FIRST DIVISION

[G.R. Nos. 113519-20. March 29, 1996]

PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. DANILO PANLILIO y FRANCISCO, defendant-appellant.

D E C I S I O N

BELLOSILLO, J.:

Danilo Panlilio y Francisco was charged before the Regional Trial Court of Valenzuela, Metro Manila, with kidnapping under Art. 267 of the Revised Penal Code (Crim. Case No. 235 1-V-93) and violation of P.D. 532 known as the “Anti-Piracy and Anti-Highway Robbery Law of 1974” (Crim. Case No. 2352-V-93).  In the first case, the Information alleged that on or about 17 March 1993 in Valenzuela, Metro Manila, the accused kidnapped Leah Marie Jordan y Villato and detained her for more than an hour.  In the second case, the Information alleged that on the same occasion, with intent to gain and by means of force and intimidation, the accused took a pair of gold earrings worth P700.00 from the same complaining witness while they were walking along St. Jude St., Malinta, Valenzuela, a public highway.

Ranged against the denial and alibi of the accused, the trial court found the testimony of Leah Marie positive and convincing hence its joint decision of 15 June 1993 convicting the accused in both cases as charged.  In the kidnapping case the accused was sentenced to reclusion perpetua and to pay the costs, while in the highway robbery he was sentenced to an indeterminate prison term from ten (10) years and one (1) day of prision mayor as minimum to thirteen (13) years and two (2) months of reclusion temporal as maximum, with the accessory penalties prescribed by law, to pay complainant the value of the pair of earrings and to pay the costs.[1]

The evidence shows that at about eleven-forty in the morning of 17 March 1993 Leah Marie Jordan y Villato, a 10-year old student, was waiting for her younger sister outside the premises of St. Jude School in Malinta, Valenzuela.  There she was approached by Danilo Panlilio who inquired if she knew a certain “Aling Rosa.” After she replied that she did not know her and that she was only there to fetch her younger sister, Danilo suddenly poked a knife, which was concealed inside a hat, at the right side of her neck, handed her an empty cigarette pack with a note and ordered her to give it to “Aling Ester.” When she told him that she did not know where to find “Aling Ester,” he said that he would lead her to the place where “Aling Ester” could be found.

While Danilo and Leah Marie were walking side by side the former continued to poke his knife at the latter’s neck.  He told her to be quiet otherwise he would kill her.  Then they both boarded a passenger jeepney with the knife still effectively serving

as a contrivance to keep her mute.  Aside from the driver they were the only passengers on board the jeepney.  While in the jeepney Danilo forcibly took Leah Marie’s pair of earrings.

Upon reaching Navotas Danilo and Leah Marie alighted from the jeepney.  He dragged her towards a vacant lot where, according to him, every girl he brought there was made to choose between rape and death.  Upon hearing this, she struggled hard to free herself from his hold. Luckily, at this juncture, she saw policemen coming towards their direction so she shouted for help.  One of the policemen fired a warning shot which prompted Danilo to run away.  The policemen pursued him until they caught up with him and brought him together with Leah Marie to the Navotas Police Station for investigation.

Meanwhile, policemen from Valenzuela went to the house of Leah and informed her parents that their daughter was in the Navotas Police Station.  The couple then rushed to the Station where they saw Leah and brought her to the Valenzuela Police Station to file a complaint against Panlilio.  The mother of Leah noticed that the earrings of Leah were missing.  When asked about her earrings Leah told her mother that Panlilio forcibly took them from her.

The version of the appellant is that on the day of the incident he left his residence at Barrio Magdaragat, Tondo, Manila, at past ten o’clock in the morning to go to Waywan Missionary at San Rafael Village, Tondo, Manila.  However he defecated first on a vacant lot in Navotas before proceeding.  Then he saw a young girl in the area and warned her not to pass through the garbage because she might sink.  It was at this point when policemen arrived and readily accused him of being the rapist in the area.

The accused contends in this appeal that the trial court erred (1) in not dismissing the case for highway robbery on the ground of lack of jurisdiction; and, (2) in finding that for the crimes charged his guilt has been proved beyond reasonable doubt.

Appellant argues that the robbery, according to the complaining witness herself, was perpetrated in Navotas[2] so that the Regional Trial Court of Valenzuela has no jurisdiction over the case.  He also claims that the prosecution failed to present evidence that she indeed owned any pair of earrings.  It is his thesis that it is simply incredible that a knife was continually poked at her neck all the way from St. Jude School in Malinta to Navotas for an hour or so without anyone noticing, otherwise, she could have shouted and asked for help; but she did not. Furthermore, he claims that Leah Marie could have only been coached into testifying that she was alone outside the school premises in a feeble attempt to explain the puzzling situation that nobody came to her rescue when he allegedly abducted her at knifepoint in broad daylight during school dismissal time when parents, guardians and others usually converge to fetch their children or wards.  Under the circumstances, we are urged to consider as more credible the version of the defense. -

Section 2, par. (e), of P.D. 532 defines the crime of highway robbery/brigandage as the “seizure of any person for ransom, extortion or other unlawful purposes, or the taking away of the property of another by means of violence against or intimidation of person or force upon things or other unlawful means, committed by any person on any

Philippine Highway,” and under Sec. 2, par. (c), of the same decree, “Philippine Highway” is “any road, street, passage, highway and bridge or other parts thereof or railway or railroad within the Philippines used by persons, or vehicles, or locomotives or trains for the movement or circulation of persons or transportation of goods, articles, or property of both.” We correlate these provisions with Sec. 15, par. (b), of Rule 110 of the Rules of Court which provides that “[w]here an offense is committed on a railroad train, in an aircraft, or in any other public or private vehicle while in the course of its trip, the criminal action may be instituted and tried in the court of any municipality or territory where such train, aircraft or other vehicle passed during such trip, including the place of departure and arrival (italics supplied). With the foregoing as guideposts we are now asked: Did the Regional Trial Court of Valenzuela have jurisdiction over the highway robbery?

In her direct examination the complaining witness testified that when she and the accused alighted from the jeepney in Navotas he forcibly took her pair of earrings.[3] However, during the cross-examination she changed her testimony thus -

Q.   So you want to impress to the Court that even in front of St. Jude he already asked you to remove your earrings?

A.    Not yet. When we were already aboard the jeep, that was the time when he told me to remove my earrings.[4] (italics supplied).

But thereafter she clung to the same statement for the entire course of her cross-examination which appears to be her correct narration of events -

Q.   And it was there that while you were already in the vacant lot that the accused told you to remove your earrings, is that it?

A.    We were not yet there.

Q.   Where were you?

A.    When we boarded the jeep, he instructed me to remove my earrings.[5] (italics supplied).

       xxx                                  xxx                                  xxx

Q.   And it was there in the Navotas area when he told you to remove your earrings?

A.    I do not know, sir.

Q.   Where?

A.    From the time we boarded the jeep.

Q.   That was the time when you removed your earrings and gave it to him?

A.. Yes, sir.[6] (italics supplied).

The most candid witnesses oftentimes make mistakes and fall into confused and inconsistent statements, but such honest lapses do not necessarily affect their credibility.[7] More importantly, ample margin of error and understanding should be accorded to young witnesses who much more than adults would be gripped with tension due to the novelty of testifying before a court.[8]

But the testimony of complainant that upon boarding the jeepney the accused ordered her to remove her earrings and give them to him is material in determining whether the Regional Trial Court of Valenzuela had jurisdiction over the highway robbery. Was Valenzuela their place of departure or the municipality where their jeepney passed during the trip? Here lies the problem. The complainant was uncertain of their place of departure -

Q.   If you will be requested to point to the place where you boarded, you could point the place where you boarded the jeepney?

A.    No, sir, I cannot. I do not know that place because I was (just) instructed to board.[9]

       xxx                                  xxx                                  xxx

Q.   You want to impress the Court that you boarded a passenger jeepney and you do not know the place where you boarded the jeep?

A.    No, sir.[10]

       xxx                                  xxx                                  xxx

Q.   When you were already traveling from the place, is (sic) that in Valenzuela where you boarded the jeep?

A.    I do not know, sir.”[11]

Neither did Leah Marie mention the place or places where their vehicle passed. We could have relied on the evidence that St. Jude Schoolis in Malinta, Valenzuela, in order to establish the fact that they also boarded the jeepney in Valenzuela. Yet, her other testimony is damaging -

Q.   So you want to impress that from St. Jude you were led by the accused to a place where there was a passenger jeepney?

A. Yes, sir.

Q.   You walked or you took a tricycle because that is the means of transportation available in the place?

A.    We did not board a tricycle. We just walked.

       xxx                                  xxx                                  xxx

Q.   And from St. Jude, how long did it take you to walk or negotiate the distance?

A.    A long time because, as a matter of fact, I got tired. [12]

From the foregoing, it would seem that the prosecution failed to establish the precise place where the highway robbery was supposedly committed other than Navotas.  Hence, we agree with the defense that the Regional Trial Court of Valenzuela had no jurisdiction over the offense of highway robbery, although based on a different ground.

As regards the charge of kidnapping, Art. 267 of the Revised Penal Code provides -Art. 267.  Kidnapping and serious illegal detention. - Any private individual who shall

kidnap or detain another, or in any other manner deprive him of his liberty, shall suffer the penalty of reclusion perpetua to death:

1.  If the kidnapping or detention shall have lasted more than five days.

2.  If it shall have been committed simulating public authority.

3.  If any serious physical injuries shall have been inflicted upon the person kidnapped or detained; or if threats to kill him shall have been made.

4.  If the person kidnapped or detained shall be a minor, female or a public officer.

The penalty shall be death where the kidnapping or detention was committed for the purpose of extorting ransom from the victim or any other person, even if none of the circumstances abovementioned were present in the commission of the offense.

The poking by appellant of a knife at the complainant could have indeed passed unnoticed because, as mentioned distinctly in her testimony, the knife was concealed in a hat,[13] and that she did not shout for help because all along he was poking his knife at her[14] and telling her not to resist or shout otherwise she would be killed.[15]

The testimony of Leah Marie that she was alone in the vicinity of St. Jude School waiting for her sister is not hard to believe.  It is highly probable that she arrived there too early or way beyond dismissal time.  Anyway, it is clear that the arguments raised by accused-appellant pertain to the credibility of the complainant, and the appraisal by the trial court of her credibility is entitled to great respect from the appellate courts which do not deal with live witnesses but only with the cold pages of a written record.[16] Hence the appellant’s denial and alibi were properly rejected by the court a quo.

They were inherently weak and could not prevail over the positive testimony of complainant that the accused detained her and took her earrings against her will.[17]

WHEREFORE, the decision finding the accused-appellant Danilo Panlilio y Francisco guilty of kidnapping in Crim. Case No. 2351-V-93 and imposing upon him a prison term of reclusion perpetua, and to pay the costs, is AFFIRMED.

As regards Crim. Case No. 2352-V-93 for highway robbery, the case is DISMISSED on the ground of lack of jurisdiction of the Regional Trial Court of Valenzuela, without prejudice to its refiling with the court of proper jurisdiction.

SO ORDERED.

Padilla (Chairman), Vitug, Kapunan, and Hermosisima, Jr., JJ., concur.

[1] Penned by Judge Adriano R. Osorio.

[2] TSN, 3 May 1993, p. 3.

[3]  See Note 2.

[4] TSN, 3 May 1993, p. 10.

[5]  Ibid.

[6] Id., p. 14.

[7] People v. Mendoza, G.R. No. 109783,22 September 1994,236 SCRA 666.

[8] People v. Salazar, G.R. No. 84391,7 April 1993,221 SCRA 170.

[9] TSN, 3 May 1993, p.11.

[10] Id., p. 13.

[11] Id., p. 14.

[12] Id., pp. 11-12.

[13] TSN, 3 May 1993, p. 12.

[14] Id., pp. 9-11.

[15] Id., pp. 12-13.

[16] People v. Macasling, G.R. No. 90342, 27 May 1993, 222 SCRA 630.

[17] People v. Ylarde, G.R. No. 100521,5 July 1993,224 SCRA 405.

Republic of the PhilippinesSUPREME COURT

Manila

THIRD DIVISION

 

G.R. No. 103323 January 21, 1993

RAMON S. PAULIN, ANGELA F. PAULIN and JOSE BACHO, Petitioners, vs. HON. CELSO M. GIMENEZ (In his capacity as Presiding Judge of RTC, Cebu City, Branch 5), HON. MAMERTO Y. COLIFLORES (In his capacity as Judge of the MTC of Talisay, Branch IX, Cebu); CASTRO

BELME, and The PEOPLE OF THE PHILIPPINES,Respondents.

MELO, J.:

The petition before us arose from a November 10, 1989 incident when the jeep ridden by private respondent and Barangay Captain Castro Belme Mabuyo was overtaken by the Nissan Patrol ridden by herein petitioners, the spouses Dr. Ramon and Angela Paulin, smothering the former with dust. chanroblesvirtualawlibrary chanrobles virtual law library

Irked by this incident, Mabuyo followed the Nissan Patrol until it entered the back gate of Rattan Originals in Tanke, Talisay Cebu. Inquiring from a nearby security guard as to who owns the Nissan Patrol, he was informed that it belonged to and was driven by petitioner Dr. Ramon Paulin. chanroblesvirtualawlibrary chanrobles virtual law library

Later, while Mabuyo was investigating some problems of his constituents in Kilawan at Tanke, Cebu, Dr. Ramon Paulin and his wife, Angie, allegedly pointed their guns at Mabuyo while Jose Bacho, a companion of the spouses, acted as back-up. Mabuyo instructed one of the barangay tanods to call the police in Talisay and the rest to block the exit of the spouses and their lone companion. chanroblesvirtualawlibrary chanrobles virtual law library

Sensing that they were outnumbered, the spouses put their guns down and upon the arrival of the police officers, they were brought to the police station. On the same date, Station Commander P/Lt.

Ariel Palcuto filed a complaint for "grave threats," against the spouses Paulin and Bacho, herein petitioners, which was later docketed as Criminal Case No. 5204. On November 20, 1989, the station commander filed a complaint for, "grave threats and oral defamation," against private respondent Mabuyo, docketed as Criminal Case No. 5213. chanroblesvirtualawlibrary chanrobles virtual law library

The cases were jointly tried and, on June 13, 1990, the Municipal Trial Court of Talisay, Cebu (Branch IX), acting on a motion of the spouses Paulin and Jose Bacho, dismissed Criminal Case No. 5204. On July 2, 1990, Mabuyo filed a, "Motion for Reconsideration," of the said dismissal order which the court granted in a resolution dated July 3, 1990. chanroblesvirtualawlibrary chanrobles virtual law library

At the hearing of Criminal Case No. 5213 on July 5, 1990, petitioners vigorously sought the setting aside of the July 3, 1990 resolution in Criminal Case No. 5204, but the same was denied in another resolution.chanroblesvirtualawlibrary chanrobles virtual law library

Not satisfied with the resolution of respondent Judge Mamerto Y. Coliflores, petitioners filed on July 31, 1990 a petition for "certiorari, prohibition, damages, with relief for preliminary injunction and the issuance of a temporary restraining order" with the Regional Trial Court of the Seventh Judicial Region, which was thereafter docketed as Special Civil Action No. CEB-9207 and later re-raffled to Branch 5 stationed in Cebu City presided over by respondent Judge Celso M. Gimenez, who dismissed the petition in a decision dated December 19, 1991. The decretal portion of the decision states:

All the foregoing considered, for lack of merit and for being a prohibited pleading under the Rule on Summary Procedure, as revised, the instant petition is hereby dismissed. Public respondent is hereby ordered to proceed with the trial of Crim. Case Nos. 5204 and 5213 and to decide both cases on their merits within the period provided under the Revised Rule on Summary Procedure. The preliminary injunction heretofore issued dated May 9, 1991, is hereby lifted and set aside. (p. 118, Rollo.)

Still not contented, petitioners have now resorted to the instant petition, arguing that (a) the decision of the municipal trial court dated June 13, 1990 dismissing the case against them was a judgment of acquittal, and may no longer be set aside without violating petitioners' right against double jeopardy; and (b) the regional trial court, in dismissing the petition in CEB-9207 abused its discretion as it ignored petitioners' right against double jeopardy. chanroblesvirtualawlibrarychanrobles virtual law library

The main issue to be resolved is whether or not the municipal trial court's dismissal of Criminal Case No. 5204 against petitioners precludes a subsequent reconsideration or reversal of such dismissal as the same would violate petitioners' right against double jeopardy. The secondary issue dwells on the applicability of the Rule on Summary Procedure prohibiting motions to dismiss and petitions for certiorari.chanroblesvirtualawlibrary chanrobles virtual law library

For double jeopardy to be validly invoked by petitioners, the following requisites must have been obtained in the original prosecution;  chanrobles virtual law library

a) a valid complaint or information;  chanrobles virtual law library

b) a competent court; chanrobles virtual law library

c) the defendant had pleaded to the charge; and  chanrobles virtual law library

d) the defendant was acquitted, or convicted, or the case against him was dismissed or otherwise terminated without his express consent (People v. Obsania, 23 SCRA 1249 [1968]: Caes v. IAC, 179 SCRA 54 [1989]).chanroblesvirtualawlibrary chanrobles virtual law library

Jurisprudence on double jeopardy as well as the exceptions thereto which finds application to the case at bar has been laid down by this Court as follows:

. . . However, an appeal by the prosecution from the order of dismissal (of the criminal case) by the trial court shall not constitute double jeopardy if (1) the dismissal is made upon motion, or with the

express consent of the defendant; (2) the dismissal is not an acquittal or based upon consideration of the evidence or of the merits of the case; and (3) the question to be passed upon by the appellate court is purely legal so that should the dismissal be found incorrect, the case would have to be remanded to the court of origin for further proceedings, to determine the guilt or innocence of the defendant. (People v. Villalon, 192 SCRA 521 [1990], at p. 529.)

For double jeopardy to attach, the dismissal of the case must be without the express consent of the accused (People v. Gines, 197 SCRA 481 [1991]). Where the dismissal was ordered upon motion or with the express assent of the accused, he is deemed to have waived his protection against double jeopardy. In the case at bar, the dismissal was granted upon motion of petitioners. Double jeopardy thus did not attach. This doctrine of waiver of double jeopardy was examined and formally introduced in People v. Salico (84 Phil. 722 [1949]), where Justice Felicisimo Feria stated:

. . . when the case is dismissed, with the express consent of the defendant, the dismissal will not be a bar to another prosecution for the same offense; because, his action in having the case dismissed constitutes a waiver of his constitutional right or privilege, for the reason that he thereby prevents the court from proceeding to the trial on the merits and rendering a judgment of conviction against him. (See also People v. Marapao (85 Phil. 832 [1950]); Gandicela v. Lutero (88 Phil. 299 [1951]), People v. Desalisa (125 Phil. 27 [1966]); and, more recently, People v. Aquino (199 SCRA 610 [1991]).

Petitioners insist that the June 13, 1990 decision of the Municipal Trial Court (MTC) is an acquittal since it was issued after it had allegedly considered the merits of the prosecution's evidence. chanroblesvirtualawlibrary chanrobles virtual law library

In People v. Salico (supra), distinctions between acquittal and dismissal were made, to wit:

. . . Acquittal is always based on the merits, that is, the defendant is acquitted because the evidence does not show that defendant's guilt is beyond reasonable doubt; but dismissal does not decide the case on the merits or that the defendant is not guilty. Dismissals terminate the proceedings, either because the court is not a court of competent jurisdiction, or the evidence does not show that the offense was committed within the territorial jurisdiction of the court, or the complaintor information is not valid or sufficient in form and substance, etc. . . . (at pp. 732-733.)

The MTC decision dismissing the case is not an acquittal from the charge considering that no finding was made as to the guilt or innocence of the petitioners. chanroblesvirtualawlibrary chanrobles virtual law library

Under Section 14, Rule 110 of the 1985 Rules on Criminal Procedure, as amended, it is stated:

Sec. 14. Amendments. - . . .chanroblesvirtualawlibrary chanrobles virtual law library

If it appears at any time before judgment that a mistake has been made in charging the proper offense, the court shall dismiss the original complaint or information upon the filing of a new one charging the proper offense in accordance with Rule 119, Sec. 11 . . .

In Section 11 of the same Rule, it is provided:

When it becomes manifest at any time before judgment, that a mistake has been made in charging the proper offense, and the accused cannot be convicted of the offense charged, or of any other offense necessarily included therein, the accused shall not be discharged, if there appears to be good cause to detain him. In such case, the court shall commit the accused to answer for the proper offense and dismiss the original case upon the filing of the proper information. (Id., Sec. 11, Rule 119.)

In the case at bar, the original case was dismissed without the proper information having been filed, it appearing that the proper charge should have been, "disturbance of public performance," punishable under Article 153 of the Revised Penal Code instead of "grave threats," under Article 282 of the same penal code.chanroblesvirtualawlibrary chanrobles virtual law library

Jurisprudence recognizes exceptional instances when the dismissal may be held to be final, disposing of the case once and for all even if the dismissal was made on motion of the accused himself, to wit:

1. Where the dismissal is based on a demurrer to evidence filed by the accused after the prosecution has rested, which has the effect of a judgment on the merits and operates as an acquittal. chanroblesvirtualawlibrary chanrobles virtual law library

2. Where the dismissal is made, also on motion of the accused, because of the denial of his right to a speedy trial which is in effect a failure to prosecute. (Caes v. IAC, 179 SCRA 54 [1989] at pp. 60-61.)

Petitioners' motion to dismiss premised on procedural grounds cannot be considered a demurrer to evidence nor was the dismissal sought by them predicated on the denial of their right to speedy trial. Hence, the exceptions mentioned find no application in the instant case, especially so because when the municipal trial court dismissed the case upon petitioners' motion, the prosecution still had to present several witnesses.

Where the prosecution is deprived of a fair opportunity to prosecute and prove its case, its right to due process is thereby violated (People v. Balisacan, G.R. No. L-26376, Aug. 31, 1966, 17 SCRA 1119; Uy v. Genato, G.R. No. L-37399, May 29, 1974, 57 SCRA 123). Where there is a violation of basic constitutional rights, courts are ousted of jurisdiction. Hence, the violation of the State's right to due process raises a serious jurisdictional error (Gumabon v. Director of the Bureau of Prisons, G.R. No. L-30026, Jan. 30, 1971, 37 SCRA 420) as the decision rendered in disregard of the right is void for lack of jurisdiction. (Aducayen v. Flores, 51 SCRA 78 [1973], at p. 78.)

Where the order of dismissal was issued at a time when the case was not ready for trial and adjudication, the order is null and void (People v. Pamittan, 30 SCRA 98 [1969]). chanroblesvirtualawlibrary chanrobles virtual law library

In People v. Bocar (138 SCRA 166 [1985]), this Court found that the prosecution was denied due process as it never had the chance to offer its evidence formally in accordance with the Rules of Court in view of the trial court's order of dismissal. The trial court was thereby ousted from its jurisdiction when it violated the right of the prosecution to due process by aborting its right to complete the presentation of its evidence and, therefore, the first jeopardy had not been terminated. Hence, the remand of the case for further hearing or trial is merely a continuation of the first jeopardy and does not expose the accused to a second jeopardy. chanroblesvirtualawlibrary chanrobles virtual law library

In the subsequent case of People v. Albano (163 SCRA 511 [1988]), this Court reiterated its previous ruling in theBocar case, holding that the trial court exceeded it's jurisdiction and acted with grave abuse of discretion, tantamount to lack of jurisdiction, when it pre-emptively dismissed the case and as a consequence thereof, deprived the prosecution of its right to prosecute and prove its case, thereby violating its fundamental right to due process. With such violation, its orders are, therefore, null and void and cannot constitute a proper basis for a claim of double jeopardy. chanroblesvirtualawlibrary chanrobles virtual law library

In the more recent case of Saldana v. Court of Appeals (190 SCRA 396 [1990]), the issue raised was as follows: "Where the trial court prematurely terminated the presentation of the prosecution's evidence and forthwith dismissed the information for insufficiency of evidence, may the case be remanded for further proceeding?" This Court, applying the Bocar case, ruled that the order of the Court of Appeals reinstating the criminal case for further hearing by the trial court does not violate the rule on double jeopardy inasmuch as the trial court was ousted from its jurisdiction when it violated the right of the prosecution to due process.chanroblesvirtualawlibrary chanrobles virtual law library

The municipal trial court thus did not violate the rule on double jeopardy when it set aside the order of dismissal for the reception of further evidence by the prosecution because it merely corrected its error when it prematurely terminated and dismissed the case without giving the prosecution the right to complete the presentation of its evidence. It follows then that the decision of respondent regional trial court sustaining that of the court of origin cannot be said to be tainted with grave abuse of discretion.chanroblesvirtualawlibrary chanrobles virtual law library

The Rule on Summary Procedure was correctly applied by the public respondents in this case. chanroblesvirtualawlibrary chanrobles virtual law library

Petitioners argue that public respondents gravely abused their discretion in applying the provision prohibiting the filing of motions to dismiss and petitions for certiorari provided under the Rule on Summary Procedure. They claim that the prohibition under Section 15 of the Rule on Summary Procedure refers to motions to dismiss or to quash filed before the accused enters his plea. In any event, petitioners insist that they filed a demurrer to evidence which is not a prohibited pleading under the Rule on Summary Procedure.chanroblesvirtualawlibrary chanrobles virtual law library

Demurrer to evidence due to its insufficiency pre-supposes that the prosecution had already rested its case (Sec. 15, Rule 119, 1985, Rules on Criminal Procedure). Hence, the motion is premature if interposed at a time when the prosecution is still in the process of presenting its evidence (Aquino v. Sison, 179 SCRA 648 [1989]), as what happened in this case. chanroblesvirtualawlibrary chanrobles virtual law library

Petitioners, of course, maintain that all the prosecution's evidence was already on record since the affidavits of complainant and his witnesses, in law, constituted their direct testimonies and that, therefore, no other evidence could have been introduced by the prosecution. chanroblesvirtualawlibrary chanrobles virtual law library

Submission of the affidavits to the court does not warrant the interference that the prosecution had already finished presenting its evidence because the affiants are still required to testify and affirm the contents thereof; otherwise, these affidavits cannot serve as competent evidence for the prosecution. The Rule on Summary Procedure states:

Sec. 14. Procedure of Trial. - Upon a plea of not guilty being entered, the trial shall immediately proceed. The affidavits submitted by the parties shall constitute the direct testimonies of the witnesses who executed the same. Witnesses who testified may be subjected to cross-examination. Should the affiant fail to testify, his affidavit shall not be considered as competent evidence for the party presenting the affidavit, but the adverse party may utilize the same for any admissible purpose. chanroblesvirtualawlibrary chanrobles virtual law library

No witness shall be allowed to testify unless he had previously submitted an affidavit to the court in accordance with Sections 9 and 10 hereof.

WHEREFORE, the petition is DISMISSED and the decision of the Regional Trial Court dated December 19, 1991 AFFIRMED.chanroblesvirtualawlibrary chanrobles virtual law library

SO ORDERED.

Gutierrez, Jr., Bidin, Davide, Jr. and Romero, JJ., concur.

Republic of the PhilippinesSUPREME COURT

Manila

FIRST DIVISION

G.R. Nos. 74989-90 November 6, 1989

JOEL B. CAES, petitioner, vs.Hon. INTERMEDIATE APPELLATE COURT (Fourth Special Cases Division), Hon. ALFREDO M. GORGONIO, in his capacity as the Presiding Judge of the Regional Trial Court of Caloocan City, Branch CXXV, National Capital Region and PEOPLE OF THE PHILIPPINES, respondents.

Sanchez & Montebon Law Office for petitioner.

 

CRUZ, J.:

We deal with a simple matter that should not detain us too long. Fittingly, we shall decide it in favor of individual liberty rather than upon rebuttable presumptions and dubious implications.

The facts are simple and mostly undisputed.

On November 21, 1981, petitioner Joel Caes was charged in two separate informations with illegal possession of firearms and illegal possession of marijuana before the Court of First Instance of Rizal. 1 The cases were consolidated on December 10, 1981. 2

Arraignment was originally scheduled on January 11, 1982, but was for some reason postponed. 3

On August 31, 1982, Caes was arraigned and pleaded not guilty. 4 Trial was scheduled for October 13, 1982, but this was reset upon agreement of the parties. 5

On November 15, 1982, the trial was again postponed for reasons that do not appear in the record. 6

On December 20, 1982, the trial was again postponed because the prosecution witnesses were absent. 7

On January 19, 1983, the third resetting of the case was also canceled, no reason appearing in the record. 8

On February 21, 1983, no trial could be held again, the because witnesses being absent. 9

On March 21, 1983, the trial was reset once more, again because the prosecution witnesses were absent. 10

On April 19, 1983, the trial of the case had not yet started. It was reset because the prosecution witnesses were again absent. 11

On June 3, 1983, a sheriffs return informed the trial court that the prosecution witnesses, namely, Capt. Carlos Dacanay and Sgt. Bonifacio Lustado had been personally served with subpoena to appear and testify at the hearing scheduled on June 6, 1983. 12

On June 6, 1983, the trial was again postponed, this time because there was no trial fiscal. 13

On July 12, 1983, trial was reset for lack of material time. 14

On September 6, 1983, The trial was once more reset by agree-judgment of the parties. 15

On October 19, 1983, the trial was reset to November 14, 1983. 16

On November 14, 1983, the prosecution moved for the provisional dismissal of the case because its witnesses had not appeared. On the same date, Judge Alfredo M. Gorgonio issued the following order:

In view of the failure of the prosecution witnesses to appear on several scheduled hearing and also for the hearing today which is an indication of lack of interest, upon

motion of the trial fiscal for the provisional dismissal of these cases and with the conformity of the accused, the above-entitled cases are hereby ordered Provisionally Dismissed, with costs de oficio. 17

On January 9, 1984, a motion to revive the cases was filed by Maj. Dacanay (he had been promoted in the meantime) and Sgt. Lustado who alleged that they could not attend the hearing scheduled on November 14, 1983, for lack of notice. 18 Copy of the motion was furnished the City Fiscal of Caloocan City but not the petitioner.

On May 18, 1984, the respondent judge issued the following order:

Acting on the "Motion for the Revival of the Case" dated December 5, 1983 filed by the complaining witnesses to which no opposition has been filed either by the Fiscal or the defense, and considering that the dismissal of these cases was only provisional, for reasons stated in the motion, the same is granted.

WHEREFORE, let these cases be set anew for hearing on June 13, 1984 at 8:30 in the morning. 19

A motion for reconsideration filed by the petitioner dated June 7, 1984, was denied on October 9, 1984, and the revived cases were set from hearing on November 19, 1984. 20

The petitioner questioned the judge's order on certiorari with this Court, which reffered his petition to the respondent court. The petition there was dismissed for lack of merit on May 20, 1986, and reconsideration was denied on June 17, 1986. 21 Caes then came to us again.

The present petition is based on two arguments, to wit: (a) that the motion to revive the cases was invalid because it was riot filed by the proper party nor was a copy served on the petitioner; and (b) the revival of the cases would place the petitioner double jeopardy in violation of the Bill of Rights.

We sustain the petitioner on both counts.

It is axiomatic that the prosecution of a criminal case is the responsibility of the government prosecutor and must always be under his control. 22 This is true even if a private prosecutor is allowed to assist him and actually handles the examination of the witnesses and the introduction of other evidence. 23 The witnesses, even if they are the complaining witnesses, cannot act for the prosecutor in the handling of the case. Although they may ask for the filing of the case, they have no personality to move for its dismissal or revival as they are not even parties thereto nor do they represent the parties to the action. Their only function is to testify. In a criminal prosecution, the plaintiff is represented by the government prosecutor, or one acting under his authority, and by no one else.

It follows that the motion for the revival of the cases filed by prosecution witnesses (who never even testified) should have been summarily dismissed by the trial judge. The mere fact that the government prosecutor was furnished a copy of the motion and he did not interpose any objection was not enough to justify the action of these witnesses. The prosecutor should have initiated the motion himself if he thought it proper. The presumption that he approved of the motion is not enough, especially since we are dealing here with the liberty of a person who had a right at least to be notified of the move to prosecute him again. The fact that he was not so informed made the irregularity even more serious. It is curious that the motion was granted just the same, and ex parte at that and without hearing, and the petitioner's subsequent objection was brushed aside.

On the second issue, the position of the public respondent is that double jeopardy has not attached because the case was only provisionally dismissed and it was with the conformity of the accused. The petitioner denies that he consented to the dismissal and submits that the dismissal was final notwithstanding its description.

Fittingly described as "res judicata in prison grey," the right against double jeopardy prohibits the prosecution of a person for a crime of which he has been previously acquitted or convicted. The purpose is to set the effects of the first prosecution forever at rest, assuring the accused that he shall not thereafter be subjected to the danger and anxiety of a second charge against him for the same offense.

It has been held in a long line of cases 24 that to constitute double jeopardy, there must be: (a) a valid complaint or information; (b) filed before a competent court; (c) to which the defendant had pleaded; and (d) of which he had been previously acquitted or convicted or which was dismissed or otherwise terminated without his express consent.

There is no question that the first three requisites are present in the case at bar. What we must resolve is the effect of the dismissal, which the petitioner contends finally and irrevocably terminated the two cases against him. His submission is that the dismissal was not provisional simply because it was so designated, more so since he had not expressly consented thereto.

It is settled that a case may be dismissed if the dismissal is made on motion of the accused himself or on motion of the prosecution with the express consent of the accused. 25 Such a dismissal is correctly denominated provisional. But a dismissal is not provisional even if so designated if it is shown that it was made without the express consent of the accused. This consent cannot be presumed nor may it be merely implied from the defendant's silence or his failure to object. As we have held in a number of cases, such consent must be express, so as to leave no doubt as to the defendant's conformity. 26 Otherwise, the dismissal will be regarded as final, i.e., with prejudice to the refiling of the case.

There are instances in fact when the dismissal will be held to be final and to dispose of the case once and for all even if the dismissal was made on motion of the accused himself. The first is where the dismissal is based on a demurrer to the evidence filed by the accused after the prosecution has rested. Such dismissal has the effect of a judgment on the merits and operates as an acquittal. In People v. City of Silay, 27 for example, the trial court dismissed the case on motion of the accused on the ground of insufficiency of the prosecution evidence. The government came to this Court on certiorari, and the accused pleaded double jeopardy. Our finding was that the case should not have been dismissed because the evidence submitted by the prosecution was not insufficient. Even so, the petitioner had to be denied relief because the dismissal amounted to an acquittal on the merits which was therefore not appealable. Justice Muñoz-Palma said: "However erroneous the order of the respondent Court is, and although a miscarriage of justice resulted from said order, such error cannot now be lighted because of the timely plea of double jeopardy."

The other exception is where the dismissal is made, also on motion of the accused, because of the denial of his right to a speedy trial. This is in effect a failure to prosecute. Concerning this right, the ruling in the old case ofConde v. Rivera 28 is still valid doctrine. Here the prosecution was dismissed because the accused was made to "dance attendance on courts" and subjected to no less than eight unjustified postponements extending over a year that unduly delayed her trial. In dismissing the charges against her, Justice Malcolm declared for a unanimous Supreme Court:

On the one hand has been the petitioner, of humble station, without resources, but fortunately assisted by a persistent lawyer, while on the other hand has been the

Government of the Philippine Islands which should be the last to set an example of delay and oppression in the administration of justice. The Court is thus under a moral and legal obligation to see that these proceedings come to an end and that the accused is discharged from the custody of the law.

We lay down the legal proposition that, where a prosecuting officer, without good cause, secures postponements of the trial of a defendant against his protest beyond a reasonable period of time, as in this instance for more than a year, the accused is entitled to relief ...

The case at bar is not much different from Conde. As the record shows, the petitioner was arraigned on August 31, 1982, but was never actually tried until the cases were dismissed on November 14, 1983, following elevenpostponements of the scheduled hearings, mostly because the prosecution was not prepared. The accused was never absent at these aborted hearings. He was prepared to be tried, but either the witnesses against him were not present, or the prosecutor himself was absent, or the court lacked material time. Meantime, the charges against him continued to hang over his head even as he was not given an opportunity to deny them because his trial could not be held.

Under these circumstances, Caes could have himself moved for the dismissal of the cases on the ground of the denial of his right to a speedy trial. This would have been in keeping with People v. Cloribel, 29 where the case dragged for almost four years due to numerous postponements, mostly at the instance of the prosecution, and was finally dismissed on motion of the defendants when the prosecution failed to appear at the trial. This Court held "that the dismissal here complained of was not truly a dismissal but an acquittal. For it was entered upon the defendants' insistence on their constitutional right to speedy trial and by reason of the prosecution's failure to appear on the date of trial."

The circumstance that the dismissal of the cases against the petitioner was described by the trial judge as "provisional" did not change the nature of that dismissal. As it was based on the "lack of interest" of the prosecutor and the consequent delay in the trial of the cases, it was final and operated as an acquittal of the accused on the merits. No less importantly, there is no proof that Caes expressly concurred in the provisional dismissal. Implied consent, as we have repeatedly held, is not enough; neither may it be lightly inferred from the presumption of regularity, for we are dealing here with the alleged waiver of a constitutional right. Any doubt on this matter must be resolved in favor of the accused.

We conclude that the trial judge erred in ordering the revival of the cases against the petitioner and that the respondent court also erred in affirming that order. Caes having been denied his constitutional right to a speedy trial, and not having expressly consented to the "provisional" dismissal of the cases against him, he was entitled to their final dismissal under the constitutional prohibition against double jeopardy. 30

The Court expresses its stern disapproval of the conduct in these cases of the Office of the City Prosecutor of Caloocan City which reveals at the very least a lack of conscientiousness in the discharge of its duties. The informations appear to have been filed in haste, without first insuring the necessary evidence to support them. The prosecution witnesses repeatedly failed to appear at the scheduled hearings and all the prosecution did was to perfunctorily move for a resetting, without exerting earnest efforts to secure their attendance. In the end, it moved for the "provisional" dismissal of the cases without realizing, because it had not studied the matter more carefully, that such dismissal would have the effect of barring their reinstatement. Characteristically, it was also non-committal on the motion to revive the cases filed by the prosecution witnesses only, thereby surrendering, by its own silence, its authority in conducting the prosecution.

It is possible that as a result of its in attention, the petitioner has been needlessly molested if not permanently stigmatized by the unproved charges. The other possibility, and it is certainly worse, is that a guilty person has been allowed to escape the penalties of the law simply because he may now validly claim the protection of double jeopardy. In either event, the responsibility clearly lies with the Office of the City Prosecutor of Caloocan City for its negligence and ineptitude.

WHEREFORE, the petition is GRANTED. The challenged decision of the respondent court dated May 20, 1986, and the orders of the trial court dated May 18, 1984, and October 9, 1984, are SET ASIDE. The dismissal of Criminal Cases Nos. C-16411(81) and C-16412(81) is hereby declared as final.

Let a copy of this decision be sent to the Secretary of Justice.

SO ORDERED.

Narvasa, Gancayco, Griño-Aquino and Medialdea, JJ., concur.

 yPetitioner undoubtedly is charged as a principal in the killing of Ramon George Yu whom petitioner is alleged to have stabbed while two unknown persons held the victim's arms. The addition of thephrase, "conspiring, confederatingand helpingone another" doesnot cha

ngethenature of petitioner'sparticipationasprincipalinthe killing.y Whether under the original or the amended information, petitioner would have to defendhimself as the People makes a case against him and secures for public protection thepunishment of petitioner for stabbing to death, using superior strength, a fellow citizen inwhose health and safety society as a whole is interested. Petitioner, thus, has no tenable basisto decry the amendment in question.y

Furthermore, neither may the amendment in question be struck down on the ground thatHerminia Altavas,Osmeña Altavas and Renato Buhat would be placed in double jeopardy byvirtue of said amendment.Inthe f irstplace,no first jeopardy can be spoken of insofar as theAltavases are concerned since the first information did not precisely include them as accusedtherein.Inthe secondplace,the amendment to replace the name, "John Doe" with the name of Renato Buhat who was found by the Secretary of Justice to be one of the two persons who heldthe arms of the victim while petitioner was stabbing him,18 is only a formal amendment andone that does not prejudice any of the accused's rights.y Such amendment to insert in the information the real name of the accused involves merely amatter of form as it does not, in any way, deprive any of the accused of a fair opportunity topresent a defense; neither is the nature of the offense charged affected or altered since therevelation of accused's real name does not change the theory of the prosecution nor does itintroduce any new and material fact.19 In fact, it is to he expected that the information has tobe amended as the unknown participants in the crime became known to the public prosecutor2. On the amendment of the name of the crime to MURDER.y "Abuse of superior strength" having already been alleged in the original information charginghomicide,the amen

dment of thename of the crime to murder, constitutes a mere formalamendmentpermissible evenafter arraignmenty In the case of Dimalibot v. Salcedo,we ruled that the amendment of the information so as tochange the crime charged from homicide to murder, may be made "even if it may result inaltering the nature of the charge so long as it can be done without prejudice to the rights of theaccused." y At the outset, the main consideration should be whether or not the accused had already madehis plea under the original information, for this is the index of prejudice to, and the violation of,the rights of the accused.y The question as to whether the changing of the crime charged from homicide to the moreserious offense of murder is a substantial amendment proscribed after the accused had pleaded"not guilty" to the crime of homicide was, it should be noted,

categorically answeredintheaff irmativeby us in the case of Dionaldo v. Dacuycuy.

y

The said case(Dacuycuy) however, differs from the case at bench because the facts hereinsustain a contrary holding. As pointed out by the Court of Appeals:"x x x the original Information, while only mentioning homicide, alleged:Danny Buhat, John Doe and Richard Doe as the accused; [sic] of Danny Buhat stabbing thedeceased Ramon while his two other companions were holding the arms of Ramon, thus, 'theInformation already alleged superior strength'; and inflicting mortal wounds which led to thedeath of Ramon.Superior strength qualifies the offense to murder (Article 248).y Before us, the Information already alleged superior strength, and the additional allegation thatthe deceased was stabbed by Buhat while the arms of the former were being held by the twoother accused, referring to John Doe and Richard Doe....y If the killing is characterized as havingbeencommitted by superior strength, thento repeat,thereis murdery

Also the case of Dacuycuy was mentioned, as a justification for not allowing change of designation from homicide to murder, but then the body of the Information in the Dacuycuyruling did not allege averments which qualifies [sic] the offense of murder. The case before usinstead is different in that the Information already alleges that Buhat attacked the deceasedwhile his two other companions held him by the aims, 'using superior strength.' x x x We wouldeven express the possibility that if supported by evidence, Buhat and the Altavases could still bepenalized for murder even without changing the designation from homicide to murder, preciselybecause of aforementioned allegations. The proposed change of the word from homicide tomurder, to us, is not a substantial change that should be prohibited y Inthe matter of amendinga criminalinformation, whatisprimarilyguarded againsti

s theimpairment of the accused's right tointelligently know thenature of the charge against him.This right has been guaranteed the accused under all Phili

ppine Constitutions26 andincorporatedin Section1 (b), Rule 115, of the 1985 Rules onCriminal Procedure. y From a legal point of view, and in a very real sense, it is of no concern to the accused what is thetechnical name of the crime of which he stands charged. It in no way aids him in a defense onthe merits x x x. That to which his attention should be directed, and in which he, above all thingselse, should be most interested, are the facts alleged. y The real question is not did he commit a crime given in the law some technical and specificname, but did he perform the acts alleged in the body of the information in the matter

thereinset forth. If he did, it is of no consequence to him, either as a matter of procedure or of substantive right how the law denominates the crime which those acts constitute. Thedesignation of the crime by name in the caption of the information from the facts alleged in thebody of that pleading is a conclusion of law made by the fiscal x x x. For his full and completedefense he need not know the name of the crime at all. It is of no consequence whatever for theprotection of his substantial rights. y The real andimportant questionto himis, 'Did youperform the acts allegedinthe manneralleged?'not, 'Did you commit a cr

imenamed murder?'If he performed the acts alleged, inthe manner stated, the law determines what the name of the crime is and fixes the penaly

therefor. It is the province of the court alone to say what the crime is or what it is named. If theaccused performed the acts alleged in the manner alleged, then he ought to be punished andpunished adequately, whatever may be the name of the crime which those acts constitute. y The real nature of the criminal charge is determined not from the caption or preamble of theinformation nor from the specification of the provision of the law alleged to have been violated,they being conclusions of law which in no way affect the legal aspects of the information, butfrom the actual recital of facts as alleged in the body of the information.y Petitionerin the case at bench maintains that having already pleaded "not guilty" to the crimeof homicide, the amendment of the crime charged in the information from homicide to murderis a substantial amendment prejudicial to his right to be informed of the nature of theaccusation against him.He utterly fails to di

spute, however, that the originalinformationdidallege thatpetitioner stabbed his victim "usingsuperior strength." And thisparti

cularallegationqualif ies a killingto murder, regardless of how such a killing is technicallydesignatedintheinformationf iled by thepublicprosecutor.NOTE:

On another aspect, we find merit in the manifestation of the Solicitor General to the effect that therespondent Court of Appeals erroneously supposed that petitioner and Renato Buhat are one and thesame person, hence the non-inclusion of Renato Buhat as additional accused in its order allowing theamendment of the information.38 We also agree with the observation of the Solicitor General that theamended information filed in this case still fails to embody the correct identity of all of the personsfound to be indictable in the Resolution of the Secretary of Justice. Explained the Solicitor General:"In its Decision under review, the Court of Appeals erroneously supposed that Danny Buhat and RenatoBuhat are one and the same person (CA Decision, 1st par.). This, however, is not correct because DannyBuhat and Renato Buhat are, in fact, brothers. Moreover, it was notOsmeña Altavas and his wifeHerminia Altavas who held the arms of the victim while Danny Buhat stabbed him.Verily, the statement of facts in the Information or Amended Information must conform with thefindings of fact in the preliminary investigation (in this case, as reviewed by the Secretary of Justice) soas to make it jibe with the evidence x x x to be presented at the trial x x x.Dispositive: WHEREFORE, the petition is DISMISSED for lack of merit. The City Prosecutor of Roxas City isHEREBYORDERED to file the correct Amended Information fully in accordance with the findings of factset forth in the Resolution of the Secretary of Justice, dated February 3, 1994, and in disregard of thefinding of the Court of Appeals in its Decision, dated March 28, 1995, in CA-G.R. SP No. 3 55 54 to theeffect that "Danny Buhat and Renato Buhat are one and the same person.

BARRAMEDA VS COURT OF APPEALS 313 SCRA 477Thursday, January 29, 2009 Posted by Coffeeholic Writes 

Labels: Case Digests, Criminal Law

Facts: Lolita Watanabe, a Filipino working in Japan, sent money to her

mother in the Philippines through Wilma Barrrameda, the accused, in dollars

and yen (equivalent to P50,000.00) which she counted and placed in an

envelope. Paguinto, Watanabe’s mother called her that day, and she

informed the former of the money that she sent through Barrameda. The

accused arrived and Paguinto met her at the NAIA where she inquired about

the remittance. Barrameda informed her that she had misplaced the

money, although it may still be in her baggage. Appellant promised to deliver

the money the following morning but she never did. Despite repreated

demands, appellant never gave the money to Paguinto. A charge

for estafa was filed before the RTC of Pasay. Accused denied having received

the money and alleged that not a single element of the crime occurred

within the territorial jurisdiction of the RTC, Pasay City.

Issues:1) Whether the Regional Trial Court of Pasay has jurisdiction over the case. 

2) Whether the element of demand required to prove Estafa through

Misappropriation was adequately proven.

Held: The accused was charged with the crime of estafa through

misappropriation or conversion. The elements of said crime are: 1) money,

goods, or other personal property is received by the offender in trust, or on

commission, or for administration, or under any other obligation involving

the duty to make delivery of, or to return, the same; 2) that there be

misappropriation or conversion of such money or property by the offender or

denial on his part of such receipt; 3) that such misappropriation or

conversion or denial is to the prejudice of another; and that there is a

demand made by the offended party on the offender. In all criminal

prosecutions, the action shall be instituted and tried in the court of the

municipality or territory wherein the offense was committed or where any of

the essential ingredients thereof took place. 

A demand was made by the mother of Watanabe at the NAIA which is within

the territorial jurisdiction of the RTC of Pasay City. Thepresence of Paguinto

at the airport was for no other purpose but to demand the money entrusted

to Barrameda. The word “demand” need not be used to show that demand

was indeed made. A query as to thewhereabouts of the money is tantamount

to a demand. 

Republic of the PhilippinesSUPREME COURT

Manila

EN BANC

 

G.R. No. 96724 March 22, 1991

HONESTO GENERAL, petitioner, vs.HON. GRADUACION REYES CLARAVALL, Judge, Regional Trial Court at Pasig, Br. 71, BENNETH THELMO and the PEOPLE OF THE PHILIPPINES, respondents.

Quisumbing, Torres & Evangelista for petitioner.

Raymundo A. Armovit for private respondent.

R E S O L U T I O N

 

NARVASA, J.:p

Benneth Thelmo filed with the Office of the Public Prosecutor of Rizal a sworn complaint accusing Honesto General and another person of libel, and alleged that by reason of the offense he (Thelmo) had suffered actual, moral and exemplary damages in the total sum of P100 million. The information for libel subsequently filed with the RTC at Pasig, after preliminary investigation, did not however contain any allegation respecting the damages due the offended party. At the trial, the defense raised the issue of non-payment of the docket fees corresponding to the claim of damages contained in Thelmo's sworn complaint before the fiscal, as a bar to Thelmo's pursuing his civil action therefor. The trial Court overruled the objection, by Order dated March 28, 1990. It also denied the

defendants' motion for reconsideration and motion for suspension of proceedings, by another Order dated May 17, 1990.

General and his co-accused are now before this Court applying for a writ of certiorari to annul the aforesaid Orders of the Trial Court on the theory that they had been rendered with grave abuse of discretion. The issue he poses is whether or not, in view of this Court's decision in three (3) cases —

1) Manchester vs. C.A., 149 SCRA 562 (1987), 1

2) Sun Insurance Office, Ltd. vs. Asuncion, 170 SCRA 274 (1989), 2 and

3) Tacay vs. RTC, 180 SCRA 433 (1989), 3

the rule should now be that the filing fees for the civil action for the recovery of civil liability arising from the offense should first be paid in order that said civil action may be deemed to have been impliedly instituted with the criminal and prosecuted in due course.

Manchester laid down the doctrine the specific amounts of claims of damages must be alleged both in the body and the prayer of the complaint, and the filing fees corresponding thereto paid at the time of the filing of the complaint; that if these requisites were not fulfilled, jurisdiction could not be acquired by the trial court; and that amendment of the complaint could not "thereby vest jurisdiction upon the Court." Sun Insurance and Tacayaffirmed the validity of the basic principle but reduced its stringency somewhat by providing that only those claims as to which the amounts were not specified would be refused acceptance or expunged and that, in any case, the defect was not necessarily fatal of irremediable as the plaintiff could on motion be granted a reasonable time within which to amend his complaint and pay the requisite filing fees, unless in the meantime the period of limitation of the right of action was completed.

Now, at the time of the promulgation of the Manchester decision in 1987, Section 1, Rule 111 of the Rules of Court, as amended in 1985, 4 read as follows: 5

Sec. 1. Institution of criminal and civil actions. — When a criminal action is instituted, the civil action for the recovery of civil liability arising from the offense charged is impliedly instituted with the criminal action, unless the offended party expressly waives the civil action or reserves his right to institute it separately. However, after the criminal action has been commenced, the civil action cannot be instituted until final judgment has been rendered in the criminal action.

When the offended party seeks to enforce civil liability against the accused by way of actual, moral, nominal, temperate or exemplary damages, the filing fees for such civil action as provided in these Rules shall first be paid to the Clerk of Court of the court where the criminal case is filed. In all other cases, the filing fees corresponding to the civil liability awarded by the court shall constitute a first lien on the judgment award and no payment by execution or otherwise may be made to the offended party without his first paying the amount of such filing fees to the Clerk of Court. (1a)

The rules set forth in the first paragraph are substantial reproductions of the corresponding sections of Rule 111 of the Rules of 1964. The second paragraph is new. It was incorporated in the 1985 Rules on Criminal Procedure in light of this Court's Resolution of September 13, 1984 in Adm. Matter No. 83-6-389-0, 6 requiring increased court filing fees effective October 1, 1984, which resolution pertinently provides that:

. . . When the offended party seeks to enforce civil liability against the accused by way of actual, moral, nominal, temperate or exemplary damages, the filing fees for such civil action as provided in the Rules of Court and approved by the Court shall first be paid to the Clerk of the court where the criminal action is filed. . . .

The purpose of the Resolution, according to the late Chief Justice Claudio Teehankee, 7 was to discourage the "gimmick of libel complainants of using the fiscal's office to include in the criminal information their claim for astronomical damages in multiple millions of pesos without paying any filing fees." This was the same consideration that underlay the Manchester ruling: the fraudulent practice, manifested by counsel in said ". . . of omitting any specification of the amount of damages in the prayer although the amount of over P78 million is alleged in the body of the complaint, . . . (an omission which was) clearly intended for no other purpose than to evade the payment of the correct filing fees if not to mislead the docket clerk in the assessment of the filing fee." 8

This Court however adopted further amendments to the 1985 Rules on Criminal Procedure, with effect on October 1, 1988. 9 Among the provisions revised was Section 1, Rule 111. As thus amended, it now reads as follows: 10

Sec. 1. Institution of criminal and civil actions. — When a criminal action is instituted, the civil action for the recovery of civil liability is impliedly with the criminal action, unless the offended party waives the civil action, reserves his right to institute it separately, or institutes the civil action prior to the criminal action.

Such civil action includes recovery of indemnity under the Revised Penal Code, and damages under Articles 32, 33, 34 and 2176 of the Civil Code of the Philippines arising from the same act or omission of the accused.

A waiver of any of the civil action extinguishes the others. The institution of, or the reservation of the right to file, any of said civil actions separately waives the others.

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

In no case may the offended party recover damages twice for the same act or omission of the accused.

When the offended party seeks to enforce civil liability against the accused by way of moral, nominal, temperate or exemplary damages, the filing fees for such civil action as provided in these Rules shall constitute a first lien on the judgment except in an award for actual damages.

In cases wherein the amount of damages, other than actual, is alleged in the complaint or information, the corresponding filing fees shall be paid by the offended party upon the filing thereof in court for trial. (1a)

The amendments were deliberated on and adopted by this Court after the Manchester doctrine had been enunciated. Yet observe that the last two (2) paragraphs prescribe a rule different from that in Manchester, and in the 1985 Rules on Criminal Procedure. Under the 1985 Rules, the filing fees for the civil action impliedly instituted with the criminal had to be paid first to the Clerk of the court

where the criminal action was commenced, without regard to whether the claim for such damages was set out in the information or not. Under the 1988 Rules, however, it is only when "the amount of damages, other than actual, is alleged in the complaint or information (that) the corresponding filing fees shall be paid by the offended party upon the filing thereof in court for trial." In any other case—i.e., when the amount of damages other than actual is NOT alleged in the complaint or information—the filing fees for the civil action "to enforce civil liability against the accused by way of moral, nominal, temperate or exemplary damages . . . shall (merely) constitute a first lien on the judgment except in an award for actual damages."

This Court's plain intent—to make the Manchester doctrine, requiring payment of filing fees at the time of the commencement of an action applicable to impliedly instituted civil actions under Section 1, Rule 111 only when "the amount of damages, other than actual, is alleged in the complaint or information—has thus been made manifest by the language of the amendatory provisions.

In any event, the Court now makes that intent plainer, and in the interests of clarity and certainty, categorically declares for the guidance of all concerned that when a civil action is deemed impliedly instituted with the criminal in accordance with Section 1, Rule 111 of the Rules of Court—because the offended party has NOT waived the civil action, or reserved the right to institute it separately, or instituted the civil action prior to the criminal action—the rule is as follows:

1) when "the amount of damages, other than actual, is alleged in the complaint or information" filed in court, then "the corresponding filing fees shall be paid by the offended party upon the filing thereof in court for trial;"

2) in any other case, however—i.e., when the amount of damages is not so alleged in the complaint or information filed in court, the corresponding filing fees need not be paid and shall simply "constitute a first lien on the judgment, except in an award for actual damages.

WHEREFORE, there being no error in the challenged Orders of the respondent Court dated March 28, 1990 and May 17, 1990, these appearing on the contrary to be in accord with the law and the facts, the Court Resolved to DISMISS the petition, with costs against the petitioner.

Fernan, C.J., Melencio-Herrera, Gutierrez, Jr., Cruz, Paras, Feliciano, Gancayco, Padilla, Bidin, Sarmiento, Griño-Aquino, Medialdea, Regalado and Davide, Jr., JJ., concur.

 

Footnotes

1 First Division, per Gancayco, J.

2 En banc, per Gancayco, J.

3 En banc, per Narvasa, J.

4 Resolution of the Court en banc dated November 22, 1985 approving the 1985 Rules of Criminal Procedure and fixing the effectivity thereof of January 1, 1986.

5 Emphasis supplied.

6 Amending earlier Resolution dated July 19, 1984 in said Adm. Matter No. 83-6-389-0.

7 Separate concurring opinion appended to the decision of the Court en banc in Babst v. National Intelligence Board, 133 SCRA 316 (1984).

8 149 SCRA 568.

9 Resolutions dated June 17, and July 7, 1988, in Bar Matter No. 375 RE Amendments to the 1985 Rules on Criminal Procedure.

10 Emphasis supplied.

The Lawphil Project - Arellano Law Foundation

THIRD DIVISION  

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

                                 Petitioner,               

Present:

 

               - versus -                                         Panganiban, J.,

                                                                                 Chairman,

                                                                       Sandoval-Gutierrez,

Hon. THELMA A. PONFERRADA,           Corona,*

in Her Official Capacity as                        Carpio Morales, and

Presiding Judge of the                               Garcia, JJ

Regional Trial Court of

Quezon City, Branch 104;

PEOPLE OF THE PHILIPPINES;   Promulgated:

and GLADYS NOCOM,             

                                       Respondents.   July 29, 2005

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

 

DECISION 

PANGANIBAN, J.:

 

ettled is the rule that the single act of issuing a

bouncing check may give rise to two distinct

criminal offenses: estafa and violation of Batas

Pambansa Bilang 22 (BP 22).  The Rules of Court allow

the offended party to intervene via a private prosecutor

in each of these two penal proceedings.  However, the

S

recovery of the single civil liability arising from the

single act of issuing a bouncing check in__________________

*          On official leave.

either criminal case bars the recovery of the same civil

liability in the other criminal action.  While the law

allows two simultaneous civil remedies for the offended

party, it authorizes recovery in only one.  In short, while

two crimes arise from a single set of facts, only one civil

liability attaches to it.

 

The Case

 

          Before us is a Petition for Certiorari[1] under Rule

65 of the Rules of Court, seeking to reverse the July 27,

2002 Order[2] of the Regional Court (RTC) of Quezon City

(Branch 104) in Criminal Case Nos. Q-01-106256 to Q-

01-106259.  Also assailed is the August 16, 2002

Order[3] of the RTC denying petitioner’s Motion for

Reconsideration.  The first assailed Order is quoted in

full as follows: “For consideration is the opposition of the accused, through

counsel, to the formal entry of appearance of private prosecutor. “Accused, through counsel, contends that the private

prosecutor is barred from appearing before this Court as his appearance is limited to the civil aspect which must be presented and asserted in B.P. 22 cases pending before the Metropolitan Trial Court of Quezon City.

 

“The private prosecutor submitted comment stating that the offended party did not manifest within fifteen (15) days following the filing of the information that the civil liability arising from the crime has been or would be separately prosecuted and that she should therefore be required to pay the legal fees pursuant to Section 20 of Rule 141 of the Rules of Court, as amended.

 “Considering that the prosecution under B.P. 22 is without

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

 “WHEREFORE, the appearance of a private prosecutor shall

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

   

The Facts

 

          The undisputed facts are narrated by petitioner as

follows:           “On 10 December 2001, the Honorable Assistant City Prosecutor Rossana S. Morales-Montojo of Quezon City Prosecutor’s Office issued her Resolution in I.S. No. 01-15902, the dispositive portion of which reads as follows:

             ‘Premises considered, there being PROBABLE CAUSE to charge respondent for ESTAFA under Article 315 paragraph 2(d) as amended by PD 818 and for Violation of Batas Pambansa Blg. 22, it is respectfully recommended that the attached Information be approved and filed in Court.’

 

          “As a consequence thereof, separate informations were separately filed against herein [p]etitioner before proper [c]ourts, for Estafa and [v]iolation of Batas Pambansa Blg. 22.           “Upon payment of the assessed and required docket fees by the [p]rivate [c]omplainant, the informations for [v]iolation of Batas Pambansa Blg. 22 against herein [p]etitioner were filed and raffled to the Metropolitan Trial Court of Quezon City, Branch 42, docketed as Criminal Cases Nos. 0108033 to 36.           “On the other hand, the informations for [e]stafa cases against herein [p]etitioner were likewise filed and raffled to the Regional Trial Court of Quezon City, Branch 104, docketed as Criminal Cases Nos. 01-106256 to 59.           “On 17 June 2002, petitioner through counsel filed in open court before the [p]ublic [r]espondent an ‘Opposition to the Formal Entry of Appearance of the Private Prosecutor’ dated 14 June 2002.           “The [p]ublic [r]espondent court during the said hearing noted the Formal Entry of Appearance of Atty. Felix R. Solomon as [p]rivate [p]rosecutor as well as the Opposition filed thereto by herein [p]etitioner.  x x x.           “As ordered by the Court, [p]rivate [c]omplainant through counsel filed her Comment to the Opposition of herein [p]etitioner.           “On 27 June 2002, the [p]ublic [r]espondent court issued the first assailed Order allowing the appearance of the [p]rivate [p]rosecutor in the above-entitled criminal cases upon payment of the legal fees pursuant to Section 1 of Rule 141 of the Rules of Court, as amended.            “On 31 July 2002, [a]ccused through counsel filed a Motion for Reconsideration dated 26 July 2002.           “On 16 August 2002, the [p]ublic [r]espondent court issued the second assailed Order denying the Motion for Reconsideration of herein [p]etitioner.”[5]

  

Ruling of the Trial Court

 

          Noting petitioner’s opposition to the private

prosecutor’s entry of appearance, the RTC held that the

civil action for the recovery of civil liability arising from

the offense charged is deemed instituted, unless the

offended party (1) waives the civil action, (2) reserves

the right to institute it separately, or (3) institutes the

civil action prior to the criminal action.  Considering that

the offended party had paid the corresponding filing fee

for the estafa cases prior to the filing of the BP 22 cases

with the Metropolitan Trial Court (MeTC), the RTC

allowed the private prosecutor to appear and intervene

in the proceedings.

 

          Hence, this Petition.[6]

 

Issues

 

          Petitioner raises this sole issue for the Court’s

consideration:          “Whether or not a [p]rivate [p]rosecutor can be allowed to intervene and participate in the proceedings of the above-entitled [e]stafa cases for the purpose of prosecuting the attached civil

liability arising from the issuance of the checks involved which is also subject mater of the pending B.P. 22 cases.”[7]

  

The Court’s Ruling

 

          The Petition has no merit.  

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

to   Civil Action in Estafa Case    

Petitioner theorizes that the civil action necessarily

arising from the criminal case pending before the MTC

for violation of BP 22 precludes the institution of the

corresponding civil action in the criminal case for estafa

now pending before the RTC.  She hinges her theory on

the following provisions of Rules 110 and 111 of the

Rules of Court:           “SECTION 16. Intervention of the offended party in criminal action. -- Where the civil action for recovery of civil liability is instituted in the criminal action pursuant to Rule 111, the offended party may intervene by counsel in the prosecution of the offense.”            “SECTION 1. Institution of criminal and civil actions. -- (a) When a criminal action is instituted, the civil action for the recovery of civil liability arising from the offense charged shall be deemed

instituted with the criminal action unless the offended party waives the civil action, reserves the right to institute it separately or institutes the civil action prior to the criminal action.           “The reservation of the right to institute separately the civil action shall be made before the prosecution starts presenting its evidence and under circumstances affording the offended party a reasonable opportunity to make such reservation.           “When the offended party seeks to enforce civil liability against the accused by way of moral, nominal, temperate, or exemplary damages without specifying the amount thereof in the complaint or information, the filing fees therefor shall constitute a first lien on the judgment awarding such damages. 

x x x                       x x x                       x x x           “(b) The criminal action for violation of Batas Pambansa Blg. 22 shall be deemed to include the corresponding civil action. No reservation to file such civil action separately shall be allowed.           “Upon filing of the aforesaid joint criminal and civil actions, the offended party shall pay in full the filing fees based on the amount of the check involved, which shall be considered as the actual damages claimed. Where the complaint or information also seeks to recover liquidated, moral, nominal, temperate or exemplary damages, the offended party shall pay the filing fees based on the amounts alleged therein. If the amounts are not so alleged but any of these damages are subsequently awarded by the court, the filing fees based on the amount awarded shall constitute a first lien on the judgment.           “Where the civil action has been filed separately and trial thereof has not yet commenced, it may be consolidated with the criminal action upon application with the court trying the latter case. If the application is granted, the trial of both actions shall proceed in accordance with section 2 of this Rule governing consolidation of the civil and criminal actions.”  

Based on the foregoing rules, an offended party may

intervene in the prosecution of a crime, except in the

following instances: (1) when, from the nature of the

crime and the law defining and punishing it, no civil

liability arises in favor of a private offended party; and (2)

when, from the nature of the offense, the offended parties

are entitled to civil indemnity, but (a) they waive the right

to institute a civil action, (b) expressly reserve the right

to do so or (c) the suit has already been instituted.  In any

of these instances, the private complainant’s interest in

the case disappears and criminal prosecution becomes

the sole function of the public prosecutor.[8]  None of

these exceptions apply to the instant case.  Hence, the

private prosecutor cannot be barred from intervening in

the estafa suit.

 

True, each of the overt acts in these instances may give

rise to two criminal liabilities -- one for estafa and another

for violation of BP 22.  But every such act of issuing a

bouncing check involves only one civil liability for the

offended party, who has sustained only a single injury.[9] 

This is the import of Banal v. Tadeo,[10] which we quote in

part as follows: “Generally, the basis of civil liability arising from crime is the

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

  

Thus, the possible single civil liability arising from

the act of issuing a bouncing check can be the subject of

both civil actions deemed instituted with the estafa case

and the BP 22 violation prosecution.  In the crimes of

both estafa and violation of BP 22, Rule 111 of the Rules

of Court expressly allows, even automatically in

the present case, the institution of a civil action without

need of election by the offended party.  As both remedies

are simultaneously available to this party, there can be

no forum shopping.[11] 

 

Hence, this Court cannot agree with what petitioner

ultimately espouses.  At the present stage, no judgment

on the civil liability has  been rendered in either criminal

case.  There is as yet no call for the offended party to

elect remedies and, after choosing one of them, be

considered barred from others available to her. 

 

Election of Remedies

 

Petitioner is actually raising the doctrine of election

of remedies.  “In its broad sense, election of remedies

refers to the choice by a party to an action of one of two

or more coexisting remedial rights, where several such

rights arise out of the same facts, but the term has been

generally limited to a choice by a party between

inconsistent remedial rights, the assertion of one being

necessarily repugnant to, or a repudiation of, the

other.”[12]  In its more restricted and technical sense, the

election of remedies is the adoption of one of two or

more coexisting ones, with the effect of precluding a

resort to the others.[13]

 

          The Court further elucidates in Mellon Bank v.

Magsino[14] as follows:

 

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

 

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

 

 

 

In the present cases before us, the institution of the

civil actions with the estafa cases and the inclusion of

another set of civil actions with the BP 22 cases are not

exactly repugnant or inconsistent with each other.

Nothing in the Rules signifies that the necessary

inclusion of a civil action in a criminal case for  violation

of the Bouncing Checks Law[20]precludes the institution

in an estafa case of the corresponding civil action, even

if both offenses relate to the issuance of the same check.

 

The purpose of Section 1(b) of Rule 111 is explained

by Justice Florenz D. Regalado (ret.), former chairman of

the committee tasked with the revision of the Rules of

Criminal Procedure.  He clarified that the special rule on

BP 22 cases was added, because the dockets of the courts

were clogged with such litigations; creditors were using

the courts as collectors.  While ordinarily no filing fees

were charged for actual damages in criminal cases, the

rule on the necessary inclusion of a civil action with the

payment of filing fees based on the face value of the 

check  involved  was laid down to prevent the practice

of creditors of using the threat of a criminal prosecution

to collect on their credit free of charge.[21] 

 

Clearly, it was not the intent of the special rule to

preclude the prosecution of the civil action that

corresponds to the estafa case, should the latter also be

filed.  The crimes of estafa and violation of BP 22 are

different and distinct from each other.  There is no

identity of offenses involved, for which legal jeopardy in

one case may be invoked in the other. The offenses

charged in the informations are perfectly distinct from

each other in point of law, however nearly they may be

connected in point of fact.[22] 

 

What Section 1(b) of the Rules of Court prohibits is

the reservation to file the corresponding civil action. 

The criminal action shall be deemed to include the

corresponding civil action. “[U]nless a separate civil

action has been filed before the institution of the

criminal action, no such civil action can be instituted

after the criminal action has been filed as the same has

been included therein.”[23]  In the instant case, the

criminal action for estafa was admittedly filed prior to

the criminal case for violation of BP 22, with the

corresponding filing fees for the inclusion of the

corresponding civil action paid accordingly.[24]

 

Furthermore, the fact that the Rules do not allow

the reservation of civil actions in BP 22 cases cannot

deprive private complainant of the right to protect her

interests in the criminal action for estafa. Nothing in the

current law or rules on BP 22 vests the jurisdiction of the

corresponding civil case exclusively in the court trying

the BP 22 criminal case.[25]

 

In promulgating the Rules, this Court did not intend

to leave the offended parties without any remedy to

protect their interests in estafa cases.  Its power to

promulgate the Rules of Court is limited in the sense that

rules “shall not diminish, increase or modify substantive

rights.”[26]  Private complainant’s intervention in the

prosecution of estafa is justified not only for the

prosecution of her interests, but also for the speedy and

inexpensive administration of justice as mandated by the

Constitution.[27] 

 

The trial court was, therefore, correct in holding

that the private prosecutor may intervene before the

RTC in the proceedings for estafa, despite the necessary

inclusion of the corresponding civil action in the

proceedings for violation of BP 22 pending before the

MTC.  A recovery by the offended party under one

remedy, however, necessarily bars that under the other. 

Obviously stemming from the fundamental rule against

unjust enrichment,[28] this is in essence the rationale for

the proscription in our law against double recovery for

the same act or omission.

WHEREFORE, the Petition is DISMISSED and the

assailed Order AFFIRMED.  Costs against petitioner.

 

SO ORDERED.

 

 ARTEMIO V. PANGANIBAN

Associate JusticeChairman, Third Division

  

W E    C O N C U R:                                                                                        (On official leave)ANGELINA SANDOVAL-GUTIERREZ    RENATO C.

CORONA                     Associate Justice                                                

Associate Justice   

CONCHITA CARPIO MORALES               CANCIO C. GARCIA                           Associate Justice                             Associate Justice

  

ATTESTATION  

          I attest that the conclusions in the above Decision had been reached in consultation before the case was assigned to the writer of the opinion of the Court’s Division.                                                             ARTEMIO V. PANGANIBAN                                                                        Associate Justice                                                                 Chairman, Third Division

CERTIFICATION  

          Pursuant to Section 13, Article VIII of the

Constitution and the Division Chairman’s Attestation, it

is hereby certified that the conclusions in the above

Decision had been reached in consultation before the

case was assigned to the writer of the opinion of the

Court’s Division.                                                                  HILARIO G. DAVIDE, JR.

                                                                              Chief Justice