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ner, v. PEOPLE OF THE PHILIPPINES AND MONICA …

G.R. No. 200465, April 20, 2015

JOCELYN ASISTIO Y CONSINO, Petitioner, v. PEOPLE OF THE PHILIPPINES

AND MONICA NEALIGA, Respondent.

DECISION

PERALTA, J.:

Assailed in this petition for certiorari under Rule 65 of the Rules of Court are the
Court of Appeals (CA) Decision1 dated August 31, 2011 and its Resolution2 dated
January 31, 2012 in CA-G.R. CR No. 32363. The dispositive portion of the
Decision reads: chanroblesvirtuallawlibrary

WHEREFORE,  premises considered, the assailed Orders dated 14

October 2008 and 12 February 2009 of Branch 40, Regional Trial Court
of Manila, in Criminal Case No. 01-197750, are
hereby REVERSED and SET ASIDE. Accordingly, let the records of this
case be REMANDED to Branch 40 of the Regional Trial Court of Manila,
for further appropriate proceedings.

SO ORDERED.3 cralawlawlibrary

The factual and procedural antecedents are as follows:

Petitioner Jocelyn Asistio y Consino was charged with violation of Section 46 of

the Cooperative Code of the Philippines (Republic Act No. [RA] 6938).4  The
accusatory portion of the Information filed against her reads: chanroblesvirtuallawlibrary

That on or about July 27, 1998, in the City of Manila, Philippines, the
said accused, being then the Chairperson and Managing Director of A.
Mabini Elementary School Teachers Multi-Purpose Cooperative, and as
such, have a complete control and exclusively manage the entire
business of A. Mabini Elementary School Teachers Multi-Purpose
Cooperative, did then and there willfully, unlawfully and feloniously
acquires, in violation of her duty as such and the confidence reposed on
her, personal interest or equity adverse to A. Mabini Elementary School
Teachers Multi-Purpose Cooperative by then and there entering into a
contract with Coca Cola Products at A. Mabini Elementary School
Teachers Multi-Purpose Cooperative in her own personal capacity when
in truth and in fact as the said accused fully well knew, the sale of Coca-
Cola products at A. Mabini Elementary School Teachers Multi-Purpose
Cooperative should have accrued to A. Mabini Elementary School
Teachers Multi-Purpose Cooperative to the damage and prejudice of A.
Mabini Elementary School Teachers Multi-Purpose Cooperative.

CONTRARY TO LAW.5 cralawlawlibrary

Upon her arraignment, petitioner entered a plea of "not guilty." Trial on the
merits ensued.

The prosecution sought to prove that petitioner, then Chairperson of the A. Mabini
Elementary School Teachers Multi-Purpose Cooperative, had entered into an
exclusive dealership agreement with Coca-Cola Bottlers Philippines, Inc., (Coca
Cola) for the sale of softdrink products at the same school. By virtue of a
Memorandum of Agreement between the school and the Cooperative, Dr. Nora T.
Salamanca, the school principal, directed petitioner to submit her financial
reports during her tenure as Chairperson. Instead, petitioner claimed that the
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principal had no business and authority to require her to produce financial

statements, and that the said reports had been posted on the school bulletin
board.

The school principal then created an audit committee to look into the financial
reports of the Cooperative. The committee was composed of Aurora Catabona
(Chairperson), Monica Nealiga (member), with Noemi Olazo (Chairperson-
auditor) and Sylvia Apostol (auditor), who later executed their respective
affidavits in support of the charge against petitioner. Based on the documents
obtained from Coca-Cola, including the records of actual deliveries and sales, and
the financial statements prepared by petitioner, the audit committee found that
petitioner defrauded the Cooperative and its members for three (3) years in the
following amounts: School Year (S.Y.) 1998-1999 - P54,008.00; S.Y. 1999-2000 -
P40,503.00; and S.Y. 2000-2001 - P8,945.00. Despite requests for her to return
to the Cooperative the amounts she had allegedly misappropriated, petitioner
failed and refused to do so. Thus, the Cooperative issued a Board Resolution
authorizing the filing of criminal charges against petitioner.

After the presentation and offer of evidence by the prosecution, petitioner moved
to dismiss the case by way of Demurrer to Evidence with prior leave of court. She
argued, among other matters, that the Regional Trial Court (RTC) of Manila,
Branch 40, does not have jurisdiction over the case, as the crime charged
(Violation of Section 46 of RA 6938) does not carry with it a sanction for which
she can be held criminally liable.

On October 14, 2008, the RTC dismissed the case for lack of jurisdiction, thus: chanroblesvirtuallawlibrary

Considering that the MeTCs, MTC, MCTCs have exclusive original

jurisdiction over all offenses punishable with imprisonment not
exceeding six (6) years irrespective of the amount of fine, and
regardless of other imposable accessory or other penalties, including the
civil liability arising from such offense or predicated thereon, and
considering that violation of [Sec] 46 of R.A. 6938 would be punishable
by imprisonment of not less than six (6) months nor more than one (1)
year and a fine of not less than one thousand pesos (P1,000.00), or
both at the discretion of the Court, this Court (RTC) has no  jurisdiction
to hear and determine the instant case which properly pertains to the
first level courts. cralawred

WHEREFORE,  premises considered, this Court finds and holds that it

has no jurisdiction over the offense charged. Accordingly, the instant
case is hereby  DISMISSED. This Court having no jurisdiction, further
discussions over the defense' allegation that there was a violation of the
principle of primary jurisdiction and that the private complainants used a
falsified resolution to purposely empower them to file the instant case
become moot and academic.

IT IS SO ORDERED.6 cralawlawlibrary

On February 12, 2009, the RTC denied for lack of merit the private prosecutor's
motion for a reconsideration of the order of dismissal.7 The RTC held: chanroblesvirtuallawlibrary

Nowhere in said [Sec] 46 of R.A. 6938 does it provide for penal

sanctions/liability for violation of acts or omission prescribed therein. If
ever, the liability is only for damages and for double the profits which
otherwise would have accrued to the cooperative. It is a fundamental
rule in law that an act or omission is not a crime unless there is a law

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making it so and providing a penalty therefor. Otherwise put, the facts

charged in the information do not charge an offense. And even
assuming  arguendo  that they do constitute an offense, the penalty
therefor is that provided under paragraph 4 of [Section] 124 of R.A.
[6938] which is "imprisonment of not less than six (6) months nor more
than one (1) year and a fine of not less than one thousand pesos
(P1,000.00), or both at the discretion of the court," which falls under
the exclusive jurisdiction of the first, not the second level court.

Another factor which strongly militates against the cause of the

prosecution is the undisputed fact that before this case was filed in
Court, conciliation/mediation process for the amicable settlement of the
dispute was not availed of by the private complainants who are all
members (directors) of the A. Mabini Elementary School Teachers Multi-
Purpose Cooperative in accordance with the by-laws of the Cooperative
and the Cooperative Code itself and the Guidelines for the
Implementation of Conciliation/Mediation of Cooperative dispute (Memo
Circular No. 2007-05, Series of 2007). The dispute involving the parties
is certainly a dispute and issue between and among directors, officers or
members of the A. Mabini Elementary School Teachers Multi-Purpose
Cooperative which is governed by the Guidelines.

Prior availment and exhaustion of administrative remedies until the

Office of the President as outlined in the Cooperative Code and in its
implementing rules not having been resorted to by the complainants,
the rule on primary jurisdiction was violated and this Court acquired no
jurisdiction to hear and determine the present case.8 cralawlawlibrary

Dissatisfied, the People of the Philippines, represented by the Office of the

Solicitor General (OSG), appealed the order of dismissal to the CA.

On August 31, 2011, the CA rendered a Decision reversing and setting aside the
RTC Orders dated October 14, 2008 and February 12, 2009 and remanded the
case records to the RTC for further proceedings. On January 31, 2012, the CA
denied petitioner's motion for reconsideration of its decision.9

Aggrieved, petitioner filed this petition for certiorari under Rule 65 of the Rules of

Court, raising the following issues: chanroblesvirtuallawlibrary

1. WHETHER IN REVERSING THE REGIONAL TRIAL COURT'S DECISION

OF DISMISSAL, HAS THE HON. COURT OF APPEALS GRAVELY ERRED IN
DISREGARDING THE CLEAN, UNAMBIGUOUS AND CATEGORICAL
PROVISION OF PARAGRAPH 4 OF [SECTION] 124 OF RA-6938 IN
REFERENCE TO THE PENAL SANCTION FOR VIOLATION OF [SEC] 46 OF
THE COOPERATIVE [CODE], RA-6938 AND ADOPTING FOR ITS
DECISION ONE DERIVED FROM ITS INTERPRETATION OF A SUPPOSED
STATUTORY CONSTRUCTION WHICH INTERPRETATION, EVEN SUBJECT
PETITIONER TO A HIGHER PENALTY OF 5 YEARS TO 10 YRS. WHICH
WAS TO JUSTIFY THAT TFIE RTC SHOULD NOT HAVE DISMISSED THE
CASE AND USED IT AS A GROUND TO REVERSE THE DECISION OF THE
HON. REGIONAL TRIAL COURT.

2. WHETHER THE HON. COURT OF APPEALS IGNORED THE OTHER

GROUNDS ASSIGNED FOR THE DISMISSAL OF THE CRIMINAL CHARGE
OTHER THAN THE VIOLATION OF [SECTION] 46 OF RA-6938,
(COOPERATIVE CODE). THAT THERE WAS A VIOLATION OF THE RULE
ON PRIMARY JURISDICTION - EXHAUSTION OF ADMINISTRATIVE
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REMEDIES IN THE COOPERATIVE LEVEL BEFORE GOING TO COURT.

3. WHETHER THE HON. COURT OF APPEALS' ORDER REMANDING THE

CASE BACK TO THE REGIONAL TRIAL COURT FOR FURTHER
PROCEEDINGS IGNORED THE RULE THAT DISMISSAL OF THE CHARGE
ON DEMURRER TO EVIDENCE AMOUNTS TO AN ACQUITTAL, AND THE
DISMISSAL IS NOT APPEALABLE.

4. WHETHER REMANDING THE CASE BACK TO THE REGIONAL TRIAL

COURT FOR FURTHER PROCEEDINGS SUBJECT THE PETITIONER-
ACCUSED TO DOUBLE JEOPARDY AND TO HIGHER PENALTY HAS NOT
BEEN CONSIDERED.

5. [WHETHER THE RESPONDENT'S CONTENTION THAT A NEW AND

AMENDED COOPERATIVE CODE RA-9520 COULD POSSIBLE APPLY TO
THIS CASE AGAINST THE PETITIONER, VIOLATIVE OF  EXPOSE (SIC)
FACTO LAW.]10 cralawlawlibrary

The petition has no merit.

Prefatorily, the Court notes that petitioner filed a special civil action
for  certiorari  under Rule 65 of the Rules of Court, as amended, instead of an
appeal by  certiorari  under Rule 45, which the OSG points out as the proper
remedy to assail the CA decision.

Petitioner asserts that she filed the petition pursuant to Rule 65, because the
assailed CA decision is tainted with grave abuse of discretion. She posits that the
Court ordered the exclusion of the CA as one of the party respondents, and
considered the petition as one filed under Rule 45, since the focal issue raised in
the petition is a question of law calling for an interpretation of Sections 46 and
124 of RA 6938, in relation to Batas Pambansa (B.P.) Blg. 129, or the Judiciary
Reorganization Act of 1980, as amended by RA 7691. She adds that had she
chosen to file an appeal by  certiorari, the Court would be faced with the same
question of law.

Petitioner's contentions are untenable.

As a rule, the remedy from a judgment or final order of the CA is appeal via
petition for review under Rule 45 of the Rules of Court.11 In Mercado v. Court of
Appeals,12  the Court had again stressed the distinction between the remedies
provided for under Rule 45 and Rule 65, to wit: chanroblesvirtuallawlibrary

xxx [T]he proper remedy of a party aggrieved by a decision of the Court

of Appeals is a petition for review under Rule 45, which is not identical
to a petition for certiorari under Rule 65. Under Rule 45, decisions, final
orders or resolutions of the Court of Appeals in any case, i.e., regardless
of the nature of the action or proceedings involved, may be appealed to
us by filing a petition for review, which would be but a continuation of
the appellate process over the original case. On the other hand, a
special civil action under Rule 65 is an independent action based on the
specific ground therein provided and, as a general rule, cannot be
availed of as a substitute for the lost remedy of an ordinary appeal,
including that to be taken under Rule 45. xxx.13 cralawlawlibrary

In  Artistica Ceramica, Inc., v. Ciudad Del Carmen Homeowner's Association,

Inc.,14 the Court explained that one of the requisites of certiorari is that there be
no available appeal or any plain, speedy and adequate remedy. Where an appeal
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is available, certiorari will not prosper, even if the ground therefor is grave abuse

of discretion. It is also well settled that a party cannot file a petition both under
Rules 45 and 65 of the Rules of Court because said procedural rules pertain to
different remedies and have distinct applications. The remedy of appeal under
Rule 45 and the original action for certiorari under Rule 65 are mutually exclusive
and not alternative or cumulative. Thus, when petitioner adopts an improper
remedy, petition may be dismissed outright.

However, the Court may set aside technicality for justifiable reasons as when the
petition before it is clearly meritorious and filed on time both under Rules 45 and
65.15 In accordance with the liberal spirit which pervades the Rules of Court and
in the interest of justice, the Court may treat the petition as having been filed
under Rule 45. Here, no justifiable reasons were proffered by petitioner for a
more liberal interpretation of procedural rules. Although it was filed on time both
under Rules 45 and 65, the petition at bench lacks substantive merit and raises
only questions of law which should have been duly made in a petition for review
on certiorari under Rule 45.16

On the substantive issue of which court has jurisdiction over petitioner's criminal
case for violation of Section 46 (Liability of Directors, Officers and Committee
Members) of RA 6938, the Court affirms the CA ruling that it is the RTC, not the
Metropolitan Trial Court (MeTC), which has jurisdiction over her case.

In criminal cases, the jurisdiction of the court is determined by the averments of

the complaint or Information, in relation to the law prevailing at the time of the
filing of the complaint or Information, and the penalty provided by law for the
crime charged at the time of its commission.17  Section 32 of B.P. Blg. 129, as
amended, provides that the MeTC has exclusive jurisdiction over offenses
punishable with imprisonment not exceeding six years, irrespective of the
amount of fine: chanroblesvirtuallawlibrary

Sec. 32.  Jurisdiction of Metropolitan Trial Courts, Municipal Trial Courts

and Municipal Circuit Trial Courts in Criminal Cases. - Except in cases
falling within the exclusive original jurisdiction of Regional Trial Courts
and of the Sandiganbayan, the Metropolitan Trial Courts, Municipal Trial
Courts, and Municipal Circuit Trial Courts shall exercise: chanroblesvirtuallawlibrary

xxxx

(2) Exclusive original jurisdiction over  all offenses

punishable with imprisonment not exceeding six (6)
years irrespective of the amount of fine, and regardless of
other imposable accessory or other penalties, including the civil
liability arising from such offenses or predicated thereon,
irrespective of kind, nature, value or amount thereof: Provided,
however, That in offenses involving damage to property
through criminal negligence, they shall have exclusive original
jurisdiction thereof. (Emphasis added)

Offenses punishable with imprisonment exceeding six years, irrespective of the

amount of fine, fall under the exclusive original jurisdiction of the RTC, in
accordance with Section 20 of B.P. Blg. 129, as amended: chanroblesvirtuallawlibrary

Section 20. Jurisdiction in criminal cases. — Regional Trial Courts shall

exercise exclusive original jurisdiction in all criminal cases not within the
exclusive jurisdiction of any court, tribunal or body, except those now
falling under the exclusive and concurrent jurisdiction of the

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Sandiganbayan which shall hereafter be exclusively taken cognizance of

by the latter.

Petitioner insists that Section 46 (Liability of Directors, Officers and Committee

Members) of RA 6938 provides only for a civil liability but not a criminal sanction,
hence, the MeTC has jurisdiction over her criminal case which is punishable under
paragraph 4 of Section 124: chanroblesvirtuallawlibrary

Section 124.  Penal Provisions.  - The following acts or omissions

affecting cooperatives are hereby prohibited: chanroblesvirtuallawlibrary

(4) Any violation of any provision of this Code for which

no penalty is imposed  shall be punished by  imprisonment
of not less than six (6) months nor more than one (1)
year  and a fine of not less than One thousand pesos
(P1,000.00), or both at the discretion of the court. (Emphasis
added)

Petitioner argues that the provisions of Section 46 (Liability of Directors, Officers

and Committee Members), Section 47 (Compensation) and Section 124 (Penal
Provisions) of RA 6938, are plain, unambiguous, and categorical. She submits
that statutory construction of such clear provisions, especially if prejudicial to her
rights as an accused and would subject her to higher penalty, should not be
allowed.

On the other hand, the OSG maintains that the RTC has jurisdiction over
petitioner's case pursuant to paragraph 3 of Section 124 of RA 6938: chanroblesvirtuallawlibrary

(3)  A director, officer or committee member who violated the

provisions of Section 47 (liability of directors, officers and
committee members), Section 50 (disloyalty of a director) and
Section 51 (illegal use of confidential information) shall upon conviction
suffer a fine of not less than Five thousand pesos (P5,000.00),
or imprisonment of not less than five (5) years but not more than
ten (10) years or both at the court's discretion; (Emphasis
supplied)

The OSG points out that Section "47" in the above-quoted provision is a clerical
error because the "liability of directors, officers and committee members" is
undisputedly governed by Section 46 of RA 6938, while Section 47 thereof deals
with the compensation of directors, officers and employees, to wit: chanroblesvirtuallawlibrary

Section 46.  Liability of Directors, Officers and Committee

Members.  - Directors, officers and committee members, who willfully
and knowingly vote for or assent to patently unlawful acts or who are
guilty of gross negligence or bad faith in directing the affairs of the
cooperative or acquire any personal or pecuniary interest in conflict with
their duty as such directors, officers or committee member shall be
liable jointly and severally for all damages or profits resulting therefrom
to the cooperative, members and other persons.

When a director, officer or committee member attempts to acquire or

acquires, in violation of his duty, any interest or equity adverse to the
cooperative in respect to any matter which has been reposed in him in
confidence, he shall, as a trustee for the cooperative, be liable for
damages and for double the profits which otherwise would have accrued
to the cooperative.

Section 47.  Compensation.  - (1) In the absence of any provision in

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the by-laws fixing their compensation, the directors shall not receive any
compensation except for reasonable per diem:  Provided, That any
compensation other than per diems may be granted to directors by a
majority vote of the members with voting rights at a regular or special
general assembly meeting specifically called for the purpose:  Provided
further, that no additional compensation other than per diems shall be
paid during the first year of existence of any cooperative.

The Court sustains the OSG's contention. Petitioner failed to present any
compelling reason to warrant a departure from the exhaustive CA ruling on why
the RTC, not the MeTC, has jurisdiction over her criminal case for violation of
Section 46 of RA 6938, thus: chanroblesvirtuallawlibrary

The Court, in order to carry out the obvious intent of the legislature,
may correct clerical errors, mistakes or misprints which, if uncorrected,
would render the statute meaningless, empty or nonsensical or would
defeat or impair its intended operation, so long as the meaning intended
is apparent on the face of the whole enactment and no specific provision
is abrogated. To correct the error or mistake is to prevent the
nullification of the statute and give it a meaning and purpose. For it is
the duty of the court to give a statute a sensible construction, one that
will effectuate legislative intent and avoid injustice or absurdity. It is its
duty to arrive at the legislative intent and in doing so, it should not
adopt an arbitrary rule under which it must be held without variance or
shadow of turning the legislature intended to make a typographical
error, the result of which would be to make nonsense of the act, and not
to carry out the legislative scheme, but to destroy it.

xxxx

Clearly, the accused-appellee cannot insist that reference to [Sec] 124,

paragraph 4, as the trial court did, is necessary and therefore,
warranted the dismissal of the criminal case for lack of jurisdiction. To
reiterate, [Sec] 46 of the Code, entitled "Liability of Directors, Officers,
and Committee Members," provides for violations under which the said
officers could be held liable for, and the corresponding liability for
damages and profits from the said violations. Since the said [section]
does not provide for penal sanction, an application of [Sec] 124,
paragraph 3 should follow as the said provision evidently refers to the
penal sanction on erring  directors, officers and committee
members. It would make no sense if we were to follow what clearly
appears to be a clerical error, that is, applying [Sec] 124, paragraph 4
instead, just because paragraph 3 of the same [section] refers to [Sec]
47, which upon examination of the Code provides for the
"Compensation" of the directors, officers and other employees of the
cooperative.

We, thus, agree with the contention of the People that [Section] 124 (3)
should refer to "[Section] 46 (Liability of Directors, Officers and
Committee Members, [Section] 49 (Disloyalty of a Director) and
[Section] 51 (Illegal use of confidential information)." Following this
interpretation, violation of [Sec] 46, therefore, is punishable by a fine of
not less than Five thousand pesos (P5,000.00), or imprisonment of not
less than five (5) years but not more than ten (10) years or both at the
court's discretion, which under B.P. Blg. 129, shall be within the
jurisdiction of the RTC.18 cralawlawlibrary

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It may not be amiss to point out that the clerical error noted by the OSG in
Section 124 (3) of RA 6938 on the liability of directors, officers and committee
members, has been recognized and duly corrected when the legislature enacted
RA 9520, entitled "An Act Amending the Cooperative Code of the Philippines to be
known as the Philippine Cooperative Code of 2008." Pertinent portions of the
corrected provision read: chanroblesvirtuallawlibrary

ART. 45.  Liability of Directors, Officers and Committee Members. -

Directors, officers and committee members, who are willfully and
knowingly vote for or assent to patently unlawful acts or who are guilty
of gross negligence or bad faith in directing the affairs of the cooperative
or acquire any personal or pecuniary interest in conflict with their duty
as such directors, officers or committee members shall be liable jointly
and severally for all damages or profits resulting therefrom to the
cooperative, members, and other persons.

xxxx

ART. 140.  Penal Provisions. - The following acts or omissions affecting

cooperatives are hereby prohibited: chanroblesvirtuallawlibrary

xxxx

(5) A director, officer or committee member who violated the

provisions of  Article 45 on the Liability of Directors,
Officers and Committee Members, Article 48 on the
Disloyalty of a Director, and Article 49 on the Illegal Use of
Confidential Information shall upon conviction suffer a fine of
not less than Five hundred thousand pesos (P500,000.00) nor
more than Five hundred thousand pesos (P500,000.00) or
imprisonment of not less than five (5) years but not more than
ten (10) years or both at the court's discretion; [Emphasis
added]

On whether the rule on exhaustion of administrative remedies was violated when

the Cooperative filed a criminal case against petitioner without undergoing
conciliation/mediation proceedings pursuant to the Cooperative Code and the By-
laws of the Cooperative, the Court rules in the negative. Conciliation or mediation
is not a pre-requisite to the filing of a criminal case for violation of RA 6938
against petitioner, because such case is not an intra-cooperative dispute. As aptly
pointed out by the CA: chanroblesvirtuallawlibrary

Neither can the accused-appellee insist that this is an intra-cooperative

dispute and should have been resolved at the cooperative level. As aptly
argued by the People, this is not an intra-cooperative dispute. Intra-
cooperative dispute is a dispute arising between or among members of
the same cooperative. The instant case is a dispute between the
Cooperative and its former chairperson, the accused-appellee. The
Board Resolution authorizing the filing of the criminal complaint by the
Board of Directors, for and in behalf of the Cooperative, is proof that this
is not an intra-cooperative dispute, and within the jurisdiction of the
regular court.19 cralawlawlibrary

Moreover, it is well settled that in criminal cases where the offended party is the
State, the interest of the private complainant or the private offended party is
limited to the civil liability, and her role in the prosecution of the offense is limited
to that of a witness for the prosecution.20  In petitioner's criminal case for
violation of Section 46 of RA 6938, the State is the real offended party, while the
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Cooperative and its members are mere private complainants and witnesses
whose interests are limited to the civil aspect thereof. Clearly, such criminal case
can hardly be considered an intra-cooperative dispute, as it is not one arising
between or among members of the same cooperative.

On whether the dismissal of the charge against petitioner on demurrer to

evidence amounts to an acquittal, hence, final and unappealable, the Court rules
in the negative.

In Gutib v. Court of Appeals,21 the Court stressed that demurrer to the evidence

is an objection by one of the parties in an action, to the effect that the evidence
which his adversary produced is insufficient in point of law, whether true or not,
to make out a case or sustain the issue. The party demurring challenges the
sufficiency of the whole evidence to sustain a verdict. The Court, in passing upon
the sufficiency of the evidence raised in a demurrer, is merely required to
ascertain whether there is competent or sufficient evidence to sustain the
indictment or to support a verdict of guilt.

In  People v. Sandiganbayan,22  the Court explained the general rule that the
grant of a demurrer to evidence operates as an acquittal and is, thus, final and
unappealable, to wit: chanroblesvirtuallawlibrary

The demurrer to evidence in criminal cases, such as the one at bar, is

"filed after the prosecution had rested its case" and when the same is
granted, it calls "for an appreciation of the evidence adduced by the
prosecution and its sufficiency to warrant conviction beyond reasonable
doubt, resulting in a dismissal of the case on the merits, tantamount to
an acquittal of the accused." Such dismissal of a criminal case by the
grant of demurrer to evidence may not be appealed, for to do so would
be to place the accused in double jeopardy. The verdict being one of
acquittal, the case ends there.23 cralawlawlibrary

In this case, however, the RTC granted the demurrer to evidence and dismissed
the case not for insufficiency of evidence, but for lack of jurisdiction over the
offense charged. Notably, the RTC did not decide the case on the merits, let alone
resolve the issue of petitioner's guilt or innocence based on the evidence
proffered by the prosecution. This being the case, the October 14, 2008 RTC
Order of dismissal does not operate as an acquittal, hence, may still be subject to
ordinary appeal under Rule 41 of the Rules of Court.24  As aptly noted by the
CA: chanroblesvirtuallawlibrary

The accused-appellee is also of a mistaken view that the dismissal of the

case against her is an acquittal. It should be emphasized' that "acquittal
is always based on the merits, that is, the defendant is acquitted
because the evidence does not show that the defendant's guilt is beyond
reasonable doubt; but dismissal does not decide the case on the merits
or that the defendant is not guilty. Dismissal terminates the proceeding,
either because the court is not a court of competent jurisdiction, or the
evidence does not show that the offense was committed within the
territorial jurisdiction of the court, or the complaint or information is not
valid or sufficient in form and substance, etc."25 cralawlawlibrary

On whether the remand of the criminal case to the RTC violated her right against
double jeopardy due to its earlier dismissal on the ground of lack of jurisdiction,
the Court rules in the negative and upholds the CA in ruling that the dismissal
having been granted upon petitioner's instance, double jeopardy did not attach,
thus: chanroblesvirtuallawlibrary

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8/23/22, 9:58 PM G.R. No. 200465, April 20, 2015 - JOCELYN ASISTIO Y CONSINO, Petitioner, v. PEOPLE OF THE PHILIPPINES AND MONICA …

The accused-appellee cannot also contend that she will be placed in

double jeopardy upon this appeal. It must be stressed that the dismissal
of the case against her was premised upon her filing of a demurrer to
evidence, and the finding, albeit erroneous, of the trial court that it is
bereft of jurisdiction.

The requisites that must be present for double jeopardy to attach are:
(a) a valid complaint or information; (b) a court of competent
jurisdiction; (c) the accused has pleaded to the charge; and (d) the
accused has been convicted or acquitted or the case dismissed or
terminated without the express consent of the accused.

Definitely, there is no double jeopardy in this case as the dismissal was

with the accused-appellee's consent, that is, by moving for the dismissal
of the case through a demurrer to evidence. As correctly argued by the
People, where the dismissal was ordered upon or with express assent of
the accused, he is deemed to have waived his protection against doubly
jeopardy. In this case at bar, the dismissal was granted upon motion of
petitioners. Double jeopardy, thus, did not attach.26 cralawlawlibrary

The Court also finds no merit in petitioner's new argument that the prosecution of
her case before the RTC for violation of Section 46 of RA 6938 in Criminal Case
No. 07-197750 is barred by res judicata because the MeTC of Manila, Branch 22,
in a Resolution27 dated August 13, 2012, granted her demurrer to evidence and
acquitted her in a criminal case for falsification of private document in Criminal
Case No. 370119-20-CR.28 In support of her flawed argument, petitioner points
out that the private complainants [officers and directors of the Cooperative] and
the subject matter [unreported sales profits of Coca-Cola products] of both cases
are the same, and that the case for violation of Section 46 of RA 6938 is actually
and necessarily included in the case for falsification of private documents.

At the outset,  res judicata  is a doctrine of civil law and thus has no bearing on
criminal proceedings.29  At any rate, petitioner's argument is incidentally related
to double jeopardy which embrace's a prohibition against being tried for any
offense which necessarily includes or is necessarily included in the offense
charged in the former complaint or information.

Section 730  of Rule 117 lays down the requisites in order that the defense of
double jeopardy may prosper. There is double jeopardy when the following
requisites are present: (1) a first jeopardy attached prior to the second; (2) the
first jeopardy has been validly terminated; and (3) a second jeopardy is for the
same offense as in the first.31 As to the first requisite, the first jeopardy attaches
only (a) after a valid indictment; (b) before a competent court; (c) after
arraignment; (d) when a valid plea has been entered; and (e) when the accused
was acquitted or convicted, or the case was dismissed or otherwise terminated
without his express consent.32

In this case, there is no dispute that the first and second requisites of double
jeopardy are present in view of the MeTC Resolution33  dated August 13, 2012
which granted petitioner's demurrer to evidence and acquitted her in a criminal
case for falsification of private document in Criminal Case No. 370119-20-CR.
Petitioner's argument dwells on whether the third requisite of double jeopardy —
a second jeopardy is for the same offense as in the first — is present. Such
question of identity or lack of identity of offenses is addressed by examining the
essential elements of each of the two offenses charged, as such elements are set
out in the respective legislative definitions of the offense involved.34
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8/23/22, 9:58 PM G.R. No. 200465, April 20, 2015 - JOCELYN ASISTIO Y CONSINO, Petitioner, v. PEOPLE OF THE PHILIPPINES AND MONICA …

Thus, the remaining question to be resolved is whether the offense charged in

the information for Section 46 of RA 6938 necessarily includes or is necessarily
included in a crime for falsification of private document under Article 172 of the
Revised Penal Code, as amended (RPC). The test to determine whether an
offense necessarily includes or is necessarily included in the other is provided
under Section 5, Rule .120 of the Rules of Court: chanroblesvirtuallawlibrary

An offense charged necessarily includes the offense proved when some

of the essential elements or ingredients of the former, as alleged in the
complaint or information, constitute the latter. And an offense charged is
necessarily included in the offense proved, when the essential
ingredients of the former constitute or form part of those constituting
the latter.

After a careful examination of the Informations filed against petitioner for

falsification of private document in Criminal Case No. 370119-20-CR and for
violation of Section 46, RA 6938 in Criminal Case No. 01-197750, the Court holds
that the first offense for which petitioner was acquitted does not necessarily
include and is not necessarily included in the second offense.

The Information for falsification of private document, on the one hand, alleged
that petitioner, being then the Chairperson and Managing Director of A. Mabini
Elementary School Teachers Multi-Purpose Cooperative, as part of her duty to
prepare financial reports, falsified such report for the School Year 1999-2000, in
relation to the sales profits of Coca-Cola products in violation of Article 172
(2)35 of the RPC. The elements of falsification of private document under Article
172, paragraph 2 of the RPC are: (1) that the offender committed any of the acts
of falsification, except those in paragraph 7, Article 171;36  (2) that the
falsification was committed in any private document; and (3) that the falsification
caused damage to a third party or at least the falsification was committed with
intent to cause such damage.

The Information for violation of Section 46 of RA 6938 alleged, on the other

hand, that being then such officer and director of the Cooperative, petitioner
willfully acquired personal interest or equity adverse to it, in violation of her duty
and of the confidence reposed upon her, by entering into a contract with Coca-
Cola in her own personal capacity, knowing fully well that the sales profits of such
products should have accrued to the Cooperative. The essential elements of
violation of Section 46 of RA 6938 are (1) that the offender is a director, officer or
committee member; and (2) that the offender willfully and lcnowingly (a) votes
for or assents to patently unlawful acts; (b) is guilty of gross negligence or bad
faith in directing the affairs of the cooperative; or (c) acquires any personal or
pecuniary interest in conflict with their duty as such directors, officers or
committee member.

Verily, there is nothing common or similar between the essential elements of the
crimes of falsification of private document under Article 172 (2) of the RPC and
that of violation of Section 46 of RA 6938, as alleged in the Informations filed
against petitioner. As neither of the said crimes can be said to necessarily include
or is necessarily included in the other, the third requisite for double jeopardy to
attach—a second jeopardy is for the same offense as in the first—is, therefore,
absent. Not only are their elements different, they also have a distinct
nature,  i.e., the former is  malum in se, as what makes it a felony is criminal
intent on the part of the offender, while the latter is malum prohibitum, as what
makes it a crime is the special, law enacting it.

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8/23/22, 9:58 PM G.R. No. 200465, April 20, 2015 - JOCELYN ASISTIO Y CONSINO, Petitioner, v. PEOPLE OF THE PHILIPPINES AND MONICA …

Moreover, in People v. Doriguez,37 the Court held: chanroblesvirtuallawlibrary

It is a cardinal rule that the protection against double jeopardy may be

invoked only for the same offense or identical offenses. A simple act
may offend against two (or more) entirely distinct and unrelated
provisions of law, and if one provision requires proof of an additional
fact or element which the other does not, an acquittal or conviction or a
dismissal of the information under one does not bar prosecution under
the other. Phrased elsewise, where two different laws (or articles of the
same code) defines two crimes, prior jeopardy as to one of them is no
obstacle to a prosecution of the other, although both offenses arise from
the same fact, if each crime involves some important act which is not an
essential element of the other.38 cralawlawlibrary

Since the Informations filed against petitioner were for separate, and distinct
offenses as discussed above—the first against' Article 172 (2) of the Revised
Penal Code and the second against Section 46 of the Cooperative Code (RA 6938)
—one cannot be pleaded as a bar to the other under the rule on double jeopardy.
Besides, it is basic in criminal procedure that an accused may be charged with as
many crimes as defined in our penal laws even if these arose from one incident.
Thus, where a single act is directed against one person but said act constitutes a
violation of two or more entirely distinct and unrelated provisions of law, or by a
special law and the Revised Penal Code, as in this case, the prosecution against
one is not an obstacle to the prosecution of the other.39

WHEREFORE,  premises considered, the petition is  DENIED, and the Court of
Appeals Decision dated August 31, 2011 and its Resolution dated Jan. 31, 2012
in CA-G.R. CR No. 32363, are AFFIRMED.

SO ORDERED. chanroblesvirtuallawlibrary

Velasco, Jr., (Chairperson), Bersamin,* Villarama, Jr., and Reyes, JJ., concur.

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