Crimpro Cases.docx

7/28/2019 Crimpro Cases.docx

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Republic of the PhilippinesSupreme Court

Manila

SECOND DIVISIONJAIME ALFEREZ,

Petitioner,

- versus-

PEOPLE OF

THE PHILIPPINES and

PINGPING CO,Responde

nts.

G.R. No.

182301Present:

CARPIO,J.,Chairpers

on,

NACHURA,PERALTA,ABAD, andMENDOZA,JJ.

Promulgated:

January31, 2011

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

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

DECISION

NACHURA, J.:

This is a petition for review

on certiorari under Rule 45 of the Rules of

Court, assailing the Court of Appeals (CA)

Decision[1]dated December 13, 2007 andResolution[2]dated March 4, 2008 in CA-

G.R. CEB-CR No. 00300.

The facts of the case, as culled from

the records, are as follows:

Petitioner Jaime Alferez purchased

construction materials from Cebu ABCSales Commercial. As payment for the

goods, he issued three (3) checks for the

total amount of P830,998.40. However, the

checks were dishonored for having been

drawn against a closed account. Petitioner

was thus charged with three (3) counts of

violation ofBatas

PambansaBilang(B.P.Blg.) 22 before the

Municipal Trial Court in Cities

(MTCC), Cebu City. The cases were

raffled to Branch 3 and docketed as

Criminal Case Nos. 40985-R to 40987-

R.[3] During the trial, the prosecution

presented its lone witness, privatecomplainant Pingping Co.[4]Thereafter,

the prosecution formally offered the

following documentary evidence:

1. BPI Check No.492089 dated 29 April1994 in the sum of P78,889.95;

2. BPI Check No.492010 dated 22 June1994 in the sumof P30,745.90;

3. BPI Check No.492011 dated 22 June1994 in the sumof P721,362.55;

4. The demand letterdated 7 July 1994addressed to petitioner;

5. The registry receipt ofthe Post Office;6. The face of the

Registry ReturnReceipt;

7. The dorsal side of theRegistry ReturnReceipt;

8. The Returned CheckTicket dated 23 June1994; and

9. The reason for thedishonor.[5]
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Instead of presenting evidence,

petitioner filed a Demurrer to

Evidence[6]

on August 8, 2003, orapproximately ten (10) months after the

prosecution rested its case. Petitioner

averred that the prosecution failed to show

that he received the notice of dishonor or

demand letter.

On March 4, 2005, the MTCC

issued a resolution

[7]

denying petitioners

Demurrer to Evidence, and rendering

judgment finding petitioner guilty as

charged, the dispositive portion of which

reads:

WHEREFORE, theCourt finds the accusedguilty beyond reasonabledoubt of the crime of

issuing bouncing checks asdefined and penalized underSection 1 of BatasPambansa Blg. 22 andhereby sentences theaccused the following:

1. To pay a fine ofPhp830,998.40and in case ofinsolvency tosuffer subsidiaryimprisonment;

2. To pay privatecomplainant thetotal face valueof the checks inthe amount ofPhp830,998.40

plus 1% interest

per monthbeginning from

the filing of thecomplaint.

SO ORDERED.[8]

Aggrieved, petitioner appealed to

the Regional Trial Court (RTC), Branch

21, Cebu City. The RTC rendered

Judgment[9]affirming in toto the MTCC

decision. Petitioner moved for

reconsideration, but it was denied in an

Order[10]dated December 16, 2005. In the

same Order, the RTC modified the MTCCresolution by sentencing petitioner to

suffer the penalty of imprisonment for six

(6) months for each count of violation of

B.P Blg. 22, instead of fine as originally

imposed.

Undaunted, petitioner elevated the

matter to the CA via a petition for review

under Rule 42 of the Rules of Court. In the

assailed Decision, the CA dismissed the

petition for lack of merit. It sustained

petitioners conviction as the elements of

the crime had been sufficiently established.

As to the service on petitioner of the notice

of dishonor, the appellate court pointed out

that petitioner did not testify, and that he

did not object to the prosecutions

evidence aimed at proving the fact of

receipt of the notice of dishonor.

Consequently, the registry receipt and the

return card adequately show the fact of

receipt. As to petitioners contention that

he was denied his right to present evidence

after the denial of his demurrer to

evidence, the CA held that there was nosuch denial since it was merely the
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consequence of the filing of demurrer

without leave of court. Finally, as to the

imposition of the penalty of imprisonment

instead of fine, the CA found no grave

abuse of discretion on the part of the RTC

since it was shown that petitioner acted in

bad faith.[11]

On March 4, 2008, the CA denied

petitioners motion for reconsideration.

Hence, this petition anchored on the

following issues:

Whether the RegistryReceipt and RegistryReturn Receipt alonewithout presenting the

person who mailed and/orserved the demand letter issufficient notice of dishonoras required by BP 22.

Whether the filing of theDemurrer of (sic) Evidencewithout leave and denied bythe trial court is a waiver ofthe right of the petitioner(the accused before the trialcourt) to present hisevidence in support and torebut the evidence of therespondent particularly withrespect to the civil aspect of

the case.On the alternative (if the

petitioner is guilty),whether the accused shouldonly be mete[d] the penaltyof fine as imposed by thetrial court (MTCC).[12]

The petition is partly meritorious.

After a careful evaluation of the

records of the case, we believe and so hold

that the totality of the evidence presented

does not support petitioners conviction for

violation of B.P. Blg. 22.

Section 1 of B.P. Blg. 22 defines

the offense, as follows:[13]

Section 1. Checkswithout sufficient funds.Any person who makes ordraws and issues any check

to apply on account or forvalue, knowing at the timeof issue that he does nothave sufficient funds in orcredit with the drawee bankfor the payment of suchcheck in full upon its

presentment, which checkis subsequently dishonored

by the drawee bank forinsufficiency of funds or

credit or would have beendishonored for the samereason had not the drawer,without any valid reason,ordered the bank to stop

payment, shall be punishedby imprisonment of not lessthan thirty days but notmore than one (1) year or

by a fine of not less thanbut not more than double

the amount of the checkwhich fine shall in no caseexceed Two HundredThousand Pesos, or bothsuch fine and imprisonmentat the discretion of thecourt.

The same penaltyshall be imposed upon any

person who, havingsufficient funds in or creditwith the drawee bank when
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he makes or draws andissues a check, shall fail tokeep sufficient funds or tomaintain a credit to coverthe full amount of the check

if presented within a periodof ninety (90) days from thedate appearing thereon, forwhich reason it isdishonored by the drawee

bank.

Where the check isdrawn by a corporation,company or entity, the

person or persons who

actually signed the check inbehalf of such drawer shallbe liable under this Act.

Accordingly, this Court has held

that the elements of the crime are, as

follows: (1) the making, drawing, and

issuance of any check to apply on account

or for value; (2) the knowledge of themaker, drawer, or issuer that at the time of

issue he does not have sufficient funds in

or credit with the drawee bank for the

payment of the check in full upon its

presentment; and (3) the subsequent

dishonor of the check by the drawee bank

for insufficiency of funds or credit, or

dishonor for the same reason had not thedrawer, without any valid cause, ordered

the bank to stop payment.[14]

In this case, the first and third

elements of the crime have been

adequately established. The prosecution,

however, failed to prove the second

element. Because this element involves a

state of mind which is difficult to

establish, Section 2 of B.P. Blg. 22 creates

a presumption of knowledge of

insufficiency of funds under the following

circumstances:[15]

Sec. 2.Evidence ofknowledge of insufficient

funds. The making,drawing, and issuance of acheck payment of which isrefused by the drawee

because of insufficientfunds in or credit with such

bank, when presented

within ninety days from thedate of the check, shallbeprima facieevidence ofknowledge of suchinsufficiency of funds orcredit unless such maker ordrawer pays the holderthereof the amount duethereon, or makesarrangements for paymentin full by the drawee of

such check within five (5)banking days afterreceiving notice that suchcheck has not been paid bythe drawee.

In Suarez v. People,[16]which is on

all fours with the instant case, two

Informations for violation of B.P. Blg. 22

were filed against petitioner therein. After

the prosecution presented its evidence,

petitioner filed a Demurrer to Evidence

without leave of court on the ground that

no notice of dishonor had been sent to and

received by him. When the case reached

this Court, we acquitted petitioner on

reasonable doubt as there was insufficient

proof that he received notice ofdishonor. We explained that:
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The presumption ariseswhen it is proved that theissuer had received thisnotice, and that within five

banking days from itsreceipt, he failed to pay theamount of the check or tomake arrangements for its

payment. The full paymentof the amount appearing inthe check within five

banking days from notice ofdishonor is a completedefense. Accordingly,

procedural due process

requires that a notice ofdishonor be sent to andreceived by the petitioner toafford the opportunity toavert prosecution underB.P. Blg. 22.

x x x. [I]t is notenough for the prosecutionto prove that a notice ofdishonor was sent to the

petitioner. It is alsoincumbent upon the

prosecution to show that

the drawer of the checkreceived the said notice

because the fact of serviceprovided for in the law isreckoned from receipt ofsuch notice of dishonor bythe drawee of the check.

A review of therecords shows that the

prosecution did not provethat the petitioner receivedthe notice of dishonor.Registry return cards must

be authenticated to serve asproof of receipt of letterssent through registeredmail.[17]

In this case, the prosecution merely

presented a copy of the demand letter,

together with the registry receipt and the

return card, allegedly sent to petitioner.

However, there was no attempt to

authenticate or identify the signature on

the registry return card.[18]Receipts for

registered letters and return receipts do not

by themselves prove receipt; they must be

properly authenticated to serve as proof of

receipt of the letter, claimed to be a notice

of dishonor.[19]To be sure, the presentation

of the registry card with anunauthenticated signature, does not meet

the required proof beyond reasonable

doubt that petitioner received such notice.

It is not enough for the prosecution to

prove that a notice of dishonor was sent to

the drawee of the check. The prosecution

must also prove actual receipt of said

notice, because the fact of service providedfor in the law is reckoned from receipt of

such notice of dishonor by the drawee of

the check.[20]The burden of proving notice

rests upon the party asserting its

existence. Ordinarily, preponderance of

evidence is sufficient to prove notice. In

criminal cases, however, the quantum of

proof required is proof beyond reasonable

doubt. Hence, for B.P. Blg. 22 cases, there

should be clear proof of

notice.[21] Moreover, for notice by mail, it

must appear that the same was served on

the addressee or a duly authorized agent of

the addressee. From the registry receipt

alone, it is possible that petitioner or his

authorized agent did receive the demand

letter.[22] Possibilities, however, cannot
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Jaime Alferez is ACQUITTED on

reasonable doubt of violation of B.P. Blg.

22. However, the civil liability imposed on

petitioner is AFFIRMED.

SO ORDERED.

ANTONIO

EDUARDO B. NACHURAAssociate Justice


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FIRST

DIVISION

FRANCISCO M. BAX,Petitioner,

- versus -

PEOPLE OF THEPHILIPPINES and

ILYON INDUSTRIAL CORPORATION,

Respondents.

G.R. No. 149858

Present:

PUNO, C.J., Chairperson,

SANDOVAL-GUTIERREZ,

CORONA,

AZCUNA, and

GARCIA,JJ.

Promulgated:

September 5, 2007

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

DECISION

SANDOVAL-GUTIERREZ, J.:

Challenged in the instant Petition for

Review on Certiorari[1]are the Decision[2]of

the Court of Appeals dated December 19, 2000

and its Resolution dated September 5, 2001 in

CA-G.R. CR No. 23356 affirming in toto the

Decision dated December 14, 1998 of theRegional Trial Court (RTC), Branch 70, Pasig

City declaring petitioner guilty of nine (9)

counts of violations ofBatas Pambansa Bilang

22 (B.P. 22), otherwise known as the

Bouncing Checks Law.

On August 16, 1994, Francisco M. Bax,

petitioner, was charged with violations of B.P.

22 (10 counts) before the Metropolitan Trial

Court (MeTC), Branch 71, Pasig

City,[3]docketed as Criminal Cases Nos.

14354 to 14363.

The Information in Criminal Case No.

14354 reads:

That on or about the

13th day of March 1994 in the

Municipality of Pasig, Metro

Manila, Philippines and within

the jurisdiction of this

Honorable Court, the above-

named accused, did then and

there willfully, unlawfully and

feloniously make or draw and

issue to Ilyon Industrial

Corporation to apply on

account or for value the check

described below:

Check

No. : AGRO94438Drawn

against : United

Coconut Planters Bank

In the

amount : P47,250.00

Dated/Postdated :

March 13, 1994

Payablet
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a

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said accused well knowing

that at the time of issue he did

not have sufficient funds in or

credit with the drawee bank

for the payment in full of the

face amount of such check

upon its presentment, which

check could have been

dishonored for insufficiency

of funds had not the accused,

without any valid reason,

ordered the bank to Stop

Payment, and despite receipt

of notice of such dishonor, the

accused failed to pay said

payee the face amount of the

said check or made

arrangement for full payment

thereof within five (5) banking

days after receiving notice.

CONTRARY TO

LAW.

Except as to the numbers and dates of

the other nine checks issued by petitioner, and

the reason for their dishonor (drawn against

insufficient funds), the Informations in

Criminal Cases Nos. 14355-14363 and the

above Information are similarly worded.

The facts are:

Sometime in October 1993, petitioner,for and in behalf of Vachman Industries, Inc.

(VACHMAN), purchased 80 metric tons of

chemical compounds, known as caustic soda

flakes, from Ilyon Industrial Corporation

(ILYON), respondent.

On December 6, 1993, ILYON

delivered 27 metric tons of caustic soda flakes

to petitioner. Again in January 1994, ILYON

delivered another 27 metric tons of caustic

soda flakes to petitioner. In payment therefor,

petitioner issued ten (10) checks amounting

to P464,750.00 in favor of ILYON.

Upon presentment of the checks to the

United Coconut Planters Bank for payment,

they were dishonored for being drawn against

insufficient funds. Despite ILYONs demand,

petitioner failed to make good the bounced

checks for the reason that he has been

encountering financial problems. As a result,

ILYON caused the filing of ten (10)

Informations against petitioner.

After hearing or on March 27, 1998,

the MeTC rendered a Decision finding

petitioner guilty as charged, thus:

WHEREFORE, in

view of all the foregoing, the

Court hereby renders

judgment finding the accused,

Francisco Bax, GUILTY ofthe crime of Violations of

Batas Pambansa Bilang 22,

(10) counts, and accordingly

sentences him to suffer

imprisonment of six (6)

months in each case and to

pay the offended party the

sum of P464,750.00, the


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amount of all the ten (10)

checks and to pay the cost.

SO ORDERED.

On appeal, the RTC, Branch

70, Pasig City, presided by Judge Pablito

Rojas, rendered a Joint Decision

dated December 14, 1998 affirming with

modification the MeTC Decision, thus:

WHEREFORE, in

view of the foregoing, the

Decision of the Court a quo is

hereby AFFIRMED with the

following MODIFICATIONS:

(a) accused is

ACQUITTED in Criminal

case No. 14354;

(b) the sentence

imposed on accused in

Criminal Case Nos. 14355 to

14363 of six (6) months

imprisonment for each is

hereby increased to ONE (1)

YEAR in each case; and

(c) the total amount

of indemnity to be paid by the

accused to the complainant-

corporation is PHP

417,500.00.

SO ORDERED.

On appeal,[4]the Court of Appeals in

CA-G.R. CR No. 23356 rendered its Decision

on December 19, 2000 affirming in totothe

RTC Decision. Petitioner filed a motion for

reconsideration but it was denied by the

appellate court in a Resolution

datedSeptember 5, 2001.

Hence the instant petition.

The basic issue is whether the

prosecution was able to prove the guilt of

petitioner by evidence beyond reasonable

doubt.

The Solicitor General contends that

the Court of Appeals did not err in affirming

the RTC Joint Decision sustaining that of the

MeTC because all the elements of violation of

B.P. 22 are present in each case. Petitioner,

on the other hand, maintains that since he did

not receive a written notice of dishonor, not all

the elements of the offense have been

established by the prosecution. Accordingly,

he should be acquitted.

We agree with petitioner.

It is settled that factual findings of the

trial court are accorded great weight, even

finality on appeal, except when it has failed to

appreciate certain facts and circumstanceswhich, if taken into account, would materially

affect the result of the case. This exception is

present here.[5]

Section 1 of B.P. 22 provides:

SECTION 1. Checks

without sufficient funds. - Any

person who makes or draws

and issues any check to applyon account or for value,
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knowing at the time of issue

that he does not have

sufficient funds in or credit

with the drawee bank for the

payment of such check in full

upon its presentment, which

check is subsequently

dishonored by the drawee

bank for insufficiency of

funds or credit or would have

been dishonored for the same

reason had not the drawer,

without any valid reason,

ordered the bank to stop

payment, shall be punished by

imprisonment of not less than

thirty days but not more than

one (1) year or by a fine of not

less than but not more than

double the amount of the

check which fine shall in no

case exceed Two hundred

thousand pesos, or both such

fine and imprisonment at the

discretion of the court.

The same penalty

shall be imposed upon any

person who having sufficientfunds in or credit with the

drawee bank when he makes

or draws and issues a check,

shall fail to keep sufficient

funds or to maintain a credit to

cover the full amount of the

check if presented within a

period of ninety (90) daysfrom the date appearing

thereon, for which reason it is

dishonored by the drawee

bank.

Where the check is

drawn by a corporation,

company or entity, the person

or persons who actually

signed the check in behalf of

such drawer shall be liable

under this Act.

Thus, the prosecution must prove the

following essential elements of the offense:

(1) the making, drawing,

and issuance of any

check to apply for

account or for value;

(2) the knowledge of the

maker, drawer, or issuer

that at the time of issue

there are no sufficient

funds in or credit with

the drawee bank for the

payment of such check

in full upon its

presentment; and

(3) the subsequent

dishonor of the checkby the drawee bank for

insufficiency of funds or

credit or dishonor for

the same reason had not

the drawer, without any

valid cause, ordered the

bank to stop payment.[6]

We find that the prosecution failed toprove the second element.
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punished thereunder not only

that the accused issued a

check that is dishonored, but

that likewise the accused has

actually been notified in

writing of the fact of

dishonor. The consistent rule

is that penal statutes have to

be construed strictly against

the State and liberally in favor

of the accused. (Emphasis

supplied)

Since petitioner did not receive a

written notice of dishonor of the checks,

obviously, there is no way of determining

when the 5-day period prescribed in Section 2

of B.P. 22 would start and end. Thus, the

prima facie evidence of petitioners knowledge

of the insufficiency of funds or credit at the

time he issued the checks did not arise.[11]

We thus find that the prosecution

failed to prove by evidence beyond reasonable

doubt that petitioner is guilty of violations of

B.P. 22.

However, petitioner should pay the

face value of the nine (9) dishonored checksplus legal interest. It is well settled that the

civil liability is not extinguished by acquittal

where such acquittal is based on lack of proof

beyond reasonable doubt, since only

preponderance of evidence is required in civil

cases.[12]

We however modify the award of

petitioners civil liability to ILYON

from P417,500.00

to P425,250.00. In Criminal Case No.

14354, petitioner was acquitted by the RTC

since the reason for the dishonor was his stop

payment order to the drawee bank to enable

VACHMAN to reconcile its accounts with

ILYON. Hence, only the face value of the

remaining nine (9) checks should be included

in the computation of petitioners civil

liability. Each check has a face value

of P47,250.00 which, if we multiply by nine,

yields P425,250.00.

WHEREFORE, we REVERSE the

Decision of the Court of Appeals. Petitioner

Francisco M. Bax is acquitted in Criminal

Cases Nos. 14355 to 14363 for violations of

B.P. 22 for failure of the prosecution to prove

his guilt beyond reasonable doubt. He is

ordered, however, to pay the offended party,

ILYON, the face value of the nine (9) checks

in the total amount of P425,250.00 with 12%

interestper annum from the filing of the

Informations until fully paid.

SO ORDERED.
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FIRST DIVISION

[G.R. No. 149261 : December 15, 2010]

AZUCENA B. CORPUZ, PETITIONER,

VS. ROMAN G. DEL ROSARIO,

RESPONDENT.

D E C I S I O N

DEL CASTILLO, J.:

It is a rule too firmly established that the"determination of probable cause for the filingof an Information in court is an executivefunction, one that properly pertains at the firstinstance to the public prosecutor and,ultimately, to the Secretary ofJustice."[1] "judicial review of the resolution ofthe Secretary of Justice is limited to a

determination of whether there has been agrave abuse of discretion amounting to lack orexcess of jurisdiction considering that the fulldiscretionary authority has been delegated tothe executive branch in the determination ofprobable cause during a preliminaryinvestigation."[2]

Challenged in the present petition for reviewon certiorari under Rule 45 of the Rules ofCourt is the Decision[3] dated July 27, 2001 ofthe Court of Appeals (CA) in CA- G.R. SP No.56434 denying petitioner's petitionforcertiorari.

The controversy has its root in an affidavit-complaint[4] filed with the City Prosecutor'sOffice of Makati City by Assistant SolicitorGeneral Roman G. del Rosario accusing hereinpetitioner Assistant Solicitor General AzucenaB. Corpuz for Libel. In said complaint,respondent claimed that petitioner's June 13,1997 memorandum was maliciously issued

without any good intention but to discredit andcause dishonor to his good name as a

government employee. He insisted that theimport of the memorandum affected hiscredibility and the performance of his officialfunctions as Assistant Solicitor General amongothers.

After the preliminary investigation,Investigating Prosecutor Filipinas Z. Aguilar-Ata (Prosecutor Ata) issued on November 21,1997, a Resolution making the followingfindings and recommendation:

We find the words "x x x, there is no suchthing as 'palabra de honor as far as ASG delRosario is concerned,' x x x contained in thememorandum dated June 13, 1997 issued byrespondent, defamatory as it imputes a kind of

detect on complainant's part which tends todiscredit his integrity as an Assistant SolicitorGeneral and the other functions he [holds].Malice is thus presumed from the defamatoryimputation. Moreover, the respondent'sdisposition of having addressed theMemorandum not only to the Solicitor Generalbut to all Assistants [sic] Solicitors] Generalreveals the absence of good intention on herpart in making the imputation. There was,therefore, undue publication of the libelousMemorandum as in fact, the same was

received and read by the officers concerned.

In line, the evidence has sufficientlyestablished a probable cause to indictrespondent with the crime of libel, andaccordingly, [the] undersigned respectfullyrecommends that the correspondinginformation be filed in Court[5]

What transpired then were the followingevents and proceedings. On December 8,1997, the City Prosecutor's Office of Makati

City approved the Resolution of ProsecutorAta. Accordingly, an Information for libel wasfiled against petitionerwith the Regional Trial Court (RTC) ofMakati City.

Petitioner's appeal from the prosecutor'sresolution was not given due course by NCRRegional Prosecutor/Chief State ProsecutorJovencito R. Zuo on March 10, 1998. [6] Hermotion for reconsideration was likewisedenied on September 8, 1998.[7] Petitionerappealed to the Department of Justice (DOJ)assailing the resolution of the City Prosecutor's


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Office of Makati City. On August 17, 1999,the DOJ Secretaiy considered the appeal as asecond motion for reconsideration andresolved to deny the appeal with finality.[8]

Petitioner then elevated the matter via apetition for certiorari before the CAcontending that the public prosecutors gravelyabused their discretion in finding a prima faciecase of libel against her and exceeded theirjurisdiction when her appeal from theresolution of the City Prosecutor's Office ofMakati City was not given due course.

Ruling of the Court of Appeals

On July 27, 2001, the CA issued its herein

assailed Decision[9]

denying the petition. Itfound that the petitioner failed to clearly showexceptional circumstances to justify her resortto the extraordinary remedy of the writofcertiorari. The appellate court likewisefound petitioner's assertions that thememorandum is a privileged communicationwhich was issued without malice are mattersof defense which should be properly discussedduring trial. The CA disposed the matter inthis wise:

WHEREFORE, finding no grave abuse ofdiscretion, amounting to lack or excess ofjurisdiction on the part of public respondents,the Petition is DENIED.

SO ORDERED.[10]

The unsuccessful quest by petitioner to reversethe resolutions of the City Prosecutor's Officeof Makati City, the Chief State Prosecutor, theDOJ Secretary and the CA did not hamper herstruggle. Petitioner is now before us via the

instant recourse ascribing to the CA thefollowing assignment of errors:

1. (In) concluding that the findings of theMakati City Prosecutor in the preliminaryinvestigation are essentially factual in nature,and that in assailing such findings petitioner israising questions of fact;

2. (In) holding that petitioner's arguments thatsubject memorandum is a privilegedcommunication and that there is absence ofmalice in the issuance thereof being matters ofdefense should be resolved by the trial court,

and

3. (In) ruling that the extraordinary writ ofcertiorari is not available since other remediesare obtainable with the trial court.[11]

Per directive[12] of the Court, respondent filedhis Comment[13] to the Petition on December12, 2001. On January 30, 2002, the Courtrequired petitioner to file her reply,[14 ]whichshe complied with on April 30,2002.[15] Pursuant to our Resolution datedJune 3, 2002[16] the parties submitted theirrespective memoranda.

Significantly, in her Reply,[17] petitioner madean absolute turnaround and manifested that she

is not assailing in the instant petition thefollowing findings of the Prosecutor: First, thatmalice is presumed from the defamatoryimputation. Second, that the subjectmemorandum was addressed not only to theSolicitor General but also to all the AssistantSolicitors General who received and readthem. Third, that the words "there is no suchthing as 'palabra de honor' as far as ASG delRosario is concerned" imputes a kind of defecton respondent tending to discredit his integrityas an Assistant Solicitor General and the other

functions he holds.

Petitioner expressly concedes that the mainissue in the present petition is whether the CAcorrectly ruled that no grave abuse ofdiscretion was committed by the Assistant CityProsecutor in concluding that her findingshaveprima facie established the elements oflibel despite their not being in accordance withlaw and jurisprudence on the matter.

Petitioner avers that there are no findings of

facts to support the conclusion that theelements of libel exist. She also points out thatthe findings of the prosecutor are not sufficientto constitute probable cause.

Our Ruling

The contentions of petitioner are devoid ofmerit.

We have examined the records of the case andhave found no such error much less abuse ofdiscretion committed by the prosecutor and theC A justifying a reversal of their resolutions


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since their unanimous findings of probablecause for libel against petitioner are based onlaw, jurisprudence and evidence on records.

"Probable cause, for purposes of filing acriminal information, has been defined as suchfacts as are sufficient to engender a well-founded belief that a crime has beencommitted and that respondent is probablyguilty thereof."[18] A finding of probable causeneeds only to rest on evidence showing thatmore likely than not a crime has beencommitted and was committed by the suspect.It "need not be based on clear and convincingevidence of guilt, neither on evidenceestablishing guilt beyond reasonable doubt anddefinitely, not on evidence establishing

absolute certainty of guilt."[19]

A prosecutoralone determines the sufficiency of evidencethat will establish probable cause justifying thefiling of criminal information againstthe respondent since the determination ofexistence of a probable cause is the function ofthe prosecutor. Judicial review is allowed onlywhere respondent has clearly established thatthe prosecutor committed grave abuse ofdiscretion.[20]

"Grave abuse of discretion exists when there is

an arbitrary or despotic exercise of power dueto passion, prejudice or personal hostility; or awhimsical, arbitrary or capricious exercise ofpower that amounts to an evasion or refusal toperform a positive duty enjoined by law or toact at all in contemplation of law." Petitionermiserably failed to establish the existence ofany of these exceptional circumstances towarrant further calibration of the parties'evidence presented during the preliminaryinvestigation.

Contrary to petitioner's contention, we findthat in arriving at their unanimous conclusionthat probable cause for libel exists, theprosecutor and the Secretary of Justice hadclearly determined and carefully deliberatedon the factual and legal antecedents of thecase. The resolution of the prosecutor assustained by the Secretary of Justice and theCA shows that it squarely addressed and tookinto consideration all the arguments andevidence submitted. The evidence before theprosecutor served as basis in arriving at herfindings of fact.

As defined in Article 353 of the Revised PenalCode, the crime of libel has the followingelements:

1. imputation of a crime, vice or defect, real orimaginary or any act, omission, condition,status or circumstance;

2. the imputation must be malicious;

3. it must be given publicity; and

4. the victim must be identifiable.

As extant from the resolution of theprosecutor, the presence of these elements wasduly established during the preliminary

investigation stage clearly showingprimafacie a well-founded belief that a crime of libelhas been committed and that petitionerprobably committed it. It must be stressed thatan accusation is not synonymous with guilt.That is why a trial has to follow, precisely todetermine the guilt or innocence of theaccused.

Petitioner further contends that thememorandum is covered by the protectivemantle of privileged communication under the

first exception enumerated under Article354, viz:

1. A private communication made by anyperson to another in the performance of anylegal, moral or social duty.

Petitioner's argument is essentially evidentiaryin nature and a matter of defense that must bepresented and heard during the trial of thecriminal case. Whether the subjectmemorandum is a privileged communication is

a question which requires an examination ofthe parties' evidence. Being a matter ofdefense, the tenability of her challenge needsto be tested in the crucible of a full-blown trialwhere she can prove her Innocence if herdefense be indeed true than at the preliminaryinvestigation level. It must be stressed that thisCourt cannot assess the merit of the said claimas it is not a trier of facts.

All told, the undisputed facts of the casenegate any showing of grave abuse ofdiscretion or manifest error on the part of thepublic officers concerned considering their


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finding of probable cause to indict petitioner issupported by the evidence on record. "[C]ourtsshould give credence, in the absence of a clearshowing of arbitrariness, to the findings anddetermination of probable cause byprosecutors in a preliminary investigation."[22]

WHEREFORE, the instant petition ishereby DENIED. The Decision dated July 27,2001 of the Court of Appeals in CA-G.R. SPNo. 56434 is AFFIRMED.

SO ORDERED.


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THIRD DIVISION

[G.R. NO. 139292. December 5, 2000]

JOSEPHINEDOMAGSANG, petitioner,

vs. THE HONORABLE COURT

OF APPEALS and PEOPLE OF

THE

PHILIPPINES, respondents.

D E C I S I O N

VITUG, J.:

Petitioner was convicted by the RegionalTrial Court of Makati, Branch 63, of havingviolatedBatas Pambansa ("B.P.")Blg. 22(Anti-Bouncing Check Law), on eighteen (18)counts, and sentenced to "suffer the penalty ofOne (1) Year imprisonment for each count(eighteen [18] counts)." Petitioner waslikewise ordered to pay the privatecomplainant the amount ofP573,800.00.[1]The judgment, when appealedto the Court of Appeals (CA-G.R. CR No.18497), was affirmed in toto by the appellate

court.It would appear that petitioner

approached complainant Ignacio Garcia, anAssistant Vice President of METROBANK, toask for financial assistance. Garciaaccommodated petitioner and gave the latter aloan in the sum of P573,800.00. In exchange,petitioner issued and delivered to thecomplainant 18 postdated checks for therepayment of the loan. When the checks were,in time, deposited, the instruments were all

dishonored by the drawee bank for thisreason: Account closed. The complainantdemanded payment allegedly by calling uppetitioner at her office. Failing to receive anypayment for the value of the dishonoredchecks, the complainant referred the matter tohis lawyer who supposedly wrote petitioner aletter of demand but that the latter ignored thedemand.

On 08 May 1992, Criminal Case No. 92-4465 was lodged against petitioner before theRegional Trial Court ("RTC") of Makati. TheInformation read:

"That on or about the 24th day of June,1991, in the Municipality of Makati, MetroManila, Philippines, and within the

jurisdiction of this Honorable Court, theabove-named accused, did then and there

willfully, unlawfully and feloniously makeout, draw and issue to complainant IgnacioH. Garcia, Jr., to apply on account or forvalue the dated check/described below:

"CheckNo. : 149900

DrawnAgainst : TradersRoyal Bank

In the Amountof : P50,000.00

Dated/Postdated : June24, 1991

Payableto : Ignacio H. Garcia, Jr.

"said accused well knowing that at thetime of issue thereof, she did not havesufficient funds in or credit with thedrawee bank for the payment in full ofthe face amount of such check uponits presentment, which check when

presented for payment within ninety(90) days from the date thereof wassubsequently dishonored by thedrawee bank for the reason

`ACCOUNT CLOSED' and despitereceipt of notice of such dishonor, theaccused failed to pay said payee theface amount of said check or to makearrangement for full payment thereofwithin five (5) banking days afterreceiving notice.

"CONTRARY TO LAW."[2]

Subsequent Informations, docketed Criminal

Cases No. 92-4466 to No. 92-4482, inclusive,similarly worded as in Criminal Case No. 92-
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4465 except as to the dates, the number, andthe amounts of the checks hereunder itemized-

"CheckNumber Dated/Postdated

AmountTRBNo. 161181 July18, 1991 P6,000.00TRBNo. 149906 July24, 1991 3,000.00

No. 182074 July30, 1991 29,700.00

No. 182084 August30, 1991 9,300.00

No.182078 September 15,1991 6,000.00

No.161183 September 18,1991 6,000.00

No.161177 September 18,1991 100,000.00

No.182085 September 30,1991 9,000.00

No.182079 October 15,1991 6,000.00

No.182086 October 30,1991 10,500.00

No.182080 November 15,1991 6,000.00

No.182087 November 30,

1991 11,400.00No.182081 December 15,1991 6,000.00

No.182082 December 15,1991 100,000.00

No.182088 December 30,1991 12,000.00

No.

182089 December 30,1991 100,000.00

No.182090 December 30,1991 100,000.00"[3]

were also filed against petitioner. The caseswere later consolidated and jointly tried

following the "not guilty" plea of petitionerwhen arraigned on 02 November 1992.

On 07 September 1993, petitioner filed ademurrer to the evidence, with leave of court,premised on the absence of a demand letterand that the checks were not issued as paymentbut as evidence of indebtedness of petitioneror as collaterals of the loans obtained bypetitioner. Opposed by the prosecution, thedemurrer was denied by the trial court. In thehearing of 17 February 1994, petitioner,

through counsel, waived her right to presentevidence in her defense. Relying solely thenon the evidence submitted by the prosecution,the lower court rendered judgment convictingpetitioner. The decision, as heretofore stated,was affirmed by the Court of Appeals in itsdecision of 15 February 1999. Reconsiderationwas also denied in the resolution, dated 09July 1999, of the appellate court.

Hence, the instant petition wherepetitioner raised the following issues for

resolution by the Court -

"1. Whether or not an alleged verbaldemand to pay sufficient to convict herein

petitioner for the crime of violation of B.P.Blg. 22;

"2. Whether or not the Honorable Court ofAppeals committed reversible error whenit affirmed the judgment of convictionrendered by the trial court, on the ground

that a written notice of dishonor is notnecessary in a prosecution for violation ofB.P. Blg. 22, contrary to the

pronouncement of the Supreme Court inthe case of Lao vs. Court of Appeals, 274SCRA 572; (and)

"3. Whether or not the Honorable Court ofAppeals erred in considering the allegedwritten demand letter, despite failure of the

prosecution to formally offer the same."[4]
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The pertinent provisions of B.P. Blg. 22"Bouncing Checks Law," provide:

"SECTION 1. Checks without sufficientfunds. Any person who makes or draws

and issues any check to apply on accountor for value,knowing at the time of issuethat he does not have sufficient funds in orcredit with the drawee bank for the

payment of such check in full upon itspresentment, which check is subsequentlydishonored by the drawee bank forinsufficiency of funds or credit or wouldhave been dishonored for the same reasonhad not the drawer, without any validreason, ordered the bank to stop payment,

shall be punished by imprisonment of notless than thirty days but not more than one(1) year or by fine of not less than but notmore than double the amount of the checkwhich fine shall in no case exceed TwoHundred Thousand pesos, or both suchfine and imprisonment at the discretion ofthe court.

"The same penalty shall be imposed uponany person who having sufficient funds in

or credit with the drawee bank when hemakes or draws and issues a check, shallfail to keep sufficient funds or to maintaina credit to cover the full amount of thecheck if presented within a period ofninety (90) days from the date appearingthereon, for which reason it is dishonored

by the drawee bank.

"Where the check is drawn by acorporation, company or entity, the personor persons who actually signed the checkin behalf of such drawer shall be liableunder this Act.

"SEC. 2. Evidence of knowledge ofinsufficient funds.The making, drawingand issuance of a check payment of whichis refused by the drawee because ofinsufficient funds in or credit with such

bank, when presented within ninety (90)

days from the date of the check, shallbeprima facie evidence of knowledge of

such insufficiency of funds or credit unlesssuch maker or drawer pays the

holderthereof the amount due thereon, ormakes arrangements for payment in full bythe drawee of such checkwithin five (5)

banking days after receiving notice thatsuch check has not been paidby thedrawee.

"SEC. 3. Duty of drawee; rules ofevidence.It shall be the duty of thedrawee of any check, when refusing to paythe same to the holder thereof upon

presentment, to cause to be written, printedor stamped in plain language thereon, orattached thereto, the reason for drawee's

dishonor or refusal to pay thesame: Provided, That where there are nosufficient funds in or credit with suchdrawee bank, such fact shall always beexplicitly stated in the notice of dishonoror refusal. In all prosecutions under thisAct, the introduction in evidence of anyunpaid and dishonored check, having thedrawee's refusal to pay stamped or writtenthereon, or attached thereto, with thereason therefor as aforesaid, shall beprima

facie evidence of the making or issuanceof said check, and the due presentment tothe drawee for payment and the dishonorthereof, and that the same was properlydishonored for the reason written, stampedor attached by the drawee on suchdishonored check.

"Notwithstanding receipt of an order tostop payment, the drawee shall state in the

notice that there were no sufficient fundsin or credit with such bank for the paymentin full of such check, if such be thefact."[5](Underscoring supplied.)

The law enumerates the elements of thecrime to be (1) the making, drawing andissuance of any check to apply for account orfor value; (2) the knowledge of the maker,drawer, or issuer that at the time of issue hedoes not have sufficient funds in or credit withthe drawee bank for the payment of the checkin full upon its presentment; and (3) thesubsequent dishonor of the check by the
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drawee bank for insufficiency of funds orcredit or dishonor for the same reason had notthe drawer, without any valid cause, orderedthe bank to stop payment.[6]

There is deemed to be aprima

facie evidence of knowledge on the part of themaker, drawer or issuer of insufficiency offunds in or credit with the drawee bank of thecheck issued if the dishonored check ispresented within 90 days from the date of thecheck and the maker or drawer fails to paythereon or to make arrangement with thedrawee bank for that purpose. The statute hascreated theprima facie presumption evidentlybecause "knowledge" which involves a state ofmind would be difficult to establish.[7]Thepresumption does not hold, however, when the

maker, drawer or issuer of the check pays theholder thereof the amount due thereon ormakes arrangement for payment in full by thedrawee bank of such checkwithin 5 bankingdays after receiving notice that such check

has not been paid by the drawee bank.

In Lao vs. Court of Appeals,[8]this Courtexplained:

x x x. Section 2 of B.P. Blg. 22 clearlyprovides that this presumption arises notfrom the mere fact of drawing, making andissuing a bum check; there must also be ashowing that, within five bankingdaysfrom receipt of the notice of dishonor,such maker or drawer failed to pay theholder of the check the amount duethereon or to make arrangement for its

payment in full by the drawee of suchcheck.

It has been observed that the State, underthis statute, actually offers the violator `acompromise by allowing him to performsome act which operates to preempt thecriminal action, and if he opts to perform itthe action is abated. This was also

compared `to certain laws allowing illegalpossessors of firearms a certain period oftime to surrender the illegally possessedfirearms to the Government, withoutincurring any criminal liability. In this

light, the full payment of the amountappearing in the check within five banking

days from notice of dishonor is a`complete defense. The absence of a

notice of dishonor necessarily deprives anaccused an opportunity to preclude acriminal prosecution. Accordingly,

procedural due process clearly enjoins thata notice of dishonor be actually served on

petitioner. Petitioner has a right to demandand the basic postulates of fairnessrequirethat the notice of dishonor beactually sent to and received by her toafford her the opportunity to avert

prosecution under B.P. Blg. 22.[9]

In the assailed decision, the Court ofAppeals predicated the conviction of petitioner

on the supposed fact that petitioner wasinformed of the dishonor of the checks throughverbal notice when the complainant had calledher up by telephone informing her of thedishonor of the checks and demandingpayment therefor. The appellate court said:

"The maker's knowledge of theinsufficiency of his funds is legally

presumed from the dishonor of his check(People vs. Laggui, 171 Phil. 305). The

law does not require a written notice of thedishonor of such check.

"In the instant case, appellant hadknowledge that her checks weredishonored by the bank when complainantGarcia made several oral demands uponher to pay the value of the checks in theamount of P573,800.00. Despite saiddemands, appellant failed and refused to

pay the same. Moreover, complaining

witness further testified that his lawyermade a written demand upon appellant butthe latter ignored said demand (tsn., May27, 1993, pp. 13-14). In this connection,appellant waived her right to presentevidence or rebut complainant's testimonythat he made oral demands upon appellantto make good the dishonored checks andhis lawyer wrote her a demand letter.

"Likewise, appellant did not object to the

admission of the complainant's testimonywith regard to the written demand by
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No.182082 December 15,1991 100,000.00

No.182088 December 30,

1991 12,000.00No.

182089 December 30,1991 100,000.00

No.182090 December 30,1991 100,000.00"[17]

or the sum of P563,800, has yet to be madegood by petitioner. This amount, with 12%legal interestper annum from the filing of theinformation until the finality of this decision,must be forthwith settled.

WHEREFORE, the decision of theCourt of Appeals is MODIFIED. PetitionerJosephine Domagsang is acquitted of the crimecharged on reasonable doubt. She is ordered,however, to pay to the offended party the facevalue of the checks in the total amount ofP563,800.00 with 12% legal interest,perannum, from the filing of the informationsuntil the finality of this decision, the sum ofwhich, inclusive of the interest, shall be

subject thereafter to 12%,perannum, interestuntil the due amount is paid. Costs againstpetitioner.

SO ORDERED.

Melo, (Chairman),Panganiban, and Gonzaga-Reyes, JJ., concur.

[11] SEC. 3. Duty of drawee; rules of evidence.Itshall be the duty of the drawee of any check, whenrefusing to pay the same to the holder thereof uponpresentment, to cause to be written, printed or stamped inplain language thereon, or attached thereto, the reason fordrawee's dishonor or refusal to pay the same: Provided,That where there are no sufficient funds in or credit withsuch drawee bank, such fact shall always be explicitlystated in the notice of dishonor or refusal. In allprosecutions under this Act, the introduction in evidenceof any unpaid and dishonored check, having the drawee'srefusal to pay stamped or written thereon, or attachedthereto, with the reason therefor as aforesaid, shallbeprima facie evidence of the making or issuance of saidcheck, and the due presentment to the drawee forpayment and the dishonor thereof, and that the same wasproperly dishonored for the reason written, stamped or

attached by the drawee on such dishonored check.

"Notwithstanding receipt of an order to stop payment, thedrawee shall state in the notice that there were nosufficient funds in or credit with such bank for thepayment in full of such check, if such be the fact.

SECOND DIVISION
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HUN HYUNG PARK,

Petitioner,

- versus -

EUNG WON CHOI,

Respondent.

G.R. No. 165496

Present:

QUISUMBING,J., Chairperson,CARPIO,CARPIO MORALES,TINGA, andVELASCO, JR., JJ.

Promulgated:

February 12, 2007

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

D E C I S I O N

CARPIO MORALES, J.:

Petitioner, Hun Hyung Park, assailsthe Court of Appeals (CA) Resolutionsdated May 20, 2004[1]and September 28,

2004[2]

in CA G.R. CR No. 28344 dismissinghis petition and denying reconsiderationthereof, respectively.

In an Information[3]dated August 31,2000, respondent, Eung Won Choi, wascharged for violationofBatas Pambansa Blg.22, otherwise knownas the Bouncing Checks Law, for issuingon June 28, 1999 Philippine National Bank

Check No. 0077133 postdated August 28,1999 in the amount of P1,875,000 which wasdishonored for having been drawn againstinsufficient funds.

Upon arraignment, respondent, withthe assistance of counsel, pleaded not guilty

to the offense charged. Following the pre-trialconference, the prosecution presented itsevidence-in-chief.

After the prosecution rested its case,respondent filed a Motion for Leave of Court

to File Demurrer to Evidence to which heattached his Demurrer, asserting that theprosecution failed to prove that he received thenotice of dishonor, hence, the presumption ofthe element of knowledge of insufficiency of

funds did not arise.[4]

By Order[5]of February 27, 2003, theMetropolitan Trial Court (MeTC) of Makati,Branch 65 granted the Demurrer and dismissedthe case. The prosecutions Motion forReconsideration was denied.[6]

Petitioner appealed the civilaspect[7]of the case to the Regional Trial Court

(RTC) of Makati, contending that thedismissal of the criminal case should notinclude its civil aspect.

By Decision of September 11, 2003,Branch 60 of the RTC held that while theevidence presented was insufficient to proverespondents criminal liability, it did not

altogether extinguish his civil liability. Itaccordingly granted the appeal of petitioner

and ordered respondent to pay him the amountof P1,875,000 with legal interest.[8]

Upon respondents motion for

reconsideration, however, the RTC set aside itsdecision and ordered the remand of the case tothe MeTC for further proceedings, so that thedefendant [-respondent herein] may adduceevidence on the civil aspect of thecase.[9] Petitioners motion forreconsideration of the remand of the casehaving been denied, he elevated the case to theCA which, by the assailed resolutions,dismissed his petition for the followingreasons:

1. The verification and

certification of non-forum

shopping attached to the

petition does not fully

comply with Section 4, as

amended by A.M. No. 00-2-10-SC, Rule 7, 1997 Rules
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of Court, because it does not

give the assurance that the

allegations of the petition are

true and correct based on

authentic records.

2. The petition is not

accompanied by copies of

certain pleadings and other

material portions of the

record, (i.e., motion for leave

to file demurrer to evidence,

demurrer to evidence and the

opposition thereto, and the

Municipal [sic] Trial Courts

Order dismissing Criminal

Case No. 294690) as would

support the allegations of the

petition (Sec. 2, Rule

42, ibid.).

3. The Decision

dated September 11, 2003 of

the Regional Trial Court

attached to the petition is an

uncertified and illegible

mere machine copy of the

original (Sec. 2, Rule

42, ibid.).

4. Petitioners failed

to implead the People of

the Philippines as party-

respondent in the petition.[10]

In his present petition, petitionerassails the above-stated reasons of theappellate court in dismissing his petition.

The manner of verification forpleadings which are required to be verified,such as a petition for review before the CA ofan appellate judgment of the RTC,[11]isprescribed by Section 4 of Rule 7 of the Rulesof Court:

Sec.

4. Verification. Except when

otherwise specifically required bylaw or rule, pleadings need not be

under oath, verified or

accompanied by affidavit.

A pleading is verified by

an affidavit that the affiant has

read the pleading and that theallegations therein are true and

correct of his personal

knowledge or based on authentic

records.

A pleading required to

be verified which contains a

verification based on

information and belief, or upon

knowledge, information and

belief, or lacks a proper

verification shall be treated as an

unsigned pleading.[12] (Emphasis

and underscoring supplied)

Petitionerargues that the word or isa disjunctive term signifying disassociationand independence, hence, he chose to affirm inhis petition he filed before the court a quo thatits contents are true and correct of my own

personal knowledge,[13]and not on the basis

of authentic documents.

On the other hand, respondentcounters that the word or may be interpreted

in a conjunctive sense and construed to meanas and, or vice versa, when the context of

the law so warrants.

A reading of the above-quoted Section4 of Rule 7 indicates that a pleading may be

verified under either of the two given modes orunder both. The veracity of the allegations ina pleading may be affirmed based on eitherones own personal knowledge or on authentic

records, or both, as warranted. The use of thepreposition or connotes that either source

qualifies as a sufficient basis for verificationand, needless to state, the concurrence of bothsources is more than sufficient.[14] Bearingboth a disjunctive and conjunctive sense, thisparallel legal signification avoids aconstruction that will exclude the combination
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of the alternatives or bar the efficacy of anyone of the alternatives standing alone.[15]

Contrary to petitioners position, the

range of permutation is not left to the pleaders

liking, but is dependent on thesurroundingnature of the allegations which may warrantthat a verification be based either purely onpersonal knowledge, or entirely on authenticrecords, or on both sources.

As pointed out by respondent,authentic records as a basis for verification

bear significance in petitions wherein thegreater portions of the allegations are based on

the records of the proceedings in the court oforigin and/or the court a quo, and not solely onthe personal knowledge of the petitioner. Toillustrate, petitioner himself could not haveaffirmed, based on his personal knowledge, thetruthfulness of the statement in hispetition[16]before the CA that at the pre-trialconference respondent admitted havingreceived the letter of demand, because he(petitioner) was not present during theconference.[17] Hence, petitioner needed torely on the records to confirm its veracity.

Verification is not an empty ritual or ameaningless formality. Its import must neverbe sacrificed in the name of mere expedienceor sheer caprice. For what is at stake is thematter of verity attested by the sanctity of anoath[18]to secure an assurance that theallegations in the pleading have been made ingood faith, or are true and correct and not

merely speculative.[19]

This Court has strictly been enforcingthe requirement of verification andcertification and enunciating that obedience tothe requirements of procedural rules is neededif fair results are to beexpected therefrom. Utter disregard of therules cannot just be rationalized by harking onthe policy of liberal construction.[20] While the

requirement is not jurisdictional in nature, itdoes not make it less a rule. A relaxed

application of the rule can only be justified bythe attending circumstances of the case.[21]

To sustain petitioners explanation that

the basis of verification is a matter of simplepreference would trivialize the rationale and

diminish the resoluteness of the rule. It wouldplay on predilection and pay no heed inproviding enough assurance of the correctnessof the allegations.

On the second reason of the CA indismissing the petition that the petition wasnot accompanied by copies of certainpleadings and other material portions of therecord as would support the allegations of the

petition (i.e., Motion for Leave to FileDemurrer to Evidence, Demurrer to Evidenceand the Opposition thereto, andthe MeTC February 27, 2003 Order dismissingthe case) petitioner contends that thesedocuments are immaterial to his appeal.

Contrary to petitioners contention,

however, the materiality of those documents isvery apparent since the civil aspect of the case,

from which he is appealing, was likewisedismissed by the trial court on account of thesame Demurrer.

Petitioner, nonetheless, posits that hesubsequently submitted to the CA copies ofthe enumerated documents, save fortheMeTC February 27, 2003 Order, asattachments to his Motion forReconsideration.

The Rules, however, require that thepetition must be accompanied by clearly

legible duplicate original or true copies of thejudgments or final orders of both lowercourts, certified correct by the clerk ofcourt.[22]

A perusal of the petition filed beforethe CA shows that the only duplicate originalor certified true copies attached as annexes

thereto are the January 14, 2004 RTC Ordergranting respondents Motion for
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Reconsideration and the March 29, 2004 RTCOrder denying petitioners Motion for

Reconsideration. The copy of the September11, 2003 RTC Decision, which petitionerprayed to be reinstated, is not a certified true

copy and is not even legible. Petitioner laterrecompensed though by appending to hisMotion for Reconsideration a duplicateoriginal copy.

While petitioner averred before theCA in his Motion for Reconsideration that theFebruary 27, 2003 MeTC Order was alreadyattached to his petition as Annex G, Annex

G bares a replicate copy of a different order,

however. It was to this Court that petitionerbelatedly submitted an uncertified true copy ofthe said MeTC Order as an annex to his Replyto respondents Comment.

This Court in fact observes that thecopy of the other MeTC Order, that dated May5, 2003, which petitioner attached to hispetition before the CA is similarly uncertifiedas true.

Since both Orders of the MeTC wereadverse to him even with respect to the civilaspect of the case, petitioner was mandated tosubmit them in the required form.[23]

In fine, petitioner fell short in hiscompliance with Section 2 (d) of Rule 42,the mandatory tenor of which isdiscerniblethereunder and is wellsettled.[24] He has not, however, advanced anystrong compelling reasons to warrant arelaxation of the Rules, hence, his petitionbefore the CA was correctly dismissed.

Procedural rules are tools

designed to facilitate the

adjudication of cases. Courts and

litigants alike are thus enjoined to

abide strictly by the

rules. And while the Court, in

some instances, allows arelaxation in the application of

the rules, this we stress, was

never intended to forge a bastion

for erring litigants to violate the

rules with impunity. The

liberality in the interpretation and

application of the rules appliesonly in proper cases and under

justifiable causes and

circumstances. While it is true

that litigation is not a game of

technicalities, it is equally true

that every case must be

prosecuted in accordance with

the prescribed procedure to

insure an orderly and speedy

administration of

justice.[25](Emphasis supplied)

As to the third reason for the appellatecourts dismissal of his petition failureto implead the People of the Philippines as aparty in the petition indeed, as petitionercontends, the same is of no moment, he havingappealed only the civil aspect of thecase. Passing on the dual purpose of a criminalaction, this Court ruled:

Unless the offended

party waives the civil action or

reserves the right to institute it

separately or institutes the civil

action prior to the criminal

action, there are two actions

involved in a criminal case. The

first is the criminal action for the

punishment of the offender. The

parties are the People of

the Philippines as the plaintiffand the accused. In a criminal

action, the private complainant is

merely a witness for the State on

the criminal aspect of the

action. The second is the civil

action arising from

the delict. The private

complainant is the plaintiff and

the accused is the

defendant. There is a merger of

the trial of the two cases to avoidmultiplicity of
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suits.[26] (Underscoring

supplied)

It bears recalling that

the MeTC acquitted respondent.[27]

As a rule,a judgment of acquittal is immediately finaland executoryand the prosecution cannotappeal the acquittal because of theconstitutional prohibition against doublejeopardy.

Either the offended party or theaccused may, however, appeal the civil aspectof the judgment despite the acquittal of the

accused. The public prosecutor has generallyno interest in appealing the civil aspect of adecision acquitting the accused. The acquittalends his work. The case is terminated as far ashe is concerned. The real parties in interest

in the civil aspect of a decision are the

offended party and the accused.[28]

Technicality aside, the petition isdevoid of merit.

When a demurrer to evidence isfiled without leave of court, the whole case issubmitted for judgment on the basis of theevidence for the prosecution as the accused isdeemed to have waived the right to presentevidence.[29] At that juncture, the court iscalled upon to decide the case including itscivil aspect, unless the enforcement of the civilliability by a separate civil action has beenwaived or reserved.[30]

If the filing of a separate civil actionhas not been reserved or priorly instituted orthe enforcement of civil liability is not waived,the trial court should, in case of conviction,state the civil liability or damages caused bythe wrongful act or omission to be recoveredfrom the accused by the offended party, ifthere is any.[31]

For, in case of acquittal, the accusedmay still be adjudged civilly liable. The

extinction of the penal action does not carrywith it the extinction of the civil action where(a) the acquittal is based on reasonable doubtas only preponderance of evidence is required;(b) the court declares that the liability of the

accused is only civil; and (c) the civil liabilityof the accused does not arise from or is notbased upon the crime of which the accusedwas acquitted.[32]

The civil action based on delict may,however, be deemed extinguished if there is afinding on the final judgment in the criminalaction that the act or omission from which thecivil liability may arise did not exist.[33]

In case of a demurrer to evidencefiled with leave of court, the accused mayadduce countervailing evidence if the courtdenies the demurrer.[34] Such denial bears nodistinction as to the two aspects of the casebecause there is a disparity of evidentiaryvalue between the quanta of evidence in suchaspects of the case. In other words, a courtmay not deny the demurrer as to the criminal

aspect and at the same time grant the demurreras to the civil aspect, for if the evidence so farpresented is not insufficient to prove the crimebeyond reasonable doubt, then the sameevidence is likewise not insufficient toestablish civil liability by mere preponderanceof evidence.

On the other hand, if the evidence sofar presented is insufficient as proof beyondreasonable doubt, it does not follow that thesame evidence is insufficient to establish apreponderance of evidence. For if the courtgrants the demurrer, proceedings on the civilaspect of the case generally proceeds. Theonly recognized instance when an acquittal ondemurrer carries with it the dismissal of thecivil aspect is when there is a finding that theact or omission from which the civil liabilitymay arise did not exist. Absent suchdetermination, trial as to the civil aspect of the

case must perforce continue. Thus this Court,in Salazar v. People,[35]held:
http://sc.judiciary.gov.ph/jurisprudence/2007/feb2007/165496.htm#_ftn26http://sc.judiciary.gov.ph/jurisprudence/2007/feb2007/165

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Crimpro Cases.docx