G.R. No.

178947

June 26, 2013

VIRGINIA DE LOS SANTOS-DIO, as authorized

representative of H.S. EQUITIES, LTD., and
WESTDALE ASSETS, LTD., Petitioner,
vs.
THE HONORABLE COURT OF APPEALS, JUDGE
RAMON S. CAGUIOA, in his capacity as Presiding
Judge of Branch 74, Regional Trial Court, Olongapo
City, and TIMOTHY J. DESMOND, Respondents.
x-----------------------x
G.R. No. 179079
PEOPLE OF THE PHILIPPINES, Petitioner,
vs.
TIMOTHY J. DESMOND, Respondent.
DECISION
PERLAS-BERNABE, J.:
Before the Court are consolidated petitions for review on
1
2
certiorari assailing the November 8, 2006 Decision and
3
July 19, 2007 Resolution of the Court of Appeals (CA)
in CA-G.R. SP No. 88285, upholding the validity of the
trial courts dismissal of separate criminal informations
for estafa against private respondent Timothy J.
Desmond (Desmond) due to lack of probable cause.
The Facts
In 2001, petitioner Virginia De Los Santos-Dio (Dio), the
majority stockholder of H.S. Equities, Ltd. (HS Equities)
and authorized representative of Westdale Assets, Ltd.
4
(Westdale), was introduced to Desmond, the Chairman
and Chief Executive Officer (CEO) of the Subic Bay
Marine Exploratorium, Inc. (SBMEI), and the authorized
representative of Active Environments, Inc. and JV
China, Inc. (JV China), the majority shareholder of
5
SBMEI. After some discussion on possible business
ventures, Dio, on behalf of HS Equities, decided to
6
invest a total of US$1,150,000.00 in SBMEIs Ocean
Adventure Marine Park (Ocean Adventure), a theme
park to be constructed at the Subic Bay Freeport Zone
which, when operational, would showcase live
performances of false-killer whales and sea lions. In this
relation, Dio claimed that Desmond led her to believe
that SBMEI had a capital of US$5,500,000.00, inclusive
of the value of the marine mammals to be used in Ocean
7
Adventure, and also guaranteed substantial returns on
8
investment. Desmond even presented a Business Plan,
indicating that: (a) Ocean Adventures "attendance will
rise from 271,192 in 2001 to just over 386,728 in 2006,
with revenues rising from US$4,420,000.00 million to
US$7,290,000.00 million in the same time frame"; (b)
"early investors are expected to reap an annual return of
23% in 2001, rising to 51% in 2006"; and (c) "fully priced
shares would yield a 19% return] in 2001, rising to 42%
9
in 2006." Thus, on January 18, 2002, a Subscription
10
Agreement was executed by Desmond, as
representative of SBMEI and JV China, and Dio, as
representative of HS Equities.
While no Certificate of Stock was issued either to HS
Equities or to Dio, HS Equities was expressly granted
minority protection rights in a subsequent Subscription
11
and Shareholders Agreement dated March 12, 2002,
stating that there shall be "a nominee of the Subscriber
to be elected as Treasurer/Chief Financial Officer, who
may not be removed by the Board of Directors without

12

the affirmative vote of the Subscriber." Accordingly, Dio

was elected as a member of SBMEIs Board of Directors
13
and further appointed as its Treasurer. The parties
later executed two (2) Investors Convertible Promissory
14
Notes one dated April 4, 2001 and another dated
15
May 8, 2001 covering HS Equities infusion of a total
of US$1,000,000.00 for the purpose of purchasing
machinery, equipment, accessories, and materials to be
used for the construction of Ocean Adventure.
In June 2002, Dio, this time on behalf of Westdale,
16
invested another US$1,000,000.00 in a separate
business venture, called the Miracle Beach Hotel Project
(Miracle Beach), which involved the development of a
resort owned by Desmond adjoining Ocean Adventure.
They agreed that the said investment would be used to
settle SBMEIs P40,000,000.00 loan obligation to First
Metro Investment Corporation and for the construction of
17
48 lodging units/cabanas. However, when the
corresponding subscription agreement was presented to
Dio by SBMEI for approval, it contained a clause stating
that the "funds in the Subscription Bank Account" were
also to be used for the "funding of Ocean Adventures
Negative Cash Flow not exceeding
18
US$200,000.00." This was in conflict with the exclusive
purpose and intent of Westdales investment in Miracle
Beach and as such, Dio refused to sign the subscription
agreement.
Dio further claimed that she found out that, contrary to
Desmonds representations, SBMEI actually had no
capacity to deliver on its guarantees, and that in fact, as
of 2001, it was incurring losses amounting
19
toP62,595,216.00. She likewise claimed to have
discovered false entries in the companys books and
financial statements specifically, its overvaluation of
the marine animals and its non-disclosure of the true
20
amount of JV Chinas investment which prompted
her to call for an audit investigation. Consequently, Dio
discovered that, without her knowledge and consent,
Desmond made certain disbursements from Westdales
special account, meant only for Miracle Beach
expenditures (special account), and diverted a total of
US$72,362.78 therein for the operating expenses of
21
Ocean Adventure. When Desmond refused to execute
an undertaking to return the diverted funds, Dio, in her
capacity as Treasurer of SBMEI, suspended the release
22
of the remaining funds in the aforesaid special account.
Eventually, after Dio was ousted as Director and
23
Treasurer of SBMEI, she filed, on April 19, 2004, two
24
(2) criminal complaints (subject criminal complaints) for
estafa (a) through false pretenses under Article
25
26
315(1)(b) of the Revised Penal Code (RPC); and (b)
with unfaithfulness or abuse of confidence through
misappropriation or conversion under Article
27
315(2)(a) of the RPC, both against Desmond before
the Olongapo City Prosecutors Office (City Prosecutors
Office), docketed as IS Nos. 04-M-992 and 04-M-993.
In defense, Desmond maintained that his representation
of himself as Chairman and CEO of SBMEI was not a
sham and that Dio has not even proven that he did not
have the expertise and qualifications to double her
investment. Among others, he also denied having been
fired from Beijing Landa Aquarium Co. Ltd. for his
supposed incompetence and mismanagement. He
further asserted that it was not deceitful to value the
marine mammals at US$3,720,000.00 as equity
contribution of JV China in SBMEI, notwithstanding the
fact that two (2) false killer whales had already perished
before the company could start operations. This is
because the said valuation, in any case, would be based
on the collective income-earning capacity of the entire

animal operating system derived from revenues

generated by marine park attendance and admission
28
fees.
In reply, Dio insisted that SBMEI, at the outset, never
had sufficient assets or resources of its own because,
contrary to Desmonds claims, the total amount of
US$2,300,000.00 it purportedly invested in buildings and
equipment actually came from the investments Dios
29
company made in SBMEI.
After the preliminary investigation, the City Prosecutor
30
issued a Resolution dated August 26, 2004, finding
probable cause against Desmond for the
abovementioned crimes, to wit:
The foregoing clearly applies in the instant two (2) cases
as borne out by the following facts, to with [sic]: (1)
Desmond, as the Chairman and Chief Executive Office
of SBMEI and in order to persuade Dio to invest,
represented that he possessed the necessary influence,
expertise and resources (in terms of credit and property)
for the project knowing the same to be false as he never
had the capital for the project as borne out by his
correspondences with Dio; and (2) Dio fell for these
misrepresentations and the lure of profit offered by
Desmond, thereby being induced to invest the amounts
of $1,150,000.00 and $1,000,000.00 to the damage and
prejudice of her company.
The elements of the crimes charged were thus
established in these cases, namely Dio parted with her
money upon the prodding and enticement of respondent
on the false pretense that he had the capacity and
resources for the proposed project. In the end, Dio was
not able to get her money back, thus causing her
damage and prejudice. Moreover, such defraudation or
misappropriation having been committed by Desmond
through his company SBMEI involving funds solicited
from Dio as a member of the general public in
contravention of the public interest, the probable cause
clearly exists to indict Desmond for the crime of Estafa
under Article 315 (1)(b) and (2)(a) of the Revised Penal
31
Code in relation to PD No. 1689.
In view of the foregoing, corresponding criminal
32
informations (subject informations) were filed with the
Regional Trial Court of Olongapo City, Branch 74 (RTC),
docketed as Criminal Case Nos. 516-2004 and 5152004. The accusatory portions thereof read as follows:
Criminal Case No. 516-2004

knew to be false and fraudulent and the supporting

documents are similarly spurious and were only made in
order to induce said Virginia S. Delos Santos-Dio to
invest and deliver as in fact she invested and delivered a
total amount of One Million One Hundred Fifty Thousand
US Dollars ($1,150,000.00) to the said accused on the
strength of said manifestations and representations and
supporting documents, and said accused, once in
possession of the said amount, misapplied, converted
and misappropriated the same to his own personal use
and benefit, to the damage and prejudice of H.S.
Equities Limited in the amount of US $1,150,000.00 or
Php57,500,000.00 Pesos, the dollar computed at the
rate of Php 50.00 to [US]$1.00 which was the prevailing
rate of exchange of a dollar to peso at the time of the
commission of the offense.
CONTRARY TO LAW.
Criminal Case No. 515-2004

34

That in or about and sometime during the period from

June 2002 to July 2002, in Olongapo City, Philippines,
and within the jurisdiction of this Honorable Court, the
above-named accused, did then and there, willfully,
unlawfully and feloniously defraud Westdale Assets,
Limited represented in this case by Virginia S. Delos
Santos-Dio in the following manner to wit: the said
accused received in trust and for administration from the
said Virginia S. Delos Santos-Dio the amount of One
Million US Dollars ($1,000,000.00) under the express
obligation of using the same to pay the loan facility of the
Subic Bay Marine Exploration, Inc. (SBMEI) with First
Metro Investment Corporation and to fund the
construction and development of the Miracle Beach
Project but the said accused, once in possession of the
said amount, with grave abuse of confidence and with
intent to defraud, misapplied, misappropriated and
converted the same for his own use and benefit by
devoting it to a purpose or use different from that agreed
upon and despite repeated demands made upon him to
account for and to return the said amount, he failed and
refused and still fails and refuses to do so, to the
damage and prejudice of the said Westdale Assets,
Limited in the amount of US $1,000,000.00 or its
equivalent to FIFTY MILLION (Php 50,000,000.00)
Pesos, Philippine Currency, the dollar being computed at
the rate of Php50.00 to $ 1.00 which was the prevailing
rate of exchange at the commission of the offense, to the
damage and prejudice of the latter in the aforementioned
amount.

33

That in or about and sometime in early 2001, in

Olongapo City, Philippines, and within the jurisdiction of
this Honorable Court, the abovenamed accused, being
the officer of Subic Bay Marine Exploration, Inc.
(SBMEI), acting as a syndicate and by means of deceit,
did then and there, willfully, unlawfully and feloniously
defraud H.S. EQUITIES LIMITED, represented in this
case by Virginia S. Delos Santos-Dio in the following
manner, to wit: the said accused by means of false
manifestations and fraudulent representations which he
made to said Virginia S. Delos Santos-Dio to the effect
that he had the expertise and qualifications, as well as
the resources, influence, credit and business transaction
with the Subic Bay Metropolitan Authority (SBMA) and
other financing institutions to ensure the viability of the
Subic Bay Marine Exploration Ocean Adventure Project
(SBMEOA), which he represented to be a qualified and
legally existing investment enterprise with capacity to
solicit investment from the general public, by submitting
documents for the purpose, which representations he

CONTRARY TO LAW.
Aggrieved, Desmond filed a Motion for
35
Reconsideration, as well as a Motion to Withdraw Filed
36
Informations. He also filed before the RTC a Motion to
Defer Further Proceedings and to Defer Issuance of
37
Warrant of Arrest but subsequently withdrew the same
and filed, instead, a Motion for Judicial Determination of
38
Probable Cause.
The RTC Ruling
39

In an Order dated October 21, 2004, the RTC ruled in

favor of Desmond and declared that no probable cause
exists for the crimes charged against him since the
elements of estafa were not all present, to wit:
First, the element of misrepresentation or deceit found in
par. 2 (a) Article 315 of the Revised Penal Code is
absent. It must be emphasized that the promises
allegedly made to the complainant by the accused that

her companys investment will significantly increase,

clearly appeared in the Subic Bay Marine Exploration,
Inc.s ("SBMEI", for brevity) printed business plan dated
January 12, 2001 (Annex "A", Complaint-Affidavit dated
19 April 2004). Verily, this is SBMEIs representation or
"come on" to would-be investors and not a personal
assurance of the accused. The fact that accused was
the companys Chief Executive Officer and Chairman of
the Board of Directors is of no moment in the absence of
any evidence to show that accused personally prepared
the business plan thereby making the alleged "rosy
picture" his own personal enticements to the
complainant. Therefore, there being a dearth of evidence
pointing to the accused as author of the SBMEIs
business plan, any misrepresentation or deceit
committed cannot be personally attributed to him.
Furthermore, the court cannot find any sufficient
evidence that the accused personally assured the
complainant about his so-called power, influence and
credit with the SBMA and other financial institutions that
would supposedly insure the viability and profitability of
the project. Note that nowhere in the Complaint-Affidavit
of the private complainant are there specific factual
allegations that would show that the accused had
personal business meetings with the SBMA and said
financial institutions. As to how and in what manner and
scope accused exercised such alleged power, influence
and credit over these juridical entities remain a bare and
self-serving averment in the absence of any factual
detail or account.
Finally, it cannot be gainsaid [sic] that accused was the
one who personally valuated the marine mammals
contributed by JV China Incorporated to the Subic Bay
Marine Exploration, Inc. as capital amounting to
US$3.724 Million. Evidence clearly point to an
independent valuation done by a third party namely
Beijing Landa Aquarium that valued the marine
mammals under the Buy-Out Agreement dated
September 9, 1998. Needless to state, the onus is on
complainant to controvert this valuation. Again, however,
no adequate proof was adduced along this line.
Second, the element of personal misappropriation by the
accused under par. 1(b) Article 315 of the Revised Penal
Code is likewise not present. While it may be conceded
that there was money utilized to pay salaries of
expatriates and staff as well as the cost of utilities
amounting to US$72,272.00 complainant failed to show
that said money was taken from her companies
investments in SBMEI. It must be pointed out that other
than complainants bare allegation, there was no
document presented categorically stating that the
investment of complainants companies were earmark
for a particular payment or project. Hence, when the
investment entered SBMEIs financial coffers, the same
presumably were co-mingled with other monies of the
corporation.
Moreover and more revealing, is the fact that again there
was no showing that it was accused who personally
caused the payment of these expenses allegedly in
violation of the objective of the investment. It must be
noted that SBMEI is a corporation and not a single
proprietorship. Being a corporation, expenses paid of
such a kind as utilities and salaries are not authorized
personally and solely by the President nor the Chief
Executive Officer nor even by the Chairman of the Board
for that matter. These are corporate acts that are passed
through board resolutions. Hence, these corporate acts
can in no way be considered personal acts of the
accused. Yet, he was singled out among all 5 members
of the Board of Directors who presumably, in the

ordinary course of business, approved by resolution the

payments of such utilities and salaries. Consequently,
there is again insufficiency of evidence that the accused
alone caused the payment of these salaries and utilities
for the sole purpose of pocketing the money thereby
40
using the same for personal gain.
Consequently, the RTC denied the issuance of a warrant
of arrest and hold departure order against Desmond and
ordered the dismissal of the cases against him:
WHEREFORE, foregoing considered, the subject motion
for judicial determination of probable cause is favorably
granted. There being no probable cause, the cases
against the accused must be dismissed as they are
hereby DISMISSED. The motions to issue warrant of
arrest and Hold
Departure Order as well as the prayer for provisional
remedy are necessarily DENIED.
SO ORDERED.

41

Given the RTCs dismissal of the foregoing criminal

cases, the City Prosecutors Office filed motion for
reconsideration which was, however, denied. As such, it
42
filed a petition for certiorari and mandamus before the
CA on the ground of grave abuse of discretion.
Relatedly, Dio also filed a petition-in43
intervention before the CA, praying for the
reinstatement of the subject criminal complaints.
The CA Ruling
44

In its November 8, 2006 Decision, the CA upheld the

RTCs authority to dismiss a criminal case if in the
process of determining probable cause for issuing a
warrant of arrest, it also finds the evidence on record
insufficient to establish probable cause. It explained that
such dismissal is an exercise of judicial discretion
sanctioned under Section 6(a), Rule 112 of the Revised
Rules of Criminal Procedure. On this score, the CA
evaluated the evidence presented and agreed with the
RTCs conclusions that there was no sufficient basis
showing that Desmond committed estafa by means of
false pretenses. Neither was it established that the
money sourced from petitioner Dio was converted by
respondent Desmond for some other purpose other than
that for which it was intended. Pertinent portions of the
CA Decision restated the RTCs observations in this
wise:
In the instant case, the alleged false representations by
Desmond which allegedly induced private complainants
H.S. Equities, Ltd. ("H.S. Equities") and Dio, to part with
their money are not supported by the facts on record.
First, the alleged false representation employed by
Desmond with respect to his expertise and qualifications
in the form of influence, credit and business transactions
with the Subic Bay Metropolitan Authority (SBMA) and
financial institutions and such resources to enable
private complainants to double its investment with
SBMEI has not been shown to be false.
Indeed, nowhere in the documentary evidence
presented by private complainants that allegedly
contained the above false representations does it show
that it was private respondent himself who made such
representation. Notably, the SBMEIs Business Plan
dated January 12, 2001 to which private complainants
anchor such allegation does not indicate that the
representations made therein came personally from
Desmond. In addition, neither does it appear from such

document that the statements therein were used as a

form of a personal assurance coming from Desmond
that private complainants would indeed double the
amount they had invested with SBMEI. If at all, we agree
with the trial court that statements made in the said
business plan were merely a form of enticement to
encourage would-be investors from [sic] investing in
such kind of business undertaking.
Moreover, we likewise agree with the trial court that no
factual allegations were made by private complainants
as to how such false pretense of power and influence
was made upon them by Desmond and which convinced
private complainants to part with their money. It bears
stressing that the allegations of false pretense of power
and influence in a case of estafa are mere conclusions
of law which must be substantiated at the very least by
circumstances which would show that the person
accused of committing estafa did indeed commit acts of
false representations. As the records show, there was no
misrepresentation on the part of Desmond that he is the
Chairman and Chief Executive Officer of SBMEI which is
a corporation engaged in the business of developing
marine parks. Significantly, the records likewise show
that SBMEI did indeed build and develop a marine park
in Subic Bay (Ocean Adventure) for the purposes stated
in its business plan and had entered into a long-term
lease agreement with SBMA. Documentary evidence in
the form of the Report of Independent Auditors to SBMEI
shows the amount of investment the corporation had
invested in the said business undertaking. For instance,
the corporation had invested the amount
of P106,788,219.00 in buildings and equipment alone. It
has also assets consisting of marine mammals which
are necessary for the operation of the marine park. In
this respect, we cannot subscribe to private
complainants contention that there was
misrepresentation on the part of private respondent that
he had overvalued the worth of the marine mammals it
had purchased from Beijing Landa Aquarium Co., Ltd. of
the Republic of China. This claim of private complainants
of the deceitful acts employed by Desmond in
overpricing the value of the marine animals for
US$3.724 Million when in fact the sea animals were only
valued for one U.S. dollar was not corroborated by the
evidence on hand.
xxxx
In the same manner, the facts in the case at bar that
would allegedly constitute a criminal charge of estafa
under par. 1(b) are wanting. Be it noted that under the
said paragraph, estafa with unfaithfulness or abuse of
confidence through misappropriation or conversion of
the money, goods or any other personal property must
be received in trust, on commission, for administration,
or under any other obligation which involves the duty to
make delivery thereof or to return the same. It is not
amiss to note that a perusal of private complainants
Complaint-Affidavit shows that subject money in the
amount of US$1,000,000.00 to be used for the Miracle
Beach Project was placed in a special account with
Equitable-PCI Bank. As the records show, the said funds
were placed by Dio under the control of Fatima
Paglicawan, an employee of Westdale, such that, no
money can be withdrawn from the special account
without the signature of the said employee, Desmond
and a certain John Corcoran. Therefore, at such time, it
cannot be said that the funds were received for
administration or already under the juridical possession
of Desmond. Meanwhile, we would like to emphasize
that to constitute conversion, it presupposes that the
thing has been devoted to a purpose or use different
from that agreed upon. Verily, a facial examination of the

Journal Voucher and Check Voucher pertaining to the

withdrawals made on such account clearly shows that
the disbursements were not only authorized by
Paglicawan but likewise indicated that the purpose for
such withdrawals was to cover payments for BIR taxes
and the salaries of local employees and expatriates.
To repeat, these withdrawals as well as the purpose
thereof were known to Paglicawan when [sic] she
authorized the disbursements. Paglicawan, who was
designated by private complainant Dio to control the
release of the said funds is presumed to have acted
under the latters authority. Such miscommunication
between Dio and Paglicawan with respect to the purpose
of the funds does not make out a case of estafa there
being no abuse of confidence or conversion to speak of
taking into account that the said funds were released
under the presumed authority of private complainants
through Paglicawan, and which were indeed used for the
purpose for which it was withdrawn. That being the case,
there can be no damage or prejudice to Westdale and
Dio as there was no disturbance in the property rights of
Westdale and Dio in the said funds since the same were
used for the purpose for which it was disbursed.
Then again, we agree with the trial court that there is no
sufficient evidence adduced to support the criminal
charges of estafa against Desmond. As pointed out by
the trial court, while private respondent is the Chairman
and Chief Executive Officer of SBMEI, there is no
showing that he had personally and solely authorized the
application of the above funds for the payment of
expenses not directly connected with the Miracle Beach
Project. Nor does it appear that as Chairman and Chief
Executive Officer, Desmond has been appointed to
45
execute, on his own, such corporate acts. (Citations
omitted)
The City Prosecutor and Dio filed their respective
motions for reconsideration which were both denied in a
46
Resolution dated July 19, 2007.
Hence, the instant petitions.
The Issue Before the Court
The primordial issue in this case is whether or not the
CA erred in finding no grave abuse of discretion on the
part of the RTC when it dismissed the subject
informations for lack of probable cause.
The Courts Ruling
The petitions are meritorious.
Determination of probable cause may be either
executive or judicial.
The first is made by the public prosecutor, during a
preliminary investigation, where he is given broad
discretion to determine whether probable cause exists
for the purpose of filing a criminal information in court.
Whether or not that function has been correctly
discharged by the public prosecutor, i.e., whether or not
he has made a correct ascertainment of the existence of
probable cause in a case, is a matter that the trial court
47
itself does not and may not be compelled to pass upon.
The second is one made by the judge to ascertain
whether a warrant of arrest should be issued against the
accused. In this respect, the judge must satisfy himself
that, on the basis of the evidence submitted, there is a

necessity for placing the accused under custody in order

not to frustrate the ends of justice. If the judge, therefore,
finds no probable cause, the judge cannot be forced to
48
issue the arrest warrant. Notably, since the judge is
already duty-bound to determine the existence or nonexistence of probable cause for the arrest of the accused
immediately upon the filing of the information, the filing
of a motion for judicial determination of probable cause
49
becomes a mere superfluity, if not a deliberate attempt
to cut short the process by asking the judge to weigh in
on the evidence without a full-blown trial.
50

In the case of Co v. Republic, the Court emphasized

the settled distinction between an executive and a
51
judicial determination of probable cause, viz:
We reiterate that preliminary investigation should be
distinguished as to whether it is an investigation for the
determination of a sufficient ground for the filing of the
information or it is an investigation for the determination
of a probable cause for the issuance of a warrant of
arrest. The first kind of preliminary investigation is
executive in nature. It is part of the prosecution's
job.1wphi1 The second kind of preliminary investigation
which is more properly called preliminary examination is
judicial in nature and is lodged with the judge.
On this score, it bears to stress that a judge is not bound
by the resolution of the public prosecutor who conducted
the preliminary investigation and must himself ascertain
from the latters findings and supporting documents
whether probable cause exists for the purpose of issuing
a warrant of arrest. This prerogative is granted by no
less than the Constitution which provides that "no
warrant of arrest shall issue except upon probable cause
to be determined personally by the judge after
examination under oath or affirmation of the complainant
52
and the witnesses he may produce."
While a judges determination of probable cause is
generally confined to the limited purpose of issuing
53
arrest warrants, Section 5(a), Rule 112 of the Revised
Rules of Criminal Procedure explicitly states that a judge
may immediately dismiss a case if the evidence on
54
record clearly fails to establish probable cause, viz:
SEC. 5. 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 had already been arrested, pursuant to a
warrant issued by the judge who conducted 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 or information. (Emphasis and underscoring
supplied)
In this regard, so as not to transgress the public
prosecutors authority, it must be stressed that the
judges dismissal of a case must be done only in clearcut cases when the evidence on record plainly fails to
establish probable cause that is when the records
readily show uncontroverted, and thus, established facts
which unmistakably negate the existence of the
elements of the crime charged. On the contrary, if the

evidence on record shows that, more likely than not, the

crime charged has been committed and that respondent
is probably guilty of the same, the judge should not
dismiss the case and thereon, order the parties to
proceed to trial. In doubtful cases, however, the
appropriate course of action would be to order the
55
presentation of additional evidence.
In other words, once the information is filed with the
court and the judge proceeds with his primordial task of
evaluating the evidence on record, he may either: (a)
issue a warrant of arrest, if he finds probable cause; (b)
immediately dismiss the case, if the evidence on record
clearly fails to establish probable cause; and (c) order
the prosecutor to submit additional evidence, in case he
56
doubts the existence of probable cause.
Applying these principles, the Court finds that the RTCs
immediate dismissal, as affirmed by the CA, was
improper as the standard of clear lack of probable cause
was not observed. In this case, records show that certain
essential facts namely, (a) whether or not Desmond
committed false representations that induced Dio to
invest in Ocean Adventure; and (b) whether or not
Desmond utilized the funds invested by Dio solely for the
Miracle Beach Project for purposes different from what
was agreed upon remain controverted. As such, it
cannot be said that the absence of the elements of the
57
crime of estafa under Article 315(2)(a) and 315(1)
58
(b) of the RPC had already been established, thereby
rendering the RTCs immediate dismissal of the case
highly improper.
Lest it be misconceived, trial judges will do well to
remember that when a perceived gap in the evidence
leads to a "neither this nor that" conclusion, a purposeful
resolution of the ambiguity is preferable over a doubtful
dismissal of the case. Verily, a judge's discretion to
dismiss a case immediately after the filing of the
information in court is appropriate only when the failure
to establish probable cause can be clearly inferred from
the evidence presented and not when its existence is
simply doubtful. After all, it cannot be expected that upon
the filing of the information in court the prosecutor would
have already presented all the evidence necessary to
secure a conviction of the accused, the objective of a
previously-conducted preliminary investigation being
merely to determine whether there is sufficient ground,
to engender a well-founded belief that a crime has been
committed and that the respondent is probably guilty
59
thereof and should be held for trial. In this light, given
that the lack of probable cause had not been clearly
established in this case, the CA erred, and the RTC
gravely abused its discretion, by ruling to dismiss
Criminal Case Nos. 515-2004 and 516-2004. Indeed,
these cases must stand the muster of a full-blown trial
where the parties could be given, as they should be
given, the opportunity to ventilate their respective claims
and defenses, on the basis of which the court a quo can
properly resolve the factual disputes therein.
WHEREFORE, the petitions are GRANTED. The
November 8, 2006 Decision and July 19, 2007
Resolution of the Court of Appeals in CA G.R. SP No.
88285 which affirmed the October 21, 2004 Order of
Dismissal issued by the Regional Trial Court of
Olongapo City, Branch 74 are SET ASIDE. The two (2)
criminal informations for estafa against respondent
Timothy J. Desmond in Criminal Case Nos. 515-2004
and 516-2004 are hereby REINSTATED. Accordingly,
the trial court is directed to proceed with the arraignment
of the accused and the trial of the case with dispatch.
SO ORDERED.

SHEALA P. MATRIDO, Petitioner,

vs.
PEOPLE OF THE PHILIPPINES, Respondent.
DECISION

WHEREFORE, accused SHEALA P. MATRIDO is

hereby sentenced to suffer the indeterminate penalty of
ten (10) years and one (1) day to twelve (12) years[,] five
(5) months and ten (10) days.1avvphi1

CARPIO MORALES, J.:

Sheala Matrido (petitioner) assails the May 31, 2007
Decision and August 1, 2007 Resolution of the Court of
1
Appeals, which affirmed the trial courts Decision of
December 13, 2004 convicting her of qualified theft.
As a credit and collection assistant of private
complainant Empire East Land Holdings, Inc., petitioner
was tasked to collect payments from buyers of real
estate properties such as Laguna Bel-Air developed by
private complainant, issue receipts therefor, and remit
the payments to private complainant in Makati City.
On June 10, 1999, petitioner received amortization
payment from one Amante dela Torre in the amount
2
ofP22,470.66 as evidenced by the owners copy of
Official Receipt No. 36547, but petitioner remitted
onlyP4,470.66 to private complainant as reflected in the
3
treasury departments copy of Official Receipt No.
36547 submitted to private complainant, both copies of
which bear the signature of petitioner and reflect a
difference ofP18,000.
On private complainants investigation, petitioner was
found to have failed to remit payments received from its
clients, prompting it to file various complaints, one of
which is a Complaint-Affidavit of September 21,
4
2000 for estafa, docketed as I.S. No. 2000-I-32381 in
the Makati Prosecutors Office.
In the meantime or in October 2000, petitioner paid
private complainant the total amount
5
of P162,000, drawing private complainant to desist from
pursuing some related complaints. A few other cases
including I.S. No. 2000-I-32381 pushed through,
however, since the amount did not sufficiently cover
6
petitioners admitted liability ofP400,000.
7

By Resolution of November 15, 2000, the City

Prosecution Office of Makati dismissed the Complaint for
estafa for insufficiency of evidence but found probable
cause to indict petitioner for qualified theft under an
Information which reads:
That on or about the 10th day of June 1999, in the City
of Makati, Philippines and within the jurisdiction of this
Honorable Court, the above-named accused, being then
a Credit and Collection Assistant employed by
complainant, EMPIRE EAST LAND HOLDINGS, INC.,
herein represented by Leilani N. Cabuloy, and as such
had access to the payments made by complainants
clients, with grave abuse of confidence, intent of gain
and without the knowledge and consent of the said
complainant company, did then and there willfully,
unlawfully and feloniously take, steal and carry away the
amount of P18,000.00 received from Amante Dela Torre,
a buyer of a house and lot being marketed by
complainant company, to the damage and prejudice of
the said complainant in the aforementioned amount
of P18,000.00.
CONTRARY TO LAW.

(RTC) of Makati, by Decision of December 13, 2004

which was promulgated on April 28, 2005, convicted
petitioner of qualified theft, disposing as follows:

On arraignment, petitioner entered a plea of "not

9
guilty." After trial, Branch 56 of the Regional Trial Court

Accused is further ordered to pay complainant EMPIRE

EAST LAND HOLDINGS, INC., the amount
of P18,000.00.
SO ORDERED.

10

11

By the challenged Decision of May 31, 2007, the Court

of Appeals affirmed the trial courts decision, hence, the
present petition which raises the sole issue of whether
the appellate court "gravely erred in affirming the
decision of the trial [court] convicting the petitioner of the
crime of qualified theft despite the fact that the
prosecution tried to prove during the trial the crime of
estafa thus denying the petitioner the right to be
informed of the nature and cause of accusation against
12
her"
Petitioner posits that despite her indictment for qualified
theft, the prosecution was trying to prove estafa during
trial, thus violating her right to be informed of the nature
and cause of the accusation against her.
The petition fails.
13

In Andaya v. People, the Court expounded on the

constitutional right to be informed of the nature and
cause of the accusation against the accused.
x x x As early as the 1904 case of U.S. v. Karelsen, the
rationale of this fundamental right of the accused was
already explained in this wise:
The object of this written accusation was First. To
furnish the accused with such a description of the charge
against him as will enable him to make his defense; and
second, to avail himself of his conviction or acquittal for
protection against a further prosecution for the same
cause; and third, to inform the court of the facts alleged,
so that it may decide whether they are sufficient in law to
support a conviction, if one should be had. In order that
this requirement may be satisfied, facts must be stated,
not conclusions of law. Every crime is made up of certain
acts and intent; these must be set forth in the complaint
with reasonable particularity of time, place, names
(plaintiff and defendant), and circumstances. In short,
the complaint must contain a specific allegation of every
fact and circumstances necessary to constitute the crime
charged.
It is fundamental that every element constituting the
offense must be alleged in the information. The main
purpose of requiring the various elements of a crime to
be set out in the information is to enable the accused to
suitably prepare his defense because he is presumed to
have no independent knowledge of the facts that
constitute the offense. The allegations of facts
constituting the offense charged are substantial matters
and an accuseds right to question his conviction based
on facts not alleged in the information cannot be
waived. No matter how conclusive and convincing the
evidence of guilt may be, an accused cannot be
convicted of any offense unless it is charged in the
information on which he is tried or is necessarily

included therein. To convict him of a ground not alleged

while he is concentrating his defense against the ground
alleged would plainly be unfair and underhanded. The
rule is that a variance between the allegation in the
information and proof adduced during trial shall be fatal
to the criminal case if it is material and prejudicial to the
accused so much so that it affects his substantial
14
rights. (Citations omitted; underscoring supplied)
It is settled that it is the allegations in the Information that
determine the nature of the offense, not the technical
name given by the public prosecutor in the preamble of
the Information. From a legal point of view, and in a very
real sense, it is of no concern to the accused what is the
technical name of the crime of which he stands charged.
It in no way aids him in a defense on the merits. That to
which his attention should be directed, and in which he,
above all things else, should be most interested, are the
facts alleged. The real question is not did he commit a
crime given in the law some technical and specific name,
but did he perform the acts alleged in the body of the
15
information in the manner therein set forth.

herself from liability. That the money, taken by petitioner

without authority and consent, belongs to private
complainant, and that the taking was accomplished
without the use of violence or intimidation against
persons, nor force upon things, there is no issue.
Intent to gain or animus lucrandi is an internal act that is
presumed from the unlawful taking by the offender of the
thing subject of asportation. Actual gain is irrelevant as
19
the important consideration is the intent to gain.
The taking was also clearly done with grave abuse of
confidence. As a credit and collection assistant of private
complainant, petitioner made use of her position to
obtain the amount due to private complainant. As
gathered from the nature of her functions, her position
entailed a high degree of confidence reposed by private
complainant as she had been granted access to funds
collectible from clients. Such relation of trust and
confidence was amply established to have been gravely
abused when she failed to remit the entrusted amount of
collection to private complainant.

Gauging such standard against the wording of the

Information in this case, the Court finds no violation of
petitioners rights. The recital of facts and circumstances
in the Information sufficiently constitutes the crime of
qualified theft.

The Court finds no rhyme or reason in petitioners

contention that what the prosecution tried to prove
during trial was estafa through misappropriation under
Article 315(1)(b) of the RPC.

As alleged in the Information, petitioner took, intending

to gain therefrom and without the use of force upon
things or violence against or intimidation of persons, a
personal property consisting of money in the
amount P18,000 belonging to private complainant,
without its knowledge and consent, thereby gravely
abusing the confidence reposed on her as credit and
collection assistant who had access to payments from
private complainants clients, specifically from one
Amante Dela Torre.

x x x The principal distinction between the two crimes is

that in theft the thing is taken while in estafa the accused
receives the property and converts it to his own use or
benefit. However, there may be theft even if the accused
has possession of the property. If he was entrusted only
with the material or physical (natural) or de
factopossession of the thing, his misappropriation of the
same constitutes theft, but if he has the juridical
possession of the thing, his conversion of the same
20
constitutes embezzlement or estafa. (Underscoring
supplied)

As defined, theft is committed by any person who, with

intent to gain, but without violence against, or
intimidation of persons nor force upon things, shall take
the personal property of another without the latters
16
consent. If committed with grave abuse of confidence,
17
the crime of theft becomes qualified.
In prcis, the elements of qualified theft punishable
under Article 310 in relation to Articles 308 and 309 of
the Revised Penal Code (RPC) are as follows:
1. There was a taking of personal property.
2. The said property belongs to another.
3. The taking was done without the consent of
the owner.
4. The taking was done with intent to gain.
5. The taking was accomplished without
violence or intimidation against person, or force
upon things.
6. The taking was done under any of the
circumstances enumerated in Article 310 of the
18
RPC, i.e., with grave abuse of confidence.
In the present case, both the trial court and the appellate
court noted petitioners testimonial admission of
unlawfully taking the fund belonging to private
complainant and of paying a certain sum to exculpate

The appellate court correctly explained that conversion

of personal property in the case of an employee having
material possession of the said property constitutes
theft, whereas in the case of an agent to whom both
material and juridical possession have been transferred,
misappropriation of the same property constitutes
21
estafa. Notably, petitioners belated argument that she
was not an employee but an agent of private
22
complainant grants her no respite in view of her
23
24
stipulation during pre-trial and her admission at the
witness stand of the fact of employment. Petitioners
reliance on estafa cases involving factual antecedents of
agency transactions is thus misplaced.
That petitioner did not have juridical possession over the
amount or, in other words, she did not have a right over
the thing which she may set up even against private
25
complainant is clear. In fact, petitioner never asserted
any such right, hence, juridical possession was lodged
with private complainant and, therefore, estafa was not
committed.
Petitioners view that there could be no element of taking
since private complainant had no actual possession of
the money fails. The argument proceeds from the flawed
premise that there could be no theft if the accused has
possession of the property. The taking away of the thing
26
physically from the offended party is not elemental, as
qualified theft may be committed when the personal
property is in the lawful possession of the accused prior
27
to the commission of the alleged felony.

A sum of money received by an employee in behalf of an

employer is considered to be only in the material
28
possession of the employee. The material possession
of an employee is adjunct, by reason of his employment,
to a recognition of the juridical possession of the
employer. So long as the juridical possession of the
thing appropriated did not pass to the employeeperpetrator, the offense committed remains to be theft,
29
qualified or otherwise.
x x x When the money, goods, or any other personal
property is received by the offender from the offended
party (1) in trust or (2) on commission or (3) for
administration, the offender acquires both material or
physical possession and juridical possession of the thing
received. Juridical possession means a possession
which gives the transferee a right over the thing which
the transferee may set up even against the owner. In this
case, petitioner was a cash custodian who was primarily
responsible for the cash-in-vault. Her possession of the
cash belonging to the bank is akin to that of a bank
30
teller, both being mere bank employees. (Italics in
the original omitted; underscoring and emphasis
supplied)

CONCHITA CARPIO MORALES

Associate Justice
WE CONCUR:
LEONARDO A. QUISUMBING
Associate Justice
Chairperson
MINITA V. CHICO-NAZARIO
Associate Justice

UNION BANK OF THE,

PHILIPPINES and DESI
TOMAS,
Petitioners,

That the transaction occurred outside the company

premises of private complainant is of no moment, given
that not all business deals are transacted by employees
within the confines of an office, and that field operations
do not define an agency. What is of consequence is the
nature of possession by petitioner over the property
subject of the unlawful taking.
On the penalty imposed by the trial court, which was
affirmed by the appellate court indeterminate penalty
of 10 years and 1 day to 12 years, 5 months and 10
days:
The penalty for qualified theft is two degrees higher than
the applicable penalty for simple theft. The amount
stolen in this case was P18,000.00. In cases of theft, if
the value of the personal property stolen is more
thanP12,000.00 but does not exceed P22,000.00, the
penalty shall be prision mayor in its minimum and
medium periods. Two degrees higher than this penalty
is reclusion temporal in its medium and maximum
periods or 14 years, 8 months and 1 day to 20 years.
Applying the Indeterminate Sentence Law, the minimum
shall be prision mayor in its maximum period to reclusion
temporal in its minimum period or within the range of 10
31
years and 1 day to 14 years and 8 months. The
mitigating circumstance of voluntary surrender being
present, the maximum penalty shall be the minimum
period of reclusion temporal in its medium and maximum
periods or within the range of 14 years, 8 months and 1
day to 16 years, 5 months and 20 days.
The Court thus affirms the minimum penalty, but
modifies the maximum penalty imposed.
WHEREFORE, the Decision of May 31, 2007 and
Resolution of August 1, 2007 of the Court of Appeals in
CA-G.R. CR No. 29593 is AFFIRMED with
MODIFICATION as to the imposed penalty, such that
petitioner, Sheala P. Matrido, is sentenced to suffer the
indeterminate penalty of 10 years and 1 day of prision
mayor, as minimum, to 14 years, 8 months and 1 day
of reclusion temporal, as maximum.
SO ORDERED.

G.R. No. 192565

Present:

CORONA, C.J.,
CARPIO,
VELASCO,
LEONARDO-DE CAST
BRION,
PERALTA,
BERSAMIN,
*
DEL CASTILLO,
versus

ABAD,

VILLARAMA, JR.,
PEREZ,
MENDOZA,
**
SERENO,
REYES, and
PERLAS-BERNABE,
PEOPLE OF THE PHILIPPINES,
Respondent.
gated:

Promul

February 28,
2012
x----------------------------------------------------------------------------------------x
DECISION

BRION, J.:

We review in this Rule 45 petition, the

[1]
decision of the Regional Trial Court, Branch
65, Makati City (RTC-Makati City) in Civil Case No. 091038. The petition seeks to reverse and set aside the
RTC-Makati City decision dismissing the petition
for certiorari of petitioners Union Bank of the Philippines
(Union
Bank)
and
Desi
Tomas
(collectively, the petitioners). The RTC found that the
Metropolitan Trial Court, Branch 63, Makati City (MeTCMakati City) did not commit any grave abuse of
discretion in denying the motion to quash the information
for perjury filed by Tomas.
The Antecedents
Tomas was charged in court for perjury under
Article 183 of the Revised Penal Code (RPC) for making
a false narration in a Certificate against Forum
Shopping. The Information against her reads:
th

That on or about the 13 day of

March 2000 in the City of Makati, Metro
Manila, Philippines and within the
jurisdiction of this Honorable Court, the
above-named accused, did then and

there willfully, unlawfully and feloniously

make untruthful statements under oath
upon a material matter before a
competent
person
authorized
to
administer oath which the law requires
to wit: said accused stated in the
Verification/Certification/Affidavit of merit
of a complaint for sum of money with
prayer for a writ of replevin docketed as
[Civil] Case No. 342-00 of the
Metropolitan Trial Court[,] Pasay City,
that the Union Bank of the Philippines
has not commenced any other action or
proceeding involving the same issues in
another tribunal or agency, accused
knowing well that said material
statement was false thereby making a
willful and deliberate assertion of
[2]
falsehood.

The accusation stemmed from petitioner Union

Banks two (2) complaints for sum of money with prayer
for a writ of replevin against the spouses Eddie and Eliza
Tamondong and a John Doe. The first complaint,
docketed as Civil Case No. 98-0717, was filed before the
RTC, Branch 109, Pasay City on April 13, 1998.
The second complaint, docketed as Civil Case No.
342-000, was filed on March 15, 2000 and raffled to the
MeTC, Branch 47, Pasay City. Both complaints showed
that Tomas executed and signed the Certification
against Forum Shopping. Accordingly, she was charged
of deliberately violating Article 183 of the RPC by falsely
declaring under oath in the Certificate against Forum
Shopping in the second complaint that she did not
commence any other action or proceeding involving the
same issue in another tribunal or agency.
[3]

Tomas filed a Motion to Quash, citing two

grounds. First, she argued that the venue was
improperly laid since it is the Pasay City court (where the
Certificate against Forum Shopping was submitted and
used) and not the MeTC-Makati City(where the
Certificate against Forum Shopping was subscribed) that
has jurisdiction over the perjury case. Second, she
argued that the facts charged do not constitute an
offense because: (a) the third element of perjury the
willful and deliberate assertion of falsehood was not
alleged with particularity without specifying what the
other action or proceeding commenced involving the
same issues in another tribunal or agency; (b) there was
no other action or proceeding pending in another court
when the second complaint was filed; and (c) she was
charged with perjury by giving false testimony while the
allegations in the Information make out perjury by
making a false affidavit.
The MeTC-Makati City denied the Motion to
Quash, ruling that it has jurisdiction over the case since
the Certificate against Forum Shopping was notarized
[4]
in Makati City. The MeTC-Makati City also ruled that
the allegations in the Information sufficiently charged
[5]
Tomas
with
perjury. The MeTCMakati City subsequently denied Tomas motion for
[6]
reconsideration.
The
petitioners
filed
a
petition
for certiorari before the RTC-Makati City to annul and set
aside the MeTC-Makati City orders on the ground of
grave abuse of discretion. The petitioners anchored their
petition
on
the
rulings
in United
States
v.
[7]
[8]
Canet and Ilusorio v. Bildner which ruled that venue

and jurisdiction should be in the place where the false

document was presented.
The Assailed RTC Decision
In dismissing the petition for certiorari, the RTCMakati City held:
[I]nsofar as the petitioners stance is
concerned[,] the more recent case of [Sy
Tiong Shiou v. Sy] (GR Nos. 174168 &
179438, March 30, 2009) however,
reaffirms what has been the long
standing view on the venue with respect
to perjury cases. In this particular case[,]
the high court reiterated the rule that the
criminal action shall be instituted and
tried in the court of the municipality or
territory where the offense was
committed, or where any of its essential
ingredients occurred. It went on to
declare
that
since
the
subject
document[,] the execution of which was
the subject of the charge[,] was
subscribed and sworn to in Manila[,] then
the court of the said territorial jurisdiction
was the proper venue of the criminal
action[.]
xxxx
x x x Given the present state of
jurisprudence on the matter, it is not
amiss to state that the city court of
Makati City has jurisdiction to try and
decide the case for perjury inasmuch as
the gist of the complaint itself which
constitute[s] the charge against the
petitioner dwells solely on the act
of subscribing to a false certification.
On the other hand, the charge against
the accused in the case of Ilusorio v.
Bildner, et al., based on the complaintaffidavits therein[,] was not simply the
execution of the questioned documents
but rather the introduction of the false
evidence through the subject documents
before
the
court
of
Makati
[9]
City. (emphasis ours)

The RTC-Makati City ruled

that
the MeTCMakati City did not commit grave abuse of discretion
since the order denying the Motion to Quash was based
on
jurisprudence
later
than Ilusorio.
The RTCMakati City also observed that the facts inIlusorio are
different from the facts of the present case. Lastly,
the RTC-Makati City ruled that the Rule 65 petition was
improper since the petitioners can later appeal the
decision
in
the
principal
case.
The RTCMakati City subsequently denied the petitioners motion
[10]
for reconsideration.

The Petition

The petitioners pray that we reverse the RTCMakati City decision and quash the Information for
perjury against Tomas. The petitioners contend that
the Ilusorio ruling is more applicable to the present facts
[11]
than our ruling in Sy Tiong Shiou v. Sy Chim.
They
argued that the facts in Ilusorio showed that the filing of
the petitions in court containing the false statements was
the essential ingredient that consummated the
perjury. In Sy Tiong, the perjurious statements were
made in a General Information Sheet (GIS) that was
submitted to the Securities and Exchange Commission
(SEC).
Interestingly, Solicitor General Jose Anselmo I.
Cadiz shared the petitioners view. In his Manifestation
and Motion in lieu of Comment (which we hereby treat
as the Comment to the petition), the Solicitor General
also relied on Ilusorio and opined that the lis mota in the
crime of perjury is the deliberate or intentional giving of
false evidence in the court where the evidence is
material. The Solicitor General observed that the
criminal intent to assert a falsehood under oath only
became manifest before the MeTC-Pasay City.
The Issue
The case presents to us the issue of what the
proper venue of perjury under Article 183 of the RPC
should be Makati City, where the Certificate against
Forum Shopping was notarized, or Pasay City, where
the Certification was presented to the trial court.
The Courts Ruling
We deny the petition and hold that the MeTCMakati City is the proper venue and the proper court
to take cognizance of the perjury case against the
petitioners.
Venue of Action and Criminal Jurisdiction
Venue is an essential element of jurisdiction in
criminal cases. It determines not only the place where
the criminal action is to be instituted, but also the court
that has the jurisdiction to try and hear the case. The
reason for this rule is two-fold.First, the jurisdiction of
trial courts is limited to well-defined territories such that a
trial court can only hear and try cases involving crimes
[12]
committed within its territorial jurisdiction. Second,
laying the venue in the locus criminis is grounded on the
necessity and justice of having an accused on trial in the
municipality of province where witnesses and other
[13]
facilities for his defense are available.
Unlike in civil cases, a finding of improper
venue in criminal cases carries jurisdictional
consequences. In determining the venue where the
criminal action is to be instituted and the court which has
jurisdiction over it, Section 15(a), Rule 110 of the 2000
Revised Rules of Criminal Procedure provides:
(a)

Subject to existing laws, the

criminal action shall be instituted
and tried in the court or municipality
or territory where the offense was
committed or where any of its
essential ingredients occurred.
[emphasis ours]

The above provision should be read in light of

Section 10, Rule 110 of the 2000 Revised Rules of
Criminal Procedure which states:

Place of commission of the offense.

The complaint or information is
sufficient if it can be understood from
its allegations that the offense was
committed or some of its essential
ingredients occurred at some place
within the jurisdiction of the court,
unless the particular place where it was
committed constitutes an essential
element of the offense charged or is
necessary for its identification.

Both provisions categorically place the venue

and jurisdiction over criminal cases not only in the court
where the offense was committed, but also where any of
its essential ingredients took place. In other words, the
venue
of
action and of jurisdiction are deemed
sufficiently alleged where the Information states that the
offense was committed or some of its essential
ingredients occurred at a place within the territorial
jurisdiction of the court.
Information Charging Perjury

Section 5, Rule 7 of the 1997 Rules of Civil

Procedure, as amended, contains the requirement for a
Certificate against Forum Shopping. The Certificate
against Forum Shopping can be made either by a
statement under oath in the complaint or initiatory
pleading asserting a claim or relief; it may also be in a
sworn certification annexed to the complaint or initiatory
pleading. In both instances, the affiant is required to
execute a statement under oath before a duly
commissioned notary public or any competent person
authorized to administer oath that: (a) he or she has not
theretofore commenced any action or filed any claim
involving the same issues in any court, tribunal or quasijudicial agency and, to the best of his or her knowledge,
no such other action or claim is pending therein; (b) if
there is such other pending action or claim, a complete
statement of the present status thereof; and (c) if he or
she should thereafter learn that the same or similar
action or claim has been filed or is pending, he or she
shall report that fact within five days therefrom to the
court wherein his or her aforesaid complaint or initiatory
pleading has been filed. In relation to the crime of
perjury, the material matter in a Certificate against
Forum Shopping is the truth of the required declarations
which is designed to guard against litigants pursuing
[14]
simultaneous remedies in different fora.
In this case, Tomas is charged with the crime of
perjury under Article 183 of the RPC for making a false
Certificate against Forum Shopping. The elements of
perjury under Article 183 are:
(a)

That the accused made

a statement under oath or
executed
an
affidavit upon
a material matter.

(b)

That the statement or

affidavit was made before a
competent officer, authorized to
receive and administer oath.

(c)

That in the statement or

affidavit, the accused made
a willful
and
deliberate
assertion of a falsehood.

(d)

That the sworn statement or

affidavit containing the falsity
is required by law or made for a
[15]
legal
purpose.
(emphasis
ours)

Where the jurisdiction of the court is being

assailed in a criminal case on the ground of improper
venue, the allegations in the complaint and information
must be examined together with Section 15(a), Rule 110
of the 2000 Revised Rules of Criminal Procedure. On
this basis, we find that the allegations in the Information
sufficiently support a finding that the crime of perjury was
committed by Tomas within the territorial jurisdiction of
the MeTC-Makati City.
The first element of the crime of perjury, the
execution of the subject Certificate against Forum
Shopping was alleged in the Information to have been
committed in Makati City. Likewise, the second and
fourth elements, requiring the Certificate against Forum
Shopping to be under oath before a notary public, were
also sufficiently alleged in the Information to have been
made in Makati City:
th

That on or about the 13 day of

March 2000 in the City of Makati, Metro
Manila, Philippines and within the
jurisdiction of this Honorable Court, the
above-named accused, did then and
there willfully, unlawfully and feloniously
make untruthful statements under oath
upon a material matter before a
competent
person
authorized
to
administer oath which the law requires
to wit: said accused stated in the
Verification/Certification/Affidavit x x
[16]
x.

We also find that the third element of willful and

deliberate falsehood was also sufficiently alleged to have
been committed in Makati City, not Pasay City, as
indicated in the last portion of the Information:
[S]aid
accused
stated
in
the
Verification/Certification/Affidavit of merit
of a complaint for sum of money with
prayer for a writ of replevin docketed as
[Civil] Case No. 342-00 of the
Metropolitan Trial Court[,] Pasay City,
that the Union Bank of the Philippines
has not commenced any other action or
proceeding involving the same issues in
another tribunal or agency, accused
knowing well that said material
statement was false thereby making a
willful and deliberate assertion of
[17]
falsehood. (underscoring ours)
Tomas deliberate and intentional assertion of
falsehood was allegedly shown when she made the false
declarations in the Certificate against Forum Shopping
before a notary public in Makati City, despite her
knowledge that the material statements she subscribed
and swore to were not true. Thus, Makati City is the
proper venue and MeTC-Makati City is the proper court
to try the perjury case against Tomas, pursuant to
Section 15(a), Rule 110 of the 2000 Revised Rules of
Criminal Procedure as all the essential elements
constituting the crime of perjury were committed within
the territorial jurisdiction of Makati City, not Pasay City.

Referral to the En Banc

The present case was referred to the En
Banc primarily to address the seeming conflict between
the division rulings of the Court in the Ilusorio case that
is cited as basis of this petition, and the Sy Tiong case
that
was
the
basis
of
the
assailed RTCMakati City ruling.
The Cited Ilusorio and Sy Tiong Cases
The subject matter of the perjury charge
in Ilusorio involved
false
statements
contained
in verified petitions filed with the court for the
issuance of a new owners duplicate copies of
certificates of title. The verified petitions containing the
false statements were subscribed and sworn to
in Pasig City,
but
were
filed
in Makati City and Tagaytay City. The question posed
was:
which
court
(Pasig City, Makati City and/or Tagaytay City)
had
jurisdiction to try and hear the perjury cases?
We ruled that the venues of the action were
in Makati City and Tagaytay City, the places where the
verified petitions were filed. The Court reasoned out that
it was only upon filing that the intent to assert an alleged
falsehood became manifest and where the alleged
untruthful statement found relevance or materiality. We
cited as jurisprudential authority the case of United
[18]
States. v. Caet which ruled:
It is immaterial where the affidavit was
subscribed and sworn, so long as it
appears from the information that the
defendant, by means of such affidavit,
"swore to" and knowingly submitted
false evidence, material to a point at
issue in a judicial proceeding pending in
the Court of First Instance of Iloilo
Province. The gist of the offense
charged is not the making of the affidavit
in Manila, but the intentional giving of
false evidence in the Court of First
Instance of Iloilo Province by means of
such
affidavit.
[emphasis
and
underscoring deleted]

In Sy Tiong, the perjured statements were

made in a GIS which was subscribed and sworn to
in Manila. We ruled that the proper venue for the perjury
charges was in Manila where the GIS was subscribed
and sworn to. We held that the perjury was
consummated in Manila where the false statement was
made. As supporting jurisprudence, we cited the case
[19]
of Villanueva v. Secretary of Justice that, in turn, cited
[20]
an American case entitled U.S. v. Norris.
We ruled
in Villanueva that
Perjury is an obstruction of
justice; its perpetration well may affect
the dearest concerns of the parties
before a tribunal. Deliberate material
falsification under oath constitutes the
crime of perjury, and the crime is
complete when a witness' statement has
once been made.
The Crime of Perjury: A Background
To have a better appreciation of the issue facing
the Court, a look at the historical background of how the
crime of perjury (specifically, Article 183 of the RPC)
evolved in our jurisdiction.

The RPC penalizes three forms of false

testimonies. The first is false testimony for and against
the defendant in a criminal case (Articles 180 and 181,
RPC); the second is false testimony in a civil case
(Article 182, RPC); and the third is false testimony in
other cases (Article 183, RPC). Based on the
Information filed, the present case involves the
making of an untruthful statement in an affidavit on
a material matter.
These RPC provisions, however, are not really
the bases of the rulings cited by the parties in their
respective arguments. The cited Ilusorio ruling, although
issued by this Court in 2008, harked back to the case
of Caet which was decided in 1915, i.e., before the
[21]
present RPC took effect.
Sy Tiong, on the other hand,
is a 2009 ruling that cited Villanueva, a 2005 case that in
turn cited United States v. Norris, a 1937 American
case. Significantly, unlike Canet, Sy Tiong is entirely
based on rulings rendered after the present RPC took
[22]
effect.
The perjurious act in Caet consisted of an
information charging perjury through the presentation
in court of a motion accompanied by a false sworn
affidavit. At the time the Caet ruling was rendered, the
prevailing law on perjury and the rules on prosecution of
criminal offenses were found in Section 3, Act No. 1697
of the Philippine Commission, and in Subsection 4,
[23]
Section 6 of General Order No. 58 for the procedural
aspect.
Section 3 of Act No. 1697 reads:
Sec. 3. Any person who, having
taken oath before a competent tribunal,
officer, or person, in any case in which a
law of the Philippine Islands authorizes
an oath to be administered, that he will
testify, declare, depose, or certify truly,
or
that
any
written
testimony,
declaration, disposition, or certificate by
him subscribed is true, willfully and
contrary to such oath states or
subscribes any material matter which he
does not believe to be true, is guilty of
perjury, and shall be punished by a fine
of not more than two thousand pesos
and by imprisonment for not more than
five years; and shall moreover,
thereafter be incapable of holding any
public office or of giving testimony in any
court of the Philippine Islands until such
time as the judgment against him is
reversed.
This law was copied, with the necessary
[24]
[25]
changes, from Sections 5392 and 5393 of the
[26]
Revised Statutes of the United States.
Act No. 1697
was intended to make the mere execution of a false
[27]
affidavit punishable in our jurisdiction.
In turn, Subsection 4, Section 6 of General
Order No. 58 provided that the venue shall be the court
of the place where the crime was committed.
As applied and interpreted by the Court
in Caet, perjury was committed by the act
of representing a false document in a judicial
[28]
proceeding. The venue of action was held by the
Court to be at the place where the false document was
presented since the presentation was the act that
consummated the crime.

The annotation of Justices Aquino and Grio[29]

Aquino in their textbook on the RPC interestingly
explains the history of the perjury provisions of the
present RPC and traces as well the linkage between Act
No. 1697 and the present Code. To quote these
[30]
authors:
Art. 180 was taken from art. 318
of the Old Penal Code and art. 154 of
Del Pans Proposed Correctional Code,
while art. 181 was taken from art. 319 of
the old Penal Code and Art. 157 of Del
Pans
Proposed
Correctional
Code. Said arts. 318 and 319, together
with art. 321 of the old Penal Code,
were impliedly repealed by Act 1697,
the Perjury Law, passed on August 23,
1907, which in turn was expressly
repealed by the Administrative Code of
1916, Act 2657. In view of the express
repeal of Act 1697, arts. 318 and 321 of
the old Penal Code were deemed
revived. However, Act 2718 expressly
revived secs. 3 and 4 of the Perjury
Law. Art. 367 of the Revised Penal
Code repealed Act Nos. 1697 and 2718.
It should be noted that perjury
under Acts 1697 and 2718 includes
false testimony, whereas, under the
Revised Penal Code, false testimony
includes perjury. Our law on false
testimony is of Spanish origin, but our
law on perjury (art. 183 taken from sec.
3 of Act 1697) is derived from American
statutes. The provisions of the old
Penal Code on false testimony embrace
perjury committed in court or in some
contentious proceeding, while perjury as
defined in Act 1697 includes the making
of a false affidavit. The provisions of the
Revised Penal Code on false testimony
are more severe and strict than those
of Act 1697 on perjury. [italics ours]

With this background, it can be appreciated that

Article 183 of the RPC which provides:
The penalty of arresto mayor in its
maximum
period
to prision
correccional in its minimum period shall
be imposed upon any person, who
knowingly makes untruthful statements
and not being included in the provisions
of
the
next
preceding
articles,
shall testify under oath, ormake an
affidavit, upon any material matter
before a competent person authorized
to administer an oath in cases in which
the law so requires. [emphasis supplied;
emphases ours]
in fact refers to either of two punishable acts (1) falsely
testifying under oath in a proceeding other than a
criminal or civil case; and (2) making a false affidavit
before a person authorized to administer an oath on any
material matter where the law requires an oath.
As above discussed, Sy Tiong decided under
Article 183 of the RPC essentially involved perjured
statements made in a GIS that was subscribed and
sworn to in Manila and submitted to the SEC
in Mandaluyong City. Thus,
the
case
involved

the making of an affidavit, not an actual testimony in a

proceeding that is neither criminal nor civil. From this
perspective, the situs of the oath, i.e., the place where
the oath was taken, is the place where the offense was
committed. By implication, the proper venue would have
been the City of Mandaluyong the site of the SEC
had the charge involved an actual testimony made
before the SEC.
In contrast, Caet involved the presentation in
court of a motion supported and accompanied by an
affidavit that contained a falsity. With Section 3 of Act
No. 1697 as basis, the issue related to the submission of
the affidavit in a judicial proceeding. This came at a time
when Act No. 1697 was the perjury law, and made no
distinction between judicial and other proceedings, and
at the same time separately penalized the making of
false statements under oath (unlike the present RPC
which separately deals with false testimony in criminal,
civil and other proceedings, while at the same time also
penalizing
the
making
of
false
affidavits). Understandably, the venue should be the
place where the submission was made to the court or
the situs of the court; it could not have been the place
where the affidavit was sworn to simply because this
was not the offense charged in the Information.
The case of Ilusorio cited the Caet case as its
authority, in a situation where the sworn petitions filed in
court for the issuance of duplicate certificates of title
(that were allegedly lost) were the cited sworn
statements to support the charge of perjury for the
falsities stated in the sworn petitions. The Court ruled
that the proper venue should be the Cities of Makati and
Tagaytay because it was in the courts of these cities
where the intent to assert an alleged falsehood became
manifest and where the alleged untruthful statement
finds relevance or materiality in deciding the issue of
whether new owners duplicate copies of the [Certificate
of Condominium Title] and [Transfer Certificates of Title]
[31]
may issue. To the Court, whether the perjurious
statements contained in the four petitions were
subscribed and sworn in Pasig is immaterial, the gist of
the offense of perjury being the intentional giving of false
[32]
statement, citing Caet as authority for its statement.
The statement in Ilusorio may have partly led to
the present confusion on venue because of its very
categorical tenor in pointing to the considerations to be
made in the determination of venue; it leaves the
impression that the place where the oath was taken is
not at all a material consideration, forgetting that Article
183 of the RPC clearly speaks of two situations while
Article 182 of the RPC likewise applies to false testimony
in civil cases.
The Ilusorio statement would have made perfect
sense had the basis for the charge been Article 182 of
the RPC, on the assumption that the petition itself
constitutes
a
false
testimony
in
a
civil
case. The Caet ruling would then have been
completely applicable as the sworn statement is used in
a civil case, although no such distinction was made
under Caet because the applicable law at the time (Act
No. 1697) did not make any distinction.
If Article 183 of the RPC were to be used, as
what in fact appears in the Ilusorio ruling, then only that
portion of the article, referring to the making of an
affidavit, would have been applicable as the other
portion
refers
to
false
testimony
in other
proceedings which a judicial petition for the issuance of
a new owners duplicate copy of a Certificate of
Condominium Title is not because it is a civil proceeding
in court. As a perjury based on the making of a false

affidavit, what assumes materiality is the site where the

oath was taken as this is the place where the oath was
made, in this case, Pasig City.
Procedurally, the rule on venue of criminal cases
has been subject to various changes from the time
General Order No. 58 was replaced by Rules 106 to 122
of the Rules of Court on July 1, 1940. Section 14, Rule
106 of the Rules of Court provided for the rule on venue
of criminal actions and it expressly included, as proper
venue, the place where any one of the essential
ingredients of the crime took place. This change was
followed by the passage of the 1964 Rules of Criminal
[33]
Procedure, the
1985
Rules
of
Criminal
[34]
Procedure, and the 2000 Revised Rules of Criminal
Procedure which all adopted the 1940 Rules of Criminal
Procedures
expanded
venue
of
criminal
actions. Thus, the venue of criminal cases is not only in
the place where the offense was committed, but also
where any of its essential ingredients took place.
In the present case, the Certification against
Forum Shopping was made integral parts of two
complaints for sum of money with prayer for a writ of
replevin against the respondent spouses Eddie
Tamondong and Eliza B. Tamondong, who, in turn, filed
a complaint-affidavit against Tomas for violation of
Article 183 of the RPC. As alleged in the Information
that followed, the criminal act charged was for the
execution by Tomas of an affidavit that contained a
falsity.
Under the circumstances, Article 183 of the RPC
is indeed the applicable provision; thus, jurisdiction and
venue should be determined on the basis of this article
which penalizes one who make[s] an affidavit, upon any
material matter before a competent person authorized to
administer an oath in cases in which the law so
requires. The constitutive act of the offense is the
making of an affidavit; thus, the criminal act is
consummated when the statement containing a falsity is
subscribed and sworn before a duly authorized person.
Based on these considerations, we hold that
our ruling in Sy Tiong is more in accord with Article 183
of the RPC and Section 15(a), Rule 110 of the 2000
Revised Rules of Criminal Procedure. To reiterate for the
guidance of the Bar and the Bench, the crime of perjury
committed through the making of a false affidavit under
Article 183 of the RPC is committed at the time the
affiant subscribes and swears to his or her affidavit since
it is at that time that all the elements of the crime of
perjury are executed. When the crime is committed
through false testimony under oath in a proceeding that
is neither criminal nor civil, venue is at the place where
the testimony under oath is given. If in lieu of or as
supplement to the actual testimony made in a
proceeding that is neither criminal nor civil, a written
sworn statement is submitted, venue may either be at
the place where the sworn statement is submitted or
where the oath was taken as the taking of the oath and
the submission are both material ingredients of the crime
committed. In all cases, determination of venue shall be
based on the acts alleged in the Information to be
constitutive of the crime committed.
WHEREFORE, premises
considered,
we
hereby DENY the petition for lack of merit. Costs
against the petitioners.
SO ORDERED.

PEOPLE OF THE PHILIPPINES,

Plaintiff-Appellee,

G.R. No. 193479 take, steal and deposit into his personal
Security Bank & Trust Co. (Tuguegarao
Present:
Branch) Account No. 0301261982001,
the proceeds of 4,600 bags of Portland
VELASCO, JR., J.,
Chairperson,
cement,
owned by herein complainantPERALTA,
Corporation, paid to him by the
- versus ABAD,
Philippine Lumber located at Bonifacio
MENDOZA, and Street, this City, in the form of Checks,
PERLAS-BERNABE,
JJ. METROBANK CHECK NOS.
namely:
103214898 and 1032214896, for
Promulgated:
P67,000.00
&
P241,200.00,
BERNARD G. MIRTO,
respectively, in the total amount of
Accused-Appellant.
October 19, 2011 P308,200.00,
which
accused
is
x-------------------------------------------------------------------------obligated to convey to the complainant---------------x
Union Cement Corporation represented
by
its
Vice-President-Marketing,
REYNALDO S. SANTOS, to its loss,
DECISION
damage and prejudice, in the aforesaid
amount of THREE HUNDRED EIGHT
VELASCO, JR., J.:
THOUSAND TWO HUNDRED PESOS,
(P308,200.00) Philippine Currency.
The Case
[3]
Contrary to law.
[1]
This is an appeal from the Decision dated
August 24, 2009 of the Court of Appeals (CA) in CAG.R. CR-H.C. No. 03444, which affirmed the March 24,
To summarize, the seven Informations showed
[2]
2008 Decision in Criminal Case Nos. 9034, 9115, 9117
the following details:
and 9130 of the Regional Trial Court (RTC), Branch 5 in
Tuguegarao City, Cagayan. The RTC found accused
Bernard G. Mirto guilty beyond reasonable doubt of the
Criminal
Date of
Cement
Che
crime of Qualified Theft.
Case
offense
bags
Purchaser/Buyers
paym
June 21,
MBT
The Facts
9034
2001
4,600
Philippine Lumber
10321
MBT
Seven Informations for Qualified Theft were filed
103221
against the accused, docketed as Criminal Case Nos.
May 25,
4,750
MBT
9034, 9115, 9117, 9120, 9123, 9126, and 9130. The
9115
2001
out
Philippine Lumber
103021
Informations similarly show how the offenses were
MBT
allegedly committed, differing only as to the dates of the
of 5,850
103021
commission, the number of bags of cement involved, the
MBT
particulars of the checks paid by the cement purchasers,
103021
the amounts involved, and the depositary accounts used
MBT
by accused. The Information for Criminal Case No.
103021
9034 indicted accused, thus:
MBT
103021
MBT
The
undersigned
City
103021
Prosecutor of Tuguegarao City accuses
MBT
BERNARD G. MIRTO of the crime of
103021
QUALIFIED THEFT, defined and
May 22,
PN
penalized under Article 310, in relation
9117
2001
9,950
Mapalo Trucking
0015
to Articles 308 and 309 of the Revised
PN
Penal Code, committed as follows:
0015
June 6,
900 out
MBT
That on June 21, 2001, in the
9120
2001 of 5,100 Alonzo Trucking
114017
City of Tuguegarao, Province of
2,700
Cagayan and within the jurisdiction of
June 22,
out of
this Honorable Court, said accused
9123
2001
7,100
Mapalo Trucking
[no de
BERNARD G. MIRTO, being the Branch
[no de
Manager of UCC-Isabela (Tuguegarao
1,800
Area), with intent to gain but without
June 19,
out of
MBT
violence against or intimidation of
9126
2001
7,100
Alonzo Trucking
11407
persons nor force upon things, did then
June 27,
Rommeleens
DB
and there willfully, unlawfully and
9130
2001
500
Enterprises
000015
feloniously, with grave abuse of
confidence and without the consent and
[4]
Per records, the accused was branch manager
knowledge of complainant, UNION
of
Union
Cement
Corporation
(UCC)
for
CEMENT CORPORATION, a duly
the Tuguegarao City area. At the UCC office in Isabela,
organized Corporation operating under
he shared an office room with Restituto P. Renolo,
existing
laws,
represented
by
Branch Manager for the province. On June 29, 2001, at
REYNALDO S. SANTOS, Assistant Vice
about noon, the accused confided to Renolo that he had
President Marketing/North Luzon,
misappropriated company funds. Renolo advised him to
whose business address is located at
th
explain his misdeeds in writing to Assistant Vice5 Floor
Kalayaan
Building,
164
Salcedo Street, Makati, Metro Manila,

President and Head of UCC-North Luzon Reynaldo S.

Santos (AVP Santos).
Later that day, at about 5:00 p.m., the accused
told
Renolo
that
he
would
be
going
to Tuguegarao City. Just before Renolo left the office,
he saw on the accuseds table a piece of partly-folded
paper, which turned out to be a handwritten letter of the
accused to AVP Santos, in which he admitted taking
company funds and enumerated the particular accounts
and amounts involved. Renolo took the letter home,
read it over the phone to AVP Santos at about 7:00 p.m.,
and faxed it to AVP Santos the following day.
AVP Santos, in turn, sent a copy of the letter to
the top management of UCC, which then instructed the
Group Internal Audit of the Phinma Group of Companies
to conduct a special audit of the UCC-Tuguegarao City
Branch. Antonio M. Dumalian, AVP and Head of the
Group Internal Audit, organized the audit team
composed of Onisimo Prado, as head, with Emmanuel
R. Reamico, Adeodato M. Logronio, and Glenn Agustin,
as members.
The audit team conducted the special audit of
the UCC-Tuguegarao City Branch from July 3 to July 25,
2001. They interviewed several cement buyers/dealers,
among them Wilma Invierno of Rommeleens
Enterprises, Arthur Alonzo of Alonzo Trucking, Robert
Cokee of Philippine Lumber, and Russel Morales of
Mapalo Trucking. All four executed affidavits attesting
that UCC cement bags were sold directly to them
instead of to dealers with credit lines and that, as
payment, they issued Pay to Cash checks pursuant to
the instruction of the accused.
AVP Santos and Dr. Francis Felizardo, Senior
Vice-President (SVP) and Head of the Marketing Group
of UCC, met with the accused at the UCC Sales Office in
Poro Point, San Fernando City, La Union. In that
meeting, the accused admitted misusing company
money, but pleaded to them not to terminate him as he
was willing to pay back the amount from his salary on
installment. He also asked them not to file charges
against him.
In a Report dated August 8, 2001, the Group
Internal Audit confirmed the veracity of the June 29,
2001 handwritten admission letter of the accused and
his July 20, 2001 Certification enumerating the names of
the specific bank accounts, specific bank holders, and
the banks wherein he had deposited the funds of UCCTuguegarao City Branch. It appeared that the total
unremitted collections of the accused from May 25,
2001 to June 23, 2001 amounted to PhP 6,572,750.

Representative of SBTC-Tuguegarao City, confirmed the

findings of the UCC internal auditors through the
accuseds Statement of Account showing the various
checks deposited to his account, and which
subsequently cleared.
Upon arraignment on August 6, 2002, the
accused entered a plea of not guilty to the seven
[5]
separate charges of qualified theft. Trial on the merits
ensued.
The Ruling of the RTC
On March 24, 2008, the RTC rendered its
Decision, acquitting the accused in Criminal Case Nos.
9120, 9123, and 9126, but finding him guilty beyond
reasonable doubt of committing Qualified Theft in
Criminal Case Nos. 9034, 9115, 9117, and 9130. The
dispositive portion reads:
WHEREFORE,
premises
considered, the Court renders judgment
thus:
1.

2.

3.

4.

5.

6.

7.
UCC found that the accused gravely abused the
trust and confidence reposed on him as Branch Manager
and
violated
company
policies,
rules,
and
regulations. Specifically, he used the credit line of
accredited dealers in favor of persons who either had no
credit lines or had exhausted their credit lines. He
diverted cement bags from the companys Norzagaray
Plant or La Union Plant to truckers who would buy
cement for profit. In these transactions, he instructed
the customers that payments be made in the form of
Pay to Cash checks, for which he did not issue any
receipts. He did not remit the checks but these were
either encashed or deposited to his personal bank
account at Security Bank & Trust Co. (SBTC)Tuguegarao City Branch with Account No. 0301-261982001 or to the accounts of a certain Magno Lim at
MetroBank and Equitable PCIBank, both in Tuguegarao
City. Conchito Dayrit, Customer Service Officer and

In Criminal Case No.

9034: finding the accused
GUILTY
BEYOND
REASONABLE DOUBT of
the crime of qualified theft;
In Criminal Case No.
9115: finding the accused
GUILTY
BEYOND
REASONABLE DOUBT of
the crime of qualified theft;
In Criminal Case No.
9117: finding the accused
GUILTY
BEYOND
REASONABLE DOUBT of
the crime of qualified theft;
In Criminal Case No.
9120: finding the accused
NOT GUILTY, as there is no
showing how he profited
from deposits he made to
the account of Mr. Magno
Lim;
In Criminal Case No.
9123: finding the accused
NOT GUILTY by reason of
insufficiency of evidence;
In Criminal Case No.
9126: finding the accused
NOT GUILTY BEYOND
REASONABLE DOUBT of
the crime of qualified theft;
In Criminal Case No.
9130: finding the accused
GUILTY
BEYOND
REASONABLE DOUBT of
the crime of qualified theft.

In view of the foregoing, in the

imposition of the penalties upon the
accused, this Court is guided by the
following doctrinal pronouncement of the
Supreme Court in People v. [Mercado],
G.R. No. 143676, February 12, 2003:
Appellant asserts that
the trial court erred in applying
the
proper
penalty. As
reasoned by appellant, the
penalty for Qualified Theft under
Article 310 of the Revised Penal
Code is prision mayor in its

minimum and medium periods,

raised by two degrees. Hence,
the penalty high by two degrees
should be reclusion temporal in
its medium and maximum
periods and not reclusion
perpetua as imposed by the trial
court. Being a divisible penalty,
the Indeterminate Sentence Law
could then be applied.
On the other hand,
[appellee] cites the cases of
People v. Reynaldo Bago and
People v. Cresencia C. Reyes
to show that the trial court
properly imposed the penalty of
reclusion perpetua.
We agree with the
appellee that the trial court
imposed the proper penalty.
In accordance with the doctrine
laid down in People v. Mercado, the
accused is hereby sentenced to suffer
the
penalty
of
RECLUSION
PERPETUA. Accused is ordered to
restitute the private complainant the
total amount of TWO MILLION TWO
HUNDRED
SEVENTY
NINE
THOUSAND THREE HUNDRED FIFTY
PESOS (Php 2,279,350.00) covering
the amount represented by the checks
involved in these cases.
Set the promulgation of this
Decision on 15 April 2008, at 8:30
oclock in the morning.
SO ORDERED.

[6]

In convicting the accused, the RTC relied on his

admission when he testified on February 15, 2007 and
his Memorandum of the fact of his having deposited the
checks payments from UCC cement sales in his
personal account with SBTC, Tuguegarao City
Branch. Contrary to the accuseds argument, the RTC
found that he did not hold his collections in trust for
UCC, since he was never authorized by UCC to retain
and deposit checks, as testified to by AVP
Santos. Moreover, the RTC found fatal to accuseds
defense his handwritten letter, dated June 29, 2001,
addressed to AVP Santos, which reads in part, Sir, I
regret to say that a total amount of PhP 6,380,650.00
[7]
was misused by me for various reasons, which the
accused admitted to in open court during his testimony
on February 15, 2007.
Aggrieved, accused appealed his conviction
before the CA.

dated March 24, 2008 and promulgated

on April 15, 2008, finding accusedappellant guilty beyond reasonable
doubt of the crime of Qualified Theft is
hereby AFFIRMED and UPHELD.
With costs against the accusedappellant.
SO ORDERED.

[8]

Accused-appellant
argued
that, first,
the
Informations indicting him for Qualified Theft did not
adequately inform him of the nature of the offense
charged against him; and second, he had juridical
possession of the subject checks, not merely material
possession; hence, the qualifying circumstance of grave
abuse of confidence cannot be appreciated against
him.
The CA, however, found that accused-appellant
only had material possession of the checks and not
[9]
juridical possession as these checks payments were
made to UCC by its customers and accused-appellant
had no right or title to possess or retain them as against
UCC. The fact that accused-appellant was obliged, as
per company policy, to immediately turn over to UCC the
payments he received from UCC customers was
attested to by the prosecution witness, UCC Branch
Manager Renolo. Thus, the CA concluded that there
was neither a principal-agent relationship between UCC
and accused-appellant nor was accused-appellant
allowed to open a personal account where UCC funds
would be deposited and held in trust for UCC.
Hence, We have this appeal.
The Office of the Solicitor General, representing
the People of the Philippines, submitted a Manifestation
[10]
and Motion, opting not to file any supplemental brief,
there being no new issues raised nor supervening
events transpired. Accused-appellant manifested also
[11]
not to file a supplemental brief.
Thus, in resolving the
instant appeal, We consider the sole issue and
arguments accused-appellant earlier raised in his Brief
for the Accused-Appellant before the CA.
Accused-appellant raises the same sole
assignment of error already passed upon and resolved
by the CA, in that THE TRIAL COURT ERRED IN
CONCLUDING THAT, BASED ON THE EVIDENCE,
[12]
THE ACCUSED IS GUILTY OF QUALIFIED THEFT.
The Courts Ruling
The appeal is bereft of merit.
Accused-appellant argues that the prosecution
failed:
(a)

To establish that he had material

possession of the funds in
question;

(b)

To refute the authority given to

him by UCC;

(c)

To establish the element of

taking under Art. 308 of the
Revised Penal Code (RPC);

(d)

To establish that the funds were

taken without the consent and
knowledge of UCC;

The Ruling of the CA

On August 24, 2009, the appellate court
rendered the appealed decision, affirming the findings of
the
RTC
and
the
conviction
of
accusedappellant. The fallo reads:
WHEREFORE,
premises
considered,
the
Decision
of
the Regional Trial Court of Tuguegarao
City, Cagayan, Branch 5, in Criminal
Case Nos. 9034, 9115, 9117 and 9130,

(e)

To establish the element of

personal property under Art. 308
of the RPC; and

(f)

To establish, in sum, the ultimate

facts constitutive of the crime of
Qualified Theft under Art. 310, in
relation to Art. 308, of the RPC.

The elements of Qualified Theft committed with

grave abuse of confidence are as follows:
1.

Taking of personal property;

2.
That the said property belongs to
another;
3.
That the said taking be done
with intent to gain;

For being closely related, We will discuss

together the arguments thus raised.
Article 308 of the Revised Penal Code (RPC),
which defines Theft, provides:
ART. 308. Who are liable for
theft.Theft is committed by any person
who, with intent to gain but without
violence, against, or intimidation of
persons nor force upon things, shall
take personal property of another
without the latters consent.
Theft is likewise committed by:
1.
Any person who, having
found lost property, shall fail to deliver
the same to the local authorities or to its
owner;
2.
Any person who, after
having
maliciously
damaged
the
property of another, shall remove or
make use of the fruits or objects of the
damage caused by him; and
3.
Any person who shall
enter an enclosed estate or a field
where trespass is forbidden or which
belongs to another and without the
consent of its owner, shall hunt or fish
upon the same or shall gather fruits,
cereals, or other forest or farm products.
Thus, the elements of the crime of Theft are: (1)
there was a taking of personal property; (2) the property
belongs to another; (3) the taking was without the
consent of the owner; (4) the taking was done with intent
to gain; and (5) the taking was accomplished without
violence or intimidation against the person or force upon
[13]
things.
Theft is qualified under Art. 310 of the RPC,
when it is, among others, committed with grave abuse of
confidence, thus:
ART. 310. Qualified Theft.
The crime of theft shall be punished by
the penalties next higher by two degrees
than those respectively specified in the
next preceding article, if committed by a
domestic servant, or with grave abuse
of confidence, or if the property stolen
is motor vehicle, mail matter or large
cattle or consists of coconuts taken from
the premises of a plantation, fish taken
from a fishpond or fishery or if property
is taken on the occasion of fire,
earthquake, typhoon, volcanic eruption,
or any other calamity, vehicular accident
or
civil
disturbance. (Emphasis
supplied.)

4.
That it be done without the
owners consent;
5.

That it be accomplished without

the
use
of
violence
or
intimidation against persons, nor
of force upon things;

6.
That it be done with grave
[14]
abuse of confidence. (Emphasis
supplied.)

All of the foregoing elements for Qualified Theft

are present in this case.
First. The presence of the first and second
elements is abundantly clear. There can be no quibble
that the fund collections through checks paymentsall
issued payable to cashare personal properties
belonging to UCC. These funds through checks were
paid by UCC clients for the deliveries of cement from
UCC. One with the courts a quo, We will not belabor
this point in the fifth argument raised by accusedappellant.
Second. The third element is likewise
abundantly clear. The collected amounts subject of the
instant case belonged to UCC and not to accusedappellant. When accused-appellant received them in the
form of Pay to Cash checks from UCC customers, he
was obliged to turn them over to UCC for he had no right
to retain them. That he kept the checks and deposited
them in his account and in the accounts of Magno Lim
knowing all the while that these checks and their
proceeds were not his only proves the presence of
unlawful taking.
As the trial court aptly pointed out, accusedappellants theory that he only kept the funds in trust for
UCC with the elaborate explanation that once the checks
cleared in his account then he remits them to UCC is
completely incredulous. For one, accused-appellant has
not adduced evidence that he indeed remitted the funds
once the corresponding checks were cleared. For
another, accused-appellant could not explain why he
deposited some of the checks he collected in the
accounts of Magno Lim in MetroBank (MBTC Account
No. 124-5) and Equitable PCIBank (EPCIB Account No.
71820-8). Moreover, accused-appellants contention of
[15]
such alleged management practice is unsupported by
any evidence showing that prior to the events in mid2001 there was indeed such a practice of depositing
check collections and remitting the proceeds once the
checks cleared.
Third. The element of intent to gain is amply
[16]
established through the affidavit of Wilma Invierno of
Rommeleens Enterprises, one of UCCs customers,
who confirmed that she had been sold cement bags
instead of to dealers with credit lines and she was
required by accused-appellant to issue pay to cash
[17]
checks as payment. The affidavits of Arthur Alonzo of
[18]
Alonzo Trucking, Robert Cokee of Philippine Lumber,

[19]

and Russel Morales of Mapalo Trucking similarly

attested to the same type of sale and payment
arrangement. In so doing, accused-appellant facilitated
the collection of pay to cash checks which he
deposited in his bank account and in the bank accounts
of Magno Lim. Thus, the fourth element of intent to gain
is duly proved.
Fourth. Equally clear and undisputed is the
presence of the fifth element. Accused-appellant
admitted having received these checks and depositing
them in his personal account and in the accounts of
Magno Lim. Thus, the element of taking was
accomplished without the use of violence or intimidation
against persons, nor of force upon things.
Fifth. That UCC never consented to accusedappellants depositing the checks he collected in his or
other accounts is demonstrated by the immediate action
UCC took upon being apprised of the misappropriation
and accused-appellants confession letter. UCC lost no
time in forming a special audit group from the Group
Internal Audit of Phinma Group of Companies. The
special audit group conducted an internal audit from July
3 to 25, 2001 and submitted a Special Audit
[20]
Report dated August 8, 2001, showing that the total
unremitted collections of accused-appellant from the
period covering May 25, 2001 through June 23, 2001
amounted to PhP 6,572,750.

internal audit showed that accused-appellant unlawfully

took PhP 6,572,750 of UCCs funds.
The courts a quos finding that accusedappellant admitted misappropriating UCCs funds
through the appropriation of the subject checks is
buttressed by the testimonies of Renolo and
[25]
Santos, who heard and understood accusedappellants extrajudicial confession. True enough, they
were competent to testify as to the substance of what
they heard from accused-appellanthis declaration
expressly acknowledging his guilt to the offensethat
[26]
may be given in evidence against him.
That he deposited most of the subject checks in
his account was proved by accused-appellants
statement of account with SBTC (Account No. 0301261982-001) through the testimony of Conchito Dayrit,
the Customer Service Officer and representative of
[27]
SBTC-Tuguegarao City Branch.
Moreover, accused-appellant issued a written
[28]
certification dated July 20, 2001, attesting to the fact
of the ownership of the bank accounts where he
deposited the checks he collected from UCC clients,
which reads:
07/20/01
To whom it may concern:

AVP Santos and UCC SVP and Head of

Marketing Group Dr. Felizardo met with accusedappellant who admitted misappropriating company
[21]
funds. AVP Santos testified in open court on what
transpired in that meeting and accused-appellants
verbal admission/confession. And with the findings of
the auditors that not only did accused-appellant
unlawfully take UCC funds but he also committed the
offense of violating company policies, rules, and
regulations, UCC was compelled to file seven criminal
complaints against accused-appellant. This swift and
prompt action undertaken by UCC argues against the
notion that it consented to accused-appellants act of
depositing of check proceeds from company sales of
cement products in his account or in the accounts of
Magno Lim.
Sixth. That accused-appellant committed the
crime with grave abuse of confidence is clear. As
gathered from the nature of his position, accusedappellant was a credit and collection officer of UCC in
the Cagayan-Isabela area. His position entailed a high
degree of confidence, having access to funds collected
[22]
from UCC clients. In People v. Sison, involving a
Branch Operation Officer of Philippine Commercial
International Bank (PCIB), the Court upheld the
appellants conviction of Qualified Theft, holding that the
management of the PCIB reposed its trust and
confidence in the appellant as its Luneta Branch
Operation Officer, and it was this trust and confidence
which he exploited to enrich himself to the damage and
[23]
prejudice
of
PCIB
x
x
x.
In People
v.
[24]
Mercado, involving a manager of a jewelry store, the
Court likewise affirmed the appellants conviction of
Qualified Theft through grave abuse of confidence.
In the instant case, it is clear how accusedappellant, as Branch Manager of UCC who was
authorized to receive payments from UCC customers,
gravely abused the trust and confidence reposed upon
him by the management of UCC. Precisely, by using
that trust and confidence, accused-appellant was able to
perpetrate the theft of UCC funds to the grave prejudice
of the latter. To repeat, the resulting report of UCCs

This is to certify that to my

knowledge, the owner of the following
bank accounts are as follows:
Bank
account
Owner
SBC
0301261982001
B. G. Mirto
MBTC

5
Lim
EPCI

8
Lim

TUG

TUG

TUG

124Magno
71320Magno

This certification is issued for

whatever purpose it may serve.
(Sgd.) Bernard G. Mirto
7/20/01
Signature over printed name date

Further, as can be amply gleaned from accusedappellants handwritten admission and duly borne out by
the internal audit teams findings, he deliberately used a
scheme to perpetrate the theft. This was aptly pointed
out by the CA, which We reproduce for clarity:
UCC found that accusedappellant gravely abused the trust and
confidence reposed on him as Branch
Manager and violated company policies,
rules and regulations. He did not remit
collections from customers who paid
Pay to Cash checks. He used the
credit line of accredited dealers in
favor of persons who did not have
credit lines or other dealers who had
exhausted their credit line. He
diverted
cement
bags
from
Norzagaray Plant or La Union Plant to

truckers who would buy cement for

profit. In
these
transactions,he
instructed dealers that check be
made in the form of pay to
cash. He did not issue them
receipts. The checks were either
encashed or deposited to accusedappellants personal account No.
0301-261982-001 at Security Bank &
Trust Co. (SBTC) Tuguegarao Branch
or deposited to the accounts of a
certain Mr. Magno Lim maintained at
MetroBank and EquitablePCIBank,
both
located
[29]
at Tuguegarao City.
(Emphasis
supplied.)

It is, thus, clear that accused-appellant

committed Qualified Theft. And as duly pointed out
above, even considering the absence of the handwritten
extrajudicial admission of accused-appellant, there is
more than sufficient evidence adduced by the
prosecution to uphold his conviction. As aptly pointed
out by the trial court, the prosecution has established the
following:
1.

That checks of various customers

of UCC were written out as bearer
instruments. Payments in cash
were also made.

2.

These were received by the

accused Mirto who deposited them
in his personal account as well as in
the account of Mr. Magno Lim.

3.

The monies represented by the

checks and the case payments were
consideration for bags of cement
purchased from the UCC, the
complainant-corporation.

4.

The accused Mirto was never

authorized nor was it part of his
duties as branch manager to deposit
these proceeds in his account or in
[30]
the account of Mr. Magno Lim.

Defense of Agency Unavailing

As his main defense, accused-appellant cites
the testimonies of prosecution witnesses Restituto
Renolo and Reynaldo Santos to impress upon the Court
that he is an agent of UCC. And as an agent, so he
claims, an implied trust is constituted by his juridical
possession of UCC funds from the proceeds of cement
sales:
ATTY.

CARMELO Z. LASAM: Mr.

Renolo, can you tell us the
specific
duties
and
responsibilities of your area
sales managers?

RESTITUTO RENOLO: The duties and

responsibilities of an area sales
officer, we are in charge of the
distribution of our products,
cement
and
likewise
its
[31]
collection of its sales.
xxxx

ATTY. RAUL ORACION: Okay, now as

Assistant Vice-President for
Marketing and supervisor of all
area sales offices and branch
managers, could you tell the
duties and responsibilities of the
accused Bernard Mirto at that
time?
REYNALDO SANTOS: x x x, also
collect sales and for the cash for
[32]
the collection of our sales.

To accused-appellant, he had authority to collect

and accept payments from customers, and was
constituted an agent of UCC. As collection agent of
UCC, he asserts he can hold the collections in trust and
in favor of UCC; and that he is a trustee of UCC and,
therefore, has juridical possession over the collected
funds. Consequently, accused-appellant maintains
there was no unlawful taking, for such taking was with
the knowledge and consent of UCC, thereby negating
the elements of taking personal property and without the
owners consent necessary in the crime of Qualified
Theft.
This contention fails.
The duty to collect payments is imposed on
accused-appellant because of his position as Branch
Manager. Because
of
this
employer-employee
relationship, he cannot be considered an agent of UCC
and is not covered by the Civil Code provisions on
agency. Money received by an employee in behalf of his
or her employer is considered to be only in the material
[33]
possession of the employee.
The fact that accused-appellant had authority to
accept payments from customers does not give him the
license to take the payments and deposit them to his
own account since juridical possession is not transferred
to him. On the contrary, the testimony he cites only
bolsters the fact that accused-appellant is an official of
UCC and had the trust and the confidence of the latter
and, therefore, could readily receive payments from
customers for and in behalf of said company.
Proper Penalty
The trial court, as affirmed by the appellate
court, sentenced accused-appellant to restitute UCC the
aggregate amount of PhP 2,279,350, representing the
amount of the checks involved here. The trial court also
imposed
the
single
penalty
ofreclusion
perpetua. Apparently, the RTC erred in imposing said
single penalty, and the CA erred in affirming it,
considering that accused-appellant had been convicted
on four (4) counts of qualified theft under Criminal Case
Nos. 9034, 9115, 9117 and 9130. Consequently,
accused-appellant should have been accordingly
sentenced to imprisonment on four counts of qualified
theft with the appropriate penalties for each
count. Criminal Case No. 9034 is for PhP 308,200,
Criminal Case No. 9115 is for PhP 688,750, Criminal
Case No. 9117 is for PhP 1,213,900, and Criminal Case
No. 9130 is for 68,500 for the aggregate amount
of PhP 2,279,350.
Now to get the proper penalty for each count,
[34]
We refer to People v. Mercado, where We established
that the appropriate penalty for Qualified Theft
is reclusion perpetua based on Art. 310 of the RPC,
which provides that [t]he crime of [qualified] theft
shall be punished by the penalties next higher by
two degrees than those respectively specified in
[Art. 309] x x x. (Emphasis supplied.)

Applying the computation made in People v.

Mercado to the present case to arrive at the correct
penalties, We get the value of the property stolen as
determined by the trial court, which are PhP 308,200,
PhP 688,750, PhP 1,213,900 and PhP 68,500. Based
[35]
on Art. 309 of the RPC, since the value of the items
exceeds P22,000.00, the basic penalty is prision
mayor in its minimum and medium periods to be
imposed in the maximum period, which is 8 years, 8
[36]
months and 1 day to 10 years of prision mayor.
And in order to determine the additional years of
imprisonment, following People v. Mercado, We deduct
PhP 22,000 from each amount and each difference
should then be divided by PhP 10,000, disregarding any
amount less than PhP 10,000. We now have 28 years,
66 years, 119 years and 4 years, respectively, that
should be added to the basic penalty. But the imposable
penalty for simple theft should not exceed a total of 20
years. Therefore, had accused-appellant committed
simple theft, the penalty for each of Criminal Case Nos.
9034, 9115 and 9117 would be 20 years of reclusion
temporal; while Criminal Case No. 9130 would be from 8
years, 8 months and 1 day of prision mayor, as
minimum, to 14 years of reclusion temporal, as
maximum, before the application of the Indeterminate
Sentence Law. However, as the penalty for Qualified
Theft is two degrees higher, the correct imposable
penalty is reclusion perpetua for each count.
In fine, considering that accused-appellant is
convicted of four (4) counts of Qualified Theft with
corresponding four penalties of reclusion perpetua, Art.
70 of the RPC on successive service of
sentences shall apply. Art. 70 pertinently provides that
the maximum duration of the convicts sentence shall
not be more than threefold the length of time
corresponding to the most severe of the penalties
imposed upon him. No other penalty to which he may
be liable shall be inflicted after the sum total of those
imposed
equals
the
said
maximum
period. Such maximum period shall in no case
exceed forty years. Applying said rule, despite the
four penalties of reclusion perpetua for four counts of
Qualified
Theft,
accused-appellant
shall suffer
imprisonment for a period not exceeding 40 years.
WHEREFORE,
the
appeal
is
hereby DENIED. The appealed CA Decision dated
August 24, 2009 in CA-G.R. CR-H.C. No. 03444
is AFFIRMED with MODIFICATION in that accusedappellant Bernard G. Mirto is convicted of four (4) counts
of Qualified Theft and accordingly sentenced to serve
four (4) penalties of reclusion perpetua. But with the
application of Art. 70 of the RPC, accused-appellant
shall suffer the penalty of imprisonment for a period not
exceeding 40 years.
Costs against accused-appellant.
SO ORDERED.