1. CRIMINAL PROCEDURE; PRELIMINARY INVESTIGATION BY JUDGE OF FIRST INSTANCE; CERTIORARI AND MANDAMUS. — For a judge of first instance who is conducting preliminary investigation, it is not an excess of jurisdiction or an abuse of discretion for him to dismiss a second criminal complaint against a person where the judge finds that there is no probable cause and that an information charging the same person the same offense had been dismissed by another judge. Nor is it the ministerial duty of the respondent judge, enforceable through mandamus, to give due course to a criminal complaint which he finds devoid of factual basis.

This petition for certiorari and mandamus is related to G.R. No. L-2804 —Manuel Eugenio, Petitioner-Appellant, v. Jose Tiangco, oppositor-appellee —wherein the herein petitioner twice unsuccessfully attempted to establish that the deceased Paula Tiangco had left a will in the hands of her surviving husband Benito Cruz.

After Judge Castelo had overruled the herein petitioner’s opposition to the issuance of letters of administration to Jose Tiangco in intestate proceeding No. 442 on the ground that the therein oppositor and herein petitioner Manuel Eugenio had not proved that Paula Tiangco had left a will, the petitioner filed a criminal complaint in the justice of the peace court of Malabon, Rizal, against Benito Cruz, charging him with a violation of section 2 of Rule 76 in that, having been in possession of the last will and testament of the late Paula Tiangco, he had failed and refused and still failed and refused to deliver the said last will and testament to the court having jurisdiction, notwithstanding his knowledge of the institution of intestate proceedings of the estate of the said deceased. The accused Benito Cruz waived the right to a preliminary investigation, and the case was forwarded to the Caloocan branch of the Court of First Instance of Rizal. An information was there filed by the assistant provincial fiscal at the behest of counsel for the complainant; but, subsequently, upon learning of the finding of the court in intestate proceeding No. 442 to the effect that the deceased Paula Tiangco had left no will in the possession of the accused Benito Cruz, the fiscal motu proprio asked for the dismissal of the case, and Judge Castelo dismissed it accordingly.

Undaunted, and with a pertinacity worthy of a better cause, counsel for the complainant Manuel Eugenio filed another criminal action against the accused Benito Cruz in the Rizal City Branch of the Court of First Instance of Rizal, presided over by the respondent judge, Hon. Bienvenido A. Tan. After a preliminary examination of the facts as borne out by the records of the previous proceedings relating to the supposed will in question, Judge Tan dismissed the second complaint for lack of probable cause.

Thereafter Manuel Eugenio filed the present petition for certiorari and mandamus against Judge Tan to annul his order of dismissal and to compel him to proceed with the preliminary investigation and hearing of said case.

The petition is entirely devoid of merit. The respondent judge did not exceed his jurisdiction and did not commit any abuse of discretion in dismissing the second criminal complaint against Benito Cruz for lack of probable cause. Nor is it the ministerial duty of a judge, enforceable through mandamus, to give due course to a criminal complaint which he finds to be devoid of factual basis.

The petition is denied, with costs against the petitioner.

Moran, C.J., Paras, Feria, Padilla, Tuason, Montemayor and Reyes, JJ., concur.