G.R. No. L-32849. July 31, 1984
QUIRICO A. ABELA, PETITIONER, VS. HONORABLE CESARIO C. GOLEZ, JUDGE, COURT OF FIRST INSTANCE OF CAPIZ, BRANCH I, AND AGUSTIN ALMALBIS, RESPONDENTS.
RELOVA, J.:
decision dated August 27, 1970 of then Court of First Instance Judge
Cesario C. Golez, compelling him to “file the proper action for estafa
arising from the bouncing check Exhibit B. Without pronouncement as
costs.” (p. 41, Rollo)
On December 28, 1968, private respondent Agustin Almalbis filed with the
Office of the City Fiscal of Roxas City a complaint for estafa against
one Virginia Anisco. After conducting a preliminary investigation,
herein petitioner Quirico A. Abela dismissed the complaint “for lack of
merit.” Thereafter, private respondent Almalbis commenced the action for
mandamus in the Court of First Instance of Roxas City against
herein petitioner Quirico A. Abela. In due course said court rendered
the above-mentioned decision. Hence, this appeal.
The findings of the petitioner are contained in his Order, from which we quote:
“It appeared from the testimony of the complainant, that sometime
in 1967, the complainant entered into a business arrangement with the
respondent, Virginia P. Anisco. The former, who is both owner and
operator of several fishing boats and fishponds, sends fish by the tons
to the respondent to be sold at the Manila Divisoria Market. From the
proceeds of such sales, which were entirely supervised and controlled by
the respondent, respondent got four per cent (4%) commission from the
gross proceeds plus whatever expenses she has advanced as expenses in
the process. Respondent in turn has the obligation to remit the balance
of the proceeds to the complainant.“This business arrangement had continued for sometime at a more or
less irregular interval of two weeks to the satisfaction of both
parties, until the respondent later became late and irregular in her
remittances of the balance of the proceeds due the complainant.“Remittances of the net proceeds were mostly done by respondent by
sending her personal checks and later, when respondent had been late in
her remittances, complainant proposed that respondent give him a check
book, each and every check of which is presigned in blank. The blanks
corresponding to the amount and the payee to be filled in later by the
complainant as the value of the shipment is determined after each sale.
This was done and the business again continued under the above
arrangement. Then Checks Nos. 378389 dated September 16, 1968, 392377
dated October 20, 1968, 392379 dated October 29, 1968, 392380 dated
October 30, 1968, and 392381 dated October 30, 1968 drawn on the
Prudential Bank and Trust Company of Manila as prepared and filled in by
the complainant were all dishonored for lack of funds, when presented
for payments by the complainant through the Roxas City Branch of the
Philippine National Bank.“The foregoing is the summary of the testimony of complainant,
Agustin Almalbis, and with the submission of his aforementioned
exhibits, rested his case.“Respondent failed to appear on the dates scheduled for her turn
and was considered to have waived her rights to present evidence in her
defense.“THE ISSUE
“The question is, has the respondent committed Estafa by giving,
presigned blank checks to the complainant which were later dishonored by
the bank for lack of funds, as defined under Art. 315 paragraph 2-d of
the Revised Penal Code.x x x x x x x x x
“There is a deceit when one is misled, either by guile or trickery
or by other means, to believe to be true what is really false.“When, therefore, the parties agreed to the arrangement, that the
respondent give a check book, all the individual checks contained
therein already signed by the respondent as drawer in blank, leaving the
complainant to fill in the payee and the amount to be drawn later after
the amount is determined after the sale of each shipment of fish
consigned to the respondent, such arrangement can only be considered as
an agreement for business convenience between those concerned and no
more.“Certainly, deceit can not be attributed to the respondent if the
checks from the aforesaid check book under the control of the
complainant, prepared and filled in by him as to the date, the payee and
amount, turned out to be dishonored as it did due to lack of funds for
the simple reason, that except for presigning the checks the respondent
had no hand in the preparation of the same thereby giving her no chance
to determine the sufficiency of her original bank deposit or the
necessary amount for replenishment of such deposit.x x x x x x x x x
“Considering, further, the element mentioned herein-before, that
the check dishonored must have been issued in payment of an obligation
contracted at the same time without which the transaction would not have
been consummated as held in the case of People vs. Obieta et al (CA-52
O.G. 065224), the inapplicability of the penal provision relied upon by
the complainant becomes glaringly clear.“That act of the respondent in signing the checks in blank,
delivering the same to the complainant to be filled in later by the
latter as to the date indicating the date of the issuance, the name of
the payee and the amount to be drawn, in payment for the costs of future
shipments of fish to be sold at the Manila Market, can never be
interpreted or considered as checks issued in the payment of an
obligation contracted at the same time even by the wildest stretch of
imagination. The law contemplates, as ruled in the case of People vs.
Obieta aforecited, of one uninterrupted transaction. The consummation
of the transaction and the issuance must be concurrent.” (pp. 17, 20,
21, 22, Rollo)
The Honorable Judge Golez overruled petitioner, saying:
“The first check so issued is PBTC (Prudential Bank and Trust
Company) Check AD No. 378389, dated September 16, 1968, payable to the
order of Mr. Agustin Almalbis in the amount of P6,000.00 and signed by
Virginia P. Anisco (Exhibit B).“The second check issued was PBTC Check AD No. 392377, dated
October 20, 1968, payable to the order of Cash in the amount of
P3,637.05 and signed by Virginia P. Anisco. (Exhibit C).“The third check issued was PBTC Check No. 392379, dated October
29, 1968, payable to the order of Agustin Almalbis in the amount of
P3,426.85 and signed by Virginia P. Anisco. (Exhibit D).“The fourth and fifth checks issued were PBTC Check AD No. 392381,
and PBTC Check AD No. 392380, both dated October 30, 1968, in the
amount of P1,360.50 and P3,000.00, respectively, both payable to Cash,
both signed by Virginia P. Anisco. (Exhibits E and F).“It also appears that Virginia P. Anisco, the respondent mentioned
in the aforementioned letter-complaint Exhibit A, was handling the
sales of the fish which the petitioner in Roxas City was shipping from
time to time to Manila where the said fish was sold by Virginia P.
Anisco in the Divisoria Market for which service Anisco was paid by
Almalbis a commission of 4% on the gross proceeds of the sales.“According to Almalbis it was their agreement that Anisco would
remit to him here in Roxas City the net proceeds of the sales of fish
made by Anisco in Manila after deducting her commission and other
incidental expenses therefrom.“The five checks Exhibits B, C, D, E and F adverted to elsewhere
above represented the net proceeds realized from the sales made by
Virginia P. Anisco of the fish of Agustin Almalbis.“The petitioner Agustin Almalbis further narrated that the PBTC
Check AD No. 378389, dated September 16, 1968 (Exhibit B), was
hand-carried by Amador Anisco, from Manila to Roxas City where Amador
delivered the said check Exhibit B to the said petitioner. Then
Almalbis indorsed the check Exhibit B to the Philippine National Bank,
Roxas City Branch, where it was accepted for deposit only. Later on the
check Exhibit E was returned to Almalbis, dishonored by the Prudential
Bank and Trust Company against which it had been drawn, for lack of
funds. When the check Exhibit B had found its way back to Almalbis, the
latter left for Manila to inquire from Virginia why the said check
bounced back. Virginia begged of him to give her a little more time to
get sufficient funds for the said check Exhibit B. But the funds never
came.“Meanwhile, and upon the plea of Virginia, the petitioner
continued to make shipments of fish to her, and as part of this new
understanding, Virginia agreed to sign, as she signed, checks in blank
which she delivered to petitioner who was to fill the blanks therein
with the amount and date corresponding to the sales of fish made by
Virginia and reported by her by telegram to said petitioner. By virtue
of this arrangement the checks Exhibits C, D, E and F were made out by
Almalbis himself by filling up the pre-signed blank checks provided him
by Virginia. But the said checks Exhibits C, D, E and F also bounced
back for lack of funds or for the reason of “Exceeds Arrangements”
(Exhibit D-5 and E-5).“Almalbis declared that he placed all of the foregoing facts at
the disposal of the respondent City Fiscal Quirico Abela who conducted
the preliminary investigation on his within mentioned letter-complaint
of 26th December 1968.x x x x x x x x x
“The instant petition is also a two-fold action, firstly, for certiorari
upon the ground that the respondent Fiscal gravely abused his
discretion in dismissing the within mentioned complaint with the result
that the petitioner herein has been deprived of his right as the
aggrieved party in a criminal transaction – and, secondly, for mandamus to
compel the said respondent to bring the corresponding criminal action.
The second phase of the action, i.e., mandamus, depends entirely upon
the success or failure of the first phase of the action, i.e., certiorari,
in the sense that should it be found that the respondent herein did
gravely abuse his discretion in dismissing petitioner’s complaint mandamus would lie to rectify his error. (Bonilla, et al., vs. Sec. of Agriculture & Natural Resources, L-20083, April 27, 1967.)“In the given state of facts such as spelled out elsewhere above
the right of the petitioner, with specific reference to the check
Exhibit B, cannot be said to be dubious, uncertain or nebulous, but in
fact well-defined, clear and certain, not at all found within the sphere
of speculation or probability, but is firmly secured within the realm
of certainty, and this condition should entitle the petitioner herein to
a relief for official inaction obtainable through the extraordinary
remedy of mandamus. (See the following cases: Aquino v. General
Manager, GSIS, L-24859, Jan. 31, 1968; Aprueba, et al. v. Ganzon, et
al., L-20867, Sept. 3, 1966; Kwok Kam Lien v. Vivo, L-22354, Mar. 31,
1965; Alzate v. Aldana, L-18085, May 1963; Villamor, et al. v. Lacson,
et al., L-15945, Nov. 28, 1964; People v. Orais, 65 Phil., 744, 747.)“While as already shown the discretion of the court will not
ordinarily be controlled by mandamus, it is not universally true that
the writ will not issue to control such discretion or to require a
judicial tribunal to act in a particular way. Where the discretion of
the court can be legally exercised in only one way, mandamus will
lie to compel the court to exercise it; and in some cases has been
employed to correct the errors of inferior tribunals and to prevent a
failure of justice or irreparable injury where there is a clear right,
and there is an absence of any adequate remedy, as for instance where no
appeal lies, or where the remedy by appeal is inadequate. It may also
be employed to prevent an abuse of discretion or to correct an arbitrary
action which does not amount to the exercise of discretion.'” (Corpus
Juris, sec. 85, pp. 608-609, as quoted in People v. Orais, supra.)“So that where the fiscal filed an information for homicide over
the insistence of the aggrieved party that the crime committed was
murder as shown by the declaration of witnesses disclosing the presence
of qualifying circumstances the Supreme Court ruled that his failure to
file the proper information rendered the Fiscal subject to the writ of
mandamus. (Bernabe v. Bolinas, et al., L-22000, Nov. 29, 1966.)” (pp.
33, 35, 39, 41, Rollo)
There is merit in the appeal. The public prosecutor is entitled to use
his judgment and discretion in the appreciation of evidence presented to
him and, in the exercise thereof, he may not be controlled by mandamus.
Whether an information should be filed in court is a matter addressed
to the sound discretion of the fiscal according to whether the evidence
is in his opinion sufficient to establish the guilt of the accused
beyond a reasonable doubt.
Otherwise stated, the fiscal can not be compelled to act in a distinct
manner whether to prosecute or not to prosecute and, instead, is allowed
to stand on his opinion and conviction, “reserving only to the
Secretary, in any appropriate case when the latter believes public
interest impels that a different course of action should be taken, to
temporarily relieve the fiscal of the duty to act by designating
somebody else to take his place solely and only for the purpose of such
particular case. x x x Under Sections 1679 and 1689 of the Revised
Administrative Code, in any instance where a provincial or city fiscal
fails, refuses or is unable, for any reason, to investigate or prosecute
a case and, in the opinion of the Secretary of Justice it is advisable
in the public interest to take a different course of action, the
Secretary may either appoint as acting provincial or city fiscal, to
handle the investigation or prosecution exclusively and only for such
case, any practicing attorney or some competent officer of the
Department of Justice or office of any city or provincial fiscal, with
complete authority to act therein in all respects as if he were the
provincial or city fiscal himself, or appoint any lawyer in the
government service or not in the government service, temporarily to
assist such city or provincial fiscal in the discharge of his duties,
with the same complete authority to act independently of and for such
city or provincial fiscal, provided that no such appointment may be made
without first hearing the fiscal concerned and never after the
corresponding information has already been filed with the court by the
corresponding city or provincial fiscal without the conformity of the
latter, except when it can be patently shown to the court having
cognizance of the case that said fiscal is intent on prejudicing the
interest of justice. The same sphere of authority is true with the
prosecutor directed and authorized under Section 3 of Republic Act 3783,
as amended and/or inserted by Republic Act 5184.” (Estrella vs.
Orendain Jr., 37 SCRA 640)
However, the matter of instituting an information should be
distinguished from a motion by the fiscal for the dismissal of a case
already filed in court. The judge may properly deny the motion where,
judging from the record of the preliminary investigation, there appears
to be sufficient evidence to sustain the prosecution. This is, as it
should be, because the case already in court and, therefore, within its
discretion and control.
But then, the question may be asked: What are the remedies of the
offended party or complainant when the prosecuting officer refuses or
fails to file an information or to prosecute the criminal action? As
stated above, “[i]n case the provincial fiscal should fail or refuse to
act even when there is sufficient evidence on which action may be taken,
the offended party may take up the matter with the Secretary of Justice
who may then take such measures as may be necessary in the interest of
justice under Section 1679 of the Revised Administrative Code. (Pañgan
vs. Pasicolan, 103 Phil. 1143).” He may also file with the proper
authorities or courts criminal and administrative charges against the
prosecuting officer. As held in Bagatua vs. Revilla, 104 Phil. 393,
“[w]hile it is the duty of the fiscal or the City Attorney, as
prosecuting officer, to prosecute persons who, according to the evidence
received from the complainant, are shown to be guilty of a crime, said
officer is likewise bound by his oath of office to protect innocent
persons from groundless, false or malicious prosecution. The
prosecuting officer would be committing a serious dereliction of duty if
he files the information based upon a complaint, where he is not
convinced that the sufficiency and strength of the evidence would
warrant the filing of the action in court against the accused. This
duty of the prosecuting officer involves discretion, hence, it cannot be
controlled by mandamus unless there has been a grave abuse
thereof which is not shown in the case at bar.” Or, he may file a civil
action for damages under Article 27 of the New Civil Code.
WHEREFORE, the decision, dated August 27, 1970, of respondent judge is hereby SET ASIDE.
SO ORDERED.
Concepcion, Jr., Guerrero, Abad Santos, Melencio-Herrera, Plana, Gutierrez, Jr., De la Fuente, and Cuevas, JJ., concur.
Fernando, C.J., and Escolin, J., no part.
Teehankee, J., reserves his vote.
Makasiar, J., in the result.
Aquino, J., see concurrence.
CONCURRING OPINION
AQUINO, J.:
I concur. As a general rule, mandamus does not lie to compel
the fiscal to file an information because that duty involves the
exercise of discretion and judgment. It is not ministerial (Gonzales
vs. Serrano, L-25791, September 23, 1968, 25 SCRA 64; Vda. de Bagatua
vs. Revilla, 104 Phil. 392; Gonzales vs. Court of First Instance of
Bulacan, 63 Phil. 846; People vs. Natoza, 100 Phil. 533, 536; Alberto
vs. De la Cruz, L-31839, June 30, 1980, 98 SCRA 406; Aquino vs. Mariano,
L-30485, May 31, 1984).
It is not fair to compel the fiscal to prosecute a person whose guilt
may not, in his opinion, be established with the evidence submitted to
him (People vs. Santos, L-25413, October 31, 1969, 30 SCRA 100).
But if the fiscal acts with grave abuse of discretion in not prosecuting the accused, he may be compelled by mandamus to file the proper information.
For example, it is grave abuse of discretion on the fiscal’s part to
file an information for homicide only when the evidence presented before
him warrants the filing of a murder charge because the killing was
treacherous. He may be compelled by mandamus to file a charge for murder (Bernabe vs. Bolinas, Jr., L-22000, November 29, 1966, 18 SCRA 812).
Against the unjust action or inaction of a fiscal, the remedy is an
appeal to the Minister of Justice who has control of fiscals, or to file
an administrative charge against him. (Presidential Decree No. 1275,
Reorganizing the Prosecution Staff; Circular No. 36 dated July 1, 1980,
Ministry of Justice; Estrella vs. Orendain, Jr., L-19611, February 27,
1971, 37 SCRA 640; Noblejas vs. Salas, L-31788, September 15, 1975, 67
SCRA 47; Caeg vs. Abad Santos, L-40044, March 10, 1975, 63 SCRA 96;
Pañgan vs. Pasicolan, 103 Phil. 1143 unpublished.)