THIRD
DIVISION
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SPOUSES BERNYL
BALANGAUAN & KATHERENE BALANGAUAN, Petitioners, - versus - THE HONORABLE COURT OF APPEALS,
SPECIAL NINETEENTH (19TH) DIVISION, Respondents. |
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G. R. No. 174350 Present: YNARES-SANTIAGO, J.,
Chairperson, AUSTRIA-MARTINEZ, TINGA,* CHICO-NAZARIO, and REYES, JJ. Promulgated: August
13, 2008 |
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CHICO-NAZARIO, J.:
Before Us is a Petition for Certiorari under Rule 65 of the Revised
Rules of Court assailing the 28 April 2006
Decision[1] and 29 June 2006 Resolution[2] of
the Court of Appeals in CA-G.R. CEB-SP No. 00068, which annulled and set aside
the 6 April 2004[3]
and 30 August 2004[4] Resolutions of the Department of
Justice (DOJ) in I.S. No. 02-9230-I, entitled “The Hongkong and Shanghai Banking Corporation v. Katherine Balangauan,
et al.” The twin resolutions of the
DOJ affirmed, in essence, the Resolution of the Office of the City
Prosecutor,[5] Cebu
City, which dismissed for lack of probable cause the criminal complaint for
Estafa and/or Qualified Estafa, filed against petitioner-Spouses Bernyl
Balangauan (Bernyl) and Katherene Balangauan (Katherene) by respondent Hong Kong
and Shanghai Banking Corporation, Ltd. (HSBC).
In this Petition for Certiorari, petitioners Bernyl and
Katherene urge this Court to “reverse and set aside the Decision of the Court
of Appeals, Special nineteenth (sic) [19th] division (sic), Cebu
City (sic) and accordingly, dismiss the complaint against the [petitioners
Bernyl and Katherene] in view of the absence of probable cause to warrant the
filing of an information before the Court and for utter lack of merit.”[6]
As culled from the records, the
antecedents of the present case are as follows:
Petitioner Katherene was a Premier
Customer Services Representative (PCSR) of respondent bank, HSBC. As a PCSR,
she managed the accounts of HSBC depositors with Premier Status. One such
client and/or depositor handled by her was Roger Dwayne York (
P2,500,000.00. The PCSR representative who attended to him,
however, could not find any record of said placement in the bank’s data base.
P1,000,000.00 time deposit; (2) there were cash
movement tickets and withdrawal slips all signed by York for the amount of P1,000,000.00;
and (3) there were regular movements in York’s accounts, i.e., beginning in the month of January 2002, monthly deposits in
the amount of P12,500.00 and P8,333.33 were made, which York denied
ever making, but surmised were the regular interest earnings from the placement
of the P2,500,000.00.
It was likewise discovered that the
above-mentioned deposits were transacted using petitioner Katherene’s computer
and work station using the code or personal password “CEO8.” The significance of code “CEO8,” according to
the bank personnel of respondent HSBC, is that, “[i]t is only Ms. Balangauan
who can transact from [the] computer in the work station CEO-8, as she is
provided with a swipe card which she keeps sole custody of and only she can
use, and which she utilizes for purposes of performing bank transactions from
that computer.”[7]
Bank personnel of respondent HSBC
likewise recounted in their affidavits that prior to the filing of the
complaint for estafa and/or qualified estafa, they were in contact with
petitioners Bernyl and Katherene. Petitioner
Bernyl supposedly met with them on two occasions. At first he disavowed any knowledge regarding
the whereabouts of P12,500.00
and the P8,333.33 using their landline telephone. With respect to petitioner Katherene, she
allegedly spoke to the bank personnel and York on several occasions and
admitted that the funds were indeed invested with Shell Company but that
So as not to ruin its name and
goodwill among its clients, respondent HSBC reimbursed P2,500,000.00.
Based on the foregoing factual
circumstances, respondent HSBC, through its personnel, filed a criminal
complaint for Estafa and/or Qualified Estafa before the Office of the City Prosecutor,
Petitioners Bernyl and Katherene submitted their joint counter-affidavit
basically denying the allegations contained in the affidavits of the aforenamed
employees of respondent HSBC as well as that made by P2,500,000.00 of
Respecting the P12,500.00 and P8,333.33 regular monthly
deposits to
Following the requisite preliminary investigation, Assistant City
Prosecutor (ACP) Victor C. Laborte, Prosecutor II of the OCP,
The ACP explained his finding, viz:
As
in any other cases, we may never know the ultimate truth of this controversy.
But on balance, the evidence on record tend to be supportive of respondents’
contention rather than that of complaint.
x x x x
First of all, it is well to dwell on what Mr.
York said in his affidavit. Thus:
`18. For purposes of opening these two time
deposits (sic) accounts, Ms. Balangauan asked me to sign several Bank documents
on several occasions, the nature of which I was unfamiliar with.’
`20. I discovered later that these were
withdrawal slips and cash movement tickets, with which documents Ms.
Balangauan apparently was able to withdraw the amount from my accounts, and
take the same from the premises of the Bank.’
In determining the
credibility of an evidence, it is well to consider the probability or improbability
of one’s statements for it has been said that there is no test of the truth of
human testimony except its conformity to our knowledge, observation and
experience.
Mr. York could not
have been that unwary and unknowingly innocent to claim unfamiliarity with
withdrawal slips and cash movement tickets which Ms. Balangauan made him to
sign on several occasions. He is a premier client of HSBC maintaining an
account in millions of pesos. A withdrawal slip and cash movement tickets could
not have had such intricate wordings or terminology so as to render them
non-understandable even to an ordinary account holder. Mr. York admittedly is a
long-standing client of the bank. Within the period of ‘long-standing’ he
certainly must have effected some withdrawals. It goes without saying therefore
that the occasions that Ms. Balangauan caused him to sign withdrawal slips are
not his first encounter with such kinds of documents.
The one ineluctable
conclusion therefore that can be drawn from the premises is that Mr. York freely
and knowingly knew what was going on with his money, who has in possession of
them and where it was invested. These take out the elements of deceit, fraud,
abuse of confidence and without the owner’s consent in the crimes charged.
The other leg on which
complainant’s cause of action stands rest on its claim for sum of money against
respondents allegedly after it reimbursed Mr. York for his missing account
supposedly taken/withdrawn by Ms. Balangauan. The bank’s action against
respondents would be a civil suit against them which apparently it already did
after the bank steps into the shoes of Mr. York and becomes the creditor of Ms.
Balangauan.[9]
The ACP then concluded that:
By and large, the
evidence on record do (sic) not engender enough bases to establish a probable
cause against respondents.[10]
On
In a Resolution dated
Sec. 12 (c) of Department Circular No. 70
dated
We carefully examined the petition and its
attachments and found no reversible error that would justify a reversal of the
assailed resolution which is in accord with the law and evidence on the matter.
Respondent HSBC’s Motion for Reconsideration was likewise denied
with finality by the DOJ in a lengthier Resolution dated
The
DOJ justified its ruling in this wise:
A perusal of the motion reveals no new matter
or argument which was not taken into consideration in our review of the case.
Hence, we find no cogent reason to reconsider our resolution. Appellant failed
to present any iota of evidence directly showing that respondent Katherene
Balangauan took the money and invested it somewhere else. All it tried to
establish was that Katherene unlawfully took the money and fraudulently
invested it somewhere else x x x, because after the withdrawals were made, the
money never reached Roger York as appellant adopted hook, line and sinker the
latter’s declaration, despite York’s signatures on the withdrawal slips
covering the total amount of P2,500,000.00 x x x. While appellant has
every reason to suspect Katherene for the loss of the P2,500,000.00 as
per York’s bank statements, the cash deposits were identified by the numerals
“CEO8” and it was only Katherene who could transact from the computer in the
work station CEO-8, plus alleged photographs showing Katherene “leaving her
office at 5:28 p.m. with a bulky plastic bag presumably containing cash” since
a portion of the funds was withdrawn, we do not, however, dwell on
possibilities, suspicion and speculation. We rule based on hard facts and solid
evidence.
Moreover, an examination of the petition for
review reveals that appellant failed to append thereto all annexes to
respondents’ urgent manifestations x x x together with supplemental affidavits
of Melanie de Ocampo and Rex B. Balucan x x x, which are pertinent documents
required under Section 5 of Department Circular No. 70 dated July 3, 2000.[11]
Respondent HSBC then went to the Court of Appeals by means of a Petition
for Certiorari under Rule 65 of the
Revised Rules of Court.
On
The fallo of the assailed
decision reads:
WHEREFORE,
in view of the foregoing premises, judgment is hereby rendered by us GRANTING
the petition filed in this case. The assailed Resolutions dated
The
City Prosecutor of Cebu City is hereby ORDERED to file the appropriate
Information against the private respondents.[12]
Petitioners Bernyl and Katherene’s motion for reconsideration proved futile,
as it was denied by the appellate court in a Resolution dated
Hence, this petition for certiorari filed under Rule 65 of the
Revised Rules of Court.
Petitioners Bernyl and Katherene
filed the present petition on the argument that the Court of Appeals committed grave abuse of discretion in reversing and
setting aside the resolutions of the DOJ when: (1) “[i]t reversed the resolution of the Secretary of Justice,
Manila dated August 30, 2004 and correspondingly, gave due course to the Petition
for Certiorari filed by HSBC on April
28, 2006 despite want of probable cause to warrant the filing of an information
against the herein petitioners”[13]; (2) “[i]t appreciated the dubious
evidence adduced by HSBC albeit the absence of legal standing or personality of
the latter”[14]; (3) “[i]t
denied the motions for reconsideration on June 29, 2006 notwithstanding the
glaring evidence proving the innocence of the petitioners”[15];
(4) “[i]t rebuffed the evidence of the herein petitioners in spite of the fact
that, examining such evidence alone would establish that the money in question
was already withdrawn by Mr. Roger Dwayne York”[16];
and (5) “[i]t failed to dismiss outright the petition by HSBC considering that
the required affidavit of service was not made part or attached in the said
petition pursuant to Section 13, Rule 13 in relation to Section 3, Rule 46, and
Section 2, Rule 56 of the Rules of Court.”[17]
Required to comment on the petition,
respondent HSBC remarked that the filing of the present petition is improper
and should be dismissed. It argued that
the correct remedy is an appeal by certiorari
under Rule 45 of the Revised Rules of Court.
Petitioners Bernyl and Katherene, on
the other hand, asserted in their Reply[18] that
the petition filed under Rule 65 was rightfully filed considering that not only
questions of law were raised but questions of fact and error of jurisdiction as
well. They insist that the Court of Appeals
“clearly usurped into the jurisdiction and authority of the Public
Prosecutor/Secretary of justice (sic) x x x.”[19]
Given the foregoing arguments, there is need to address, first, the issue
of the mode of appeal resorted to by petitioners Bernyl and Katherene. The
present petition is one for certiorari under Rule 65 of the Revised
Rules of Court. Notice that what is being assailed in this recourse is the
decision and resolution of the Court of Appeals dated
In the present case, there is no question that the 28 April 2006 Decision and 29 June 2006
Resolution of the Court of Appeals granting the
respondent HSBC’s petition in CA-G.R. CEB. SP No. 00068 is already a
disposition on the merits. Therefore, both
decision and resolution, issued
by the Court of Appeals, are in the nature of a final disposition of the case
set before it, and which, under Rule 45, are appealable to this Court via a Petition for Review on Certiorari, viz:
SECTION 1. Filing of petition with Supreme Court. – A party desiring to
appeal by certiorari from a judgment
or final order or resolution of the Court of Appeals, the Sandiganbayan,
the Regional Trial Court or other courts whenever authorized by law, may
file with the Supreme Court a verified petition for review on certiorari. The petition shall raise
only questions of law which must be distinctly set forth. (Emphasis supplied.)
It is elementary in remedial law that a writ of certiorari will not issue where the remedy of appeal is available
to an aggrieved party. A remedy
is considered "plain, speedy and adequate" if it will promptly
relieve the petitioners from the injurious effects of the judgment and the acts
of the lower court or agency.[21] In this case, appeal was not only available
but also a speedy and adequate remedy.[22] And while it is true that in accordance with the liberal spirit
pervading the Rules of Court and in the interest of substantial justice,[23]
this Court has, before,[24]
treated a petition for certiorari as
a petition for review on certiorari,
particularly if the petition for certiorari
was filed within the reglementary period within which to file a petition
for review on certiorari;[25] this
exception is not applicable to the present factual milieu.
Pursuant to Sec. 2, Rule 45 of the
Revised Rules of Court:
SEC. 2. Time
for filing; extension. – The petition shall be filed within fifteen (15)
days from notice of the judgment or final order or resolution appealed from, or
of the denial of the petitioner’s motion for new trial or reconsideration filed
in due time after notice of the judgment. x x x.
a party litigant wishing to file a petition for review on certiorari must do so within 15 days from receipt of the judgment,
final order or resolution sought to be appealed. In this case, petitioners
Bernyl and Katherene’s motion for reconsideration of the appellate court’s
Resolution was denied by the Court of Appeals in its Resolution dated 29 June 2006, a copy of which was received by
petitioners on 4 July 2006. The present petition
was filed on 1 September 2006; thus, at the time of the filing of said
petition, 59 days had elapsed, way beyond the 15-day period within which to
file a petition for review under Rule 45, and even beyond an extended period of
30 days, the maximum period for extension allowed by the rules had petitioners
sought to move for such extra time. As
the facts stand, petitioners Bernyl and Katherene had lost the right to appeal via Rule 45.
Be that as it may, alternatively, if the decision of the appellate court
is attended by grave abuse of discretion amounting to lack or excess of
jurisdiction, then such ruling is fatally defective on jurisdictional ground
and may be questioned even after the lapse of the period of appeal under Rule
45[26]
but still within the period for filing a petition for certiorari under Rule 65.
We have previously ruled that grave abuse of discretion may arise when a
lower court or tribunal violates and contravenes the Constitution, the law or
existing jurisprudence. By grave abuse
of discretion is meant such capricious and whimsical exercise of judgment as is
equivalent to lack of jurisdiction. The
abuse of discretion must be grave, as where the power is exercised in an
arbitrary or despotic manner by reason of passion or personal hostility and must
be so patent and gross as to amount to an evasion of positive duty or to a
virtual refusal to perform the duty enjoined by or to act at all in
contemplation of law.[27]
The word “capricious,” usually used in
tandem with the term “arbitrary,” conveys the notion of willful and unreasoning
action. Thus, when seeking the
corrective hand of certiorari, a
clear showing of caprice and arbitrariness in the exercise of discretion is
imperative.[28]
In reversing and setting aside the resolutions of the DOJ, petitioners
Bernyl and Katherene contend that the Court of Appeals acted with grave abuse
of discretion amounting to lack or excess of jurisdiction.
The Court of Appeals, when it resolved to grant the petition in CA-G.R.
CEB. SP No. 00068, did so on two grounds, i.e.,
1) that “the public respondent (DOJ) gravely abused his discretion in finding
that there was no reversible error on the part of the Cebu City Prosecutor
dismissing the case against the private respondent without stating the facts
and the law upon which this conclusion was made”[29];
and 2) that “the public respondent (DOJ) made reference to the facts and
circumstances of the case leading to his finding that no probable cause exists,
x x x (the) very facts and circumstances (which) show that there exists a
probable cause to believe that indeed the private respondents committed the
crimes x x x charged against them.”[30]
It explained that:
In refusing to file the appropriate information against the private respondents because he ‘does not dwell on possibilities, suspicion and speculation’ and that he rules ‘based on hard facts and solid evidence’, (sic) the public respondent exceeded his authority and gravely abused his discretion. It must be remembered that a finding of probable cause does not require an inquiry into whether there is sufficient evidence to procure a conviction. It is enough that it is believed that the act or omission complained of constitutes the offense charged. The term does not mean ‘actual or positive cause;’ (sic) nor does it import absolute certainty. It is merely based on opinion and reasonable belief. [Citation omitted.] A trial is there precisely for the reception of evidence of the prosecution in support of the charge.
In this case, the petitioner had amply established that it has a prima facie case against the private respondents. As observed by the public respondent in his second assailed resolution, petitioner was able to present photographs of private respondent Ms. Balangauan leaving her office carrying a bulky plastic bag. There was also the fact that the transactions in Mr. York’s account used the code ‘CEO8’ which presumably point to the private respondent Ms. Balangauan as the author thereof for she is the one assigned to such work station.
Furthermore,
petitioner was able to establish that it was Ms. Balangauan who handled Mr.
York’s account and she was the one authorized to make the placement of the sum
of P2,500,000.00. Since said sum is nowhere to be found in the records
of the bank, then, apparently, Ms. Balangauan must be made to account for the
same.[31]
The appellate court then concluded
that:
These facts engender a well-founded belief that that (sic) a crime has been committed and that the private respondents are probably guilty thereof. In refusing to file the corresponding information against the private respondents despite the presence of the circumstances making out a prima facie case against them, the public respondent gravely abused his discretion amounting to an evasion of a positive duty or to a virtual refusal either to perform the duty enjoined or to act at all in contemplation of law.[32]
The Court of Appeals found fault in
the DOJ’s failure to identify and discuss the issues raised by the respondent
HSBC in its Petition for Review filed therewith. And, in support thereof, respondent
HSBC maintains that it is incorrect to argue that “it was not necessary for the
Secretary of Justice to have his resolution recite the facts and the law on
which it was based,” because courts and quasi-judicial bodies should faithfully
comply with Section 14, Article VIII of the Constitution requiring that
decisions rendered by them should state clearly and distinctly the facts of the
case and the law on which the decision is based.[33]
Petitioners Bernyl and Katherene,
joined by the Office of the Solicitor General, on the other hand, defends the
DOJ and assert that the questioned resolution was complete in that it stated
the legal basis for denying respondent HSBC’s petition for review – “that
(after) an examination (of) the petition and its attachment [it] found no
reversible error that would justify a reversal of the assailed resolution which
is in accord with the law and evidence on the matter.”
It must be remembered that a
preliminary investigation is not a quasi-judicial proceeding, and that the DOJ
is not a quasi-judicial agency exercising a quasi-judicial function when it
reviews the findings of a public prosecutor regarding the presence of probable
cause. In Bautista v. Court of Appeals,[34] this
Court held that a preliminary investigation is not a quasi-judicial proceeding,
thus:
[T]he prosecutor in a preliminary investigation does not determine the guilt or innocence of the accused. He does not exercise adjudication nor rule-making functions. Preliminary investigation is merely inquisitorial, and is often the only means of discovering the persons who may be reasonably charged with a crime and to enable the fiscal to prepare his complaint or information. It is not a trial of the case on the merits and has no purpose except that of determining whether a crime has been committed and whether there is probable cause to believe that the accused is guilty thereof. While the fiscal makes that determination, he cannot be said to be acting as a quasi-court, for it is the courts, ultimately, that pass judgment on the accused, not the fiscal.
Though some cases[35]
describe the public prosecutor’s power to conduct a preliminary investigation
as quasi-judicial in nature, this is true only to the extent that, like
quasi-judicial bodies, the prosecutor is an officer of the executive department
exercising powers akin to those of a court, and the similarity ends at this
point.[36] A quasi-judicial body is an organ of
government other than a court and other than a legislature which affects the rights
of private parties through either adjudication or rule-making.[37] A quasi-judicial agency performs adjudicatory
functions such that its awards, determine the rights of parties, and their
decisions have the same effect as judgments of a court. Such is not the
case when a public prosecutor conducts a preliminary investigation to determine
probable cause to file an Information against a person charged with a criminal
offense, or when the Secretary of Justice is reviewing the former’s order or
resolutions. In this case, since the DOJ is not a quasi-judicial body, Section
14, Article VIII of the Constitution finds no application. Be that as it may, the
DOJ rectified the shortness of its first resolution by issuing a lengthier one
when it resolved respondent HSBC’s motion for reconsideration.
Anent the substantial merit of the
case, whether or not the Court of Appeals’ decision and resolution are tainted
with grave abuse of discretion in finding probable cause, this Court finds the
petition dismissible.
The Court of Appeals cannot be said
to have acted with grave abuse of discretion amounting to lack or excess of
jurisdiction in reversing and setting aside the resolutions of the DOJ. In the resolutions of the DOJ, it affirmed the recommendation of ACP Laborte that no
probable cause existed to warrant the filing in court of an Information for
estafa and/or qualified estafa against petitioners Bernyl and Katherene. It was the reasoning of the DOJ that “[w]hile
appellant has every reason to suspect Katherene for the loss of the P2,500,000.00
as per York’s bank statements, the cash deposits were identified by the
numerals ‘CEO8’ and it was only Katherene who could transact from the computer
in the work station CEO-8, plus alleged photographs showing Katherene ‘leaving
her office at 5:28 p.m. with a bulky plastic bag presumably containing cash’
since a portion of the funds was withdrawn, we do not, however, dwell on
possibilities, suspicion and speculation. We rule based on hard facts and solid
evidence.”[38]
We do not agree.
Probable cause has been defined as the existence of such facts and
circumstances as would excite belief in a reasonable mind, acting on the facts
within the knowledge of the prosecutor, that the person charged was guilty of
the crime for which he was prosecuted.[39] A finding of probable cause merely binds over
the suspect to stand trial. It is not a
pronouncement of guilt.[40]
The executive department of the government is accountable for the
prosecution of crimes, its principal obligation being the faithful execution of
the laws of the land. A necessary
component of the power to execute the laws is the right to prosecute their
violators,[41]
the responsibility for which is thrust upon the DOJ. Hence, the determination of whether or not
probable cause exists to warrant the prosecution in court of an accused is
consigned and entrusted to the DOJ. And
by the nature of his office, a public prosecutor is under no compulsion to file
a particular criminal information where he is not convinced that he has
evidence to prop up the averments thereof, or that the evidence at hand points
to a different conclusion.
But this is not to discount the possibility of the commission of abuses
on the part of the prosecutor. It is
entirely possible that the investigating prosecutor has erroneously exercised
the discretion lodged in him by law. This, however, does not render his act
amenable to correction and annulment by the extraordinary remedy of certiorari, absent any showing of grave
abuse of discretion amounting to excess of jurisdiction.[42]
And while it is this Court’s general
policy not to interfere in the conduct of preliminary investigations, leaving
the investigating officers sufficient discretion to determine probable cause,[43]
we have nonetheless made some exceptions to the general rule, such as when the
acts of the officer are without or in excess of authority,[44]
resulting from a grave abuse of discretion. Although there is no general formula or fixed
rule for the determination of probable cause, since the same must be decided
in the light of the conditions obtaining in given situations and its
existence depends to a large degree upon the finding or opinion of the judge
conducting the examination, such a finding should not disregard the facts
before the judge (public prosecutor) or run counter to the clear dictates of
reason.[45]
Applying the foregoing disquisition to the present petition, the reasons
of DOJ for affirming the dismissal of the criminal complaints for estafa and/or
qualified estafa are determinative of whether or not it committed grave abuse
of discretion amounting to lack or excess of jurisdiction. In requiring “hard
facts and solid evidence” as the basis for a finding of probable cause
to hold petitioners Bernyl and Katherene liable to stand trial for the crime
complained of, the DOJ disregards the definition of probable cause – that it is
a reasonable ground of presumption that a matter is, or may be, well-founded,
such a state of facts in the mind of the prosecutor as would lead a person of
ordinary caution and prudence to believe, or entertain an honest or strong
suspicion, that a thing is so.[46] The term
does not mean “actual and positive cause” nor does it import absolute
certainty.[47]
It is merely based on opinion and
reasonable belief;[48] that
is, the belief that the act or omission complained of constitutes the offense
charged. While probable cause demands
more than “bare suspicion,” it requires “less than evidence which would justify
conviction.” Herein, the DOJ reasoned as if no evidence was
actually presented by respondent HSBC when in fact the records of the case were
teeming; or it discounted the value of such substantiation when in fact the
evidence presented was adequate to excite in a reasonable mind the probability that
petitioners Bernyl and Katherene committed the crime/s complained of. In so doing, the DOJ whimsically and
capriciously exercised its discretion, amounting to grave abuse of discretion,
which rendered its resolutions amenable to correction and annulment by the
extraordinary remedy of certiorari.
From the records of the case, it is
clear that a prima facie case for estafa/qualified
estafa exists against petitioners Bernyl and Katherene. A perusal of the
records, i.e., the affidavits of respondent HSBC’s witnesses, the documentary
evidence presented, as well as the analysis of the factual milieu of the case, leads
this Court to agree with the Court of Appeals that, taken together, they are
enough to excite the belief, in a reasonable mind, that the Spouses Bernyl
Balangauan and Katherene Balangauan are guilty of the crime complained of. Whether or not they will be convicted by a
trial court based on the same evidence is not a consideration. It is enough that acts or omissions
complained of by respondent HSBC constitute the crime of estafa and/or
qualified estafa.
Collectively, the photographs of
petitioner Katherene leaving the premises of respondent HSBC carrying a bulky
plastic bag and the affidavits of respondent HSBC’s witnesses sufficiently establish
acts adequate to constitute the crime of estafa and/or qualified estafa. What the affidavits bear out are the
following: that York was
a Premier Client of respondent HSBC; that petitioner Katherene handled all the
accounts of York; that not one of York’s accounts reflect the P2,500,000.00
allegedly deposited in a higher yielding account; that prior to the discovery of
her alleged acts and omissions, petitioner Katherene supposedly persuaded York
to invest in a “new product” of respondent HSBC, i.e., a higher interest
yielding time deposit; that York made a total of P2,500,000.00
investment in the “new product” by authorizing petitioner Balangauan to
transfer said funds to it; that petitioner Katherene supposedly asked York to
sign several transaction documents in order to transfer the funds to the “new
product”; that said documents turned out to be withdrawal slips and cash
movement tickets; that at no time did York receive the cash as a result of
signing the documents that turned out to be withdrawal slips/cash movement tickets;
that York’s account was regularly credited “loose change” in the amounts of P12,500.00
and P8,333.33 beginning in the month after the alleged “transfer” of
York’s funds to the “new product”; that the regular deposits of loose change
were transacted with the use of petitioner Katherene’s work terminal accessed
by her password “CEO8”; that the “CEO8” password was keyed in with the use of a
swipe card always in the possession of petitioner Katherene; that one of the
loose-change deposits was transacted via the phone banking feature of respondent HSBC and that when
traced, the phone number used was the landline number of the house of
petitioners Bernyl and Katherene; that respondent HSBC’s bank personnel, as
well as York, supposedly a) talked with petitioner Katherene on the phone, and
that she allegedly admitted that the missing funds were invested with Shell Company,
of which York approved, and that it was only for one year; and b) met with petitioner
Bernyl, and that the latter at first denied having knowledge of his wife’s
complicity, but later on admitted that he knew of the investment with Shell
Company, and that he supposedly made the loose-change deposit via phone
banking; that after 23 April 2002, York was told that respondent HSBC had no
“new product” or that it was promoting investment with Shell Company; that York
denied having any knowledge that his money was invested outside of respondent
HSBC; and that petitioner Katherene would not have been able to facilitate the
alleged acts or omissions without taking advantage of her position or office,
as a consequence of which, HSBC had to reimburse York the missing P2,500,000.00.
From the above, the alleged circumstances
of the case at bar make up the elements of abuse of confidence, deceit or
fraudulent means, and damage under Art. 315 of the Revised Penal Code on estafa
and/or qualified estafa. They give rise to the presumption or reasonable belief
that the offense of estafa has been committed; and,
thus, the filing of an Information against petitioners Bernyl and Katherene is
warranted. That respondent HSBC is
supposed to have no personality to file any criminal complaint against
petitioners Bernyl and Katherene does not ipso
facto clear them of prima facie
guilt. The same goes for their basic
denial of the acts or omissions complained of; or their attempt at shifting the
doubt to the person of
In fine, the relaxation of procedural
rules may be allowed only when there are exceptional circumstances to justify
the same. Try as we might, this Court
cannot find grave abuse of discretion on the part of the Court of Appeals, when
it reversed and set aside the resolutions of the DOJ. There is no showing that the appellate court
acted in an arbitrary and despotic manner, so patent or gross as to amount to
an evasion or unilateral refusal to perform its legally mandated duty. On the contrary, we find the assailed decision
and resolution of the Court of Appeals to be more in accordance with the
evidence on record and relevant laws and jurisprudence than the resolutions of
the DOJ.
Considering the allegations, issues
and arguments adduced and our disquisition above, we hereby dismiss the instant
petition for being the wrong remedy under the Revised Rules of Court, as well
as for petitioner Bernyl and Katherene’s failure to sufficiently show that the
challenged Decision and Resolution of the Court of Appeals were
rendered in grave abuse of discretion amounting to lack or excess of
jurisdiction.
WHEREFORE,
premises considered, the instant Petition for Certiorari is DISMISSED
for lack of merit. The
SO ORDERED.
|
|
MINITA
V. CHICO-NAZARIO
Associate Justice |
WE CONCUR:
CONSUELO
YNARES-SANTIAGO
Associate Justice
Chairperson
Associate Justice Associate Justice
RUBEN T. REYES
Associate Justice
ATTESTATION
I attest that the conclusions in the above Decision
were reached in consultation before the case was assigned to the writer of the
opinion of the Court’s Division.
CONSUELO YNARES-SANTIAGO
Associate Justice
Chairperson,
Third Division
CERTIFICATION
Pursuant to Section 13, Article VIII
of the Constitution, and the Division Chairperson’s attestation, it is hereby
certified that the conclusions in the above Decision were reached in
consultation before the case was assigned to the writer of the opinion of the
Court’s Division.
REYNATO S. PUNO
Chief Justice
* Designated as an additional member
in place of Justice Antonio Eduardo B. Nachura who was then the Solicitor
General.
[1] Annex “L” of the Petition; penned
by Associate Justice Isaias P. Dicdican and concurred in by Associate Justices
Arsenio J. Magpale and Ramon M. Bato, Jr.; rollo,
pp. 199-205.
[2] Annex “O” of the Petition; id. at
178 – 179.
[3] Annex “G” of the Petition; id. at
122-123.
[4] Annex “H” of the Petition; id. at
125-127.
[5] By
[6]
[7] Affidavit of Debbie Marie Dy, Assistant Vice-President of respondent HSBC’s Cebu Branch; id. at 44.
[8]
[9]
[10]
[11]
[12]
[13]
[14]
[15]
[16]
[17]
[18]
[19]
[20] Section 1, Rule 45, Revised Rules of
Court.
[21] Chua v. Santos, G.R. No. 132467, 18
October 2004, 440 SCRA 365, 374.
[22] National
Irrigation Administration v. Court of Appeals, 376 Phil. 362, 372 (1999).
[23] Oaminal
v. Castillo, 459 Phil. 542, 556 (2003).
[24]
[25] Republic v. Court of Appeals, 379 Phil. 92, 98 (2000); Eternal Gardens Memorial Park Corp. v. Court
of Appeals, 347 Phil. 232, 256 (1997).
[26] People
v. Romualdez, G.R. No. 166510,
[27] Banal
III v. Panganiban, G.R. No. 167474,
[28] Olanolan
v. Commission on Elections, G.R. No. 165491,
[29] CA decision, p. 3; rollo, p. 201.
[30]
[31]
[32]
[33]
[34] Bautista
v. Court of Appeals, 413 Phil. 159, 168-169 (2001).
[35] Cojuangco,
Jr. v. Presidential Commission on Good Government, G.R. Nos. 92319-20, 2
October 1990, 190 SCRA 226, 244; Crespo
v. Mogul, G.R. No. L-53373,
[36] Bautista
v. Court of Appeals, supra note 34 at 167.
[37]
[38] Rollo, pp. 125-126.
[39] R.R.
Paredes v. Calilung, G.R. No. 156055,
[40] Webb
v. Hon. De
[41] R.R. Paredes v. Calilung, supra note 39 at 394-395.
[42] D.M. Consunji, Inc. v. Esguerra, 328 Phil. 1168, 1185 (1996).
[43] Mendoza-Arce
v. Office of the Ombudsman (Visayas), 430 Phil. 101, 113 (2002), citing Sebastian, Sr. v. Garchitorena, 397
Phil. 519, 525 (2000).
[44] Filadams
Pharma, Inc. v. Court of Appeals, G.R. No. 132422, 30 March 2004, 426 SCRA
460, 470.
[45] Sales
v. Sandiganbayan, 421 Phil. 176, 192-193 (2001).
[46] Pilapil
v. Sandiganbayan, G.R. No. 101978,
[47] R.R. Paredes v. Calilung, supra note 39
at 394.
[48]