RICHARD C. HOEY, PETITIONER, VS. THE PROVINCIAL FISCAL OF RIZAL, AND THE MINISTER OF JUSTICE, RESPONDENTS.

In October 1980 and November 1980, petitioner Richard C. Hoey filed
complaints with the Office of the Provincial Fiscal of Rizal against
Raul Leveriza, Jr., and Henry Unson, Jr., officers of Manotoc
Securities, for violation of Batas Pambansa Blg. 22, otherwise known as
the Bouncing Check Law. After preliminary investigation, the
investigation fiscal found probable cause and filed the informations in
the then Court of First Instance of Rizal, in Pasig, docketed as
Criminal Cases Nos. 44548 and 44549.

Accused Raul Leveriza, Jr. filed a Motion for Reconsideration in both
cases with the Office of the Provincial Fiscal which, after a
reinvestigation of the two (2) cases was made, corresponding Motions to
Dismiss, dated June 7, 1982, were presented in court for the reason that
–

“x x x             x x x                 x x x

“4. After analysing all the allegations of the accused in the
Motion for Reconsideration and the oppositions filed thereto by the
offended party, the undersigned finds that the subject matter in this
case is a guarantee check and as such is not covered by Batas Pambansa
Bilang 22, hence the Information filed in this case does not charge an
offense and should therefore be dismissed, a copy of the Resolution of
the undersigned dated May 31, 1982 duly approved by Provincial Fiscal B.
Jose Castillo recommending for the dismissal of this case is hereto
attached as Annex ‘A’ and made an integral part hereof;

“5. Although it was only accused Raul Leveriza, Jr. who filed the
instant Motion for Reconsideration since the Information filed in this
case does not charge an offense the Information should be dismissed not
only against Raul Leveriza, Jr but also against his co-accused Enrique
Unson, Jr.” (p. 24, Rollo)

Petitioner Richard C. Hoey, complainant in the two (2) Criminal Cases
Nos. 44548 and 44549, opposed the Motion to Dismiss, stating among
others that –

“Raul Leveriza, Jr. and Henry Unson, Jr. were officers of Manotoc
Securities Inc. That Raul Leveriza, Jr. had diverted and converted the
public funds entrusted to the corporation by the public as Manotoc
Securities was engaged in the business of soliciting money from the
public to finance client accounts in their stock-market operations who
wanted to buy or margin viable securities. That through his position as
Executive Vice-President, he was able to divert those funds to the
amount of P10,422,573.00 to finance his own, his family’s and
friends/projects and or corporations to the prejudice and damage of the
public investors such as RICHARD C. HOEY the complainant herein.

“That as part of his scheme he and accused Henry Unson caused to
issue and signed two (2) checks to the order of the complainant herein
which bounced due to a ‘closed account.’

“That IBAA Check No. HO-01293423 dated 6 November 1979 for the
amount of P59,508.00 bounced due to a closed account as well as IBAA
Check No. HO-01293422 dated November 14, 1979 for the amount of
P82,634.20.

“The signatories were Raul Leveriza, Jr. and Henry Unson, Jr. for both checks filed as Criminal Cases Nos. 44548 and 44549.

“Though the accused Raul Leveriza, Jr. suddenly moved out of his
known residence at Marbella I Condominium, Roxas Blvd, without leaving a
forward­ing address in order not to be found, his lawyers were
furnished copies as to the Rejoinder-Affidavits of the complainant
during the preliminary investigation. The accused Raul Leveriza, Jr
chose to remain unrepresented in that proceeding.

“Upon termination of the preliminary investigation and after the filing
of the information, in order to delay proceedings, his lawyers suddenly
appeared and filed a Motion for Reconsideration which was granted.

“That there were two issues raised in the re-investigation namely:

1. Whether or not a crossed check is a check;

2. Whether or not a check issued for guarantee is punishable under Batas Pambansa Bilang 22.” (pp. 30-30-A, Rollo)

Before the lower court could act on the Motion to Dismiss, Mr. Richard C. Hoey filed this petition with prayer that a writ of mandamus with
prohibition be issued ordering the Honorable Provincial Fiscal of Rizal
to prosecute the two cases for violation of the Bouncing Check Law and
to desist from pursuing, or “to withdraw the two Motions to Dismiss
thereby preventing the dismissal of the cases and causing the
continuation of the trial on the merits.” (p. 5, Rollo)

Section 4, Rule 110 of the Revised Rules of Court, specifically provides
that “all criminal actions either commenced by complaint or by
information shall be prosecuted under the direction and control of the
fiscal.” Thus, it is clear that the question of instituting a criminal
charge in court is one addressed to the sound discretion of the
investigating fiscal; and, the assumption is, the information he lodges
in court is supported by facts brought about by an inquiry made by him.
On the other hand, this Court has ruled in Alberto vs. de la Cruz, 98
SCRA 406, that “a fiscal by the nature of his office, is under no
compulsion to file a particular criminal information where he is not
convinced that he has evidence to support the allegations thereof.
Although this power and prerogative of the Fiscal, to determine whether
or not the evidence at hand is sufficient to form a reasonable belief
that a person committed an offense, is not absolute and subject to
judicial review, it would be embarrassing for the prosecuting attorney
to be compelled to prosecute a case when he is in no position to do so,
because in his opinion, he does not have the necessary evidence to
secure a conviction, or he is not convinced of the merits of the case.
The better procedure would be to appeal the Fiscal’s decision to the
Ministry of Justice and/or ask for a special prosecutor.”

However, in cases where informations have already been filed in court,
the latter acquires jurisdiction over them. Otherwise stated, the
jurisdiction of the court became vested upon the filing of the
information and, once acquired, its jurisdiction continues until the
termination of the case.

In the two (2) criminal cases in question, it is a fact that the
informations have already been filed in court. It should therefore
dispose of them, one way or the other, resolving all motions brought
before it including the Motions to Dismiss, dated June 7, 1982, filed by
the Fiscal, or deciding the cases on the merit. The prosecuting fiscal
has no more control over said cases, the same having been transferred to
the court. We have a situation where, akin to the pronouncement made by
the present Chief Justice in Lansang vs. Garcia, 42 SCRA 452, whenever a
formal complaint is presented in court against an individual, the court
steps in and takes control thereof until the same is finally disposed
of.

WHEREFORE, the petition is DENIED for lack of merit.

SO ORDERED.

Fernando, C.J., Makasiar, Concepcion, Jr., Guerrero, Melencio-Herrera, Plana, Gutierrez, Jr., De la Fuente, and Cuevas, JJ., concur.

Teehankee, J., files a separate concurrence.

Abad Santos, J., in the result.

Escolin, J., reserves his vote.

Aquino, J., no part.

---

CONCURRING OPINION

TEEHANKEE, J.:

I concur. Mandamus on the part of the offended party-petitioner
that respondent Provincial Fiscal be ordered to prosecute the two
pending criminal cases for violation of the Bouncing Check Law and to
desist from pursuing the pending motions to dismiss filed by him with
the trial court will not lie. The Court’s decision correctly states (at
page 5) that the informations have already been filed in court which has
now acquired jurisdiction over the two criminal cases which shall
continue until the termination of the cases and that, therefore, it is
the said court which “should therefore dispose of them, one way or the
other, resolving all motions brought before it including the Motions to
Dismiss dated June 7, 1982 filed by the Fiscal, or deciding the cases on
the merits. The prosecuting fiscal has no more control over said cases,
the same having been transferred to the court.”

This is but in line with the leading case of Assistant Provincial Fiscal of Bataan vs. Dollete
(103 Phil. 914), wherein this Court upheld the action of the therein
respondent judge in denying the peti­tioner fiscal’s motion for
dismissal of the criminal case as “wholly within his right and
discretion,” but set aside the second part of respondent judge’s order
directing petitioner fiscal to file the corresponding information and
instead “suggested that the respondent judge either order the offended
parties to submit to an investigation to be conducted by petitioner, so
that the latter may gather the necessary evidence to support the
prosecution, or to convince himself of the merits of the case, from the
point of view of the Government, or else, considering the attitude of
the petitioner, and to avoid embarrassment, to have either the trial
court or the offended parties make manifestations to the Depart­ment of
Justice for the designation of an Acting Provincial Fiscal.”

The present petition which would bypass the trial court is, therefore,
properly dismissed for prematurity. The pending motions to dismiss the
two criminal cases have been properly addressed by respondent fiscal to
the trial court which should now properly resolve them. The questions
presented are based on documentary evidence and it is up to the trial
court to determine the merits thereof on the basis of the documented
facts and the applicable law and to grant or deny the motions to dismiss
accordingly.