On
October 7,
2005,
petitioner filed the instant petition for certiorari under Rule 65, praying that
the said Resolution be nullified on the following grounds:
I. THE RESPONDENT COURT COMMITTED GRAVE ABUSE OF
DISCRETION AMOUNTING TO LACK AND/OR EXCESS OF JURISDICTION IN SUSTAINING THE
OMBUDSMAN’S FINDING OF PROBABLE CAUSE FOR THE COMMISSION OF ONE HUNDRED FORTY
EIGHT (148) COUNTS OF ESTAFA THRU FALSIFICATION OF PUBLIC DOCUMENT AND ANOTHER
ONE HUNDRED FORTY EIGHT (148) COUNTS OF VIOLATION OF REPUBLIC ACT NO. 3019 AND
IN NOT DISMISSING THE INFORMATIONS.
II. THE
RESPONDENT
COURT COMMITTED
GRAVE ABUSE OF DISCRETION AMOUNTING TO LACK AND/OR EXCESS OF JURISDICTION IN NOT
QUASHING THE INFORMATIONS AND IN NOT DISMISSING THE CASES NOTWITHSTANDING THAT
IT HAD NO JURISDICTION OVER THE OFFENSE CHARGED IN THE
INFORMATION.
III. THE
RESPONDENT
COURT COMMITTED
GRAVE ABUSE OF DISCRETION AMOUNTING TO LACK AND/OR EXCESS OF JURISDICTION IN NOT
QUASHING THE INFORMATION IN CRIMINAL CASE NO. 28023 (ESTAFA THROUGH
FALSIFICATION), NOTWITHSTANDING THAT THE FACTS CHARGED THEREIN WERE AN ESSENTIAL
PART OF ONE CONTINUING CRIME OF ESTAFA SEPARATELY CHARGED IN CRIMINAL CASES NOS.
28021, 28025, 28027 AND 28029, PENDING IN THE THIRD, FIRST, FIFTH AND SECOND
DIVISIONS OF THE SANDIGANBAYAN, RESPECTIVELY, CONSIDERING THAT BASED ON THE
DOCUMENTS ADDUCED BY THE PEOPLE AND FOR OBVIOUS WANT OF RELIABLE EVIDENCE, ONLY
ONE INFORMATION FOR ESTAFA SHOULD HAVE BEEN FILED FOR ALL THESE CASES INCLUDING
THE REMAINING ONE HUNDRED FORTY THREE (143) COUNTS COVERED BY THE OSP MEMORANDUM
DATED JUNE 15, 2004, ANNEX T;
IV. THE
RESPONDENT
COURT COMMITTED
GRAVE ABUSE OF DISCRETION AMOUNTING TO LACK AND/OR EXCESS OF JURISDICTION IN NOT
QUASHING THE INFORMATION IN CRIMINAL CASE NO. 20822 (VIOLATION OF RA NO. 3019)
NOTWITHSTANDING THAT THE SAID CASE WAS ABATED BY CRIMINAL CASE NO. 20823 (ESTAFA
THROUGH FALSIFICATION) BECAUSE THE VERY FACTS ALLEGED IN THE FORMER WERE ALSO
THE VERY FACTS ALLEGED IN THE LATTER, THUS VIOLATING THE RULE ON DOUBLE
JEOPARDY.
Petitioner
insists that, in finding probable cause against him for estafa through
falsification of public document and violation of Section 3(e) of R.A. 3019, the
Sandiganbayan committed grave abuse of discretion amounting to lack of
jurisdiction, as it relied solely on the Memorandum of the investigation panel
of Ombudsman Prosecutors. He posits that it behooved the anti-graft court to
review the Ombudsman’s findings and scrutinize the evidence, the affidavits on
record, including the transcript of stenographic notes. As gleaned from the
Joint Resolution dated March 30, 2001, the initial finding of the
Ombudsman Prosecutors was that there was no probable cause to charge him for the
acts complained of, in the light of the Court’s ruling in the Arias case.
He asserts that there was no evidence of bad faith on his part relative
to the deeds of sale subject of the Informations filed against him. He insists
that based on the Joint Resolution, and even the report of the Senate Blue
Ribbon Committee, he had no part whatsoever in the commission of the crimes
charged. The disparity of the prices of the properties in the bilateral deeds of
sale, vis-à-vis the unilateral deeds of sale, do not support the finding of
probable cause against him made by the investigating panel of Ombudsman
Prosecutors. Petitioner asserts that there is no evidence on record that he
conspired with the other accused in the commission of the crimes
charged.
Petitioner
further posits that the Sandiganbayan likewise committed grave abuse of its
discretion when it found probable cause for the issuance of a warrant of arrest
against him instead of setting the case for hearing. He insists that the
anti-graft court failed to consider the other evidence on record and erred in
relying solely on the evaluation and resolution of the investigating panel of
Prosecutors; the fact that he posted bail bonds for his provisional liberty does
not estop him from raising the issue in his Motion to
Quash.
Petitioner
avers that the Sandiganbayan has no jurisdiction over the crimes charged as
provided in Section 4 of R.A. 8249. He
insists that the AFP-RSBS is not a government-owned or controlled corporation
and that he does not fall under Salary Grade 27 as required in Section 4 of the
law, inasmuch as his position as AFP-RSBS President is not even included under
the Compensation and Classification Act of 1989. Petitioner cites the ruling of this Court in
Inding v. Sandiganbayan to support his
claim.
Petitioner
asserts that the charges filed against him constitute only one crime of estafa
through falsification of public document, in the nature of delito continuado, or a series of
repetition of the same acts arising from one and the same criminal intent. He maintains that while there are 148
bilateral deeds of sale signed by him and 145 unilateral deeds of sale signed by
the sellers, it cannot thereby be concluded that he is criminally liable for
each deed executed. The number of transactions purportedly entered into is not a
gauge in ascertaining criminal intent for the several transactions. The best
test should be the presence of clear, convincing and positive evidence showing
distinct criminal intent for each sales transaction, which in any event, is
wanting in this case. Petitioner further alleges that for multiple transactions
to be considered as separate and distinct crimes, there must be a series of acts
with individual sellers such as (a) negotiations; (b) discussion of the terms of
the sale; (c) finalizing the terms thereof; and (d) instruction to prepare
payment and (e) actual payment. He points out that there is no
evidence that
he and the other accused involved ever met with any of the sellers. While he admits the possibility that he could
have signed the bilateral deeds of sale in one sitting, he insists that these
documents were
notarized
separately; there is even no evidence on record that the sellers of the property
transacted separately with him. He points out that the corporate officers of
AFP-RSBS, especially its President, do not personally deal with any of the
sellers. The bare fact that he executed the bilateral deeds of sale and that the
project was approved by the higher level of the management, cannot lead to the
conclusion that he took part in the implementation of the
transactions.
Petitioner
maintains that the Sandiganbayan committed grave abuse of discretion amounting
to lack of or excess of jurisdiction in filing the charges against him. He
insists that the delictual acts contained in the two Informations, Criminal Case
No. 28022 (for violation of R.A. 3019) and Criminal Case No. 28023 (for estafa
through falsification of public document), are one and the same; to charge him
under Section 3(e) of R.A. 3019 despite his indictment for estafa is to
duplicate the very same charge under another name, which under the principle of
double jeopardy, is proscribed. He further argues that while it is true that, in
Section 3(e) of R.A. 3019, the charge against him for said crime is “in
addition” to his criminal liability under the Revised Penal Code, the phrase
connotes cumulativeness and simultaneity of liability.
Petitioner
points out that the panel of Ombudsman Prosecutors recommended the filing of
only one count of violation of Section 3(e) of R.A. No. 3019, but the Ombudsman
filed five (5) counts thereof.
The issues are
the following: (1) whether the Ombudsman committed grave abuse of discretion amounting to excess
or lack of jurisdiction in finding probable cause against petitioner for estafa
through falsification of public document and for violation of Section 3(e) of
R.A. No. 3019; (2) whether
the Sandiganbayan committed grave abuse of discretion amounting to excess of
jurisdiction in finding probable cause against petitioner for the issuance of
warrants for petitioner’s arrest without first conducting a hearing; (3) whether petitioner may be charged and
prosecuted for five (5) counts of estafa thru falsification of public documents;
and (4) whether petitioner may be prosecuted for both estafa through
falsification of a public document and violation of Section 3(e) of R.A. No.
3019 without violating his right against double jeopardy.
The petition
has no merit.
On the first
issue, the rule is that as far as crimes cognizable by the Sandiganbayan are
concerned, the determination of probable cause during the preliminary
investigation, or reinvestigation for that matter, is a function that belongs to
the Office of the Ombudsman. The Ombudsman is empowered to determine, in the
exercise of his discretion, whether probable cause exists, and to charge the
person believed to have committed the crime as defined by law. Whether or not the Ombudsman has correctly
discharged his function, i.e.,
whether or not he has made a correct assessment of the evidence of probable
cause in a case, is a matter that the trial court may not be compelled to pass
upon.
As a rule,
courts should not interfere with the Ombudsman’s investigatory power, exercised
through the Ombudsman Prosecutors, and the authority to determine the presence
or absence of probable cause,
except when the finding is tainted with grave abuse of discretion amounting to
lack or excess of jurisdiction. In such
case, the aggrieved party may file a petition for certiorari under Rule 65 of the Rules of
Court. Indeed, if the Ombudsman does not take
essential facts into consideration in the determination of probable cause, there
is abuse of discretion. As we ruled in Mendoza-Arce v. Office of the Ombudsman
(Visayas), a writ of certiorari may issue in any of the
following instances:
1. When necessary to afford adequate protection to the
constitutional rights of the accused;
2. When necessary for the orderly administration of justice
or to avoid oppression or multiplicity of actions;
3. When there is a prejudicial question which is sub judice;
4. When the acts of the officer are without or in excess of
authority;
5. Where the prosecution is under an invalid law, ordinance
or regulation;
6. When double jeopardy is clearly
apparent;
7. Where the court has no jurisdiction over the
offense;
8. Where it is a case of persecution rather than
prosecution;
9. Where the charges are manifestly false and motivated by
the lust for vengeance;
10.
When there is clearly no prima facie case against the accused and
a motion to quash on that ground has been denied.
In this case,
however, petitioner failed to establish that the Ombudsman committed grave abuse
of discretion amounting to excess or lack of jurisdiction in finding probable
cause to charge him with violation of Section 3(e) of R.A. No. 3019 and for
estafa through falsification of a public document.
We are not
convinced by petitioner’s claim that there is no probable cause on record for
the filing of the Information against him. It bears stressing that probable
cause need not be based on clear and convincing evidence of guilt, neither on
evidence establishing guilt beyond reasonable doubt and definitely not on
evidence establishing absolute certainty of guilt. It
implies probability of guilt and requires more than bare suspicion but less than
evidence which would justify conviction. The Ombudsman’s finding of probable cause
against petitioner is buttressed by his encompassing and comprehensive
resolution, independent of the findings of the Senate Committees, as well as the
documents appended to the Informations. Petitioner’s bare claim to the contrary
cannot prevail over such positive findings of the Ombudsman. In fine, the
Ombudsman’s finding of
probable cause prevails over petitioner’s bare allegations of grave
abuse of discretion; that he was not involved in the step-by-step consummation
of the anomalous transaction; and that as President he was involved only in the
top level policy formulation and implementation.
It is true that
in the Joint Resolution dated March 30,
2001, the
Panel of Ombudsman Prosecutors found no sufficient evidence that petitioner
acted in bad faith and that he merely relied on the recommendations of his
subordinates. However, after a thorough investigation, another panel of
Ombudsman Prosecutors found that, indeed, petitioner not merely relied on the
recommendations of his subordinates but likewise perpetrated overt acts, which,
along with those of the other accused, resulted in the consummation of the
crimes charged. Thus, as maintained by the respondents in their Comment on the
petition, petitioner signed documents, indicating his evident bad faith on the
highly anomalous transactions; petitioner was aware of the forgeries and
anomalies in the buying of the parcels of land, yet gave his conformity thereto,
causing grave injury to its members and to the public in general. Thus, it was
also found that petitioner, together with his cohorts, conspired to perpetuate
clear fraud on the government and the AFP-RSBS members by giving a semblance of
regularity to real estate acquisitions at bloated prices.
The fact alone
that petitioner was aware, in each transaction, that the two (2) deeds of sale
contain contradictory costs for every acquisition, and that he failed to rectify
the same eloquently speak of his participation in the criminal malevolence. He
was a member of the Investment Committee of the AFP-RSBS, which screened
potential investments, that were thereafter subjected to further screening and
approval by the Executive Committee of which he was also a member; hence,
petitioner had full knowledge of the transactions, from the time they were
conceptualized until the properties were paid for. The records show that the
Tanauan, Batangas properties alone were overpriced by about 600%. Thus,
petitioner consented to the crimes charged by the following overt
acts:
(1) Petitioner and his co-accused prepared or
caused to be prepared two (2) deeds of sale covering the same transactions:
a deed of sale with the seller or
sellers as the sole signatory or signatories therein (unilateral deeds); and a
deed of sale with the seller or sellers and the buyer, AFP-RSBS, represented by
petitioner (bilateral deeds);
(2) The considerations in the unilateral deeds of
sale and the bilateral deeds of sale did not tally, notwithstanding the fact
that they covered the same subject matter and transaction, with the bilateral
deeds of sale bearing a bloated price; and,
(3) Of these two deeds, the unilateral deeds of
sale bore the correct value given to the seller(s) as evinced, among others, by
the fact that the same were the ones registered with the Registry of Deeds.
The bilateral
deeds of sale could not possibly be the basis of the transfer of the properties
because the supporting bilateral deeds carried dates much later than the date of
issue of the titles, which were likewise not filed with the Bureau of Internal
Revenue (BIR) and the Registry of Deeds of Tanauan, Batangas. The Court cannot
supplant the findings of the Ombudsman that the unilateral deeds of sale were
prepared by the Legal Department of AFP-RSBS, in as much as both the unilateral
and bilateral deeds of sale have exactly the same print and form. The residence
certificate number of petitioner which is indicated in the bilateral deeds of
sale is likewise printed in the unilateral deeds. Petitioner’s fraudulent intent
is further proven by the fact that the Status of Transaction Form (STF), where
the subject lots were endorsed for payment, bore his signature. The unilateral
deeds of sale resulted in the issuance of the titles, which were also the
supporting documents enumerated in the STF. In many instances, the bilateral
deeds of sale carry dates much later than the dates their corresponding titles
were issued.
Petitioner was
likewise unable to establish his claim that the Sandiganbayan committed grave
abuse of discretion in finding probable cause for the issuance of a warrant for
his arrest. His bare claim that the Sandiganbayan merely relied on the Memoranda
of the Panel of Prosecutors to the Ombudsman and did not scrutinize the evidence
appended thereto is not supported by the records. In the first place, the
Sandiganbayan is presumed to have performed its duty as provided in the Revised
Rules of Criminal Procedure, which can likewise be gleaned from its February 22,
2005 Resolution:
[1] While accused Ramiscal is
correct in stating that this Court, in determining the existence of probable
cause for the issuance of the warrant of arrest against the accused, had
evaluated the resolution of the Office of the Ombudsman and its supporting
documents, he is, however, wrong in presuming that such process failed to
consider the evidence the accused adduced during preliminary investigation. It should be noted that the supporting
documents submitted by the Office of the Ombudsman to this Court included, among
others, the counter-affidavits
submitted by the accused at the preliminary investigation. Parenthetically, there is no need, and the
rules do not require this Court, to enumerate in detail what were the supporting
documents it considered in determining the existence of probable cause for the
issuance of the warrant of arrest because the same are matters of record that
the parties can easily verify.
We agree with
the Sandiganbayan’s ruling that the Revised Rules of Criminal Procedure do not
require cases to be set for hearing to determine probable cause for the issuance
of a warrant for the arrest of the accused before any warrant may be issued.
Section 6, Rule 112 mandates the judge to personally evaluate the resolution of
the Prosecutor (in this case, the Ombudsman) and its supporting evidence, and if
he/she finds probable cause, a warrant of arrest or commitment order may be
issued within 10 days from the filing of the complaint or Information; in case
the Judge doubts the existence of probable cause, the prosecutor may be ordered
to present additional evidence within five (5) days from notice. The provision
reads in full:
SEC. 6. When
warrant of arrest may issue. — (a) By
the Regional Trial Court. – Within ten (10) days from the filing of the
complaint or information, the judge shall personally evaluate the resolution of
the prosecutor and its supporting evidence. He may immediately dismiss the case
if the evidence on record clearly fails to establish probable cause. If he finds probable cause, he shall issue a
warrant of arrest, or a commitment order if the accused has already been
arrested pursuant to a warrant issued by the judge who conducted the preliminary investigation
or when the complaint or information was filed pursuant
to section 7 of this Rule. In case of
doubt on the existence of probable cause, the judge may order the prosecutor to
present additional evidence within five (5) days from notice and the issue must
be resolved by the court within thirty (30) days from the filing of the
complaint of information.
The periods
provided in the Revised Rules of Criminal Procedure are mandatory, and as such,
the judge must determine the presence or absence of probable cause within such
periods. The Sandiganbayan’s determination of probable cause is made ex parte and is summary in nature, not
adversarial. The Judge should not be
stymied and distracted from his determination of probable cause by needless
motions for determination of probable cause filed by the accused.
We hold that
petitioner likewise failed to establish his claim that the Sandiganbayan
committed a grave abuse of authority in denying his motion to quash the
Information.
First. The anti-graft court correctly ruled that it
has jurisdiction over the crimes charged.
In People v. Sandiganbayan and Ramiscal, Jr. v. Sandiganbayan, this Court ruled that the AFP-RSBS is a
government-owned and controlled corporation, and that its funds are in the
nature of public funds. Under Section 4(a)(1)(g) of R.A. No. 8249, the
Sandiganbayan has exclusive jurisdiction over offenses committed by presidents,
directors, trustees or
managers
of government owned or controlled corporations.
Under Section 4(b) of R.A. No. 8249, the Sandiganbayan has exclusive
jurisdiction over offenses committed by public officers and employees in
relation to their office, whether simple or complexed with other crimes.
As gleaned from
the material averments of the Information in Criminal Case No. 28023, the charge
against petitioner is estafa through falsification of public document in the
performance of his duties and in relation to his position as president of the
AFP-RSBS.
Second. On petitioner’s claim that he should be
charged with only one count of estafa through falsification of public document
instead of five (5) charges, respondents counter that the criminal acts
petitioner and his co-accused are not continuous crimes. Respondents argue that
a continuous crime may exist only if there is only a single criminal intent and
the commission of diverse acts is merely a partial execution of said single
criminal resolution. In the instant
cases, the requirement of singularity of criminal intent does not exist because
there are as many criminal intents as there are anomalous transactions, causing
grave damage to the government at each instance. There was no need for the
accused to perform another or other delictual acts to consummate the felony.
Respondents maintain that petitioner was motivated by separate intents as he
signed each document, all of which are criminal in character; hence, it is but
proper that corresponding Informations be filed against him for each and every
act of falsification committed.
The
Sandiganbayan, for its part, sustained the contention of respondents and ruled
that the determination of (a) the charge/s and the person/s against whom the
charge is filed are addressed to the sound discretion of the Prosecutors based
on the facts before them; and (b) the crimes committed by petitioner are
separate, and not a single crime consisting of series of acts arising from a
single criminal resolution. Thus:
In the first place, the question
of the number of criminal charges that must be instituted against a criminal
respondent (whether one count or multiple counts of the same offense) is one
addressed to the sound discretion of the prosecution service. It is enough, as this Court has already
ruled, that the informations filed in these cases are based on facts
establishing probable cause for the offenses charged. This Court will not compel the Office of the
Ombudsman to file only one information for Estafa through Falsification of
Public Documents when its preliminary investigation established the commission
of several counts thereof as such action on the part of this Court would
constitute undue interference with the Office of the Ombudsman’s control over
the prosecution of these cases.
In the second place, this Court is
not persuaded that what is involved in these cases is a continuous crime, that
is to say, a single crime consisting of a series of acts arising from a single
criminal resolution or intent not susceptible of division, with each act in that
series being merely the partial execution of a single delict. On the contrary, the Court is of the view
that what is involved herein are several completed and distinct purported
criminal acts which should be prosecuted as multiple counts of the same type of
offense. Thus, as correctly perceived by
the prosecution, there are as many alleged offenses as there are alleged
anomalous transactions involved in these cases.
When required
to comment on the motion of petitioner and his co- accused for a consolidation
of the charges filed against them before the Sandiganbayan, the Special
Prosecutor objected thereto, insisting that there were as many crimes committed
by the accused as there were sales contracts forged by
them.
Indeed, the
determination of what charges to file and who are to be charged are matters
addressed to the discretion of the Ombudsman, including the matter of whether
the crime perpetrated by petitioner and his co-accused under the Informations
pending in the Divisions of the Sandiganbayan constitute delito continuado or classified as concurso de
delitos; or involve separate crimes under the
category of concurso real delito
involve factual issues.
Such factual issues should be resolved after trial on the merits, and not in
this case. The Court is being tasked to determine whether the several sales
contracts executed by petitioner and his co-accused were set afoot or triggered
by a single impulse and operated by an uninterrupted force however long a time
it may occupy, which, however, is a matter best left to the determination of the
trial court, in this case, the Sandiganbayan.
Thus, the
present petition for certiorari under
Rule 65 of the Revised Rules of Court is hardly the appropriate remedy and forum
for petitioner to ventilate the issues he has raised, as only jurisdictional
issues can be resolved therein. As
eloquently expressed by Justice Florenz D. Regalado, speaking for this Court in
Iligan v. Court of Appeals:
If, as petitioners seem to
apprehend, the adverse actions of two lower courts could create a scenario of
multiple prosecutions for the same offense or, more candidly expressed, of
double jeopardy, then this is neither the procedural stage nor the proper
occasion to pass upon that possibility.
For, squarely imputable to petitioners is the evident lack of factual
basis for and a grossly defective presentation of that issue for this Court to
rule thereon in this proceeding and at this time.
It must be
stressed that our disposition of the matters in the present recourse will not
foreclose petitioner’s right to ventilate the same in the Sandiganbayan, for as
declared in Iligan:
However, this observation would
not foreclose relief to petitioners if at the trial of this case the evidence
presented and the developments therein suffice to establish the supervening fact
that indeed there could possibly be a breach of the rule of double
jeopardy. Under Section 8 of Rule 117,
they can still hereafter raise that defense of non bis in idem, provided that they can
lay the evidentiary bases therefor and refute from the standpoint of substantive
penal law what was earlier said on the nature and the non-identity of the
several crimes of Estafa involved which, to repeat, we pronounced purely on the
bases of existing records sans the
benefit of any evidentiary fact since none has been adduced.
On the last
issue, we agree with the contention of respondents that the crimes committed by
public officers and employees in relation to their offices defined and penalized
under the Anti-Graft Law do not exclude prosecution for felonies defined and
penalized under the Revised Penal Code and vice versa. Section 3 of R.A. No. 3019
reads:
Section 3. Corrupt practices of public officers.–In addition to acts or omissions of public
officers already penalized by existing law, the following shall constitute
corrupt practices of any public officer and are hereby declared to be unlawful:
x x x (Emphasis supplied)
It is clear
then that one may be charged of violation of R.A. No. 3019 in addition to a
felony under the Revised Penal Code for the same delictual act, that is, either
concurrently or subsequent to being charged with a felony under the Code.
IN LIGHT OF ALL THE FOREGOING,
the petition is DENIED.
Costs against the petitioner.
SO
ORDERED.
ROMEO J. CALLEJO,
SR.
Associate Justice
