FIRST DIVISION

[G.R. No. 131280. October 18, 2000]

PEPE CATACUTAN and AURELIANA CATACUTAN, petitioners, vs. HEIRS OF NORMAN KADUSALE, HEIRS OF LITO AMANCIO and GIL B. IZON, respondents. DECISION YNARES-SANTIAGO, J.: The issue raised in this petition for review on certiorari is whether or not a subsidiary writ of execution may issue against the employers of an accused, against whom a judgment of conviction had been entered, even when said employers never took part in the criminal proceedings where the accused was charged, tried and convicted. Assailed in the instant petition is the August 12, 1997 Decision [1] of the Court of Appeals in CA-G.R. SP No. 43617, directing the issuance of a subsidiary writ of execution against petitioners, as well as its October 9, 1997 Resolution, [2] denying petitioners' Motion for Reconsideration. The antecedent facts relevant to the issue before us may be summarized, as follows Petitioner Aureliana Catacutan is the registered owner and operator of a jeepney, driven by the accused Porferio Vendiola, which bumped a tricycle on April 11, 1991, in Banilad, Bacong, Negros Oriental, thereby causing the death of its driver, Norman Kadusale, and its passenger, Lito Amancio, and serious physical injuries to another passenger, respondent Gil B. Izon. Respondents thus filed a criminal case against Porferio Vendiola, for Reckless Imprudence Resulting in Double Homicide with Physical Injuries and Damages to Property on July 26, 1991, before the Regional Trial Court of Negros Oriental. On December 1, 1995, the trial court rendered judgment, [3] the dispositive portion of which reads as follows: Wherefore, foregoing considered, this court is convinced beyond doubt that accused is guilty of negligence and imprudence under Article 365 of the Revised Penal Code in the collision which occurred in Banilad, Bacong, Negros Oriental on April 11, 1991 which claimed the lives of Norman Kadusale, the driver of the motortricycle, and Lito Amancio, a passenger of the motortricycle, and caused injury to Gil B. Izon. He is therefore sentenced to suffer the penalty of prision correccional medium and maximum periods. Applying the Indeterminate Sentence Law, the accused is sentenced to one year eight months and one day of prision correccional as minimum to two years, four months and one day

of prision correccional as maximum for each death to be served successively, and for the physical injuries suffered by Gil B. Izon, accused is ordered to suffer the penalty of thirty days of arresto mayor straight. He is likewise ordered to indemnify the heirs of Norman Kadusale and Lito Amancio in the amount of Fifty Thousand Pesos each victim; and to pay actual damages to: 1. Norman Kadusale or his heirs the amount of P170,543.24; 2. Lito Amancio or his heirs the amount of P38,394.35; and 3. Gil B. Izon, the amount of P23,454.00. SO ORDERED.[4] Accused Vendiola did not appeal the judgment of conviction. Instead, he applied for probation. Meanwhile, when the judgment became final and executory, respondents moved for the issuance of a writ of execution and the corresponding writ was issued by the trial court on April 24, 1996. However, per the Sheriff's Return of Service,[5] dated July 3, 1996, the writ was unsatisfied as the accused had "nothing to pay off the damages in the decision." On August 28, 1996, respondents filed a Motion for Subsidiary Writ of Execution [6] before the trial court, praying that such writ be issued against petitioner Aureliana Catacutan as registered owner and operator of the jeepney driven by the accused when the collision occurred. Petitioner Aureliana Catacutan filed her Opposition [7] thereto, arguing that she was never a party to the case and that to proceed against her would be in violation of the due process clause of the Constitution. Petitioner also argued that the subsidiary liability of the employer is not determined in the criminal case against the employee. On October 3, 1996, the trial court issued an Order[8] denying the said Motion for lack of merit. According to the trial court, it never acquired jurisdiction over petitioner Aureliana Catacutan since she was never impleaded as party to the case, and respondents' remedy was to file a separate case for damages. Respondents' Motion for Reconsideration was also denied on December 3, 1996.[9] Undaunted, respondents went on certiorari to the Court of Appeals. On August 12, 1997, the Court of Appeals rendered the assailed Decision. The issue raised in the instant petition is not new. It has been passed upon in the case of Yusay v. Adil,[10] where this Court held Petitioners contend that they were not informed of Criminal Case No. 11828 nor heard therein, in the matter of their alleged subsidiary liability and that they were thus denied their day in court, and that the court did not acquire jurisdiction over them. We hold otherwise. Petitioners were given ample opportunity to present their side. The respondent judge admitted their "Urgent Ex Parte Motion for Time to File Necessary Pleadings." The respondent judge also issued an order suspending the execution of the writ dated 24 October 1980 and granting petitioners until 5 November 1980 within which to file their comment and/or opposition to the Motion for Issuance of the Writ of Subsidiary Execution. On 4 November 1980, petitioners filed their Motion for Reconsideration of the order of 24 October

1980 and To Set Aside Subsidiary Writ of Execution. This was opposed by private respondent. On 21 November 1980, an order of denial of the Motion dated 4 November 1980 was issued. A second motion for reconsideration was filed by petitioners which was again opposed by private respondent.Petitioners filed their reply thereto. Acting on the pleadings, respondent judge issued a resolution denying petitioners' second motion for reconsideration. As stated in Martinez v. Barredo: "The employer cannot be said to have been deprived of his day in court, because the situation before us is not one wherein the employer is sued for a primary liability under article 1903 of the Civil Code, but one in which enforcement is sought of a subsidiary civil liability incident to and dependent upon his driver's criminal negligence which is a proper issue to be tried and decided only in a criminal action. In other words, the employer becomes ipso facto subsidiarily liable upon his driver's conviction and upon proof of the latter's insolvency, in the same way that acquittal wipes out not only the employee's primary liability but also his employer's subsidiary liability for such criminal negligence(81 Phil. 1, 3, G.R. No. L-49308, May 13, 1948, citing Almeida et al., vs. Abaroa, 8 Phil., 178, affirmed in 218 U.S. 476; 54 Law ed., 1116; Wise & Co. vs. Larion, 45 Phil. 314, 320; Francisco vs. Onrubia, 46 Phil. 327; Province of Ilocos Sur vs. Tolentino, G.R. No. 34186, 56 Phil., 829; Moran, Comments on the Rules of Court, Vol. II, p. 403)." The employer is, in substance and in effect, a party to the criminal case against his employee, considering the subsidiary liability imposed upon him by law. Thus: "It is true that an employer, strictly speaking, is not a party to the criminal case instituted against his employee but in substance and in effect he is considering the subsidiary liability imposed upon him by law. It is his concern, as well as his employee, to see to it that his interest be protected in the criminal case by taking virtual participation in the defense of his employee. He cannot leave him to his own fate because his failure is also his. And if because of his indifference or inaction the employee is convicted and damages are awarded against him, he cannot later be heard to complain, if brought to court for the enforcement of his subsidiary liability, that he was not given his day in court.It was not without purpose that this Court sounded the following stern warning: "It is high time that the employer exercised the greatest care in selecting his employees, taking real and deep interest in their welfare; intervening in any criminal action brought against them by reason or as a result of the performance of their duties, if only in the way of giving them benefit of counsel; and consequently doing away with the practice of leaving them to their fates. If these be done, the American rule requiring notice on the part of the employer shall have been satisfied (Miranda vs. Malate Garage and Taxicab, Inc., 99 Phil. 670, 675, citing Martinez vs. Barredo, supra)." More recently, in the case of Basilio v. Court of Appeals ,[11] the issuance of a subsidiary writ of execution against the employer of the accused therein was once more upheld, notwithstanding the non-participation of such employer in the criminal case against the accused. Instructive as it

is on the issue at hand, we are reproducing hereunder this Court's pronouncement in said case, to wit The statutory basis for an employer's subsidiary liability is found in Article 103 of the Revised Penal Code. This liability is enforceable in the same criminal proceeding where the award is made. (Rules of Court, Rule 111, Sec. 1) However, before execution against an employer ensues, there must be a determination, in a hearing set for the purpose of 1) the existence of an employer-employee relationship; 2) that the employer is engaged in some kind of industry; 3) that the employee is adjudged guilty of the wrongful act and found to have committed the offense in the discharge of his duties (not necessarily any offense he commits "while" in the discharge of such duties); and 4) that said employee is insolvent. (Yonaha vs. CA, 255 SCRA 397, 402 [1996].) In Vda. De Paman vs. Seeris, 115 SCRA 709, 714 (1982), the Court observed that the drawback in the enforcement of the subsidiary liability in the same criminal proceeding is that the alleged employer is not afforded due process. Not being a party to the case, he is not heard as to whether he is indeed the employer. Hence, we held: To remedy the situation and thereby afford due process to the alleged employer, this Court directed the court a quo in Pajarito vs. Seeris (supra) to hear and decide in the same proceeding the subsidiary liability of the alleged owner and operator of the passenger bus. It was explained therein that the proceeding for the enforcement of the subsidiary liability may be considered as part of the proceeding for the execution of the judgment. A case in which an execution has been issued is regarded as still pending so that all proceedings on the execution are proceedings in the suit. (Vda. De Paman vs. Seeris, 115 SCRA 709, 714 [1982].) There are two instances when the existence of an employer-employee relationship of an accused driver and the alleged vehicle owner may be determined. One during the criminal proceeding, and the other, during the proceeding for the execution of the judgment. In both instances, petitioner should be given the opportunity to be heard, which is the essence of due process. (National Federation of Labor vs. National Labor Relations Commissions, 283 SCRA 275, 284 [1997].) Petitioner knew of the criminal case that was filed against accused because it was his truck that was involved in the incident. Further, it was the insurance company, with which his truck was insured, that provided the counsel for the accused, pursuant to the stipulations in their contract. Petitioner did not intervene in the criminal proceedings, despite knowledge, through counsel, that the prosecution adduced evidence to show employer-employee relationship. With the convict's application for probation, the trial court's judgment became final and executory. All told, it is our view that the lower court did not err when it found that petitioner was not denied due process. He had all his chances to intervene in the criminal proceedings, and prove that he was not the employer of the accused, but he chooses not to intervene at the appropriate time. Petitioner was also given the opportunity during the proceedings for the enforcement of judgment. Even assuming that he was not properly notified of the hearing on the motion for execution of subsidiary liability, he was asked by the trial court to make an opposition thereto,

which he did on October 17, 1991, where he properly alleged that there was no employeremployee relationship between him and accused and that the latter was not discharging any function in relation to his work at the time of the incident. In addition, counsel for private respondent filed and duly served on December 3, 1991, and December 9, 1991, respectively, a manifestation praying for the grant of the motion for execution. This was set for hearing on December 13, 1991. However, counsel for petitioner did not appear. Consequently, the court ordered in open court that the matter be submitted for resolution. It was only on January 6, 1992, that the petitioner's counsel filed a counter-manifestation that belatedly attempted to contest the move of the private prosecutor for the execution of the civil liability. Thus, on April 7, 1992, the trial court issued the Order granting the motion for execution of the subsidiary liability. Given the foregoing circumstances, we cannot agree with petitioner that the trial court denied him due process of law. Neither can we fault respondent appellant court for sustaining the judgment and orders of the trial court. In the instant case, we find no reason why the subsidiary writ of execution issued against petitioner Aurelianana Catacutan should be set aside. To begin with, as in Yusay and Basilio, supra, petitioners cannot complain of having been deprived of their day in court. They were duly furnished a copy of respondents' Motion for Subsidiary Writ of Execution to which they filed their Opposition. So, too, we find no good ground to order a separate hearing to determine the subsidiary liability of petitioner Aureliana Catacutan, as was ordered in the case of Pajarito v. Seeris, supra. To do so would entail a waste of both time and resources of the trial court as the requisites for the attachment of the subsidiary liability of the employer have already been established, to wit: First, the existence of an employer-employee relationship.[12] Second, the employer is engaged in some kind of industry, land transportation industry in this case as the jeep driven by accused was admittedly a passenger jeep.[13] Third, the employee has already been adjudged guilty of the wrongful act and found to have committed the offense in the discharge of his duties. [14] Finally, said employee is insolvent.[15] WHEREFORE, based on the foregoing, the petition is DENIED. No pronouncement as to costs. SO ORDERED. Republic of the Philippines SUPREME COURT Manila SECOND DIVISION G.R. No. 126050 January 16, 2001

THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. SPO2 ELEAZAR M. MADALI, SPO2 EUSTAQUIO V. ROGERO, and SPO1 RANDY M. RUBIO, accused-appellants.

MENDOZA, J.: This is an appeal from the decision1 of the Regional Trial Court, Branch 81, Romblon, Romblon finding accused-appellants Eleazar M. Madali, Eustaquio V. Rogero, and Randy M. Rubio, all members of the Philippine National Police, guilty of the murder of Reynaldo M. Abrenica and sentencing each of them to reclusion perpetua. Accused-appellants were also ordered jointly and severally to pay the heirs of the deceased P50,000.00 as death indemnity, P124,800.00 for loss of earning capacity, P150,000.00 as moral damages, P150,000.00 as exemplary damages, P70,000.00 as attorney's fees, P50,000.00 as expenses of litigation, and P60,000.00 as actual damages, and to pay the costs, without subsidiary imprisonment in case of insolvency. In accordance with Art. 29 of the Revised Penal Code, accused-appellants' preventive imprisonment was ordered credited in their favor.1wphi1.nt The following facts are undisputed: On February 4, 1992, at around 11 p.m. , Reynaldo Abrenica and his wife Helen came home at the house of Harry Mindo in Romblon, Romblon where Reynaldo had some drinks. Helen went to bed ahead of her husband in their bedroom on the second floor of their house. When Helen woke up at around 1 a.m., she found that her husband was not beside her. She looked for him in the bathroom but could not find him there either. She turned on the light and went to the stairs and there, on the landing of the stairs, she found her husband lying with his head towards the wall, his left hand placed on his back and his right arm pinned under his body.2 He was wearing a white sleeveless undershirt (sando) with a towel over his bare buttocks. There were feces hanging from his anus. Helen did not find any trace of blood on the body of her husband nor in the place where it lay.3 When she touched her husband she found he was dead. Helen became hysterical and went outside the house for help, crying that her husband had accidentally fallen from the stairs.4 After it was dressed, Reynaldo's body was loaded in a jeep by neighbors Joey Salgado, Romeo Ibal, Eduardo Galang, and Landoy Galang so that it could be taken to the hospital. Segundo Orola, also a neighbor of the Abrenicas, was going to drive the jeep but found that its headlights were not functioning. So his wife Orlene Orola and Leonilo Mangua went to the municipal building to look for another vehicle. They found a tricycle they could use to guide the jeep. Accused-appellant Eleazar M. Madali, who was on duty at that time, drove the tricycle. With the tricycle ahead, the way was lighted for the jeep bearing Reynaldo. However, Reynaldo was declared dead on arrival in the hospital. An autopsy conducted on Reynaldo's cadaver by Dr. Vladimir Villaseor of the Philippine National Police Crime Laboratory showed the following: FINDINGS: Body belongs to a fairly nourished, fairly developed previously embalmed male cadaver. TRUNK AND EXTREMITIES:

1) Swelling, fronto-parietal region, measuring 9 x 7 cm., along the anterior midline, superimposed lacerated wound, measuring 1.3 x 0.5 cm. 2) Scalp hematoma, frontal region, measuring 8 x 6 cm., along the midsagittal line. 3) Scalp hematoma, parietal region, measuring 5 x 4.5 cm. along the midsagittal line. 4) Area of multiple abrasions, left clavicular region, measuring 7 x 5 cm., 17 cm. from the anterior midline. 5) Abrasion, proximal 3rd of the left arm, measuring 1.5 x 0.5 cm., 3.5 cm., lateral to its posterior midline. 6) Abrasion, proximal 3rd of the right arm, measuring 6 x 1 com., 5 cm. lateral to its anterior midline. 7) Contusion, middle 3rd of the left thigh, measuring 6 x 3 cm., 2 cm. lateral to its posterior midline. 8) Contusion, middle 3rd of the left thigh, measuring 6 x 6 cm., 2 cm. lateral to its anterior midline. 9) Contusion, proximal 3rd of the left leg, measuring 6 x 4 cm., along its anterior midline. 10)Contusion, middle 3rd of the right thigh, measuring 3 x 2.5 cm, 6 cm. medial to its anterior midline. 11)Abrasion, middle 3rd of the right leg, measuring 2 x 0.8 cm., 1 cm. medial to its anterior midline. 12)Contusion, distal 3rd of the left leg, measuring 2 x 1.5 cm, 2 cm. medial to its anterior midline. 13)Contusion, distal 3rd of the left leg, measuring 5 x 3 cm., 4 cm. medial to its anterior midline. 14)Contusion, distal 3rd of the left leg, measuring 2 x 1.5 cm., 2 cm. medial to its posterior midline. 15)Contusion, distal 3rd of the left leg, measuring 5 x 3 cm., 4 cm. medial to its posterior midline.

16)Sore, right clavicular region, measuring 7 x 1 cm., 11 cm. from the anterior midline. 17)Swelling, middle 3rd of the left arm, measuring 13 x 4 cm., 6 cm. medial to its anterior midline. PLEURAL, PERICARDIAL AND PERITONEAL CAVITIES: The pleural, pericardial and peritoneal cavities are free from adhesions and fluid accumulations. BRAIN: The brain is pale white in appearance with shallow sulci and gyri. There are subdural hemorrhage noted at the anterior lobes of both cerebral hemispheres. Circle of Willis shows minimal amount of atheromatous deposits but otherwise patent. Cut section reveals widening of the white matter and congestion. Microsection shows varying degrees of neuronal degeneration and focal dilated blood vessels, lumen of which are filled by blood fluid. Assessment: Cerebral edema and congestion. LUNGS: Both lungs are dark gray in color with areas of anthracosis. More pronounced at the right upper lobe. There is crepitancy on pressure. The primary and secondary bronchi contain minimal amount of dark reddish fluid. Serial section shows areas of focal congestion. Microsection shows severe congestion at the alveolar capillaries and the pulmonary alveoli are filled with eosinophilic fluid. Focal emphysema noted. Bronchial smooth muscle wall is slightly thickened and mildly infiltrated with round cell infiltrates. Assessment: Pulmonary edema and congestion, moderate to severe Chronic Bronchitis. HEART: The heart is pale reddish brown in color, enveloped in moderate amount of epicardial fats, with multiple petechial hemorrhages noted in the surface. Cut section reveals clotted blood embedded on both chambers. The left ventricular wall measures 1.3 cm. thick while the right ventricular wall measures 0.5 cm. thick. Valvular leaflets are soft and pliable. Coronary artery shows minimal amount of atheromatous deposits.

Microsection shows separation of the myocardial muscle fiber by edema and is mildly infiltrated by round cells. Coronary arteries patent with slight thickening of its vascular wall. Assessment: Dilatation, ventricle Atherosclerosis - 30 40% LIVER: The liver is yellowish brown in color, doughy to firm in consistency. A nut-meg liver pattern on section with focal areas of congestion. Microsection shows focal areas of vacuolation of the hepatic cells. The sinusodial spaces are filled with red blood cells, mildly infiltrated with mononuclear cell infiltrates. Assessment: Fatty changes, liver, moderate Congestion, liver KIDNEYS: Both kidneys are reddish brown in color. Capsules are stripped-off with difficulty, leaving a fine granular cortical surface. Cut section reveals a well-defined corticomedulary junction. Microsection shows moderate to extensive acute tubular necrosis with tubular degenerations and focal thickening of its vascular wall. Assessment: Acute tubular necrosis Tubular degeneration SPLEEN: The spleen is dark gray in color, firm and slightly wrinkled. Cut section reveals congestion. Microsection shows congestion and hemorrhage on both the red and white pulp. Scanty germinal follicles are noted. Assessment: Congestion and hemorrhage, spleen PANCREAS:

The pancreas is pale yellowish brown in color, doughy in consistency, lobulated with petechial hemorrhages noted at the head and tail of the pancreas. Microsection shows focal hemorrhages within the parenchyma and areas of dilated, slightly thickened ducta filled with impessated secretions. Other areas show focus of pseudocyst formation. Assessment: Acute hemorrhagic Pancreatitis There are subdural hemorrhages noted on both cerebral hemispheres. Stomach is full of partially digested food particles consisting mostly of rice. CONCLUSION: Cause of death is Intracranial hemorrhage as a result of traumatic head injury.5 On December 1, 1995, three years after the death of Reynaldo Abrenica, this case was filed, after an alleged eyewitness, Mercy Villamor, surfaced and implicated accused-appellants in the death of Reynaldo. The information against accused-appellants alleged That in or about the early morning of February 5, 1992, in Romblon, Romblon, and within the jurisdiction of this Honorable Court, the above-named accused, conspiring and confederating with each other, with intent to kill, and with treachery and evident premeditation, did then and there wilfully, unlawfully and feloniously inflict mortal wounds upon the person of one Reynaldo M. Abrenica thereby causing the latter's death.6 Accused-appellants pleaded not guilty to the charge, whereupon they were tried. Mercy Villamor was a former bar girl at the Boulevard Music Lounge in Bagacay, Romblon, Romblon. She worked there from June 2, 1990 to April 1992 and met accused-appellants who became her customers. She testified that accused-appellant Madali courted her in September 1990 and became her boyfriend in November of that year. She claimed that she had a son by Madali. The boy, named Mark Anthony, was born on November 10, 1992. Mercy claimed that Reynaldo M. Abrenica was also her customer at the night club. Reynaldo allegedly courted her in October 1991 and became her boyfriend on December 22, 1991, although she was still having an affair with Madali at that time. According to Mercy, one evening in December 1991, the two men in her life met. Mercy was at Reynaldo's table at the Boulevard Music Lounge when Madali entered through the back door. Mercy asked Madali why he was there when his wife was supposed to be in town. Madali told her that he wanted to sleep at the music lounge and proceeded to the second floor. Mercy then rejoined Reynaldo. When Reynaldo asked whether Madali was her boyfriend, Mercy said Madali was the brother of the boyfriend of the owner of the night club, Hilda Yap. According to Mercy, before Reynaldo left, they agreed to go swimming on February 4, 1992. Mercy said she then went upstairs and lay beside Madali. When Madali asked whether Reynaldo was her boyfriend,

Mercy answered in the affirmative. Mercy told him that she was going swimming with Reynaldo on February 4, 1992. Madali tried to dissuade her but she was adamant. Mercy testified that while she was walking around town on February 4, 1992, at around 9 p.m., she met Reynaldo who was on a motorcycle. She said Reynaldo apologized to her for not going swimming with her on that day because his wife had arrived from Manila. He gave her an envelope and told her to meet him that same night at 11:30 p.m. in his jeep then parked outside his house. After Reynaldo left, Mercy opened the envelope and found aP500.00 bill inside with a note saying, "I love you, Mercy." Mercy claimed that she and a friend, Mayet Espinosa (a.k.a. Leonora Orboc), who was then pregnant, went to meet Reynaldo at 11 p.m. on that date. On their way, they met Madali, who was in uniform and riding his motor tricycle. He asked where they were going. Mercy said they were going home, but Madali did not believe her. Mercy said she and Mayet then proceeded to Reynaldo's house. Reynaldo was inside his jeep. The two women then joined him inside the jeep. Mercy said that while she and Reynaldo were talking, Mayet saw, on the jeep's side mirror, someone walking towards them. It was accusedappellant Madali, and the two hurriedly got off the jeep and hid behind a pile of boxes nearby. According to Mercy, Madali approached Reynaldo and asked, "Pare, kausap mo yata si Mercy." ("Pal, you seem to have been talking with Mercy"), to which Reynaldo replied, "Eh, ano ngayon?" ("So, what?"). Madali then pulled his gun and hit Reynaldo on the head with it. Madali hit Reynaldo on the head three times with his gun, as a result of which Reynaldo fell on the ground. Mercy said accused-appellants Rogero and Rubio, who were also in uniform, came and helped Madali carry Reynaldo's body inside the latter's house. Thereafter, accused-appellants closed the door. According to Mercy, after witnessing the incident, she and Mayet returned to the Boulevard Music Lounge. At around 1 a.m., Madali arrived at the Boulevard Music Lounge. Mercy noticed that his uniform was stained with blood. When she asked him why there was blood on his uniform, he said he had run over a dog. Mercy retorted,"Nakasagasa ka ng aso o pumatay ka ng tao?" ("You ran over a dog or you killed someone?") In fact, according to Mercy, when she washed Madali's clothes, she noticed that his shoes were also stained with blood. She said she did not report what she had seen because she was afraid for her life as Madali had threatened her. She said that she only implicated accused-appellants in her sworn statement on December 14, 19947 before the Commission on Human Rights, after she had been informed about the Witness Protection Program of the Department of Justice. Mercy was entered in the program only on April 15, 1995.8 Accused-appellants denied liability for the death of Reynaldo Abrenica. Accused-appellant Madali testified that, at about 11 p.m. of February 4, 1992, he was in his house asleep. He set his alarm clock to 11:40 p.m. because he was on duty at the police station from 12 midnight to 8 a.m. of the next day. He said he arrived at the station at around 11:50 p.m. and stayed for awhile with accused-appellant Rogero in the latter's jeep. Rogero had the same schedule as Madali. According to Madali, when Orlene Orola and Leonilo Mangua came for assistance in bringing

Reynaldo Abrenica to the hospital, he took the police motor tricycle and went with the two to the Abrenica residence. Then, with him leading the way because the jeep's headlights would not function, they took Reynaldo Abrenica to the hospital. Madali said he had the chance to talk to Reynaldo's wife Helen in the hospital, and she said that she heard the sound of something falling and thought that it was their plastic container which fell. Madali denied having an affair with Mercy Villamor. He stated that he only came to know her sometime in December 1991 when he and the other accused-appellants, Rogero and Rubio, and other policemen were introduced to her by Hilda Yap at the Boulevard Music Lounge. Madali denied having a child by Mercy. In fact, he said, when his wife heard about the rumor that Mercy bore him a child, his wife summoned Mercy to their house, but Mercy said she did not spread any rumor about her having a child by Madali. Madali likewise denied he bore the Abrenicas ill will. He said that he and his wife in fact attended the nine-day prayers (pasiyam) for the soul of Reynaldo and, at the end of the ninth day, they were invited by Helen to dinner together with others who had condoled with her. Accused-appellant Rogero testified that on February 4, 1992, his tour of duty as foot patrol and vigilante was from 12 midnight to 8 a.m. He arrived at the police station at about 11:40 p.m. in his jeep. He saw accused-appellant Rubio, whose duty as station guard and desk officer was from 8 p.m. to 12 midnight, standing outside the station. Rogero said he stayed in his jeep for sometime until it was time to begin his duty. He was joined by Madali who had the same schedule of duty. When Orlene Orola and Leonilo Mangua arrived, Madali attended to them. He was later asked by Madali to follow him to the Abrenica residence. Madali left with Orlene Orola and Leonilo Mangua aboard the police tricycle. According to Rogero, he woke accusedappellant Randy Rubio up and the two of them proceeded to the Abrenica residence. Rogero said he and Rubio were told by Susan Ybaez that Reynaldo fell from the stairs and was taken to the hospital. Rogero said he and Rubio then proceeded to the hospital where they were told by Madali that Reynaldo fell from the stairs. They stayed at the hospital's lobby for about two hours and then returned to their station. Madali later followed them to the police station. According to Rogero, he took Rubio to their headquarters and then went to the front of the post office, where he stayed until 6 a.m. before going home.9 Leonora Orboc, also known as Mayet Espinosa, testified for the defense. She denied being with Mercy Villamor when the latter met Reynaldo M. Abrenica near the latter's house on February 4, 1992. She stated that she worked from 10 p.m. of February 4, 1992 at the cash register at the Boulevard Music Lounge. She was then nine months pregnant. She said that she knew that Mercy was at the Boulevard Music Lounge that night because she tried to rouse her from her sleep as many customers were looking for her, but Mercy refused to get up. Mayet likewise denied that she witnessed the murder described by Mercy in court.10 On May 25, 1996, the trial court rendered its decision, the dispositive portion of which reads:

WHEREFORE, this Court finds the accused (1) SR. POLICE OFFICER II ELEAZAR M. MADALI, (2) SR. POLICE OFFICER II EUSTAQUIO V. ROGERO and (3) SR. POLICE OFFICER I RANDY M. RUBIO GUILTY beyond reasonable doubt of the crime of Murder under the Information, dated December 1, 1995, and sentences each of them to suffer the penalty of reclusion perpetua, with the accessory penalties of the law. These three (3) accused, jointly and severally, are ORDERED to pay the heirs of the deceased Reynaldo M. Abrenica the following sums, namely, (1) P50,000.00 as death indemnity; (2) P124,800.00 for loss of earning capacity of the deceased; (3) P150,000.00 as moral damages; (4) P150,000.00 as exemplary damages; (5) P70,000.00 for attorney's fees and appearance fees; (6) P50,000.00 for expenses of litigation; and (7) P60,000.00 as actual damages, without subsidiary imprisonment in case of insolvency, and to pay the costs. The period of preventive imprisonment the accused had undergone shall be credited in their favor to its full extent pursuant to Article 29 of the Revised Penal Code. SO ORDERED.11 Hence, this appeal. Accused-appellants assign the following errors as having been allegedly committed by the trial court: I. THE COURT A QUO ERRED IN FAILING TO RESOLVE DOUBTS AND DISCREPANCIES IN ITS FINDINGS OF FACT IN FAVOR OF THE ACCUSED. II. THE COURT ERRED IN FINDING CREDIBLE THE TESTIMONIES OF TWO PIVOTAL WITNESSES, MERCY VILLAMOR AND DR. VLADIMIR VILLASENOR.12 On June 2, 1997, Atty. Reynaldo Z. Calabio filed a Notice of Appearance13 as counsel for complainant Helen M. Abrenica, widow of the deceased Reynaldo M. Abrenica. His request to be allowed to appear on behalf of the complainant was denied for lack of merit.14 On July 16, 1997, complainant filed a Motion for Time to File Brief, separate from that which the Office of the Solicitor General would file, by way of answer to the brief of accusedappellants.15 This was likewise denied for lack of merit.16 On November 20, 1997, the Office of the Solicitor General filed a Manifestation and Motion In Lieu of Appellee's Brief recommending the acquittal of accused-appellants.17 In view of the position taken by the Office of the Solicitor General, complainant filed on December 8, 1997 a Manifestation and Motion to be Allowed to File Brief.18On February 13, 1998, she filed a Memorandum for the Private Complainant,19 which was noted in the Court's resolution of March 25, 1998. When required to comment on complainant's motion for leave to file a separate brief, the Solicitor General stated that since complainant had already filed a memorandum, there was no

further need for a brief sustaining the decision on appeal. On the other hand, complainant stated that her memorandum had already been noted by the Court and, in the interest of a balanced presentation of facts and the issues, the same should be considered in the resolution of this appeal. Rule 122, 1 of the Revised Rules on Criminal Procedure provides that "(a)ny party may appeal from a judgment or final order, unless the accused will be placed in double jeopardy." It has been held that the word "party" in the provision in question includes not only the government and the accused but other persons as well, such as the complainant who may be affected by the judgment rendered in the criminal proceedings. The complainant has an interest in the civil liability arising from the crime, unless of course he has reserved to bring a separate civil action to recover the civil liability.20 Hence, in the prosecution of the offense, the complainant's role is that of a witness for the prosecution.21 Ordinarily, the appeal of criminal cases involves as parties only the accused, as appellants, and the State, represented by the Office of the Solicitor General, as the appellee. The participation of the private offended party would be a mere surplusage, if the State were simply to seek the affirmation of a judgment of conviction. However, where the Office of the Solicitor General takes a contrary position and recommends, as in this case, the acquittal of the accused, the complainant's right to be heard on the question of award of indemnity and damages arises. In the interest of justice and equity and to provide perspective for this appeal, therefore, the Court hereby allows in this case the memorandum filed by complainant which is hereby admitted as part of the records of this appeal. Nevertheless, after considering the records of this case, we agree with the Solicitor General that the evidence is insufficient to sustain accused-appellants' conviction and, therefore, the decision of the trial court should be reversed and accused-appellants should be acquitted. First. The trial court erred in giving credence to the testimony of the supposed eyewitness, Mercy Villamor, despite its many improbabilities and inconsistencies which renders it doubtful. (1) Mercy testified that, on February 4, 1992, Reynaldo Abrenica asked that, as they could not go out because his wife had arrived from Manila, they meet instead at 11:30 p.m. in his jeep which was parked in front of the Abrenica residence. This is incredible. If Reynaldo allegedly called off their date because his wife was in town, why would he instead appoint a place for their tryst right in front of his house where it was more likely they would be seen by his wife? (2) Mercy testified that she saw accused-appellants, who were in their uniforms, bringing Reynaldo inside his house, Madali holding him by the nape, Rogero by the right arm, and Rubio holding the two legs. It is inconceivable, however, that accused-appellants would do this because they were in their uniforms and they could easily be noticed. The sight of uniformed policemen carrying a body would attract attention. (3) Mercy claimed that at around 1 a.m. of February 5, 1992, accused-appellant Madali arrived at the Boulevard Music Lounge and she noticed that he had blood on his uniform and his boots. But Helen Abrenica, another prosecution witness, testified that there was no blood on her husband's body or on the floor or on the wall when she found him on the landing of their staircase. Indeed,

Reynaldo Abrenica never suffered any stab or incised wound, and the theory of the prosecution was simply that he was clubbed to death. (4) Mercy said that Reynaldo's jeep was parked along Republica Street in front of his house. The jeep was facing the pier. In the opposite direction are the market and the post office. According to Mercy, while they were seated inside the jeep, her companion, Mayet Espinosa, saw accusedappellant Madali on the side mirror of the vehicle. Accused-appellant was allegedly coming from the direction of the market and the post office. This is contrary to the testimonies of the other prosecution witnesses, Helen Abrenica and the spouses Segundo and Orlene Orola, who said that the jeepney was facing the direction of the market and the post office. In fact Helen Abrenica said that when they arrived home on February 4, 1992, they passed through the pier so that when Reynaldo M. Abrenica parked the vehicle it was facing in the direction of the market and the post office. This was also the position of the vehicle when Segundo and Orlene Oroloa arrived at the Abrenica in response to the cry for help of Helen. It was, therefore, not possible for Mayet Espinosa to have seen accused-appellant on the side mirror of the vehicle. At any rate, Mayet Espinosa denied that she and Mercy went to meet Reynaldo M. Abrenica in front of his house on the night of February 4, 1992. Mayet testified for the defense. She said that at the time and on the date in question, she was at the Boulevard Music Lounge while Mercy was upstairs sleeping, refusing to get up despite the fact that customers of the night club wanted to have her. Mayet's testimony is more credible. At the time of the incident she was heavy with a child. Why should she go with Mercy who had a date with her lover? It is more probable that she worked at the cash register in the Boulevard Music Lounge than that, as Mercy claimed, she went with her to see the latter 's lover. (5) Mercy said that at around 9 p.m. of February 4, 1992, she saw Reynaldo riding on his motorcycle and she was told that they could not go out that night because Madali's wife was around. This is contrary to Helen Abrenica's testimony that at that time Reynaldo was having drinks in the house of his friend, Harry Mindo, and that they left that place at around 10:30 p.m.22 (6) Mercy claimed that Reynaldo was wearing shorts and was half naked when they met inside his jeep. This is not what he had on when he was found. When he was found, Reynaldo was wearing a white sleeveless undershirt and was naked from the waist down with only a towel placed over his buttocks. (7) Mercy said she saw Reynaldo being carried by accused-appellants into his house. Reynaldo was found lying in a prone position with knees bent toward his chest and his head facing the wall. The space in which his body was found was only 25 inches by 41 inches.23 It was so small that if three men carried his body and dumped it there, they would have made noise and would have been detected by the occupants of the house. So small indeed was the space constituting the landing of the stairs that Reynaldo's body had to be crumpled so that his knees were bent toward his chest while his left hand had to be placed on his back and his right arm pinned under his

body. If accused-appellants killed Reynaldo, they could just have left him on the street or placed him inside his jeepney. The risk of being seen carrying the body inside the house up to the first flight of stairs to the landing where it was found was too great. In addition to the inconsistencies and improbabilities in her testimony, Mercy's testimony shows hedging and trimming as is clear from the following portion of the transcript of stenographic notes: Q - You alighted from the jeep when you saw Madali coming because you were afraid and you wanted to hide from him, is that correct? A - We were not afraid, if he would see us because we told him we are going home. Q - Why did you hide? A - Because Bebot might see us, we told him before that we are going home. Q - That is why you hid so that you will not be seen by Madali, is that not right? A - Yes, sir. Q - You did not want that any portion of your body could be seen by Madali at that time? A - I don't want because we told him we are going home.24 This is not the only instance where Mercy gave confused and unsure statements. Testifying concerning the distance between the place where she and Mayet were hiding and the place where they saw Madali allegedly hitting Reynaldo several times on the head, Mercy said: Q - And you were how many meters away while watching and hiding behind the kamada of kahon? A - It is near, from here to there. .... Q - During the direct you answered apat (4) na dipa, 4 arms length, do you remember that? A - Yes, sir. Q - As a matter of fact the Court measured the distance you pointed earlier, do you remember that? A - Yes, sir.

ATTY. ARIAS Continuing: Q - And that was the distance you said apat (4) na dipa, four (4) arms length, do you remember having stated that? A - Yes, sir. Q - Madam Witness, you stated that in your affidavit that you are four (4) arms length away from where the pokpoking occurred? A - I do not know, I cannot remember. .... ATTY. ARIAS Continuing: Q - I am showing to you Exhibit A-2, No. 15, line 18, and I will let you refresh your memory, at paglapit ni Bebot Madali sa kinauupoan ni Rey sa loob ng jeep (harapan ng manibela) ay binati pa ni Bebot si Rey ng "kausap mo yata si Mercy", dinig na dinig namin ito ni Mayet sapagkat ang kinaroroonan namin ay dalawang (2) metro lamang, do you remember having given that answer? A - Yes, sir. Q - And you stated in the affidavit two (2) meters, dalawang (2) metro lamang? A - Yes, sir. Q - You know that a meter is shorter than one (1) dipa? A - The same. Q - So, when you said, two (2) meters that should be dalawang (2) dipa, according to you? A - Two (2) arms length. Q - And you know that two (2) arms length is shorter than apat (4) na dipa? A - Yes, sir. Q - And you now discover that what you told earlier that Madali was four (4) arms length is not correct but only dalawang (2) metros or according to you pareho lang dalawang (2) dipa, is that correct? A - No, sir.25

.... ATTY. ARIAS continuing: Q - All right. You saw Madali struck the victim, how far were you? ATTY. CALABIO: From where? ATTY. ARIAS: Doon sa pinagpukpukan. A - This distance, about two (2) arm's length. ATTY. ARIAS: I want to make of record that the witness had shown to us the distance by stretching her two (2) arms and pointing a little bit near and later on when she looked at the private prosecutor she changed her answer and said . . . .26 The inconsistencies, improbabilities, and uncertainties in Mercy's testimony are many, and they relate to material points. The suspicion cannot be helped that she was a rehearsed witness.27 It cannot be too often repeated that for evidence to be believed, it must not only proceed from the mouth of a credible witness but must itself be credible. The evidence must be what the common experience and observation of mankind would approve of as probable under the circumstances.28 We cannot help noticing that, in order to go through her direct examination, Mercy had to be asked leading questions by the private prosecutor. Contrary to the observation of the trial court, she was not consistent on cross-examination. In fact, she had to be cued by the prosecutor by timely manifestations. There were several instances when she did not make sense when confronted with her conflicting statements. In her dire attempt to explain away the irreconcilable statements in her affidavits and in her testimony in court, she used lame and shallow excuses. Second. This case was not filed until three years after the death of Reynaldo M. Abrenica, and that was because Mercy Villamor came out with a claim that she saw accused-appellants kill Reynaldo. She claimed that she could not reveal earlier what she knew about the crime because of threats made by accused-appellant Madali. However, Mercy never explained the circumstances under which she was threatened. In fact, she admitted she only entertained the fear that Madali would harm her if she talked about what she allegedly knew. When asked when she was allegedly threatened, she stated that it was at 9 a.m. of February 4, 1992. At that time, however, the incident had not yet occurred.29 Third. On the other hand, the testimony of Dr. Villaseor that the head injuries sustained by Reynaldo were caused by a blunt instrument is contrary to the statement he gave before the

Office of the Ombudsman that the cause of Reynaldo's death could not have been a blunt instrument.30 Although this statement was prepared by the investigator in the Office of the Ombudsman, it was signed by Dr. Villaseor. Dr. Villaseor tried to explain the prior inconsistent statement by means of the lame excuse that he failed to include some matters in his statement because he did not then have his files with him.1wphi1.nt Fourth. The trial court erred in appreciating the aggravating circumstance of treachery. The essence of treachery is the sudden and unexpected attack without the slightest provocation on the part of the person attacked.31 In this case, Reynaldo allegedly said "Eh, ano ngayon? to Madali when the latter demanded to know whether he (Reynaldo) was talking to Mercy. The remark was certainly provocative and Reynaldo knew that his reply would invite a retaliation. Thus, Reynaldo could not have been surprised by Madali's alleged attack. In sum, the prosecution failed to prove beyond doubt that the death of Reynaldo M. Abrenica was not accidental but intentional and that accused-appellants were guilty of killing him. WHEREFORE, the decision of the Regional Trial Court, Branch 81, Municipality of Romblon, Romblon is REVERSED and accused-appellants Eleazar M. Madali, Eustaquio V. Rogero, and Randy M. Rubio are ACQUITTED on the ground of reasonable doubt. Consequently, they are ordered forthwith released from custody unless they are being lawfully held for another cause. The Director of the Bureau of Corrections is directed to implement this Decision and to report to this Court the action taken hereon within five (5)days from receipt hereof. SO ORDERED. Republic of the Philippines SUPREME COURT Manila SECOND DIVISION G.R. No. 137567 June 20, 2000

MEYNARDO L. BELTRAN, petitioner, vs. PEOPLE OF THE PHILIPPINES, and HON. JUDGE FLORENTINO TUAZON, JR., being the Judge of the RTC, Brach 139, Makati City, respondents. BUENA, J.: This petition for review, filed under Rule 45 of the 1997 Rules of Civil Procedure, seeks to review and set aside the Order dated January 28, 1999 issued by Judge Florentino A. Tuazon, Jr. of the Regional Trial Court of Makati City, Branch 139 in Special Civil Case No. 98-3056,

entitled "Meynardo Beltran vs. People of the Philippines and Hon. Judge Alden Cervantes of the Metropolitan Trial Court of Makati City, Branch 61." The said Order denied petitioner's prayer for the issuance of a writ of preliminary injunction to enjoin Judge Cervantes from proceeding with the trial of Criminal Case No. 236176, a concubinage case against petitioner on the ground that the pending petition for declaration of nullity of marriage filed by petitioner against his wife constitutes a prejudicial question. The antecedent facts of the case are undisputed: Petitioner Meynardo Beltran and wife Charmaine E. Felix were married on June 16, 1973 at the Immaculate Concepcion Parish Church in Cubao, Quezon City.1 On February 7, 1997, after twenty-four years of marriage and four children,2 petitioner filed a petition for nullity of marriage on the ground of psychological incapacity under Article 36 of the Family Code before Branch 87 of the Regional Trial Court of Quezon City. The case was docketed as Civil Case No. Q-97-30192.3 In her Answer to the said petition, petitioner's wife Charmaine Felix alleged that it was petitioner who abandoned the conjugal home and lived with a certain woman named Milagros Salting.4 Charmaine subsequently filed a criminal complaint for concubinage5 under Article 334 of the Revised Penal Code against petitioner and his paramour before the City Prosecutor's Office of Makati who, in a Resolution dated September 16, 1997, found probable cause and ordered the filing of an Information6 against them. The case, docketed as Criminal Case No. 236176, was filed before the Metropolitan Trial Court of Makati City, Branch 61.1awphi1 On March 20, 1998, petitioner, in order to forestall the issuance of a warrant for his arrest, filed a Motion to Defer Proceedings Including the Issuance of the Warrant of Arrest in the criminal case. Petitioner argued that the pendency of the civil case for declaration of nullity of his marriage posed a prejudicial question to the determination of the criminal case. Judge Alden Vasquez Cervantes denied the foregoing motion in the Order7dated August 31, 1998. Petitioner's motion for reconsideration of the said Order of denial was likewise denied in an Order dated December 9, 1998. In view of the denial of his motion to defer the proceedings in the concubinage case, petitioner went to the Regional Trial Court of Makati City, Branch 139 on certiorari, questioning the Orders dated August 31, 1998 and December 9, 1998 issued by Judge Cervantes and praying for the issuance of a writ of preliminary injunction.8 In an Order9 dated January 28, 1999, the Regional Trial Court of Makati denied the petition for certiorari. Said Court subsequently issued another Order 10 dated February 23, 1999, denying his motion for reconsideration of the dismissal of his petition. Undaunted, petitioner filed the instant petition for review. Petitioner contends that the pendency of the petition for declaration of nullity of his marriage based on psychological incapacity under Article 36 of the Family Code is a prejudicial question

that should merit the suspension of the criminal case for concubinage filed against him by his wife. Petitioner also contends that there is a possibility that two conflicting decisions might result from the civil case for annulment of marriage and the criminal case for concubinage. In the civil case, the trial court might declare the marriage as valid by dismissing petitioner's complaint but in the criminal case, the trial court might acquit petitioner because the evidence shows that his marriage is void on ground of psychological incapacity. Petitioner submits that the possible conflict of the courts' ruling regarding petitioner's marriage can be avoided, if the criminal case will be suspended, until the court rules on the validity of marriage; that if petitioner's marriage is declared void by reason of psychological incapacity then by reason of the arguments submitted in the subject petition, his marriage has never existed; and that, accordingly, petitioner could not be convicted in the criminal case because he was never before a married man. Petitioner's contentions are untenable. The rationale behind the principle of prejudicial question is to avoid two conflicting decisions. It has two essential elements: (a) the civil action involves an issue similar or intimately related to the issue raised in the criminal action; and (b) the resolution of such issue determines whether or not the criminal action may proceed. 11 The pendency of the case for declaration of nullity of petitioner's marriage is not a prejudicial question to the concubinage case. For a civil case to be considered prejudicial to a criminal action as to cause the suspension of the latter pending the final determination of the civil case, it must appear not only that the said civil case involves the same facts upon which the criminal prosecution would be based, but also that in the resolution of the issue or issues raised in the aforesaid civil action, the guilt or innocence of the accused would necessarily be determined. Art. 40 of the Family Code provides: The absolute nullity of a previous marriage may be invoked for purposes of remarriage on the basis solely of a final judgment declaring such previous marriage void. In Domingo vs. Court of Appeals, 12 this Court ruled that the import of said provision is that for purposes of remarriage, the only legally acceptable basis for declaring a previous marriage an absolute nullity is a final judgment declaring such previous marriage void, whereas, for purposes of other than remarriage, other evidence is acceptable. The pertinent portions of said Decision read: . . . Undoubtedly, one can conceive of other instances where a party might well invoke the absolute nullity of a previous marriage for purposes other than remarriage, such as in case of an action for liquidation, partition, distribution and separation of property between the erstwhile spouses, as well as an action for the custody and support of their common children and the delivery of the latters' presumptive legitimes. In such cases, evidence needs must be adduced, testimonial or documentary, to prove the existence of grounds rendering such a previous marriage an absolute nullity. These needs not be

limited solely to an earlier final judgment of a court declaring such previous marriage void. So that in a case for concubinage, the accused, like the herein petitioner need not present a final judgment declaring his marriage void for he can adduce evidence in the criminal case of the nullity of his marriage other than proof of a final judgment declaring his marriage void. With regard to petitioner's argument that he could be acquitted of the charge of concubinage should his marriage be declared null and void, suffice it to state that even a subsequent pronouncement that his marriage is void from the beginning is not a defense. Analogous to this case is that of Landicho vs. Relova 1 cited in Donato vs. Luna 14 where this Court held that: . . . Assuming that the first marriage was null and void on the ground alleged by petitioner, that fact would not be material to the outcome of the criminal case. Parties to the marriage should not be permitted to judge for themselves its nullity, for the same must be submitted to the judgment of the competent courts and only when the nullity of the marriage is so declared can it be held as void, and so long as there is no such declaration the presumption is that the marriage exists. Therefore, he who contracts a second marriage before the judicial declaration of nullity of the first marriage assumes the risk of being prosecuted for bigamy. Thus, in the case at bar it must also be held that parties to the marriage should not be permitted to judge for themselves its nullity, for the same must be submitted to the judgment of the competent courts and only when the nullity of the marriage is so declared can it be held as void, and so long as there is no such declaration the presumption is that the marriage exists for all intents and purposes. Therefore, he who cohabits with a woman not his wife before the judicial declaration of nullity of the marriage assumes the risk of being prosecuted for concubinage. The lower court therefore, has not erred in affirming the Orders of the judge of the Metropolitan Trial Court ruling that pendency of a civil action for nullity of marriage does not pose a prejudicial question in a criminal case for concubinage. WHEREFORE, for lack of merit, the instant petition is DISMISSED. SO ORDERED. SECOND DIVISION

[G.R. Nos. 140576-99. December 13, 2004]

JOSE S. RAMISCAL, JR., petitioner, vs. HONORABLE SANDIGANBAYAN (Fourth Division), ALBANO & ASSOCIATES and the ASSOCIATION OF GENERALS & FLAG OFFICERS, INC., respondents. DECISION CALLEJO, SR., J.: This is a petition for review on certiorari under Rule 45 of the Revised Rules of Court, of the Resolution of the Sandiganbayan, dated June 9, 1999 in Criminal Cases Nos. 25122 to 25145, and its Resolution dated October 22, 1999, denying the motion for reconsideration thereof. The Antecedents The Armed Forces of the Philippines Retirement and Separation Benefits System (AFPRSBS) was established in December 1973 and started its actual operations in 1976. Created under Presidential Decree (P.D.) No. 361, as amended, the AFP-RSBS was designed to establish a separate fund to guarantee continuous financial support to the AFP military retirement system as provided for in Republic Act No. 340.[1] Under the decree, the AFP-RSBS was to be funded from three principal sources: (a) congressional appropriations and compulsory contributions from members of the AFP; (2) donations, gifts, legacies, bequests and others to the system; and (3) all earnings of the system which shall not be subject to any tax whatsoever.[2] AFP-RSBS is a government-owned or controlled corporation (GOCC) under Rep. Act No. 9182, otherwise known as The Special Purpose Vehicle Act of 2002. It is administered by the Chief of Staff of the AFP through a Board of Trustees and Management Group. [3] Its funds are in the nature of public funds.[4] On December 18, 1997, Luwalhati R. Antonino, then a member of the House of Representatives representing the First District of the Province of South Cotabato, filed a Complaint-Affidavit[5] with the Office of the Ombudsman for Mindanao. She alleged that anomalous real estate transactions involving the Magsaysay Park at General Santos City and questionable payments of transfer taxes prejudicial to the government had been entertained into between certain parties. She then requested the Ombudsman to investigate the petitioner, Retired Brig. Gen. Jose S. Ramiscal, Jr., then President of the AFP-RSBS, [6] together with twenty-seven (27) other persons[7] for conspiracy in misappropriating AFP-RSBS funds and in defrauding the government millions of pesos in capital gains and documentary stamp taxes.[8] On January 28, 1999, after the requisite preliminary investigation, Special Prosecutor Joy C. Rubillar-Arao filed twenty-four (24) separate Informations with the Sandiganbayan against the petitioner and several other accused. The filing of the Informations was duly approved by then Ombudsman Aniano A. Desierto. The first twelve (12) Informations were for violation of Section 3(e) of Rep. Act No. 3019, otherwise known as the Anti-Graft and Corrupt Practices Act, docketed as Criminal Cases Nos. 25122 to 25133.[9] All were similarly worded, except for the names of the other accused, the dates of the commission of the offense, and the property

involved. Representative of the said Informations is that filed in Criminal Case No. 25122, the inculpatory portion of which reads: That sometime on September 24, 1997, and prior, or subsequent thereto, in General Santos City, Philippines, and within the jurisdiction of this Honorable Court, accused JOSE RAMISCAL, JR., a high ranking public official being then the President, and WILFREDO PABALAN, a low ranking public officer being the Project Director, both of the AFP-RSBS, while in the performance of their official duties, taking advantage of their official positions and committing the offense in relation to their offices, conspiring together and confederating with NILO FLAVIANO and ALEX GUAYBAR, both private individuals, did, there and then, willfully, unlawfully and criminally execute and/or cause the execution of a falsified Deed of Sale covering Lot-X-4, a real property located at General Santos City, by making it appear therein that the purchase price of the said lot is only TWO MILLION NINE HUNDRED NINETYSEVEN THOUSAND (P2,997,000.00) PESOS at P3,000.00 per square meter, when in truth and in fact, as all the accused very well knew and, in fact, agreed, that the same was sold for P10,500.00 per square meter or a total of TEN MILLION FOUR HUNDRED EIGHTYNINE THOUSAND FIVE HUNDRED (P10,489,500.00) PESOS, and use the said falsified Deed of Sale as basis for payment of capital gains and documentary stamp taxes relative to the sale of the subject lot in the amount of only P299,700.00 and P89,910.00, respectively, when the capital gains, and documentary stamp and other taxes should have been P524,475.00 andP157,342.50, respectively, thereby short-changing and causing undue injury to the government through evident bad faith and manifest partiality in the total amount of TWO HUNDRED NINETY-TWO THOUSAND TWO HUNDRED SEVEN and 50/100 PESOS (P292,207.50), more or less. CONTRARY TO LAW.[10] On the other hand, twelve (12) other separate Informations indicted the accused for Falsification of Public Documents, defined and penalized under paragraph 4, Article 171 of the Revised Penal Code, docketed therein as Criminal Cases Nos. 25134 to 25145. [11] Save with respect to the names of the other accused, the dates of the commission of the felonies, and the property involved in each case, the Informations were, likewise, similarly worded, representative of which is that in Criminal Case No. 25134. The accusatory portion reads: That on or about September 24, 1997, and sometime prior, or subsequent thereto, in General Santos City, Philippines, and within the jurisdiction of this Honorable Court, accused JOSE RAMISCAL, JR., a high-ranking public official being then the President, and WILFREDO PABALAN, a low-ranking public officer being the Project Director, both of the AFP-RSBS, while in the performance of their duties, taking advantage of their official positions and committing the offense in relation to their offices, conspiring and confederating with each other and with accused NILO FLAVIANO and JACK GUIWAN, both private individuals, acting with unfaithfulness and with malicious intent, did, there and then, willfully, unlawfully and criminally falsify a public document by executing and/or causing to be executed a Deed of Sale for a 999sq. m. property particularly identified as Lot-X-5 located at General Santos City and stating therein a purchase price of only P3,000.00 per square meter or a total of TWO MILLION NINE HUNDRED NINETY-SEVEN THOUSAND (P2,997,000.00) PESOS when in truth and in fact, as all the accused very well knew and, in fact, agreed, the purchase price of said lot

is P10,500.00 per square meter or a total of TEN MILLION FOUR HUNDRED EIGHTY-NINE THOUSAND FIVE HUNDRED (P10,489,500.00) PESOS, thereby perverting the truth. CONTRARY TO LAW.[12] On February 2, 1999, the petitioner filed an Urgent Motion to Dismiss the Informations and to Defer the Issuance of Warrant of Arrest, alleging want of jurisdiction. [13] He, likewise, filed an Urgent Manifestation and Motion to Suspend Proceedings [14] on February 16, 1999, because of the pendency of his motion for reinvestigation with the Office of the Ombudsman. The Office of the Special Prosecutor opposed the said motions.[15] Meanwhile, pending resolution of the aforementioned motions, the law firm of Albano & Associates filed a Notice of Appearance[16] as private prosecutors in all the aforementioned cases for the Association of Generals and Flag Officers, Inc. (AGFOI) [17] on March 9, 1999. The notice of appearance was apparently made conformably to the letter-request of Retired Commodore Ismael Aparri and Retired Brig. Gen. Pedro Navarro, who are members thereof. In a Resolution[18] dated April 5, 1999, the Sandiganbayan denied the earlier motions filed by the petitioner for lack of merit. Consequently, a warrant of arrest against him was issued.[19] He posted a cash bail bond for his provisional liberty.[20] On April 6, 1999, the petitioner opposed the appearance of the law firm of Albano & Associates as private prosecutors, contending that the charges brought against him were purely public crimes which did not involve damage or injury to any private party; thus, no civil liability had arisen.[21] He argued that under Section 16 of the Rules of Criminal Procedure, an offended party may be allowed to intervene through a special prosecutor only in those cases where there is civil liability arising from the criminal offense charged. [22] He maintained that if the prosecution were to be allowed to prove damages, the prosecution would thereby be proving another crime, in violation of his constitutional right to be informed of the nature of the charge against him. In its comment, the law firm contended that its clients, Commodore Aparri and Brig. Gen. Navarro, were members of the AGFOI and contributors of AFP-RSBS. It alleged that as such members-contributors, they have been disadvantaged or deprived of their lawful investments and residual interest at the AFP-RSBS through the criminal acts of the petitioner and his cohorts. It posited that its clients, not having waived the civil aspect of the cases involved, have all the right to intervene pursuant to Section 16, Rule 110 of the Rules of Court. Moreover, the law firm averred that its appearance was in collaboration with the Office of the Ombudsman, and that their intervention in any event, was subject to the direction and control of the Office of the Special Prosecutor.[23] Replying to the comment, the petitioner refuted the allegation of AGFOI that he had civil interest in the criminal cases involved. He posited that AGFOI was neither a member nor a beneficiary of the AFP-RSBS. Moreover, considering that it was funded partly by the national government and individual soldiers by way of salary deductions, the AGFOI never contributed a single centavo to the funds of the AFP-RSBS. He further averred that AGFOI, as an organization, has a distinct personality of its own, apart from the individual members who compose it.[24] Hence, it is of no moment if some members of AGFOI are or have been members and beneficiaries of the AFP-RSBS.

Meanwhile, on June 6, 1999, the petitioner filed a Motion for Reinvestigation [25] with the Sandiganbayan, mentioning therein his unresolved motion for reconsideration with the Office of the Ombudsman. He prayed that the proceeding be suspended and his arraignment deferred pending the resolution of the reinvestigation. The Sandiganbayan granted the motion in its Order dated June 11, 1999. The fallo of the said resolution reads: WHEREFORE, the prosecution is given 60 days from today within which to elevate its evidence and to do whatever is appropriate on the Motion for Reconsideration dated February 12, 1999 and supplemental motion thereof dated May 28, 1999 of accused Jose Ramiscal, Jr. and to inform this Court within the said period as to its findings and recommendations together with the action thereon of the Ombudsman. As prayed for in open court by Pros. Monteroso, this authority from the Court for the prosecution to evaluate its evidence and take such appropriate action as regards accused Ramiscals subject motion shall also include the case regarding all the accused. SO ORDERED.[26] In the meantime, in a Resolution[27] dated June 9, 1999, the Sandiganbayan made short shrift of the petitioners opposition and denied his plea for the denial of the appearance of the law firm. [28] In justifying its resolution, the Sandiganbayan declared as follows: Considering that the offended parties are members of the AFP-RSBS, as represented by the two (2) flag officers, and their right may be affected by the action of the Court resolving the criminal and civil aspects of the cases, there appears a strong legal presumption that their appearance should not be disturbed. After all, their appearance is subject to the direct supervision and control of the public prosecutor.[29] The petitioner moved for a reconsideration [30] of the Sandiganbayans Resolution of June 9, 1999, which was opposed[31] by the prosecution. The Sandiganbayan issued a Resolution[32] denying the same on October 22, 1999. The petitioner filed the instant petition under Rule 45 of the Rules of Civil Procedure, for the nullification of the June 9, 1999 and October 22, 1999 Resolutions of the graft court, and raised the following issues: I WHETHER OR NOT, BY NATURE, THE SUBJECT CRIMINAL INDICTMENTS FOR VIOLATIONS OF SECTION 3(E), REPUBLIC ACT NO. 3019 AND ARTICLE 172, IN RELATION TO ARTICLE 171, OF THE REVISED PENAL CODE GIVE RISE TO CIVIL LIABILITY IN FAVOR OF ANY PRIVATE PARTY. II

WHETHER OR NOT AGFOI AS REPRESENTED BY ALBANO & ASSOCIATES ARE PRIVATE INJURED PARTIES ENTITLED TO INTERVENE AS THE PRIVATE PROSECUTOR IN THE SUBJECT CASES.[33] In support of his petition, the petitioner reiterated the same arguments he put forth before the Sandiganbayan. The Special Prosecutor, for his part, avers that the remedy resorted to by the petitioner under Rule 45 of the Rules of Civil Procedure was improper since the assailed Resolutions of the Sandiganbayan are interlocutory in nature and not final; hence, the remedy of the petitioner was to file a petition for certiorari and prohibition under Rule 65 of the Rules of Court. He also argues that the petition is premature because the reinvestigation of the cases had not yet been completed. On the merits of the petition, he posits that the AGFOI is a member of the AFPRSBS, and that its rights may be affected by the outcome of the cases. He further alleged that the appearance of the private prosecutor was subject to the direct supervision and control of the public prosecutor. The petitioner, however, asserts, by way of reply, that the assailed orders of the Sandiganbayan are final orders; hence, his recourse under Rule 45 of the Rules of Civil Procedure was proper. The Ruling of the Court The Assailed Resolutions of the Sandiganbayan are Interlocutory in Nature The word interlocutory refers to something intervening between the commencement and the end of a suit which decides some point or matter but is not a final decision of the whole controversy. The Court distinguished a final order or resolution from an interlocutory one in Investments, Inc. v. Court of Appeals[34] as follows: A final judgment or order is one that finally disposes of a case, leaving nothing more to be done by the Court in respect thereto, e.g., an adjudication on the merits which, on the basis of the evidence presented at the trial, declares categorically what the rights and obligations of the parties are and which party is in the right; or a judgment or order that dismisses an action on the ground, for instance, of res adjudicata or prescription. Once rendered, the task of the Court is ended, as far as deciding the controversy or determining the rights and liabilities of the litigants is concerned. Nothing more remains to be done by the Court except to await the parties next move (which, among others, may consist of the filing of a motion for new trial or reconsideration, or the taking of an appeal) and ultimately, of course, to cause the execution of the judgment once it becomes final or, to use the established and more distinctive term, final and executory.[35]

Conversely, an order that does not finally disposes of the case, and does not end the Courts task of adjudicating the parties contentions and determining their rights and liabilities as regards each other, but obviously indicates that other things remain to be done by the Court, is interlocutory, e.g., an order denying a motion to dismiss under Rule 16 of the Rules, or granting a motion for extension of time to file a pleading, or authorizing amendment thereof, or granting or denying applications for postponement, or production or inspection of documents or things, etc. Unlike a final judgment or order, which is appealable, as above pointed out, an interlocutory order may not be questioned on appeal except only as part of an appeal that may eventually be taken from the final judgment rendered in this case.[36] The rule is founded on considerations of orderly procedure, to forestall useless appeals and avoid undue inconvenience to the appealing party by having to assail orders as they are promulgated by the court, when all such orders may be contested in a single appeal.[37] Under Section 1, Rule 45 of the Rules of Court, only final judgments, orders or resolutions of the Court of Appeals or Sandiganbayan may be assailed therein. The remedy is a mode of appeal on questions of law only.[38] In the present case, the Sandiganbayan merely resolved to allow the appearance of the law firm of Albano & Associates as private prosecutors, on its finding that the AGFOI, represented by Commodore Aparri and Brig. Gen. Navarro who were, likewise, investors/members of the AFP-RSBS, is the offended party whose rights may be affected by the prosecution of the criminal and civil aspects of the cases and the outcome thereof. Furthermore, the private prosecutor is subject to the direct supervision and control of the public prosecutor. The Sandiganbayan did not dispose of the cases on their merits, more specifically, the guilt or innocence of the petitioner or the civil liabilities attendant to the commission of the crimes charged. Assuming that the Ombudsman would maintain the finding of probable cause against the petitioner after the reinvestigation of the cases, and, thereafter, the Sandiganbayan would sustain the finding of probable cause against the petitioner and issue warrants for his arrest, the graft court would then have to proceed to trial, receive the evidence of the parties and render judgment on the basis thereof. The petitioner would then have the following options: (a) to proceed to trial, and, if convicted, file a petition for review under Rule 45 of the Rules of Court to this Court; or (b) to file a petition for certiorari, under Rule 65 of the Rules of Court, to nullify the resolutions of the Sandiganbayan on the ground of grave abuse of discretion amounting to excess or lack of jurisdiction in issuing the said resolutions and decision. Nevertheless, in the interest of substantial justice, we shall treat the petition as one filed under Rule 65 of the Rules of Court. Dismissal of appeal purely on technical grounds is frowned upon where the policy of the courts is to encourage hearings of appeal on their merits. The rules of procedure ought not to be applied in a very rigid technical sense, as they are used only to help secure, not override substantial justice. If a technical and rigid enforcement of the rules is made, their aim would be defeated. Consequently, in the interest of justice, the instant petition for review may be treated as a special civil action on certiorari.[39] As we held in Salinas v. NLRC, [40] a petition which should have been brought under Rule 65 and not under Rule 45 of the Rules of Court, is not an inflexible rule. The strict application of procedural technicalities should not hinder the speedy disposition of the case on the merits.[41]

Although there is no allegation in the petition at bar that the Sandiganbayan committed grave abuse of its discretion amounting to excess or lack of jurisdiction, nonetheless, the petitioner made the following averments: that the graft court arbitrarily declared the AGFOI to be the offended party despite the plain language of the Informations and the nature of the crimes charged; and that the graft court blatantly violated basic procedural rules, thereby eschewing the speedy and orderly trial in the above cases. He, likewise, averred that the Sandiganbayan had no authority to allow the entry of a party, through a private prosecutor, which has no right to the civil liabilities of the accused arising from the crimes charged, or where the accused has no civil liabilities at all based on the nature of said crimes. The petitioner also faulted the Sandiganbayan for rejecting his opposition thereto, in gross violation of the Revised Rules of Criminal Procedure and the Revised Penal Code. Indeed, such allegations are sufficient to qualify the petition as one under Rule 65 of the Rules of Court. As we held in People v. Court of Appeals:
[42]

The public respondent acts without jurisdiction if it does not have the legal power to determine the case; there is excess of jurisdiction where the respondent, being clothed with the power to determine the case, oversteps its authority as determined by law. There is grave abuse of discretion where the public respondent acts in a capricious, whimsical, arbitrary or despotic manner in the exercise of its judgment as to be said to be equivalent to lack of jurisdiction.[43] Besides, unless we resolve the present petition on its merits, other parties, like the private respondents herein, may, likewise, enter their appearance as offended parties and participate in criminal proceedings before the Sandiganbayan. The Appearance of the Law Firm Albano & Associates The respondent law firm entered its appearance as private prosecutor for AGFOI, purportedly upon the request of Commodore Aparri and Brig. Gen. Navarro, quotedinfra: Atty. Antonio Albano Practicing Lawyer Albano-Irao Law Offices Dear Atty. Albano: We represent a number of Retired Generals and other Star Rank Officers who rightfully claim to have been disadvantaged or deprived of our lawful investments and residual interest at the Retirement Separation Benefit System, AFP because of alleged plunder of the Systems Funds, Large Scale Estafa and Falsification of Public Documents. We are requesting that you appear in our behalf as private prosecutor of our case. Thank you very much. (Sgd.) COMMO. ISMAEL D. APARRI (RET)

(Sgd.) BGEN. PEDRO I. NAVARRO (RET)[44] As gleaned from the letter-request, the legal services of the respondent law firm were not engaged by the AGFOI itself; it was Commodore Aparri and Brig. Gen. Navarro who did so, for and in behalf of the other retired generals and star rank officers claiming to have residual interests in or to be investors of the AFP-RSBS, the vendee of the lots subject of the Informations against the petitioner. Moreover, there is no showing in the records that the Board of Directors of the AGFOI, authorized them to engage the services of the respondent law firm to represent it as private prosecutor in the above cases. Neither is there any resolution on record issued by the Board of Directors of the AGFOI authorizing Commodore Aparri and Brig. Gen. Navarro to secure the services of the respondent law firm to represent it as the private prosecutor in said cases. If at all, the respondent law firm is the counsel of Aparri and Navarro only. The AGFOI and/or Commodore Aparri and/or Brig. Gen. Navarro Are Not the Offended Parties in the Informations filed Before the Sandiganbayan The petitioner avers that the crimes charged are public offenses and, by their very nature, do not give rise to criminal liabilities in favor of any private party. He asserts that, as gleaned from the Informations in Criminal Cases Nos. 25122 to 25133 for violation of Section 3(e) of Rep. Act No. 3019, the offended party is the government because based on the deeds of sale executed in favor of the AFP-RSBS, as vendee, it was deprived of capital gains and the documentary stamp taxes. He contends that the Informations in Criminal Cases Nos. 25134 to 25145, for falsification of public document under paragraph 4, Article 171 of the Revised Penal Code, do not contain any allegation that the AGFOI or any private party sustained any damage caused by the said falsifications. The petitioner further argues that absent any civil liability arising from the crimes charged in favor of AGFOI, the latter cannot be considered the offended party entitled to participate in the proceedings before the Sandiganbayan. According to the petitioner, this view conforms to Section 16, Rule 110 of the Revised Rules of Criminal Procedure, which reads: SEC. 16. Intervention of the offended party in criminal action. Where the civil action for recovery of civil liability is instituted in the criminal action pursuant to Rule 111, the offended party may intervene by counsel in the prosecution of the offense. The petitioner posits that the AGFOI is not a member, beneficiary or contributor of the AFPRSBS, and that even if it were so, it would not sustain a direct and material damage by an adverse outcome of the cases. Allowing the AGFOI to intervene would open the floodgates to any person similarly situated to intervene in the proceedings and, thus, frustrate the speedy, efficient and inexpensive disposition of the cases. In his Comment, the Special Prosecutor avers that the AGFOI is entitled to intervene in the proceedings in the Sandiganbayan because it is a member of the AFP-RSBS, whose rights may be affected by the outcome of the cases. The AGFOI and the respondent law firm contend that the latter has a right to intervene, considering that such intervention would enable the members of AGFOI to assert their rights to

information and access to the official records, documents, and papers, a right granted by no less than paragraph 7, Article IV of the 1987 Constitution. Furthermore, the funds of the AFP-RSBS are impressed with public character because the government provided for its initial funds, augmented from time to time by the salary contributions of the incumbent AFP soldiers and officers. We agree with the contention of the petitioner that the AGFOI, and even Commodore Aparri and Brig. Gen. Navarro, are not the offended parties envisaged in Section 16, Rule 110, in relation to Section 1, Rule 111 of the Revised Rules of Criminal Procedure. Under Section 5, Rule 110[45] of the Rules, all criminal actions covered by a complaint or information shall be prosecuted under the direct supervision and control of the public prosecutor. Thus, even if the felonies or delictual acts of the accused result in damage or injury to another, the civil action for the recovery of civil liability based on the said criminal acts is impliedly instituted[46] and the offended party has not waived the civil action, reserved the right to institute it separately or instituted the civil action prior to the criminal action, the prosecution of the action inclusive of the civil action remains under the control and supervision of the public prosecutor.[47] The prosecution of offenses is a public function.[48] Under Section 16, Rule 110 of the Rules of Criminal Procedure, the offended party may intervene in the criminal action personally or by counsel, who will act as private prosecutor for the protection of his interests and in the interest of the speedy and inexpensive administration of justice. A separate action for the purpose would only prove to be costly, burdensome and time-consuming for both parties and further delay the final disposition of the case. The multiplicity of suits must be avoided. [49] With the implied institution of the civil action in the criminal action, the two actions are merged into one composite proceeding, with the criminal action predominating the civil. The prime purpose of the criminal action is to punish the offender in order to deter him and others from committing the same or similar offense, to isolate him from society, reform and rehabilitate him or, in general, to maintain social order. On the other hand, the sole purpose of the civil action is for the resolution, reparation or indemnification of the private offended party for the damage or injury he sustained by reason of the delictual or felonious act of the accused. [50] Under Article 104 of the Revised Penal Code, the following are the civil liabilities of the accused: ART. 104. What is included in civil liability. The civil liability established in Articles 100, 101, 102 and 103 of this Code includes: 1. 3. Restitution; 2. Reparation of the damage caused; Indemnification for consequential damages.

Thus, when the offended party, through counsel, has asserted his right to intervene in the proceedings, it is error to consider his appearance merely as a matter of tolerance.[51] The offended party may be the State or any of its instrumentalities, including local governments or government-owned or controlled corporations, such as the AFP-RSBS, which, under substantive laws, are entitled to restitution of their properties or funds, reparation, or indemnification. For instance, in malversation of public funds or property under Article 217 [52] of

the Revised Penal Code, frauds under Article 213[53] of the Revised Penal Code, and violations of the Forestry Code of the Philippines, P.D. No. 705, as amended, to mention a few, the government is the offended party entitled to the civil liabilities of the accused. For violations of Section 3(e) of Rep. Act No. 3019,[54] any party, including the government, may be the offended party if such party sustains undue injury caused by the delictual acts of the accused. In such cases, the government is to be represented by the public prosecutor for the recovery of the civil liability of the accused. Under Section 16, Rule 110 of the Revised Rules of Criminal Procedure, the offended party may also be a private individual whose person, right, house, liberty or property was actually or directly injured by the same punishable act or omission of the accused, [55] or that corporate entity which is damaged or injured by the delictual acts complained of. Such party must be one who has a legal right; a substantial interest in the subject matter of the action as will entitle him to recourse under the substantive law, to recourse if the evidence is sufficient or that he has the legal right to the demand and the accused will be protected by the satisfaction of his civil liabilities. Such interest must not be a mere expectancy, subordinate or inconsequential. The interest of the party must be personal; and not one based on a desire to vindicate the constitutional right of some third and unrelated party.[56] Hence, even if the members of AGFOI may also be members or beneficiaries of the AFPRSBS, the respondent AGFOI does not have a legal right to intervene in the criminal cases merely and solely to enforce and/or protect the constitutional right of such members to have access to the records of AFP-RSBS. Neither are such members entitled to intervene therein simply because the funds of the AFP-RSBS are public or government funds. It must be stressed that any interest of the members of the AFP-RSBS over its funds or property is merely inchoate and incidental. Such funds belong to the AFP-RSBS which has a juridical personality separate and independent of its members/beneficiaries. As gleaned from the Informations in Criminal Cases Nos. 25122 to 25133 for violation of Section 3(e) of Rep. Act No. 3019, the offended party is the government, which was allegedly deprived by the petitioner and the other accused of the capital gains and documentary stamp taxes, based on the actual and correct purchase price of the property stated therein in favor of the AFP-RSBS. The AGFOI was not involved whatsoever in the sales subject of the crimes charged; neither was it prejudiced by the said transactions, nor is it entitled to the civil liability of the petitioner for said cases. Thus, it is not the offended party in the said cases. We agree with the petitioner that the AGFOI is not even the offended party in Criminal Cases Nos. 25134 to 25145 for falsification of public documents under paragraph 4, Sec. 1, Article 171, of the Revised Penal Code. It bears stressing that in the felony of falsification of public document, the existence of any prejudice caused to third person or the intent to cause damage, at the very least, becomes immaterial. The controlling consideration is the public character of a document and the violation of the public faith and the destruction of truth therein solemnly proclaimed. The offender does not, in any way, have civil liability to a third person.[57] However, if, in a deed of sale, the real property covered thereby is underpriced by a public officer and his co-conspirators to conceal the correct amount of capital gains and documentary stamp taxes due on the sale causing undue injury to the government, the offenders thereby commit two crimes (a) falsification of public document defined in paragraph 4, Article 171 of the Revised Penal Code; and (b) violation of Section 3(e) of Rep. Act No. 3019, a special penal

law. The offender incurs civil liability to the government as the offended party for violation of Section 3(e) of Rep. Act No. 3019, but not for falsification of public document under paragraph 4, Article 171 of the Revised Penal Code. On the other hand, if, under the deed of sale, the AFP-RSBS was made liable for the payment of the capital gains and documentary stamp taxes and, thereafter, gave the correct amount thereof to the petitioner to be paid to the government, and the petitioner and his coaccused pocketed the difference between the correct amount of taxes and the amount entrusted for payment, then the AFP-RSBS may be considered the offended party entitled to intervene in the above criminal cases, through the Government Corporate Counsel.[58] In fine, the AGFOI is not the offended party entitled to intervene in said cases. IN LIGHT OF ALL THE FOREGOING, the petition is GRANTED. The assailed Resolutions of the Sandiganbayan are REVERSED and SET ASIDE. No costs. SO ORDERED. Republic of the Philippines SUPREME COURT THIRD DIVISION G.R. No. 140665 November 13, 2000

VICTOR TING "SENG DEE" and EMILY CHAN-AZAJAR, petitioners, vs. COURT OF APPEALS and PEOPLE OF THE PHILIPPINES, respondents. MELO, J.: Before us is a petition for certiorari under Rule 45 seeking the reversal of the February 12, 1999 decision of the Court of Appeals which affirmed that of the Regional Trial Court of the National Capital Judicial Region (Manila, Branch 45) finding petitioners guilty of seven (7) counts of violation of Batas Pambansa Blg. 22. Petitioners' version of the background events is as follows: From 1991 to 1992, Juliet Ting "Chan Sioc Hiu" obtained loans, in the aggregate amount of P2,750,000.00, from private complainant Josefina K. Tagle for use in Juliet's furniture business. As payment thereof, Juliet issued eleven (11) post-dated checks which, upon maturity, were dishonored for reasons of "Closed Account" or "Drawn Against Insufficient Funds." Juliet was subsequently prosecuted for violation of Batas Pambansa Blg. 22. Due to her financial difficulties, Juliet requested her husband Victor Ting "Seng Dee" and her sister Emily Chan-Azajar (petitioners herein) to take over her furniture business, including the obligations appurtenant thereto. Agreeing to Juliet's request, petitioners issued nineteen (19) checks in replacement of the eleven (11) checks earlier issued by Juliet. The planned take-over,

however, never materialized since the Naga Hope Christian School, petitioner Emily ChanAzajar's employer in Naga, refused to let her resign to attend to her sister's business. Since the planned take-over did not take place, petitioners requested Juliet to reassume her obligation to private complainant Tagle by replacing the checks they had previously issued to the latter. Thus, Juliet replaced the nineteen (19) checks issued by petitioners with twenty-three (23) Far East Bank checks in favor of Tagle. Petitioners then requested private complainant Tagle to return the nineteen (19) checks they had issued to her. Instead of returning the checks, Tagle deposited seven of the checks with MetroBank where they were dishonored for being "Drawn Against Insufficient Funds." On the other hand, private complainant Tagle alleged that sometime in April 1993, petitioners obtained a loan of P950,000.00 from her, issuing several post-dated checks in payment thereof. When the checks were deposited by Tagle with MetroBank, they were dishonored for having been drawn against insufficient funds. Tagle alleged that despite verbal and written demands, petitioners failed to pay her the value of the dishonored checks. Consequently, seven informations for violation of Batas Pambansa Blg. 22 were filed against petitioners. Said informations are similarly worded except with respect to the check number, the amount involved, and the date the check was issued. The information in Criminal Case No. 94131945 (the other cases are Criminal Case No. 94-131946, Criminal Case No. 94-131947, Criminal Case No. 94-131948, Criminal Case No. 94-131949, Criminal Case No. 94-131950, and Criminal Case No. 94-131951) charged: That sometime prior to May 27, 1993, in the City of Manila, Philippines, the said accused, conspiring and confederating together and mutually helping each other, did then and there wilfully, unlawfully and feloniously make or draw and issue to JOSEPHINE K. TAGLE, to apply on account or for value Producers Bank of the Philippines, Check No. 946072 dated May 27, 1993 payable to CASH in the amount of P250,000.00 said accused well knowing that at the time of issue they did not have sufficient funds in or credit with the drawee bank for payment of such check in full upon its presentment, which check when presented for payment within ninety (90) days from the date thereof, was subsequently dishonored by the drawee bank for Drawn Against Insufficient Funds and despite receipt of notice of such dishonor, said accused failed to pay said JOSEFINA K. TAGLE the amount of the check or to make arrangements for full payment of the same within five (5) banking days after receiving said notice. (p. 2, Original Records.) Criminal Cases No. 94-131945 to 94-131951 were consolidated and jointly tried. When arraigned, petitioners, assisted by counsel, pleaded not guilty. During trial, the prosecution presented only one witness, the private complainant, the testimony of Producer's Bank representative Ferdinand Lazo being dispensed with after counsel for petitioners admitted the dishonor of the checks subject matter of the action. On March 16, 1995, the trial court found petitioners guilty of violating Batas Pambansa Blg. 22 in each of the seven cases, disposing as follows:

WHEREFORE, in view of the foregoing, accused VICTOR TING and EMILY CHAN AZAJAR are hereby found "GUILTY" beyond reasonable doubt of all the charges contained in Criminal Case Nos. 94-131945; 94-131946; 94-131947; 94-131948; 94131949; 94-131950 and 94-131951 and for each count, they are hereby sentenced to suffer the penalty of one (1) year imprisonment; to pay Josefina K. Tagle the total amount of P950,000.00; and to pay the cost. (p. 294, Rollo.) Aggrieved, petitioners filed an appeal with the Court of Appeals which was docketed therein as C.A.-G.R. No. 18054. However, the appellate court, on February 12, 1999, affirmed. Petitioners' motion for reconsideration was, likewise, denied for lack of merit. Hence, the instant petition. Petitioners claim that the Court of Appeals erred in affirming the decision of the trial court, given the absence of proof beyond reasonable doubt or in the presence of facts creating reasonable doubt. The petition has merit. Section 1 of Batas Pambansa Blg. 22, otherwise known as the Bouncing Checks Law, provides: Section 1. Checks without sufficient funds. Any person who makes or draws and issues any check to apply on account or for value, knowing at the time of issue that he does not have sufficient funds in or credit with the drawee bank for the payment of such check in full upon its presentment, which check is subsequently dishonored by the drawee bank for insufficiency of funds or credit or would have been dishonored for the same reason had not the drawer, without any valid reason, ordered the bank to stop payment, shall be punished by imprisonment of not less than thirty days but not more than one (1) year or by a fine of not less than but not more double the amount of the check which fine shall in no case exceed Two hundred thousand pesos, or both such fine and imprisonment at the discretion of the court. The same penalty shall be imposed upon any person who having sufficient funds in or credit with the drawee bank when he makes or draws and issues a check, shall fail to keep sufficient funds or to maintain a credit to cover the full amount of the check if presented within a period of ninety (90) days from the date appearing thereon, for which reason it is dishonored by the drawee bank. Where the check is drawn by a corporation, company or entity, the person or persons who actually signed the check in behalf of such drawer shall be liable under this Act. For a violation of Batas Pambansa Blg. 22 to be committed, the following elements must be present: (1) the making, drawing, and issuance of any check to apply for account or for value;

(2) the knowledge of the maker, drawer, or issuer that at the time of issue there are no sufficient funds in or credit with the drawee bank for the payment of such check in full upon is presentment; and (3) the subsequent dishonor of the check by the drawee bank for insufficiency of funds or credit or dishonor for the same reason had not the drawer, without any valid cause, ordered the bank to stop payment (Sycip, Jr. vs. CA, G.R. No. 125059, March 17, 2000). An analysis of the evidence presented, however, shows that not all the aforementioned elements have been established by the prosecution beyond reasonable doubt. That the seven checks in question were issued by petitioners is beyond dispute. Not only were the dishonored checks presented in court, but petitioners even admitted signing the checks and issuing them to private complainant. From the evidence on record, it is clear that petitioners signed and issued the seven checks in question. That the checks were dishonored is also clearly established. Section 3 of Batas Pambansa Blg. 22 provides that "the introduction in evidence of any unpaid and dishonored check, having the drawee's refusal to pay stamped or written thereon, or attached thereto, with the reason therefor as aforesaid, shall be prima facie evidence of the making or issuance of said check, and the due presentment to the drawee for payment and the dishonor thereof, and that the same was properly dishonored for the reason written, stamped, or attached by the drawee on such dishonored check." In the instant case, the fact of the checks' dishonor is sufficiently shown by the return slips issued by MetroBank, the depository bank, stating that the checks had been returned for the reason "DAIF Drawn Against Insufficient Funds." Not only are these check return slips prima facie evidence that the drawee bank dishonored the checks, but the defense did not present any evidence to rebut these documents. In fact, counsel for petitioners even admitted the fact of the checks' dishonor, agreeing to dispense with the presentation of the bank representative who was supposed to prove the fact of dishonor of said checks (p. 162, Rollo.). However, for liability to attach under Batas Pambansa Blg. 22, it is not enough that the prosecution establishes that a check was issued and that the same was subsequently dishonored. The prosecution must also prove the second element, that is, it must further show that the issuer, at the time of the check's issuance, had knowledge that he did not have enough funds or credit in the bank for payment thereof upon its presentment. Since the second element involves a state of mind which is difficult to verify, Section 2 of Batas Pambansa Blg. 22 creates a presumption juris tantum that the second element prima facie exists when the first and third elements of the offense are present (Magno v. People, 210 SCRA 471 [1992]). Section 2 provides: Section 2. Evidence of knowledge of insufficient funds. The making, drawing, and issuance of a check payment of which is refused by the drawee because of insufficient funds or credit with such bank, when presented within ninety days from the date of the check, shall be prima facie evidence of knowledge of such insufficiency of funds or credit unless such maker or drawer pays the holder thereof the amount due thereon, or

makes arrangements for payment in full by the drawee of such check within five (5) banking days after receiving notice that such check has not been paid by the drawee." In truth, this Court declared in King v. People (G.R. No. 131540, December 2, 1999) that "the prima facie presumption arises when the check is issued. But the law also provides that the presumption does not arise when the issuer pays the amount of the check or makes arrangement for its payment 'within five banking days after receiving notice that such check has not been paid by the drawee.' Verily, BP 22 gives the accused an opportunity to satisfy the amount indicated in the check and thus avert prosecution This opportunity, however, can be used only upon receipt by the accused of a notice of dishonor." Thus, the presumption that the issuer had knowledge of the insufficiency of funds is brought into existence only after it is proved that the issuer had received a notice of dishonor and that, within five days from receipt thereof, he failed to pay the amount of the check or to make arrangement for its payment. King v. People, decided by this Division, involves a set of facts similar to the case at bar. In said case, the accused therein was proven to have issued eleven checks, all of which were duly filled up and signed by her. It was also clearly established that these eleven checks were dishonored, as shown by the checks themselves which were stamped "ACCOUNT CLOSED" and further supported by the return tickets issued by PCI Bank stating that the checks had been dishonored. Yet, even if the prosecution had already established the issuance of the checks and their subsequent dishonor, this Court still required the prosecution to show that the issuer knew of the insufficiency of funds by proving that he or she received a notice of dishonor and, within five banking days thereafter, failed to satisfy the amount of the check or make arrangement for its payment. Moreover, in Lina Lim Lao v. CA (274 SCRA 572 [1997]), we emphasized that "the full payment of the amount appearing in the check within five banking days from notice of dishonor is a 'complete defense.' The absence of a notice of dishonor necessarily deprives an accused an opportunity to preclude a criminal prosecution. Accordingly, procedural due process clearly enjoins that a notice of dishonor be actually served on petitioner. Petitioner has a right to demand and the basic postulate of fairness require that the notice of dishonor be actually sent to and received by her to afford her the opportunity to avert prosecution under BP 22." To prove that petitioners received a notice of dishonor, the prosecution presented a copy of the demand letter allegedly sent to petitioners through registered mail and its corresponding registry receipt. Private complainant Josefina Tagle, the sole witness for the prosecution, testified thus: Q: Now, when these seven (7) checks bounced for insufficiency of funds, what step did you take? A: Q: I demanded the return of my money from them. Now, what was the reply of the two accused?

A: They kept on promising that they will pay but up to now they have not paid any single centavo.

Q: A: Q: A: Q: A: Q: A: Q: A:

What other step did you take? I requested my lawyer to write a demand letter. And that demand letter was sent to the accused? Yes, Sir. In what manner? By registered mail. Now, was that demand letter received by the two accused? Yes, Sir. What is your evidence? The return card.

Q: If you are shown anew the copy of the demand letter which is already marked as Exhibit B, would you be able to recognize the same? A: Q: A: Q: A: Yes, Sir. Is that the one that you are referring to? Yes, Sir. How about the return card, is that correct? Yes, Sir, this is the one.

Q: Now, upon receipt of this letter by the two accused, did the two accused pay the amount of the said check? A: Q: A: Q: A: No, Sir. So what did you do next? I told my lawyer to file charges against them. You mean the present charge? Yes, Sir.

Atty. Acuesta: That is all, Your Honor. (TSN, Aug. 24, 1994, p. 8-9.) Aside from the above testimony, no other reference was made to the demand letter by the prosecution. As can be noticed from the above exchange, the prosecution alleged that the demand letter had been sent by mail. To prove mailing, it presented a copy of the demand letter as well as the registry return receipt. However, no attempt was made to show that the demand letter was indeed sent through registered mail nor was the signature on the registry return receipt authenticated or identified. It cannot even be gleaned from the testimony of private complainant as to who sent the demand letter and when the same was sent. In fact, the prosecution seems to have presumed that the registry return receipt was proof enough that the demand letter was sent through registered mail and that the same was actually received by petitioners or their agents. As adverted to earlier, it is necessary in cases for violation of Batas Pambansa Blg. 22, that the prosecution prove that the issuer had received a notice of dishonor. It is a general rule that when service of notice is an issue, the person alleging that the notice was served must prove the fact of service (58 Am Jur 2d, Notice, 45). The burden of proving notice rests upon the party asserting its existence. Now, ordinarily, preponderance of evidence is sufficient to prove notice. In criminal cases, however, the quantum of proof required is proof beyond reasonable doubt. Hence, for Batas Pambansa Blg. 22 cases, there should be clear proof of notice. Moreover, it is a general rule that, when service of a notice is sought to be made by mail, it should appear that the conditions on which the validity of such service depends had existence, otherwise the evidence is insufficient to establish the fact of service (C.J.S., Notice, 18). In the instant case, the prosecution did not present proof that the demand letter was sent through registered mail, relying as it did only on the registry return receipt. In civil cases, service made through registered mail is proved by the registry receipt issued by the mailing office and an affidavit of the person mailing of facts showing compliance with Section 7 of Rule 13 (See Section 13, Rule 13, 1997 Rules of Civil Procedure). If, in addition to the registry receipt, it is required in civil cases that an affidavit of mailing as proof of service be presented, then with more reason should we hold in criminal cases that a registry receipt alone is insufficient as proof of mailing. In the instant case, the prosecution failed to present the testimony, or at least the affidavit, of the person mailing that, indeed, the demand letter was sent. Moreover, petitioners, during the pre-trial, denied having received the demand letter (p. 135, Rollo.). Given petitioners' denial of receipt of the demand letter, it behooved the prosecution to present proof that the demand letter was indeed sent through registered mail and that the same was received by petitioners. This, the prosecution miserably failed to do. Instead, it merely presented the demand letter and registry return receipt as if mere presentation of the same was equivalent to proof that some sort of mail matter was received by petitioners. Receipts for registered letters and return receipts do not prove themselves; they must be properly authenticated in order to serve as proof of receipt of the letters (Central Trust Co. v. City of Des Moines, 218 NW 580).

Likewise, for notice by mail, it must appear that the same was served on the addressee or a duly authorized agent of the addressee. In fact, the registry return receipt itself provides that "[a] registered article must not be delivered to anyone but the addressee, or upon the addressee's written order, in which case the authorized agent must write the addressee's name on the proper space and then affix legibly his own signature below it." In the case at bar, no effort was made to show that the demand letter was received by petitioners or their agent. All that we have on record is an illegible signature on the registry receipt as evidence that someone received the letter. As to whether this signature is that of one of the petitioners or of their authorized agent remains a mystery. From the registry receipt alone, it is possible that petitioners or their authorized agent did receive the demand letter. Possibilities, however, cannot replace proof beyond reasonable doubt. There being insufficient proof that petitioners received notice that their checks had been dishonored, the presumption that they knew of the insufficiency of the funds therefor cannot arise. As we stated in Savage v. Taypin (G.R. No. 134217, May 11, 2000), "penal statutes must be strictly construed against the State and liberally in favor of the accused." Likewise, the prosecution may not rely on the weakness of the evidence for the defense to make up for its own blunders in prosecuting an offense. Having failed to prove all the elements of the offense, petitioners may not thus be convicted for violation of Batas Pambansa Blg. 22. That petitioners are civilly liable to private complainant is also doubtful. Private complainant claims that petitioners borrowed Nine Hundred Fifty Thousand (P950,000.00) Pesos from her on or about the end of April 1993, in payment of which petitioners issued several post-dated checks in her favor. The seven checks issued by petitioners as payment for the amount borrowed add up to P950,000.00. If private complainant is the businesswoman that she claims to be, she should be collecting interest on the loan she granted to petitioners. In other words, the amount to be repaid by petitioners should be more than P950,000.00, to account for interest on the loan. The checks issued by petitioners, however, do not provide for interest. It is thus more credible that the seven checks involved in this case form part of nineteen checks issued to replace the checks issued by Juliet Ting to private complainant. This conclusion is bolstered by private complainant's admission in her reply-affidavit that more than seven checks were issued by petitioners (p. 11, Original Records). In said reply-affidavit, private complainant states that "respondents issued and delivered to me in Manila several checks, which partially include their seven (7) bouncing checks herein. I say 'partially' because I will have to file additional bouncing check cases against them, as these other checks likewise bounced." Furthermore, in the same reply-affidavit, private complainant claims that the checks in question were not replaced, allegedly because the replacement checks must first be cleared, which did not happen in this case. By implication, had the 23 Far East Bank checks issued by Juliet Ting to replace the nineteen checks issued by petitioners been cleared, then private complainant would have considered the checks in question as having been replaced. This only supports our conclusion that it was Juliet Ting who owed money to private complainant, not petitioners. Moreover, the original debtor Juliet Ting was convicted by the Regional Trial Court of Manila in Criminal Cases 93-126581-91 for eleven counts of violation of Batas Pambansa Blg. 22. These eleven bouncing check cases involved the same obligation being sued upon by private complainant Tagle herein. The trial court expressly acknowledged in said cases that nineteen

(19) checks were issued by petitioners as payment for Juliet Ting's obligation. In its August 7, 1997 decision convicting Juliet Ting for violation of Batas Pambansa Blg. 22, the trial court declared that "to cover the additional loans, accused (Juliet Ting) delivered 19 post-dated checks issued by Victor Ting and Emily Azajar (p. 55, Rollo.)." The trial court's decision further provides: Since she could not fund the other checks (Exhs. B to K), she replaced the same with 19 post-dated checks of her husband Victor Ting and her sister Emily Azajar totaling P2,450,000.00. They issued the checks as they would take over her furniture business. The intended partnership of Victor and Emily was aborted as the latter was not allowed to resign from her teaching post in Naga City. She then replaced the checks issued by Victor and Emily with her own checks 23 FEB post-dated checks per list (Exh. 9) prepared by Suzanne Azajar. Despite receipt of the replacement checks, complainant refused to return the checks of Victor and Emily and even filed cases against them. (p. 56, Rollo.) Not having borrowed the amount of Nine Hundred Fifty Thousand (P950,000.00) from private complainant, petitioners may not thus be held liable therefor. WHEREFORE, premises considered, the instant petition is GRANTED and the assailed decision of the Court of Appeals dated February 12, 1999 REVERSED and SET ASIDE. Petitioners Victor Ting "Seng Dee" and Emily Chan-Azajar are hereby ACQUITTED of the charges against them for violation of Batas Pambansa Blg. 22, for lack of sufficient evidence to prove the offenses charged beyond reasonable doubt. No special pronouncement is made as to costs. SO ORDERED.