G.R. No.

173330, June 17, 2013

LUCILLE DOMINGO, Petitioner, v. MERLINDA COLINA, Respondent.

Facts: Domingo was charged before the MTCC Davao City, with violation of BP 22.
The case proceeded to trial. After the prosecution rested its case, the defense filed a
Demurrer to Evidence, which was granted as the prosecution failed to prove
elements nos. 2 and 3 of the crime of violation of BP 22, i.e., (2) the check is applied
on account or for value and (3) the person issuing the check knows at the time of its
issuance that he does not have sufficient funds in or credit with the bank for the full
payment of the check upon its presentment.

The prosecution, through the private prosecutor, then filed a MR to the Order of
Dismissal and In The Alternative To Reopen the Civil Aspect of the Case. The
prosecution contended that even assuming that petitioner did not receive valuable
consideration for her bounced check, she is nonetheless liable to respondent for the
face value of the check as an accommodation party and, that petitioner's knowledge
of the insufficiency of her funds in or credit with the bank is presumed from the
dishonor of her check.

MTCC denied the prosecution's Motion, ruling that: xxx the alternate prayer of the
private complainant, through her counsel, to reopen the civil aspect of this case is
likewise denied. At any rate, although the herein mentioned order did not
categorically state that the accused's act from which his civil liability in favor of the
private complainant may arise does not exist in this case, in effect, the observations
and ratiocinations stated by this court in support of its finding that the evidence
adduced in court by the prosecution in the records of this case failed to prove all the
elements of the crime of violation of Batas Pambansa Bilang 22, speaks for itself. In
deference to the desire of the prosecution, let it be stated herein that the act
from which the civil liability of the accused in favor of the private complainant
may arise, does not exist in this case.

Colina appealed the civil aspect of the case to the RTC, which ordered Domingo to
pay complainant Colina the civil liability arising out of the offense charged in the
amount of P175,000.00, plus interest of 12% per annum counted from the filing of the
complaint and cost of suit.

Issue: WON the RTC DAVAO CITY HAS JURISDICTION TO ENTERTAIN AN

APPEAL INTERPOSED WHICH WAS VIOLATIVE OF SECTION 2, RULE 111 OF
THE RULES ON CRIMINAL PROCEDURE WHEN THE MTCC HAD ALREADY
RULED THAT THE ACT FROM WHICH THE CIVIL LIABILITY MAY ARISE DID NOT
EXIST.

Ruling: Yes. The RTC correctly entertained Colina’s appeal of the civil aspect of the
case. There was no violation of Section 2 Rule 111, ROC.

The last paragraph of Section 2, Rule 111 of the Revised Rules on Criminal
Procedure provides:

The extinction of the penal action does not carry with it extinction of
the civil action. However, the civil action based on delict shall be
deemed extinguished if there is a finding in a final judgment in the
criminal action that the act or omission from which the civil liability may
arise did not exist.
Moreover, the second paragraph of Section 2, Rule 120 of the same Rules states
that:

In case the judgment is of acquittal, it shall state whether the evidence

of the prosecution absolutely failed to prove the guilt of the accused or
merely failed to prove his guilt beyond reasonable doubt. In either
case, the judgment shall determine if the act or omission from
which the civil liability might arise did not exist.

In the instant case, the Orders of the MTCC, did not contain any such finding or
determination. The Court agrees with the CA that in acquitting Domingo, the MTCC
did not rule on the civil aspect of the case. While it subsequently held that "the act
from which the civil liability of the accused in favor of the private complainant may
arise does not exist in this case," the MTCC, nonetheless, failed to cite evidence,
factual circumstances or any discussion in its October 25, 2001 Decision which
would warrant such ruling. Instead, it simply concluded that since the prosecution
failed to prove all the elements of the offense charged, then the act from which the
civil liability might arise did not exist. The MTCC held that its observations and
ratiocinations in its Order justified its conclusion. However, after a careful review of
the abovementioned Orders, the Court finds nothing therein which the MTCC could
have used as a reasonable ground to arrive at its conclusion that the act or omission
from which petitioner's civil liability might arise did not exist.

On the contrary, the tenor of the Orders of the MTCC is that the dismissal  of the
criminal case against petitioner was based on reasonable doubt.  As may be
recalled, the MTCC dismissed the criminal case on the ground that the
prosecution failed to prove the second and third elements of BP 22, i.e., (2) the
check is applied on account or for value and (3) the person issuing the check knows
at the time of its issuance that he does not have sufficient funds in or credit with the
bank for the full payment of the check upon its presentment. This only means,
therefore, that the trial court did not convict Domingo of the offense charged,
since the prosecution failed to prove her guilt beyond reasonable doubt, the
quantum of evidence required in criminal cases. Conversely, the lack of
evidence to prove the aforesaid elements of the offense charged does not
mean that petitioner has no existing debt with Colina, a civil aspect which is
proven by another quantum of evidence, a mere preponderance of evidence.
Moreover, from the above pronouncement of the MTCC as to the prosecution's
failure to prove the second and third elements of the offense charged, it can be
deduced that the prosecution was able to establish the presence of the first and
fourth elements, i.e., (1) a person draws and issues a check and (4) the check is
dishonored by the bank for insufficiency of funds or credit. Hence, the fact that
Domingo was proven to have drawn and issued a check and that the same was
subsequently dishonored for inadequate funds leads to the logical conclusion
that the fact from which her civil liability might arise, indeed, exists.
 Alvizo v. Sandiganbayan
220 SCRA 45
Mary Bessadel B. Dulay

Facts:  Alvizo was then a member of the Surigao del Sur Sangguniang
Panlalawigan. It appears that Alvizo had been dismissed as Clerk of Court when he
was found to have incurred a deficiency in his accounts in the amount of P31,612.50,
pursuant to a decision of the Supreme Court in AM No. 818-TEL, promulgated on
April 18, 1979. Alvizo’s dismissal was without prejudice to his criminal prosecution. 
Consequently, a preliminary investigation was conducted by Second Assistant
Provincial Prosecutor Suarez who thereafter recommended the filing of an
information for malversation against Alvizo. This recommendation was, however,
reversed by Provincial Prosecutor Montenegro but whose recommendation was in
turn overruled by Ombudsman Vasquez. 
Thus, on May 17, 1990 an information was accordingly filed with Sandiganbayan,
initiating the present Criminal Case No. 14893 which charges Alvizo with
malversation of public funds.
On August 29, 1990, Alvizo filed a motion to quash the information (which was
later denied) allegedly for failure of the same to include a certification by the
investigating fiscal that he conducted a personal examination of the
complainant and his witnesses during the preliminary investigation. Then, on
October 17, 1990, petitioner filed a supplemental motion to quash this time
contending that the filing of the information in this case is violative of his
constitutional rights to due process and the speedy disposition of the case against
him.
Alvizo contends that SB committed a GAOD in denying his aforestated motions
despite the timely objection to the lack of a certification in the information that the
complainant and his witnesses had been personally examined by the investigating
officer, and in spite of the inordinate delay in the filing of the information in violation of
petitioner's constitutional rights to due process and speedy trial.
Alvizo initially avers that the information is defective because it does not
contain a certification by the investigating prosecutor that the latter personally
examined the complainant and his witnesses, in contravention of the
requirement under Section 4, Rule 112 of the Rules of Court which provides: 

"Sec. 4. Duty of the investigating fiscal. — If the investigating fiscal finds cause
to hold the respondent for trial he shall prepare the resolution and
corresponding information. He shall certify under oath that he has examined
the complainant and his witnesses,..."

Issue: WON there was contravention of the requirement under Section 4, Rule 112
of the Rules of Court.
Ruling: NO. Contrary to Alvizo's submission, Sandiganbayan made a finding that the
investigating officer who conducted the preliminary investigation personally examined
the witness for the prosecution. Thus:

"With respect to the ground raised in the Motion to Quash that the
Certification appearing in the Information failed to state that the Special
Prosecutor or any authorized officer has personally examined the
complainant and his witnesses, the records of the Office of the Ombudsman
disclose that Nereo A. Sales, COA Auditor, who examined the cash and
accountabilities of the accused, was personally examined by Second
Assistant Provincial Prosecutor Suarez of Surigao del Sur, by taking down his
statement which the witness subscribed and swor(e) to before said assistant
prosecutor on December 8, 1989, and who certified as follows:
 'THIS IS TO CERTIFY that I have personally examined the affiant and that I
am satisfied that he voluntarily executed and understood his affidavit.'
"Actually, therefore, Second Assistant Provincial Prosecutor Suarez who
conducted the preliminary investigation in this case personally examined the
witnesses of the prosecution. That the fact was not stated in the Information
itself is merely a formal defect which does not prejudice the substantial rights
of the accused and, hence, does not warrant the quashal of the information . .
." 

It bears mention that this finding of the Sandiganbayan was never convincingly
refuted nor controverted with cogency by herein Alvizo.
The certification appearing in the information filed in Criminal Case No. 14893 of the
Sandiganbayan reads as follows:

"THIS IS TO CERTIFY that a preliminary investigation has been conducted in

this case; that there is reasonable ground to engender a well-founded belief
that the crime charged has been committed; and that the accused is probably
guilty thereof." 

Definitely settled is the rule that notwithstanding the absence in the

information of a certification as to the holding of a preliminary investigation,
the information is nonetheless considered valid for the reason that such
certification is not an essential part of the information itself and its absence
cannot vitiate it as such.  Accordingly, we held in People vs. Marquez  that:

". . . It should be observed that section 3 of Rule 110 defines an information as

nothing more than 'an accusation in writing charging a person with an offense
subscribed by the fiscal and filed with the court.' Thus, it is obvious that such
certification is not an essential part of the information itself and its absence cannot
vitiate it as such. True, as already stated, section 14 of Rule 112 enjoins that 'no
information . . . shall be filed without first giving the accused a chance to be heard in a
preliminary investigation', but, as can be seen, the injunction refers to the non-holding
of the preliminary investigation, not the absence of the certification. In other words,
what is not allowed is the filing of the information without a preliminary investigation
having been previously conducted, and the injunction that there should be a
certification is only a consequence of the requirement that a preliminary investigation
should first be conducted . . ."

In the case at bar, it is clear that there is a certification to the effect that
a preliminary investigation had been conducted. What is allegedly lacking is
the statement that the investigating prosecutor has personally examined the
complainant and his witnesses. We find no compelling reason why the
aforementioned doctrinal rules should not be made applicable to the present
case where the alleged violation alluded to by Alvizo merely consists of a
failure to state compliance with a part of the proceedings involved in the
conduct of a preliminary investigation, that is, the personal examination by the
fiscal of the complainant and his witnesses but which examination was
actually conducted. The fact alone that the certification contains a statement
that a preliminary investigation had been conducted renders nugatory
petitioner's arguments on the supposed nullity of the indictment.