EDUARDO P. PILAPIL, PETITIONER, VS. SANDIGANBAYAN, FRANCIS E. GARCHITORENA AND PEOPLE OF THE PHILIPPINES, RESPONDENTS.

In this petition for certiorari and mandamus, petitioner
seeks to annul the resolutions of respondent Sandiganbayan in Criminal Case No.
16672, entitled “People of the Philippines vs. Eduardo P. Pilapil”
dated June 27, 1991 denying his motion to quash the information for Violation
of Section 3(e) of Republic Act No. 3019, as amended, as well as the resolution
dated September 5, 1991 denying his motion for reconsideration. Petitioner predicated his motion to quash on
the ground of lack of jurisdiction over his person because the same was filed
without probable cause. In addition
thereto, petitioner cites the fact that the information for violation of the
Anti-Graft Law was filed although the complaint upon which the preliminary
investigation was conducted is for malversation.

The antecedent facts of the case are as follows:

On October 16, 1987, the Philippine Charity Sweepstakes Office
(PCSO) donated one ambulance (a Mitsubishi L-300) to the Municipality of
Tigaon, Camarines Sur. Petitioner, who
is the Congressman of the 3rd District of Camarines Sur, received the ambulance
in behalf of the municipality. However,
he did not deliver the ambulance to said municipality.

Unaware of the donation, the Sangguniang Bayan of the
municipality passed a resolution (Resolution No. 16, Series of 1988) requesting
PCSO for an ambulance. Said request was
reiterated in their Resolution No. 117, Series of 1988. The mayor of the municipality, Eleanor P.
Lelis, thereafter sought the intercession of Sandiganbayan Presiding Justice
Francis Garchitorena, who is from the said municipality, regarding said
request. Thereafter, Justice
Garchitorena contacted the PCSO and learned about the ambulance previously
donated by the latter to Tigaon through petitioner. He accordingly informed Mayor Lelis that the municipality’s
request cannot be favorably acted upon in view of the previous donation.

Mayor Lelis reiterated the municipality’s request for an
ambulance making reference to the certification of the municipal treasurer that
no vehicle from the PCSO or from anyone has been received.

Upon verification of the whereabouts of the Mitsubishi L-300 by
the PCSO from the petitioner, the latter indicated his willingness to return
the ambulance. In a letter dated
December 22, 1988, he requested that said vehicle be donated instead to the Municipality
of Tinambac, same province. Finally, on
December 26, 1988, he personally returned the ambulance, then already painted
to cover the logo of the PCSO and the other markings thereon.

With the return of the Mitsubishi L-300 to the PCSO, the Municipality
of Tigaon, through Mayor Lelis, finally received a brand new Besta Kia
Ambulance unit complete with all accessories.

On January 2, 1989, Justice Garchitorena wrote the then Chief
Justice Marcelo B. Fernan relating to him the whole story of the ambulance.

On January 25, 1989, Justice Garchitorena also sent Deputy
Ombudsman Jose C. Colayco a letter?complaint against petitioner regarding
said ambulance. Said letter-complaint
was referred by Ombudsman Conrado M. Vasquez to the Deputy Ombudsman for Luzon,
Manuel C. Domingo, for appropriate action. Thereupon, Deputy Ombudsman Domingo required Justice Garchitorena to
submit all relevant records and documents, as well as his affidavit and those
of his witnesses. Failing in this
regard, Justice Garchitorena was requested anew to comply. In his stead, Anthony D. Jamora, the
Regional manager of the Special Projects Department of the PCSO and Mayor Lelis
of Tigaon, Camarines Sur, submitted their respective affidavits.

On October 3, 1990, Deputy Ombudsman Domingo issued an order
requiring petitioner to submit his counter-affidavit, affidavits of his
witnesses and other controverting evidence. This order was captioned as Case No. OMB-1-89-0168 for
“Malversation of Public Property under Article 217 of the Revised Penal
Code.”

On October 22, 1990, petitioner submitted his counter-affidavit
denying the imputation of said offense claiming that the vehicle was not
equipped with any medical attachments or facilities so he was constrained to
request PAGCOR for assistance to finance its conversion into a medical
ambulance which is evidenced by his letter dated November 15, 1987 to Mrs.
Alice Reyes. He claimed that it was
only on April 28, 1988 that PAGCOR acted on his request, but in lieu of
financial assistance, said office donated accessories, which can be installed
at an estimated cost of P5,000.00. Thus, he allegedly made personal representations with PAGCOR for the
latter to shoulder the expenses of the installation. While awaiting for the financial assistance, petitioner claimed,
in explanation why the logo of PCSO and the other markings on the vehicle were
removed, that he acceded to the suggestion of his staff to include the name of
PAGCOR on the sides of the ambulance in view of the substantial contribution of
the latter.

On December 5, 1990, Ombudsman Investigator Isaac D. Tolentino
issued a resolution finding no probable cause for malversation and recommended
that the case be dismissed, which recommendation was approved by Deputy
Ombudsman Domingo.

On January 5, 1991, Assistant Ombudsman Abelardo Aportadera, Jr.
recommended the disapproval of the aforesaid resolution and instead, suggested
the filing of criminal information for violation of Article 217 of the Revised
Penal Code. This was followed by
another resolution to the same effect by Special Prosecution Officer Wilfredo
Orencia dated February 14, 1991.

On April 1, 1991, Ombudsman Conrado Vasquez issued a resolution
sustaining the finding of Ombudsman Investigator Tolentino that there is no
malversation but found in the same resolution, a prima facie case
for violation of Section 3(e) of Republic Act No. 3019, the dispositive part of
which states:

“WHEREFORE, it is hereby directed that the information to be
filed against the respondent should be for a violation of Section 3(e) of R.A.
3019.”^[1]

On April 3, 1991, an information for violation of Section 3(e) of
Republic Act No. 3019, docketed as a Criminal Case No. 16672, against
petitioner was filed, to wit:

“The undersigned Special Prosecution Officer III accuses
EDUARDO P. PILAPIL of the crime for Violation of Section 3(e) of Republic Act
No. 3019, as amended, otherwise known as the Anti-Graft and Corrupt Practices
Act, committed as follows:

‘That on or about October 16, 1987 and subsequent thereto, in the
Municipality of Tigaon, Province of Camarines Sur and within the jurisdiction
of this Honorable Court, the accused is a public officer, he being the
Congressman of the Third Congressional District of Camarines Sur, while in the
discharge of his official functions and taking advantage of his public
position, acted with manifest partiality and evident bad faith, did then and
there willfully cause undue injury to the Municipality of Tigaon, Camarines
Sur, when he failed to deliver the ambulance, Mitsubishi Van L-300, received by
him on behalf of the said municipality in a Deed of Donation executed by the
Philippine Charity Sweepstakes Office in its
favor, to the prejudice and damage of the said municipal government.

CONTRARY TO LAW.”^[2]

On April 12, 1991, a warrant of arrest was issued against
petitioner. On April 18, 1991, he was
allowed to deposit the sum of P15,000.00 in court to be considered as bail bond
and the warrant of arrest was recalled.

On May 2, 1991, petitioner filed a motion to quash on the ground
that respondent Sandiganbayan has no jurisdiction over his person because the
information was filed without probable cause since there is absolutely no proof
adduced in the preliminary investigation of any of the elements of the crime
defined in Section 3(e) of Republic Act No. 3019. On June 27, 1991, respondent court denied the said motion to
quash holding that the factual and legal issues and/or questions raised are
evidentiary in nature and are matters of defense, the validity of which can be
best passed upon after a full-blown trial on the merits. On September 5, 1991, respondent court
denied petitioner’s motion for reconsideration
of the said resolution and set the arraignment of petitioner on
October 21, 1991 at 8:30 a.m.

On October 12, 1991, petitioner filed the present petition and by
reason of such filing, respondent court ordered that the arraignment be held in
abeyance.

Petitioner enumerates the following as his reasons for filing the
petition:

“I.       THAT RESPONDENT
COURT IS ACTING WITHOUT OR IN EXCESS OF JURISDICTION OR WITH GRAVE ABUSE OF
DISCRETION IN DENYING THE MOTION TO QUASH.

II.       THAT RESPONDENT
COURT IS NEGLECTING A LEGAL DUTY IN NOT QUASHING THE INFORMATION OR DISMISSING
THE CASE.

III.      THAT PETITIONER HAS
NO PLAIN, SPEEDY AND ADEQUATE REMEDY IN THE ORDINARY COURSE OF LAW EXCEPT THE
PRESENT PETITION.”^[3]

Stated otherwise, the issue in this case is whether or not the
Sandiganbayan committed grave abuse of discretion in denying petitioner’s
motion to quash and motion for reconsideration.

Petitioner harps on the lack of preliminary investigation on the
specific charge of violation of Sec. 3(e), Republic Act No. 3019, as amended,
filed before the Sandiganbayan. He
alleges that the preliminary investigation was conducted for the charge of
malversation.

At the outset, this Court bears mention of the rudimentary rule
that the absence of a preliminary investigation is not a ground to quash a
complaint or information under Section 3, Rule 117 of the Rules of Court. The proper procedure in case of lack of
preliminary investigation is to hold in abeyance the proceedings upon such
information and the case remanded to the Office of the Provincial Fiscal or the
Ombudsman, for that matter, for him or the Special Prosecutor to conduct a
preliminary investigation.^[4] Thus, We enunciated in Sanciangco, Jr.
vs. People,^[5]
and reiterated in Doromal vs. Sandiganbayan,^[6]
that:

“The  absence of
preliminary investigation does not affect the court’s jurisdiction over the
case. Nor do they impair the validity
of the information or otherwise render it defective, but, if there were no
preliminary investigations and the defendants, before entering their plea,
invite the attention of the court to their absence, the court, instead of dismissing the Information, should conduct
such investigation, order the fiscal to conduct it or remand the case to the
inferior court so that the preliminary investigation may be conducted x x
x.”

Petitioner takes exception to the doctrine and urges this Court
to take a second look arguing that lack of preliminary investigation affects
the court’s jurisdiction because it is violative of due process. He reasons
out that jurisprudence abounds with the rule that denial of due process is
grave jurisdictional defeat rendering the judgment void.

We are not persuaded. The
lack of jurisdiction contemplated in Section 3(b), Rule 117 of the Revised
Rules of Court refers to the lack of any law conferring upon the court the
power to inquire into the facts, to apply the law and to declare the punishment
for an offense in a regular course of judicial proceeding. When the court has jurisdiction, as in this
case, any irregularity in the exercise of that power is not a ground for a
motion to quash. Reason is not wanting
for this view. Lack of jurisdiction is
not waivable but absence of preliminary investigation is waivable. In fact, it is frequently waived.

We now come to the question of whether there was no preliminary
investigation conducted in this case necessitating the suspension of the
proceedings in the case until after the outcome of such preliminary
investigation.

The facts on record show that in an order dated October 3, 1990,
Deputy Ombudsman Domingo required petitioner to answer the charges against him
as stated in the affidavits-complaints and supporting documents thereto. Petitioner fully complied with said order
and filed his and his witnesses’ affidavits. In other words, petitioner was properly apprised of the act complained
of and given ample opportunity to rebut the same. Thus,          petitioner
could not validly raise violation of his right to due process because the bases
for the information filed by the Ombudsman were all reflected in the complaint
and the evidence supporting it. In Cinco
vs. Sandiganbayan,^[7]
this Court held that preliminary investigation is nothing more than submission
of the parties’ respective affidavits,
counter-affidavits and evidence to buttress their separate allegations.

Petitioner attaches significance to the fact that the preliminary
investigation conducted by the Ombudsman against him was under the title of
“malversation.” According to him, this is not sufficient to justify
the filing of the charge of violation of Anti-Graft and Corrupt Practices Law.

Petitioner loses sight of the fact that preliminary investigation
is merely inquisitorial, and it is often the only means of discovering whether
a person may be reasonably charged with a crime, to enable the prosecutor to
prepare his complaint or information. The preliminary designation of the offense in the directive to file a
counter-affidavit and affidavits of one’s witnesses is not conclusive. Such designation is only a conclusion of law
of Deputy Ombudsman Domingo. The
Ombudsman is not bound by the said qualification of the crime. Rather, he is guided by the evidence
presented in the course of a preliminary investigation and on the basis of
which, he may formulate and designate the offense and direct the filing of the
corresponding information. In fact,
even the designation of the offense by the prosecutor in the information itself
has been held inconclusive, to wit:

“x x x the real nature of the criminal charge is determined
not from the caption or preamble of the information nor from the specification
of the provision of law alleged to have been violated, they being conclusions
of law, but by the actual recital of facts in the complaint or
information. x x x it is not the
technical name given by the Fiscal appearing in the title of the information that
determines the character of the crime but the facts alleged in the body of the
Information.”^[8]

Petitioner cites the case of Luciano vs. Mariano,^[9]
in support of its view that a new preliminary investigation is needed. In said case, however, the original charge
for falsification was dismissed for being without any factual or legal basis
and the category of the offense was raised as the alleged violation of the
Anti-Graft Law was a graver charge. In
the case at bar, there is no dismissal to speak of because under the rules of
procedure of the office of the Ombudsman, a complaint may be dismissed only
upon the written authority or approval of the Ombudsman. Besides, even the petitioner admits that the
violation of the Anti-Graft law did not raise the category of the offense of
malversation.

The case of Doromal vs. Sandiganbayan,^[10]
also cited by petitioner as another authority, is likewise inapplicable as in
said case, the information was annulled as the then incumbent Tanodbayan was
without authority to conduct preliminary investigations and to direct the
filing of criminal cases with the Sandiganbayan, except upon orders of the
Ombudsman. With the annulment of the
information, this Court held that a new preliminary investigation of the charge
was in order not only because the first was a nullity but also because the
accused demands it as his right. In the
case at bar, there is no old or new information. Only one information was filed as a result
of the preliminary investigation conducted by the office of the Ombudsman.

Even on the assumption that no preliminary investigation was
conducted for the information filed, petitioner waived his right thereto for
failure to ask the Sandiganbayan or the Ombudsman for a new preliminary
investigation. On this score again,
petitioner’s case is different from the Luciano and Doromal cases where the
attention of the lower court was called to the lack of a new preliminary
investigation. Petitioner bewailed the
absence of a new preliminary investigation only before this Court. It is noteworthy that his only basis for
quashing the information is the alleged lack of jurisdiction of the court over
his person because there is no probable cause for the filing of the
information.

It is well-settled that the right to a preliminary investigation
is not a fundamental right and may be waived expressly or by silence.^[11]
Failure of accused to invoke his right to a preliminary investigation
constituted a waiver of such right and any irregularity that attended it.^[12]
The right may be forfeited by inaction and can no longer be invoked for the
first time at the appellate level.^[13]

Petitioner’s argument that he could not have asked for a new
preliminary investigation in the Office of the Ombudsman since he came to know
about the charge only after the information was filed in the Sandiganbayan, is
not tenable. Under the last paragraph
of Section 7, Rule 112 of 1985 Rules on Criminal Procedure, the right to ask
for preliminary investigation is recognized even after the case has already
been filed, to wit:

“If the case has been filed in court without a preliminary
Investigation having been first conducted, the accused may within five (5) days
from the time he learns of the filing of the information, ask for a preliminary
investigation with the same right to adduce evidence to his favor in the manner
prescribed in this Rule.”

Clearly, the alleged lack of a valid preliminary investigation
came only as an afterthought to gain a reversal of the denial of the motion to
quash. Sad
to say, this last ditch effort came a bit late. His failure to invoke this right below constituted a
waiver of such right.

As aforesaid, what was submitted for consideration below was the
motion to quash of petitioner on the ground of want of jurisdiction by the
trial court over his person because of the filing of an information without
probable cause. There being no probable
cause, according to petitioner, then
there could be no basis to issue a warrant of arrest and hence, the respondent
court had no jurisdiction over his person.

Contesting the findings of respondent court that probable cause
exists in this case, petitioner insists that there is no competent proof that
all the elements of Section 3(e) of the Anti-Graft law are present,
namely: that an act was done (1)
causing undue injury to the government, (2) with manifest partiality or evident
bad faith, and (3) by a public officer in the discharge of his official duties.

Petitioner argues that the injury contemplated under the law is
real or actual damage and since there is absolutely no proof of real or actual
damages suffered by the municipality, the finding of undue injury by the
Ombudsman has no factual basis. Concomitantly, he says that since there is no undue injury, then, there
can be no bad faith, as bad faith is inseparable from undue injury for undue
injury must be through bad faith. He
claims that failure to inform the mayor of the donation, that he returned the
vehicle after one year; that he kept the vehicle in storage; and that he caused
the repainting to erase the words PCSO are not evidence of bad faith since they
cannot manifest a deliberate intent to do wrong or cause damage.

Finally, petitioner claims that the element of “public office in
the discharge of official duties” is also absent as his acceptance of the
vehicle in question from PCSO and its non-delivery to the municipality of
Tigaon was not done in the discharge of his duty as a congressman tasked with
enacting laws. If at all, he admits,
the act was done in his private capacity as political leader in his district.

We agree with respondent court that the presence or absence of
the elements of the crime are evidentiary in nature and are matters of defense,
the truth of which can best be passed upon after a full-blown trial on the
merits.

Probable cause has been defined in the leading case of Buchanan
vs. Vda. de Esteban^[14]
as the existence of such facts and circumstances as would excite the belief, in
a reasonable mind, acting on the facts within the knowledge of the prosecutor,
that the person charged was guilty of the crime for which he was prosecuted.

Probable cause is a reasonable ground of presumption that a
matter is, or may be, well founded, such a state of facts in the mind of the
prosecutor as would lead a person of ordinary caution and prudence to believe,
or entertain an honest or strong suspicion, that a thing is so.^[15]
The term does not mean “actual and positive cause” nor does it import
absolute certainty. It is merely based
on opinion and reasonable belief. Thus,
a finding of probable cause does not require an inquiry into whether there is
sufficient evidence to procure a conviction. It is enough that it is believed that the act or omission complained of
constitutes the offense charged. Precisely, there is a trial for the reception of evidence of the prosecution
in support of the charge.

Whether an act was done causing undue injury to the government
and whether the same was done with manifest partiality or evident bad faith can
only be made out by proper and sufficient testimony. Necessarily, a conclusion can be arrived at when the case has
already proceeded on sufficient proof.

At the moment, in passing on a motion to set aside an information
on the ground that the accused has been charged without probable cause, the
court should not be guided by the rule that accused must be shown to be guilty
beyond a reasonable doubt, but rather whether there is sufficient evidence
which inclines the mind to believe, without necessarily leaving room for doubt,
that accused is guilty thereof.

Having thus found that respondent court has not acted in excess
of jurisdiction nor with grave abuse of discretion in finding the existence of
probable cause in the case at bar and consequently, in denying the motion to
quash and motion for reconsideration, of petitioner, We dismiss as clearly
unfounded the insinuations of petitioner that Presiding Justice Francis
Garchitorena used the influence of his office in initiating the complaint
against him. We agree with respondent
court that the act of bringing to the attention of appropriate officials
possible transgression of the law is as much an obligation of the highest
official of the land as it is the responsibility of any private citizen.

WHEREFORE, the instant petition for certiorari and mandamus
is hereby DISMISSED for lack of merit.

SO ORDERED.

Narvasa, C.J., Cruz, Feliciano, Padilla, Bidin, Griño-Aquino,
Regalado, Davide, Jr., Romero, Bellosillo, Melo, Campos, Jr., and Quiason, JJ., concur.

^[1]
Rollo, p. 82.

^[2]
Ibid, p. 83.

^[3]
Ibid, p. 6.

^[4]
People vs. Casiano, G.R. No. L-15309, 1 SCRA 478 (1961); Luciano vs.
Mariano, G.R. No. L-32950, July 30, 1971, 40 SCRA 187 (1971); Ilagan vs.
Enrile, G.R. No. 70748, 139 SCRA 349 (1985); Paredes vs. Sandiganbayan,
G.R. No. 89989, 193 SCRA 464 (1991); Paderanga vs. Drilon, G.R. No.
96080, 196 SCRA 86 (1991); and People vs. Umbrero, G.R. No. 93021, May
20, 1991.

^[5]
G.R. No. 72830, 149 SCRA 1 (1987).

^[6]
G.R. No. 85468, 177 SCRA 354 (1989).

^[7]
G.R. Nos. 92362-67, 202 SCRA 727 (1991).

^[8]
People vs. Mendoza, G.R. No. 67610, 175 SCRA 743 (1989).

^[9]
G.R. No. L-32950, 40 SCRA 187 (1971).

^[10]
G.R. No. 85468, 177 SCRA 354 (1989).

^[11]
People vs. Mabuyo, 63 Phil. 532 (1936).

^[12]
People vs. Umbrero, supra.

^[13]
People vs. Lazo, G.R. No. 75367, 198 SCRA 274 (1991); People vs.
Maghanoy, G.R. No. 67170, 180 SCRA 111 (1989).

^[14]
32 Phil. 365.

^[15]
Words and Phrases, Probable Cause, v. 34, p. 12.