interpose the fraudulent nature of the loan as a defense to escape culpability for their circumvention of Section 83 of Republic Act (RA) No. 337.3Before us is a Petition for Review on Certiorari4 under Rule 45 of the Rules of Court, assailing the September 26, 2003 Decision5 and the February 5, 2004 Resolution6 of the Court of Appeals (CA) in CA-G.R. SP No. 67657. The challenged Decision disposed as follows:

WHEREFORE, premises considered, the instant petition for certiorari is hereby DENIED.7Factual AntecedentsSometime in 2000, the Office of Special Investigation (OSI) of the Bangko Sentral ng Pilipinas (BSP), through its officers,8 transmitted a letter9 dated March 27, 2000 to Jovencito Zuo, Chief State Prosecutor of the Department of Justice (DOJ). The letter attached as annexes five affidavits,10 which would allegedly serve as bases for filing criminal charges for Estafa thru Falsification of Commercial Documents, in relation to Presidential Decree (PD) No. 1689,11 and for Violation of Section 83 of RA 337, as amended by PD 1795,12 against, inter alia, petitioner herein Hilario P. Soriano. These five affidavits, along with other documents, stated that spouses Enrico and Amalia Carlos appeared to have an outstanding loan of P8 million with the Rural Bank of San Miguel (Bulacan), Inc. (RBSM), but had never applied for nor received such loan; that it was petitioner, who was then president of RBSM, who had ordered, facilitated, and received the proceeds of the loan; and that the P8 million loan had never been authorized by RBSM's Board of Directors and no report thereof had ever been submitted to the Department of Rural Banks, Supervision and Examination Sector of the BSP. The letter of the OSI, which was not subscribed under oath, ended with a request that a preliminary investigation be conducted and the corresponding criminal charges be filed against petitioner at his last known address.

Acting on the letter-request and its annexes, State Prosecutor Albert R. Fonacier proceeded with the preliminary investigation. He issued a subpoena with the witnesses affidavits and supporting documents attached, and required petitioner to file his counter-affidavit. In due course, the investigating officer issued a Resolution finding probable cause and correspondingly filed two separate informations against petitioner before the Regional Trial Court (RTC) of Malolos, Bulacan.13The first Information,14 dated November 14, 2000 and docketed as Criminal Case No. 237-M-2001, was for estafa through falsification of commercial documents, under Article 315, paragraph 1(b), of the Revised Penal Code (RPC), in relation to Article 172 of the RPC and PD 1689. It basically alleged that petitioner and his co-accused, in abuse of the confidence reposed in them as RBSM officers, caused the falsification of a number of loan documents, making it appear that one Enrico Carlos filled up the same, and thereby succeeded in securing a loan and converting the loan proceeds for their personal gain and benefit.15 The information reads:

That in or about the month of April, 1997, and thereafter, in San Miguel, Bulacan, and within the jurisdiction of this Honorable Court, the said accused HILARIO P. SORIANO and ROSALINDA ILAGAN, as principals by direct participation, with unfaithfulness or abuse of confidence and taking advantage of their position as President of the Rural Bank of San Miguel (Bulacan), Inc. and Branch Manager of the Rural Bank of San Miguel San Miguel Branch [sic], a duly organized banking institution under Philippine Laws, conspiring, confederating and mutually helping one another, did then and there, willfully and feloniously falsify loan documents consisting of undated loan application/information sheet, credit proposal dated April 14, 1997, credit proposal dated April 22, 1997, credit investigation report dated April 15, 1997, promissory note dated April 23, 1997, disclosure statement on loan/credit transaction dated April 23, 1997, and other related documents, by making it appear that one Enrico Carlos filled up the application/information sheet and filed the aforementioned loan documents when in truth and in fact Enrico Carlos did not participate in the execution of said loan documents and that by virtue of said falsification and with deceit and intent to cause damage, the accused succeeded in securing a loan in the amount of eight million pesos (PhP8,000,000.00) from the Rural Bank of San Miguel San Ildefonso branch in the name of Enrico Carlos which amount of PhP8 million representing the loan proceeds the accused thereafter converted the same amount to their own personal gain and benefit, to the damage and prejudice of the Rural Bank of San Miguel San Ildefonso branch, its creditors, the Bangko Sentral ng Pilipinas, and the Philippine Deposit Insurance Corporation.

CONTRARY TO LAW.16The other Information17 dated November 10, 2000 and docketed as Criminal Case No. 238-M-2001, was for violation of Section 83 of RA 337, as amended by PD 1795. The said provision refers to the prohibition against the so-called DOSRI loans. The information alleged that, in his capacity as President of RBSM, petitioner indirectly secured an P8 million loan with RBSM, for his personal use and benefit, without the written consent and approval of the bank's Board of Directors, without entering the said transaction in the bank's records, and without transmitting a copy of the transaction to the supervising department of the bank. His ruse was facilitated by placing the loan in the name of an unsuspecting RBSM depositor, one Enrico Carlos.18 The information reads:

That in or about the month of April, 1997, and thereafter, and within the jurisdiction of this Honorable Court, the said accused, in his capacity as President of the Rural Bank of San Miguel (Bulacan), Inc., did then and there, willfully and feloniously indirectly borrow or secure a loan with the Rural Bank of San Miguel San Ildefonso branch, a domestic rural banking institution created, organized and existing under Philippine laws, amounting to eight million pesos (PhP8,000,000.00), knowing fully well that the same has been done by him without the written consent and approval of the majority of the board of directors of the said bank, and which consent and approval the said accused deliberately failed to obtain and enter the same upon the records of said banking institution and to transmit a copy thereof to the supervising department of the said bank, as required by the General Banking Act, by using the name of one depositor Enrico Carlos of San Miguel, Bulacan, the latter having no knowledge of the said loan, and one in possession of the said amount of eight million pesos (PhP8,000,000.00), accused converted the same to his own personal use and benefit, in flagrant violation of the said law.

CONTRARY TO LAW.19Both cases were raffled to Branch 79 of the RTC of Malolos, Bulacan.20On June 8, 2001, petitioner moved to quash21 these informations on two grounds: that the court had no jurisdiction over the offense charged, and that the facts charged do not constitute an offense.

On the first ground, petitioner argued that the letter transmitted by the BSP to the DOJ constituted the complaint and hence was defective for failure to comply with the mandatory requirements of Section 3(a), Rule 112 of the Rules of Court, such as the statement of address of petitioner and oath and subscription.22 Moreover, petitioner argued that the officers of OSI, who were the signatories to the "letter-complaint," were not authorized by the BSP Governor, much less by the Monetary Board, to file the complaint. According to petitioner, this alleged fatal oversight violated Section 18, pars. (c) and (d) of the New Central Bank Act (RA 7653).

On the second ground, petitioner contended that the commission of estafa under paragraph 1(b) of Article 315 of the RPC is inherently incompatible with the violation of DOSRI law (as set out in Section 8323 of RA 337, as amended by PD 1795),24 hence a person cannot be charged for both offenses. He argued that a violation of DOSRI law requires the offender to obtain a loan from his bank, without complying with procedural, reportorial, or ceiling requirements. On the other hand, estafa under par. 1(b), Article 315 of the RPC requires the offender to misappropriate or convert something that he holds in trust, or on commission, or for administration, or under any other obligation involving the duty to return the same.25Essentially, the petitioner theorized that the characterization of possession is different in the two offenses. If petitioner acquired the loan as DOSRI, he owned the loaned money and therefore, cannot misappropriate or convert it as contemplated in the offense of estafa. Conversely, if petitioner committed estafa, then he merely held the money in trust for someone else and therefore, did not acquire a loan in violation of DOSRI rules.

Ruling of the Regional Trial CourtIn an Order26 dated August 8, 2001, the trial court denied petitioner's Motion to Quash for lack of merit. The lower court agreed with the prosecution that the assailed OSI letter was not the complaint-affidavit itself; thus, it need not comply with the requirements under the Rules of Court. The trial court held that the affidavits, which were attached to the OSI letter, comprised the complaint-affidavit in the case. Since these affidavits were duly subscribed and sworn to before a notary public, there was adequate compliance with the Rules. The trial court further held that the two offenses were separate and distinct violations, hence the prosecution of one did not pose a bar to the other.27Petitioners Motion for Reconsideration was likewise denied in an Order dated September 5, 2001.28Aggrieved, petitioner filed a Petition for Certiorari29 with the CA, reiterating his arguments before the trial court.

Ruling of the Court of AppealsThe CA denied the petition on both issues presented by petitioner.

On the first issue, the CA determined that the BSP letter, which petitioner characterized to be a fatally infirm complaint, was not actually a complaint, but a transmittal or cover letter only. This transmittal letter merely contained a summary of the affidavits which were attached to it. It did not contain any averment of personal knowledge of the events and transactions that constitute the elements of the offenses charged. Being a mere transmittal letter, it need not comply with the requirements of Section 3(a) of Rule 112 of the Rules of Court.30The CA further determined that the five affidavits attached to the transmittal letter should be considered as the complaint-affidavits that charged petitioner with violation of Section 83 of RA 337 and for Estafa thru Falsification of Commercial Documents. These complaint-affidavits complied with the mandatory requirements set out in the Rules of Court they were subscribed and sworn to before a notary public and subsequently certified by State Prosecutor Fonacier, who personally examined the affiants and was convinced that the affiants fully understood their sworn statements.31Anent the second ground, the CA found no merit in petitioner's argument that the violation of the DOSRI law and the commission of estafa thru falsification of commercial documents are inherently inconsistent with each other. It explained that the test in considering a motion to quash on the ground that the facts charged do not constitute an offense, is whether the facts alleged, when hypothetically admitted, constitute the elements of the offense charged. The appellate court held that this test was sufficiently met because the allegations in the assailed informations, when hypothetically admitted, clearly constitute the elements of Estafa thru Falsification of Commercial Documents and Violation of DOSRI law.32Petitioners Motion for Reconsideration33 was likewise denied for lack of merit.

Hence, this petition.

Issues

Restated, petitioner raises the following issues34 for our consideration:

I

Whether the complaint complied with the mandatory requirements provided under Section 3(a), Rule 112 of the Rules of Court and Section 18, paragraphs (c) and (d) of RA 7653.

II

Whether a loan transaction within the ambit of the DOSRI law (violation of Section 83 of RA 337, as amended) could also be the subject of Estafa under Article 315 (1) (b) of the Revised Penal Code.

III

Is a petition for certiorari under Rule 65 the proper remedy against an Order denying a Motion to Quash?

IV

Whether petitioner is entitled to a writ of injunction.

Our Ruling

The petition lacks merit.

First Issue:Whether the complaint complied with the mandatory requirements provided under Section 3(a), Rule 112 of the Rules of Court and Section 18, paragraphs (c) and (d) ofRepublic Act No. 7653Petitioner moved to withdraw the first issue from the instant petition

On March 5, 2007, the Court noted35 petitioner's Manifestation and Motion for Partial Withdrawal of the Petition36dated February 7, 2007. In the said motion, petitioner informed the Court of the promulgation of a Decision entitled Soriano v. Hon. Casanova,37 which also involved petitioner and similar BSP letters to the DOJ. According to petitioner, the said Decision allegedly ruled squarely on the nature of the BSP letters and the validity of the sworn affidavits attached thereto. For this reason, petitioner moved for the partial withdrawal of the instant petition insofar as it involved the issue of "whether or not a court can legally acquire jurisdiction over a complaint which failed to comply with the mandatory requirements provided under Section 3(a), Rule 112 of the Rules of Court and Section 18, paragraphs (c) and (d) of RA 7653".38Given that the case had already been submitted for resolution of the Court when petitioner filed his latest motion, and that all respondents had presented their positions and arguments on the first issue, the Court deems it proper to rule on the same.

In Soriano v. Hon. Casanova, the Court held that the affidavits attached to the BSP transmittal letter complied with the mandatory requirements under the Rules of Court.

To be sure, the BSP letters involved in Soriano v. Hon. Casanova39 are not the same as the BSP letter involved in the instant case. However, the BSP letters in Soriano v. Hon. Casanova and the BSP letter subject of this case are similar in the sense that they are all signed by the OSI officers of the BSP, they were not sworn to by the said officers, they all contained summaries of their attached affidavits, and they all requested the conduct of a preliminary investigation and the filing of corresponding criminal charges against petitioner Soriano. Thus, the principle of stare decisis dictates that the ruling in Soriano v. Hon. Casanova be applied in the instant case once a question of law has been examined and decided, it should be deemed settled and closed to further argument.40We held in Soriano v. Hon. Casanova, after a close scrutiny of the letters transmitted by the BSP to the DOJ, that these were not intended to be the complaint, as envisioned under the Rules. They did not contain averments of personal knowledge of the events and transactions constitutive of any offense. The letters merely transmitted for preliminary investigation the affidavits of people who had personal knowledge of the acts of petitioner. We ruled that these affidavits, not the letters transmitting them, initiated the preliminary investigation. Since these affidavits were subscribed under oath by the witnesses who executed them before a notary public, then there was substantial compliance with Section 3(a), Rule 112 of the Rules of Court.

Anent the contention that there was no authority from the BSP Governor or the Monetary Board to file a criminal case against Soriano, we held that the requirements of Section 18, paragraphs (c) and (d) of RA 7653 did not apply because the BSP did not institute the complaint but merely transmitted the affidavits of the complainants to the DOJ.

We further held that since the offenses for which Soriano was charged were public crimes, authority holds that it can be initiated by "any competent person" with personal knowledge of the acts committed by the offender. Thus, the witnesses who executed the affidavits clearly fell within the purview of "any competent person" who may institute the complaint for a public crime.

The ruling in Soriano v. Hon. Casanova has been adopted and elaborated upon in the recent case of Santos-Concio v. Department of Justice.41 Instead of a transmittal letter from the BSP, the Court in Santos-Concio was faced with an NBI-NCR Report, likewise with affidavits of witnesses as attachments. Ruling on the validity of the witnesses sworn affidavits as bases for a preliminary investigation, we held:

The Court is not unaware of the practice of incorporating all allegations in one document denominated as "complaint-affidavit." It does not pronounce strict adherence to only one approach, however, for there are cases where the extent of ones personal knowledge may not cover the entire gamut of details material to the alleged offense. The private offended party or relative of the deceased may not even have witnessed the fatality, in which case the peace officer or law enforcer has to rely chiefly on affidavits of witnesses. The Rules do not in fact preclude the attachment of a referral or transmittal letter similar to that of the NBI-NCR. Thus, in Soriano v. Casanova, the Court held:

A close scrutiny of the letters transmitted by the BSP and PDIC to the DOJ shows that these were not intended to be the complaint envisioned under the Rules. It may be clearly inferred from the tenor of the letters that the officers merely intended to transmit the affidavits of the bank employees to the DOJ. Nowhere in the transmittal letters is there any averment on the part of the BSP and PDIC officers of personal knowledge of the events and transactions constitutive of the criminal violations alleged to have been made by the accused. In fact, the letters clearly stated that what the OSI of the BSP and the LIS of the PDIC did was to respectfully transmit to the DOJ for preliminary investigation the affidavits and personal knowledge of the acts of the petitioner. These affidavits were subscribed under oath by the witnesses who executed them before a notary public. Since the affidavits, not the letters transmitting them, were intended to initiate the preliminary investigation, we hold that Section 3(a), Rule 112 of the Rules of Court was substantially complied with.

Citing the ruling of this Court in Ebarle v. Sucaldito, the Court of Appeals correctly held that a complaint for purposes of preliminary investigation by the fiscal need not be filed by the offended party. The rule has been that,unless the offense subject thereof is one that cannot be prosecuted de oficio, the same may be filed, for preliminary investigation purposes, by any competent person. The crime of estafa is a public crime which can be initiated by "any competent person." The witnesses who executed the affidavits based on their personal knowledge of the acts committed by the petitioner fall within the purview of "any competent person" who may institute the complaint for a public crime. x x x (Emphasis and italics supplied)

A preliminary investigation can thus validly proceed on the basis of an affidavit of any competent person, without the referral document, like the NBI-NCR Report, having been sworn to by the law enforcer as the nominal complainant. To require otherwise is a needless exercise. The cited case of Oporto, Jr. v. Judge Monserate does not appear to dent this proposition. After all, what is required is to reduce the evidence into affidavits, for while reports and even raw information may justify the initiation of an investigation, the preliminary investigation stage can be held only after sufficient evidence has been gathered and evaluated which may warrant the eventual prosecution of the case in court.42Following the foregoing rulings in Soriano v. Hon. Casanova and Santos-Concio v. Department of Justice, we hold that the BSP letter, taken together with the affidavits attached thereto, comply with the requirements provided under Section 3(a), Rule 112 of the Rules of Court and Section 18, paragraphs (c) and (d) of RA 7653.

Second Issue:

Whether a loan transaction within the ambit of the DOSRI law (violation of Section 83 of RA 337, as amended) could be the subject of Estafa under Article 315 (1) (b) of the

Revised Penal Code

The second issue was raised by petitioner in the context of his Motion to Quash Information on the ground that the facts charged do not constitute an offense.43 It is settled that in considering a motion to quash on such ground, the test is "whether the facts alleged, if hypothetically admitted, would establish the essential elements of the offense charged as defined by law. The trial court may not consider a situation contrary to that set forth in the criminal complaint or information. Facts that constitute the defense of the petitioner[s] against the charge under the information must be proved by [him] during trial. Such facts or circumstances do not constitute proper grounds for a motion to quash the information on the ground that the material averments do not constitute the offense". 44We have examined the two informations against petitioner and we find that they contain allegations which, if hypothetically admitted, would establish the essential elements of the crime of DOSRI violation and estafa thru falsification of commercial documents.

In Criminal Case No. 238-M-2001 for violation of DOSRI rules, the information alleged that petitioner Soriano was the president of RBSM; that he was able to indirectly obtain a loan from RBSM by putting the loan in the name of depositor Enrico Carlos; and that he did this without complying with the requisite board approval, reportorial, and ceiling requirements.

In Criminal Case No. 237-M-2001 for estafa thru falsification of commercial documents, the information alleged that petitioner, by taking advantage of his position as president of RBSM, falsified various loan documents to make it appear that an Enrico Carlos secured a loan of P8 million from RBSM; that petitioner succeeded in obtaining the loan proceeds; that he later converted the loan proceeds to his own personal gain and benefit; and that his action caused damage and prejudice to RBSM, its creditors, the BSP, and the PDIC.

Significantly, this is not the first occasion that we adjudge the sufficiency of similarly worded informations. In Soriano v. People,45 involving the same petitioner in this case (but different transactions), we also reviewed the sufficiency of informations for DOSRI violation and estafa thru falsification of commercial documents, which were almost identical, mutatis mutandis, with the subject informations herein. We held in Soriano v. People that there is no basis for the quashal of the informations as "they contain material allegations charging Soriano with violation of DOSRI rules and estafa thru falsification of commercial documents".

Petitioner raises the theory that he could not possibly be held liable for estafa in concurrence with the charge for DOSRI violation. According to him, the DOSRI charge presupposes that he acquired a loan, which would make the loan proceeds his own money and which he could neither possibly misappropriate nor convert to the prejudice of another, as required by the statutory definition of estafa.46 On the other hand, if petitioner did not acquire any loan, there can be no DOSRI violation to speak of. Thus, petitioner posits that the two offenses cannot co-exist. This theory does not persuade us.

Petitioners theory is based on the false premises that the loan was extended to him by the bank in his own name, and that he became the owner of the loan proceeds. Both premises are wrong.

The bank money (amounting to P8 million) which came to the possession of petitioner was money held in trust or administration by him for the bank, in his

fiduciary capacity as the President of said bank.47 It is not accurate to say that petitioner became the owner of theP8 million because it was the proceeds of a loan. That would have been correct if the bank knowingly extended the loan to petitioner himself. But that is not the case here. According to the information for estafa, the loan was supposed to be for another person, a certain "Enrico Carlos"; petitioner, through falsification, made it appear that said "Enrico Carlos" applied for the loan when in fact he ("Enrico Carlos") did not. Through such fraudulent device, petitioner obtained the loan proceeds and converted the same. Under these circumstances, it cannot be said that petitioner became the legal owner of the P8 million. Thus, petitioner remained the banks fiduciary with respect to that money, which makes it capable of misappropriation or conversion in his hands.

The next question is whether there can also be, at the same time, a charge for DOSRI violation in such a situation wherein the accused bank officer did not secure a loan in his own name, but was alleged to have used the name of another person in order to indirectly secure a loan from the bank. We answer this in the affirmative. Section 83 of RA 337 reads:

Section 83. No director or officer of any ban