A.
Where the offense charged in a criminal complaint is not cognizable by the Regional Trial Court and not covered by the Rule on Summary Procedure, is the finding of probable cause required for the filing of an Information in court?
If the allegations in the complaint-affidavit do not establish probable cause, should not the investigating prosecutor dismiss the complaint, or at the very least, require the respondent to submit his counter-affidavit?B.
Can a complaint-affidavit containing matters which are not within the personal knowledge of the complainant be sufficient basis for the finding of probable cause?C.
Where there is offense charged in a criminal complaint is not cognizable by the Regional Trial Court and not covered by the Rule on Summary Procedure, and the record of the preliminary investigation does not show the existence of probable cause, should not the judge refuse to issue a warrant of arrest and dismiss the criminal case, or at the very least, require the accused to submit his counter-affidavit in order to aid the judge in determining the existence of probable cause?D.
Can a criminal prosecution be restrained?E.
Can this Honorable Court itself determine the existence of probable cause?20
It bears stressing that Section 26, Rule 114 of the Revised Rules on Criminal Procedure is a new one, intended to modify previous rulings of this Court that an application for bail or the admission to bail by the accused shall be considered as a waiver of his right to assail the warrant issued for his arrest on the legalities or irregularities thereon. The new rule has reverted to the ruling of this Court in People v. Red. The new rule is curative in nature because precisely, it was designed to supply defects and curb evils in procedural rules. Hence, the rules governing curative statutes are applicable. Curative statutes are by their essence retroactive in application. Besides, procedural rules as a general rule operate retroactively, even without express provisions to that effect, to cases pending at the time of their effectivity, in other words to actions yet undetermined at the time of their effectivity. Before the appellate court rendered its decision on January 31, 2001, the Revised Rules on Criminal Procedure was already in effect. It behoved the appellate court to have applied the same in resolving the petitioner's petition for certiorari and her motion for partial reconsideration.
Moreover, considering the conduct of the petitioner after posting her personal bail bond, it cannot be argued that she waived her right to question the finding of probable cause and to assail the warrant of arrest issued against her by the respondent judge. There must be clear and convincing proof that the petitioner had an actual intention to relinquish her right to question the existence of probable cause. When the only proof of intention rests on what a party does, his act should be so manifestly consistent with, and indicative of, an intent to voluntarily and unequivocally relinquish the particular right that no other explanation of his conduct is possible. x x x.
x x x The present defendants were arrested towards the end of January, 1929, on the Island and Province of Marinduque by order of the judge of the Court of First Instance of Lucena, Tayabas, at a time when there were no court sessions being held in Marinduque. In view of these circumstances and the number of the accused, it may properly be held that the furnishing of the bond was prompted by the sheer necessity of not remaining in detention, and in no way implied their waiver of any right, such as the summary examination of the case before their detention. That they had no intention of waiving this right is clear from their motion of January 23, 1929, the same day on which they furnished a bond, and the fact that they renewed this petition on February 23, 1929, praying for the stay of their arrest for lack of the summary examination; the first motion being denied by the court on January 24, 1929 (G.R. No. 33708, page 8), and the second remaining undecided, but with an order to have it presented in Boac, Marinduque.
Therefore, the defendants herein cannot be said to have waived the right granted to them by section 13, General Order No. 58, as amended by Act No. 3042.
Section 1. Definition. Preliminary investigation is an inquiry or proceeding for the purpose of determining whether there is sufficient ground to engender a well founded belief that a crime cognizable by the Regional Trial Court has been committed and that the respondent is probably guilty thereof, and should be held for trial.
Sec. 3. Procedure. Except as provided for in Section 7 hereof, no complaint or information for an offense cognizable by the Regional Trial Court shall be filed without a preliminary investigation having been first conducted in the following manner:
(a) The complaint shall state the known address of the respondent and be accompanied by affidavits of the complainant and his witnesses as well as other supporting documents, in such number of copies as there are respondents, plus two (2) copies for the official file. The said affidavits shall be sworn to before any fiscal, state prosecutor or government official authorized to administer oath, or, in their absence or unavailability, a notary public, who must certify that he personally examined the affiants and that he is satisfied that they voluntarily executed and understood their affidavits.
Sec. 9. Cases not falling under the original jurisdiction of the Regional Trial Courts nor covered by the Rule on Summary Procedure.
(a) Where filed with the fiscal.” If the complaint is filed directly with the fiscal or state prosecutor, the procedure outlined in Section 3(a) of this Rule shall be observed. The fiscal shall take appropriate action based on the affidavits and other supporting documents submitted by the complainant. (underscoring supplied)
Art. 172. Falsification by private individual and use of falsified documents. ” The penalty of prision correccional in its medium and maximum periods and a fine of not more than P5,000 pesos shall be imposed upon:
1. Any private individual who shall commit any of the falsifications enumerated in the next preceding article in any public or official document or letter of exchange or any other kind of commercial document; and
2. Any person who, to the damage of a third party, or with the intent to cause such damage, shall in any private document commit any of the acts of falsification enumerated in the next preceding article.
Any person who shall knowingly introduce in evidence in any judicial proceeding or to the damage of another or who, with the intent to cause such damage, shall use any of the false documents embraced in the next preceding article or in any of the foregoing subdivisions of this article, shall be punished by the penalty next lower in degree.
COMPLAINT - AFFIDAVIT
I, MAGDALENO M. PEÑA, Filipino, of legal age, with address at Brgy. Ubay, Pulupandan, Negros Occidental, after having been sworn in accordance with law hereby depose and state:
1. I am the Plaintiff in Civil Case No. 754 pending with the Regional Trial Court of Bago City entitled "Atty. Magdaleno M. Peña v. Urban Bank, et al" Impleaded therein as defendants of the board of the bank, namely, Teodoro Borlongan, Delfin Gonzales, Jr., Benjamin De Leon, P. Siervo Dizon, Eric Lee, Ben Lim Jr., Corazon Bejasa and Arturo Manuel.(underlining ours)
2. I filed the said case to collect my fees as agent of Urban Bank, Inc.(hereinafter referred to as the "bank") in ridding a certain parcel of land in Pasay City of squatters and intruders. A certified true copy of the Complaint in the said case is hereto attached as Annex "A".
3. In the Motion to Dismiss dated 12 March 1996 (a certified true copy of which is attached as Annex "B"), Answer dated 28 October 1996 (Annex "C"), and Pre-Trial Brief dated 28 January 1997 (Annex "D") filed by the bank and the respondent members of the board, the said respondents used as evidence the following documents:
a. Letter dated 19 December 1994 supposedly signed by a certain Herman Ponce and Julie Abad for Isabela Sugar Company (ISC) (a copy of which is attached as Annex "E"), which states:
December 19, 1994
Urban Bank
Urban Avenue, Makati
Metro Manila
Gentlemen:
This has reference to your property located among Roxas Boulevard, Pasay City which you purchased from Isabela Sugar Company under a Deed of Absolute Sale executed on December 1, 1994.
In line with our warranties as the Seller of the said property and our undertaking to deliver to you the full and actual possession and control of said property, free from tenants, occupants or squatters and from any obstruction or impediment to the free use and occupancy of the property and to prevent the former tenants or occupants from entering or returning to the premises. In view of the transfer of ownership of the property to Urban Bank, it may be necessary for Urban Bank to appoint Atty. Peña likewise as its authorized representative for purposes of holding/maintaining continued possession of the said property and to represent Urban Bank in any court action that may be instituted for the abovementioned purposes.
It is understood that any attorney's fees, cost of litigation and any other charges or expenses that may be incurred relative to the exercise by Atty. Peña of his abovementioned duties shall be for the account of Isabela Sugar Company and any loss or damage that may be incurred to third parties shall be answerable by Isabela Sugar Company.
Very truly yours,
Isabela Sugar Company
By:
HERMAN PONCE
JULIE ABAD
b. Memorandum dated 7 December 1994 supposedly executed by a certain Marilyn Ong on behalf of ISC, a copy of which is hereto attached as annex "F", which states:
December 7, 1994
To: ATTY. CORA BEJASA
From: MARILYN G. ONG
RE: ISABELA SUGAR CO., INC.
Atty. Magdaleno M. Peña, who has been assigned by Isabela Sugar Company inc. to take charge of inspecting the tenants would like to request an authority similar to this from the Bank to new owners. Can you please issue something like this today as he (unreadable) this.
b. Letter dated 9 December 1994 supposedly executed by the same Marilyn Ong, a copy of which is hereto attached as Annex "G", which states:
December 9, 1994
Atty. Ted Borlongan
URBAN BANK OF THE PHILIPPINES
MAKATI, METRO MANILA
Attention: Mr. Ted Borlongan
Dear Mr. Borlongan
I would like to request for an authority from Urban Bank per attached immediately - as the tenants are questioning authority of the people who are helping us to take possession of the property.
Marilyn Ong
c. Memorandum dated 20 November 1994, copy of which is attached as annex "H", which states:
MEMORANDUM
To: Atty. Magadaleno M. Peña
Director
From: Enrique C. Montilla III
President
Date: 20 November 1994
You are hereby directed to recover and take possession of the property of the corporation situated at Roxas Boulevard covered by TCT No. 5382 of the Registry of Deeds for Pasay City, immediately upon the expiration of the contract of lease over the said property on 29 November 1994. For this purpose, you are authorized to engage the services of security guards to protect the property against intruders. You may also engage the services of a lawyer in case there is a need to go to court to protect the said property of the corporation. In addition, you may take whatever steps or measures are necessary to ensure our continued possession of the property.
ENRIQUE C. MONTILLA III
President
- 4. The respondent member of the board of the bank used and introduced the aforestated documents as evidence in the civil case knowing that the same are falsified. They used thae said documents to justify their refusal to pay my agent's fees, to my damage and prejudice.
- The 19 December 1994 letter (Annex 'E") is a falsified document, in that the person who supposedly executed the letter on behalf of ISC, a certain Herman Ponce and Julie Abad did not actually affix their signatures on the document. The execution of the letter was merely simulated by making it appear that Ponce and Abad executed the letter on behalf of ISC when they did not in fact do so.
- No persons by the name of Herman Ponce and Julie Abad were ever stockholders, officers, employees or representatives of ISC. In the letter, Herman Ponce was represented to be the President of ISC and Julie Abad, the Corporate Secretary. However, as of 19 December 1994, the real President of plaintiff was Enrique Montilla, III and Cristina Montilla was the Corporate Secretary. A copy of the Minutes of the Regular Meeting of ISC for the year 1994, during which Montilla, et al. Were elected is hereto attached as Annex "I". On the otherhand, a list of the stockholders of ISC on or about the time of the transaction is attached as Annex "J".
- The same holds true with respect to the Memorandum dated 7 December 1994 and athe letter dated 9 December 1994 allegedly written by a ceratin Marilyn Ong. Nobody by the said name was ever a stockholder of ISC.
- Lastly, with respect to the supposed Memorandum issued by Enrique Montilla, III his signature thereon was merely forged by respondents. Enrique Montilla III, did not affix his signature on any such document.
- I am executing this affidavit for the purpose of charging Teodoro C. Borlongan, Corazon M. Bejasa and Arturo E. Manuel, Delfin C. Gonzales Jr., Benjamin L. De Leon, P. Siervo H. Dizon and Eric Lee, with the crime of use of falsified documents under Artilce 172, paragraph 2, of the Revised Penal Code.(underlining ours)
- I am likewise executing this affidavit for whatever legal purpose it may serve.
FURTHER AFFIANT SAYETH NAUGHT.Sgd. MAGDALENO M. PEÑA
Courts in resolving a motion to quash cannot consider facts contrary to those alleged in the information or which do not appear on the face of the information because said motion is hypothethical admission of the facts alleged in the information x x x. (citations omitted.)
Section 2. The right of the people to be secure in their persons, houses, papers and effects against unreasonable searches and seizures of whatever nature and for any purpose shall be inviolable, and no search warrant or warrant of arrest shall issue except upon probable cause to be determined personally by the judge after examination under oath or affirmation of the complainant and the witnesses he may produce, and particularly describing the place to be searched and the persons or things to be seized.
Sec. 9. Cases not falling under the original jurisdiction of the Regional Trial Courts nor covered by the Rule on Summary Procedure.
(a) x x x.
(b) Where filed directly with the Municipal Trial Court. ” If the complaint or information is filed directly with the Municipal Trial Court, the procedure provided for in Section 3(a) of this Rule shall likewise be observed. If the judge finds no sufficient ground to hold the respondent for trial, he shall dismiss the complaint or information. Otherwise, he shall issue a warrant of arrest after personally examining in writing and under oath the complainant and his witnesses in the form of searching questions and answers.
a. To afford adequate protection to the constitutional rights of the accused;39
b. When necessary for the orderly administration of justice or to avoid oppression or multiplicity of actions;40
c. When there is a prejudicial question which is sub judice;41
d. When the acts of the officer are without or in excess of authority;42
e. Where the prosecution is under an invalid law, ordinance or regulation;43
f. When double jeopardy is clearly apparent;44
g. Where the court had no jurisdiction over the offense;45
h. Where it is a case of persecution rather than prosecution;46
i. Where the charges are manifestly false and motivated by the lust for vengeance;47 and
j. When there is clearly no prima facie case against the accused and a motion to quash on that ground has been denied.48
- That the offender knew that a document was falsified by another person.
- That the false document is embraced in Article 171 or in any subdivisions Nos. 1 or 2 of Article 172.
- That he introduced said document in evidence in any judicial proceeding.49
It is x x x imperative upon the fiscal or the judge as the case may be, to relieve the accused from the pain of going through a trial once it is ascertained that the evidence is insufficient to sustain a prima facie case or that no probable cause exists to form a sufficient belief as to the guilt of the accused. Although there is no general formula or fixed rule for the determination of probable cause since the same must be decided in the light of the conditions obtaining in given situations and its existence depends to a large degree upon the finding or opinion of the judge conducting the examination, such a finding should not disregard the facts before the judge nor run counter to the clear dictates of reasons. The judge or fiscal, therefore, should not go on with the prosecution in the hope that some credible evidence might later turn up during trial for this would be a flagrant violation of a basic right which the courts are created to uphold. It bears repeating that the judiciary lives up to its mission by visualizing and not denigrating constitutional rights. So it has been before. It should continue to be so.
Endnotes:
* Per Raffle dated 27 April 2010, Associate Justice Martin S. Villarama, Jr., is designated an additional member in place of Associate Justice Roberto A. Abad who inhibited himself due to close association with one of the parties.
** Chief Justice Reynato S. Puno was originally designated as an additional member per raffle dated 15 February 2010 in lieu of Associate Justice Antonio T. Carpio who inhibited himself due to a related case. However, per Special Order No. 836 dated 12 April 2010, Associate Justice Jose Catral Mendoza is designated an additional member of the Second Division, whether Regular or Special, relative to cases wherein Chief Justice Reynato S. Puno was designated as additional member in view of the Chief Justice forthcoming retirement.
1 Penned by Associate Justice Romeo A. Brawner with Associate Justices Quirino D. Abad Santos, Jr. and Andres B. Reyes, Jr. concurring; rollo, pp. 50-60.
2 Id. at 61-66.
3 The contract was allegedly confirmed in a letter addressed to the respondent, the pertinent portion of which reads:
x x x x
This is to confirm the engagement of your services as the authorized representative of Urban Bank, specifically to hold and maintain possession of our above [-]captioned property and to protect the same from former tenants, occupants or any other person who are threatening to return to the said property and/or interfere with your possession of the said property for and in our behalf.
You are likewise authorized to represent Urban Bank in any court action that you may institute to carry out your aforementioned duties, and to prevent any intruder, squatter or any other person not otherwise authorized in writing by Urban Bank from entering or staying in the premises. Id. at 69.
4 Id. at 72-87.
5 Id. at 96.
6 Id. at 97.
7 Id. at 98.
8 Id. at 99. Also at CA rollo, p. 304.
9 Id. at 106-109.
10 The case was docketed as I.S. Case No. 9248.
11 Rollo, p. 108.
12 The dispositive portion of which reads:
Wherefore, In view of all the foregoing, undersigned finds probable cause that the crime of Introducing Falsified Documents in evidence under par. 2, Article 172, Revised Penal Code (4 counts) had been committed and that respondents Teodoro Borlongan, Jr., Delfin Gonzalez, Jr., Benjamin de Leon, P. Siervo Dizon, Eric Lee, Ben Lim, Jr., Corazon Bejasa, and Arturo Manuel are probably guilty.
Let Information be filed with the Municipal Trial Court in Cities, City of Bago, Philippines.
SO RESOLVED. (Id. at 110-114).
13 Id. at 113-114.
14 Id. at 115-122.
15 Id. at 123-126.
16 Id. at 127-142.
17 The dispositive portion reads:
WHEREFORE, premises considered, the Omnibus Motion to Quash, Recall Warrants of Arrest and/or For reinvestigation is hereby denied.
Set arraignment of the accused on December 1, 1998 at 8:30 o'clock in the morning.
SO ORDERED. (Id. at 143-150.)
18 Id. at 151-186.
19 Id. at 50-60.
20 Id. at 13-14.
21 Id. at 518-522.
22 People v. Vallejo, 461 Phil. 672, 686 (2003); People v. Palijon, 397 Phil. 545, 556 (2000).
23 473 Phil. 758, 776-777 (2004).
24 CA rollo, pp. 902-903.
25 55 Phil. 706, 711 (1931).
26 Luis B. Reyes, The Revised Penal Code, Criminal Law, Fourteenth Edition, Revised 1998, Appendix "A," Table No. 15, p. 1010.
27 Id. at 1008.
28 (1) Violations of traffic laws, rules and regulations;
(2) Violations of the rental law;
(3) Violations of municipal or city ordinances;
(4) All other criminal cases where the penalty prescribed by law for the offense charged is imprisonment not exceeding six months, or a fine not exceeding one thousand pesos (P1,000.00), or both, irrespective of other imposable penalties, accessory or otherwise, or of the civil liability arising therefrom: Provided, however, That in offenses involving damage to property through criminal negligence, this Rule shall govern where the imposable fine does not exceed ten thousand pesos (P10,000.00).
This Rule shall not apply to a civil case where the plaintiff's cause of action is pleaded in the same complaint with another cause of action subject to the ordinary procedure; nor to a criminal case where the offense charged is necessarily related to another criminal case subject to the ordinary procedure.
29 Sales v. Sandiganbayan, G.R. No. 143802, 16 November 2001, 369 SCRA 293, 305 citing Bernardo v. Mendoza, G.R. No. L-37876, 25 May 1979, 90 SCRA 214, 220; Vda. De Jacob v. Puno, G.R. Nos. L-61554-55, 31 July 1984, 131 SCRA 144, 149.
30 Rollo, pp. 368-372.
31 Id. at 148.
32 Article III, Section 2, Philippine Constitution.
33 G.R. No. 82585, 14 November 1988, 167 SCRA 393, 406.
34 Lim, Sr. v. Felix, G.R. Nos. 94054-57, 19 February 1991, 194 SCRA 292, 305.
35 Id. at 306.
36 Yee Sue Koy v. Almeda, 70 Phil. 141, 146-147 (1940).
37 Rollo, pp. 41-42.
38 G.R. Nos. 69863-65, 10 December 1990, 192 SCRA 183, 188.
39 Hernandez v. Albano, 125 Phil. 513 (1967).
40 Dimayuga v. Fernandez, 43 Phil. 304, 306-307 (1922); Hernandez v. Albano, id.; Fortun v. Labang, 192 Phil. 125, 133 (1981).
41 De Leon v. Mabanag, 70 Phil. 202 (1940).
42 Planas v. Gil, 67 Phil. 62, 75 (1939).
43 Young v. Rafferty, 33 Phil. 556, 562 (1916); Yu Cong Eng v. Trinidad, 47 Phil. 385, 389 (1925).
44 Sangalang v. People, 109 Phil. 1140, 1142 (1960).
45 Lopez v. City Judge, G.R. No. L-25795, 29 October 1966, 18 SCRA 616, 620-621.
46 Rustia v. Ocampo, CA G.R. No. 4760, 25 March 1960.
47 Recto v. Castelo, 18 L.J. [1953], cited in Rano v. Alvenia, CA-G.R. No. 30720-R, 8 October 1962; Guingona, Jr. v. City Fiscal of Manila, 213 Phil. 516, 524-525 (1984).
48 Salonga v. Cruz Paño, G.R. No. L-59524, 18 February 1985, 134 SCRA 438, 448-450.
49 JBL Reyes, Revised Penal Code, Criminal Book Two, Fourteenth Edition, Revised, 1998 ed., p. 246.
50 Rollo, pp. 110-114.
51 People v. Aruta, 351 Phil. 868, 880 (1998).
52 G.R. No. 174016, 28 July 2008, 560 SCRA 278, 293-294.
53 Baltazar v. People, supra note 52 at 294 citing Okabe v. Gutierrez, supra note 23 at 781.
54 Rollo, pp. 108-109.
55 Id. at 109.
56 Sec. 36, Rule 130, Rules on Evidence. See also D.M. Consunji, Inc. v. Court of Appeals, 409 Phil. 275, 285 (2001).
57 31A C.J.S. Evidence § 194. See also Philippine Home Assurance Corp. v. Court of Appeals, 327 Phil. 255, 267-268 (1996) cited in D.M. Consunji, Inc. v. Court of Appeals, id. at 285.
58 Ang v. Lucero, G.R. No. 143169, 21 January 2005, 449 SCRA 157, 168.
59 G.R. No. 158148, 30 June 2005, 462 SCRA 516, 528-529.