THE PEOPLE OF THE PHILIPPINES, PETITIONER, VS. HONORABLE FRANCIS MILITANTE, COURT OF FIRST INSTANCE OF CEBU, BRANCH XII AND ROSITA ABULE, RESPONDENTS.

The issue for resolution
is the correctness of the Order of dismissal by respondent Judge of Criminal
Case No. CU-5791 for Violation of Batas Pambansa Blg. 22, or the Bouncing Checks Law, on the ground of
double jeopardy, because of the pendency of an Estafa case against the same accused that arose out of the
same facts.

On September
23, 1980, an
Information for Violation of BP Blg. 22 was filed
against private respondent before the Court of First Instance of Cebu, Branch XII. 
The text of that Information follows:

“That on the 3rd day of July, 1979, in the Barangay
of San Isidro, Municipality of Talisay, Province of Cebu, Philippines, and within the jurisdiction of this
Honorable Court, the above-named accused, with intent to gain, did then and
there, wilfully, unlawfully and feloniously draw and
issue Check No. D179347 postdated July 10, 1979 against the Bank of the
Philippine Islands San Nicolas Branch, San Nicolas, Cebu
City, a banking institution doing business in the City of Cebu,
Philippines, to apply on account in the amount of TWENTY NINE THOUSAND EIGHT HUNDRED AND THIRTY TWO PESOS (P29,832.00) Philippine Currency, in
favor of Lourdes B. Bacus, knowing that at the time
she drew and issued Check No. D179347 her account with the drawee
bank had already been closed, as a result of which, upon its presentment on
July 10, 1979 to the bank for payment, it was dishonored and rejected, to the
damage and prejudice of Lourdes B. Bacus in the
amount aforestated.”^[1]

Before arraignment, the
accused filed a Motion to Quash on the ground of double jeopardy because of a
previous criminal case of Estafa that had been filed
against her on April 21, 1980 before Branch VII of the same Court arising
out of the same acts and omission.  The
Information in the Estafa case reads:

“That on or about the 3rd day of July 1979, in Barangay San Isidro, Municipality of Talisay,
Province of Cebu, x x x the said accused, did then and there x x x with intent to gain, by means
of false pretenses or fraudulent acts executed prior to or simultaneously with
the commission of fraud, to wit, said accused knowing that she has no
sufficient funds deposited with Bank of the Philippine Islands, San Nicolas
Branch, Cebu, or that her account was already closed
and without informing complainant Lourdes Bacus of
that circumstance, with intent to defraud the latter, issued Bank of Philippine
Islands check No. 179347 dated July 10, 1979 in the amount of P29,832.00 which
check was issued simultaneous with the asportation of property, but which check when presented for
encashment with the Bank, the same was dishonored for the reason that the
account of the accused herein with the Bank was already closed x x x to the damage and prejudice
of said Mrs. Lourdes Bacus in the amount of
P29,832.00, Philippine currency.”^[2]

The prosecution opposed
the quashal of the second Information contending that
there is no double jeopardy as both cases are still pending, and that the
accused is charged with two different offenses punishable by different
penalties under different statutes.

On April
21, 1981, respondent
Court dismissed the second case ruling that to prosecute the accused for
Violation of BP Blg. 22 would constitute a violation
of her constitutional right not to be put in jeopardy of punishment for the
same offense.  Reconsideration of that
ruling was denied by respondent Judge on May 5, 1981.

The Provincial Fiscal of Cebu filed with this Court this special civil action for Certiorari
seeking to set aside the Order of dismissal as well as the Order affirming it.  The Solicitor General and private respondent
were required to submit their respective Comments.  Only the Solicitor General did, notwithstanding
several extensions given to private respondent.

We resolved to give due
course.

Under Section 9, Rule
117, of the Rules of Court, the following requisites must obtain in order that
the protection against double jeopardy may inure in favor of an accused person,
to wit:  (1) A valid Complaint or
Information or other formal charge sufficient in form and substance to sustain
a conviction; (2) a competent Court; (3) the defendant had pleaded to the
charge; (4) the defendant had been convicted, or acquitted, or the case against
him dismissed or otherwise terminated without his express consent; (5) the
second offense charged is the same as the first, or is an attempt to commit
the same or a frustration thereof, or that the second offense necessarily
includes or is necessarily included in the offense or information.^[3]

It appearing that the
accused had not even pleaded to the charge of Violation of BP Blg. 22, and that the Estafa case
has not been terminated either by a judgment of conviction or acquittal or by a
dismissal without the express consent of the accused, the pro­secution having
merely rested its case, the plea of double jeopardy is unavailing.

WHEREFORE, the Petition is hereby granted.  The questioned
Orders of April 21, 1981 and May 5, 1981 are set aside, and respondent Judge is
ordered to proceed with the trial of Criminal Case No. CU-5791 until its
termination, and to render judgment accordingly.

SO ORDERED.

Plana, Vasquez, Relova,
and Gutierrez, Jr., JJ., concur.

Teehankee, J., (Chairman), on official leave.

^[1]
pp. 122-123, Rollo.

^[2]
pp. 123-124, ibid.

^[3]
People vs. Pilpa, 79 SCRA 81 (1977).