Republic of
the
Supreme
Court
SECOND DIVISION
HILARIO P. SORIANO, |
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G.R. No. 162336 |
Petitioner, |
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- versus - |
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Present: |
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PEOPLE OF THE |
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CARPIO, J.,
Chairperson, |
BANGKO SENTRAL NG |
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PILIPINAS (BSP), PHILIPPINE |
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BRION, |
DEPOSIT INSURANCE |
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CORPORATION (PDIC), PUBLIC |
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PEREZ, JJ. |
PROSECUTOR ANTONIO C. |
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BUAN, and STATE |
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PROSECUTOR ALBERTO R. |
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Promulgated: |
FONACIER, |
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Respondents. [1] |
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February 1, 2010 |
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D E C I S I O N
A bank officer violates the DOSRI[2] law when
he acquires bank funds for his personal benefit, even if such acquisition was
facilitated by a fraudulent loan application.
Directors, officers, stockholders, and their related interests cannot be
allowed to interpose the fraudulent nature of the loan as a defense to escape
culpability for their circumvention of Section 83 of Republic Act (RA) No. 337.[3]
Before us is a
Petition for Review on Certiorari[4] under
Rule 45 of the Rules of Court, assailing the
WHEREFORE, premises considered, the instant petition for certiorari is hereby DENIED.[7]
Factual
Antecedents
Sometime in 2000, the Office of
Special Investigation (OSI) of the Bangko Sentral ng Pilipinas (BSP),
through its officers,[8]
transmitted a letter[9]
dated P8 million with the Rural Bank of San Miguel
(Bulacan), Inc. (RBSM), but had never applied for nor received such loan; that
it was petitioner, who was then president of RBSM, who had ordered,
facilitated, and received the proceeds of the loan; and that the P8
million loan had never been authorized by RBSM's Board of Directors and no
report thereof had ever been submitted to the Department of Rural Banks,
Supervision and Examination Sector of the BSP.
The letter of the OSI, which was not subscribed under oath, ended with a
request that a preliminary investigation be conducted and the corresponding
criminal charges be filed against petitioner at his last known address.
Acting on the letter-request and its
annexes, State Prosecutor Albert R. Fonacier proceeded with the preliminary
investigation. He issued a subpoena with
the witnesses’ affidavits and supporting documents attached, and required
petitioner to file his counter-affidavit. In due course, the investigating
officer issued a Resolution finding probable cause and correspondingly filed
two separate informations against petitioner before the Regional Trial Court (RTC)
of Malolos, Bulacan.[13]
The first Information,[14]
dated
That in or about the month of April, 1997, and
thereafter, in San Miguel, Bulacan, and within the jurisdiction of this
Honorable Court, the said accused HILARIO
P. SORIANO and ROSALINDA ILAGAN,
as principals by direct participation, with unfaithfulness or abuse of
confidence and taking advantage of their position as President of the Rural
Bank of San Miguel (Bulacan), Inc. and Branch Manager of the Rural Bank of San
Miguel – San Miguel Branch [sic],
a duly organized banking institution under Philippine Laws, conspiring,
confederating and mutually helping one another, did then and there, willfully
and feloniously falsify loan documents consisting of undated loan
application/information sheet, credit proposal dated April 14, 1997, credit
proposal dated April 22, 1997, credit investigation report dated April 15,
1997, promissory note dated April 23, 1997, disclosure statement on loan/credit
transaction dated April 23, 1997, and other related documents, by making it
appear that one Enrico Carlos filled up the application/information sheet and
filed the aforementioned loan documents when in truth and in fact Enrico Carlos
did not participate in the execution of said loan documents and that by virtue
of said falsification and with deceit and intent to cause damage, the accused
succeeded in securing a loan in the amount of eight million pesos
(PhP8,000,000.00) from the Rural Bank of
San Miguel – San Ildefonso branch in the name of Enrico Carlos which amount of
PhP8 million representing the loan proceeds the accused thereafter converted
the same amount to their own personal gain and benefit, to the damage and
prejudice of the Rural Bank of San Miguel – San Ildefonso branch, its
creditors, the Bangko Sentral ng Pilipinas, and the Philippine Deposit
Insurance Corporation.
CONTRARY TO LAW.[16]
The other Information[17]
dated P8 million loan with RBSM, for his personal use
and benefit, without the written consent and approval of the bank's Board of
Directors, without entering the said transaction in the bank's records, and
without transmitting a copy of the transaction to the supervising department of
the bank. His ruse was facilitated by placing the loan in the name of an
unsuspecting RBSM depositor, one Enrico Carlos.[18] The information reads:
That in or about the month of April, 1997, and
thereafter, and within the jurisdiction of this Honorable Court, the said
accused, in his capacity as President of the Rural Bank of San Miguel
(Bulacan), Inc., did then and there, willfully and feloniously indirectly
borrow or secure a loan with the Rural Bank of San Miguel – San Ildefonso
branch, a domestic rural banking institution created, organized and existing
under Philippine laws, amounting to eight million pesos (PhP8,000,000.00),
knowing fully well that the same has been done by him without the written
consent and approval of the majority of the board of directors of the said
bank, and which consent and approval the said accused deliberately failed to
obtain and enter the same upon the records of said banking institution and to
transmit a copy thereof to the supervising department of the said bank, as
required by the General Banking Act, by using the name of one depositor Enrico
Carlos of San Miguel, Bulacan, the latter having no knowledge of the said loan,
and one in possession of the said amount of eight million pesos (PhP8,000,000.00),
accused converted the same to his own personal use and benefit, in flagrant
violation of the said law.
CONTRARY TO LAW.[19]
Both cases were raffled to
Branch 79 of the RTC of Malolos, Bulacan.[20]
On
On
the first ground, petitioner argued that the letter transmitted by the BSP to
the DOJ constituted the complaint and hence was defective for failure to comply
with the mandatory requirements of Section 3(a), Rule 112 of the Rules of Court,
such as the statement of address of petitioner and oath and subscription.[22] Moreover, petitioner argued that the officers
of OSI, who were the signatories to the “letter-complaint,” were
not authorized by the BSP Governor, much less by the Monetary Board, to file
the complaint. According to petitioner,
this alleged fatal oversight violated Section 18, pars. (c) and (d) of the New
Central Bank Act (RA 7653).
On
the second ground, petitioner contended that the commission of estafa under
paragraph 1(b) of Article 315 of the RPC is inherently incompatible with the
violation of DOSRI law (as set out in Section 83[23] of RA 337,
as amended by PD 1795),[24] hence a
person cannot be charged for both offenses.
He argued that a violation of DOSRI law requires the offender to obtain
a loan from his bank, without complying with procedural, reportorial, or
ceiling requirements. On the other hand,
estafa under par. 1(b), Article 315 of the RPC requires the offender to
misappropriate or convert something that he holds in trust, or on
commission, or for administration, or under any other obligation involving
the duty to return the same.[25]
Essentially, the petitioner
theorized that the characterization of possession is different in the two
offenses. If petitioner acquired the
loan as DOSRI, he owned the loaned money and therefore, cannot misappropriate
or convert it as contemplated in the offense of estafa. Conversely, if petitioner committed estafa,
then he merely held the money in trust for someone else and therefore, did not
acquire a loan in violation of DOSRI rules.
Ruling of the Regional Trial
Court
In an Order[26]
dated
Petitioner’s Motion for
Reconsideration was likewise denied in an Order dated
Aggrieved,
petitioner filed a Petition for Certiorari[29]
with the CA, reiterating his arguments before the trial court.
Ruling of the Court of Appeals
The CA denied the petition on both
issues presented by petitioner.
On the first issue, the CA
determined that the BSP letter, which petitioner characterized to be a fatally
infirm complaint, was not actually a complaint, but a transmittal or cover
letter only. This transmittal letter
merely contained a summary of the affidavits which were attached to it. It did not contain any averment of personal
knowledge of the events and transactions that constitute the elements of the
offenses charged. Being a mere transmittal
letter, it need not comply with the requirements of Section 3(a) of Rule 112 of
the Rules of Court.[30]
The CA further determined that the
five affidavits attached to the transmittal letter should be considered as the
complaint-affidavits that charged petitioner with violation of Section 83 of RA
337 and for Estafa thru Falsification of Commercial Documents. These complaint-affidavits complied with the
mandatory requirements set out in the Rules of Court – they were subscribed and
sworn to before a notary public and subsequently certified by State Prosecutor
Fonacier, who personally examined the affiants and was convinced that the
affiants fully understood their sworn statements.[31]
Anent the second ground, the CA
found no merit in petitioner's argument that the violation of the DOSRI law and
the commission of estafa thru falsification of commercial documents are
inherently inconsistent with each other.
It explained that the test in considering a motion to quash on the
ground that the facts charged do not constitute an offense, is whether the
facts alleged, when hypothetically admitted, constitute the elements of the
offense charged. The appellate court
held that this test was sufficiently met because the allegations in the
assailed informations, when hypothetically admitted, clearly constitute
the elements of Estafa thru Falsification of Commercial Documents and Violation
of DOSRI law.[32]
Petitioner’s Motion for
Reconsideration[33]
was likewise denied for lack of merit.
Hence, this petition.
Issues
Restated, petitioner raises the
following issues[34]
for our consideration:
I
Whether the complaint complied with the mandatory
requirements provided under Section 3(a), Rule 112 of the Rules of Court and
Section 18, paragraphs (c) and (d) of RA 7653.
II
Whether a loan transaction within the ambit of the
DOSRI law (violation of Section 83 of RA 337, as amended) could also be the
subject of Estafa under Article 315 (1) (b) of the Revised Penal Code.
III
Is a petition for certiorari under Rule 65 the proper
remedy against an Order denying a Motion to Quash?
IV
Whether petitioner is entitled to a writ of injunction.
Our Ruling
The petition lacks merit.
First Issue:
Whether
the complaint complied with the mandatory requirements provided under Section
3(a), Rule 112 of the Rules of Court and Section 18, paragraphs (c) and (d) of
Republic
Act No. 7653
Petitioner moved to withdraw the first issue from the
instant petition
On
Given that the case had already been
submitted for resolution of the Court when petitioner filed his latest motion,
and that all respondents had presented their positions and arguments on the
first issue, the Court deems it proper to rule on the same.
In Soriano v. Hon. Casanova, the Court held that the affidavits attached
to the BSP transmittal letter complied with the mandatory requirements under
the Rules of Court.
To be sure, the BSP letters involved
in Soriano v. Hon. Casanova[39]
are not the same as the BSP letter involved in the instant
case. However, the BSP letters in Soriano
v. Hon. Casanova and the BSP letter subject of this case are similar in the
sense that they are all signed by the OSI officers of the BSP, they were not
sworn to by the said officers, they all contained summaries of their attached
affidavits, and they all requested the conduct of a preliminary investigation
and the filing of corresponding criminal charges against petitioner
Soriano. Thus, the principle of stare decisis dictates that the ruling
in Soriano v. Hon. Casanova be applied in the instant case – once a
question of law has been examined and decided, it should be deemed settled and
closed to further argument.[40]
We
held in Soriano v. Hon. Casanova,
after a close scrutiny of the letters transmitted by the BSP to the DOJ, that
these were not intended to be the complaint, as envisioned under the
Rules. They did not contain averments of
personal knowledge of the events and transactions constitutive of any offense. The letters merely transmitted for
preliminary investigation the affidavits of people who had personal knowledge
of the acts of petitioner. We ruled that
these affidavits, not the letters transmitting them, initiated the preliminary
investigation. Since these affidavits
were subscribed under oath by the witnesses who executed them before a notary
public, then there was substantial compliance with Section 3(a), Rule 112 of
the Rules of Court.
Anent the contention that there was
no authority from the BSP Governor or the Monetary Board to file a criminal
case against Soriano, we held that the requirements of Section 18, paragraphs
(c) and (d) of RA 7653 did not apply because the BSP did not institute the
complaint but merely transmitted the affidavits of the complainants to the
DOJ.
We further held that since the
offenses for which Soriano was charged were public crimes, authority holds that
it can be initiated by “any competent person” with personal knowledge of the
acts committed by the offender. Thus,
the witnesses who executed the affidavits clearly fell within the purview of
“any competent person” who may institute the complaint for a public crime.
The
ruling in Soriano v. Hon. Casanova has
been adopted and elaborated upon in the recent case of Santos-Concio v. Department of Justice.[41] Instead
of a transmittal letter from the BSP, the Court in Santos-Concio was faced with an NBI-NCR Report, likewise with affidavits
of witnesses as attachments. Ruling on
the validity of the witnesses’ sworn affidavits as bases for a preliminary
investigation, we held:
The
Court is not unaware of the practice of incorporating all allegations in one
document denominated as “complaint-affidavit.” It does not pronounce strict
adherence to only one approach, however, for there are cases where the extent
of one’s personal knowledge may not cover the entire gamut of details material
to the alleged offense. The private offended party or relative of the
deceased may not even have witnessed the fatality, in
which case the peace officer or law enforcer has to rely chiefly on affidavits
of witnesses. The Rules do not in fact preclude the attachment of a
referral or transmittal letter similar to that of the NBI-NCR. Thus, in Soriano
v. Casanova, the Court held:
A close scrutiny of the letters
transmitted by the BSP and PDIC to the DOJ shows that these were not intended to be the complaint
envisioned under the Rules. It may be clearly inferred from the tenor
of the letters that the officers merely intended to transmit the affidavits of
the bank employees to the DOJ. Nowhere in the transmittal letters is
there any averment on the part of the BSP and PDIC officers of personal
knowledge of the events and transactions constitutive of the criminal
violations alleged to have been made by the accused. In fact, the letters clearly stated that what
the OSI of the BSP and the LIS of the PDIC did was to respectfully transmit to
the DOJ for preliminary investigation the affidavits and personal knowledge of
the acts of the petitioner. These affidavits were subscribed under oath by
the witnesses who executed them before a notary public. Since the affidavits, not
the letters transmitting them, were intended to initiate
the preliminary investigation, we hold that Section 3(a), Rule 112 of the Rules
of Court was substantially complied with.
Citing the ruling of this Court in Ebarle v. Sucaldito, the Court of
Appeals correctly held that a complaint
for purposes of preliminary investigation by the fiscal need not be filed by
the offended party. The rule has
been that, unless the offense subject thereof is one that cannot be
prosecuted de oficio, the
same may be filed, for preliminary investigation purposes, by any competent
person. The crime of estafa is a public crime which can be
initiated by “any competent person.” The witnesses who executed the
affidavits based on their personal knowledge of the acts committed by the
petitioner fall within the purview of “any competent person” who may institute
the complaint for a public crime. x x x (Emphasis and italics
supplied)
A preliminary investigation can thus validly proceed on the basis of an
affidavit of any competent person, without the referral document, like
the NBI-NCR Report, having been sworn to by the law enforcer as the nominal
complainant. To require otherwise is a needless exercise. The cited
case of
Following the foregoing rulings in Soriano v. Hon. Casanova and Santos-Concio v. Department of Justice, we
hold that the BSP letter, taken together with the affidavits attached thereto,
comply with the requirements provided under Section 3(a), Rule 112 of the Rules
of Court and Section 18, paragraphs (c) and (d) of RA 7653.
Second Issue:
Whether a loan transaction within the ambit of the
DOSRI law (violation of Section 83 of RA 337, as amended) could be the subject
of Estafa under Article 315 (1) (b) of the
Revised Penal Code
The second issue was raised by petitioner in the context
of his Motion to Quash Information on the ground that the facts charged do not
constitute an offense.[43] It is settled that in considering a motion to
quash on such ground, the test is “whether the facts alleged, if hypothetically
admitted, would establish the essential elements of the offense charged as
defined by law. The trial court may not consider a situation
contrary to that set forth in the criminal complaint or information. Facts that constitute the defense of the
petitioner[s] against the charge under the information must be proved by [him]
during trial. Such facts or circumstances do not constitute proper grounds for
a motion to quash the information on the ground that the material averments do
not constitute the offense”. [44]
We have examined the
two informations against petitioner and we find that they contain allegations
which, if hypothetically admitted, would establish the essential elements of
the crime of DOSRI violation and estafa thru falsification of commercial
documents.
In Criminal Case No.
238-M-2001 for violation of DOSRI rules, the information alleged that
petitioner Soriano was the president of RBSM; that he was able to indirectly
obtain a loan from RBSM by putting the loan in the name of depositor Enrico
Carlos; and that he did this without complying with the requisite board
approval, reportorial, and ceiling requirements.
In Criminal Case No.
237-M-2001 for estafa thru falsification of commercial documents, the
information alleged that petitioner, by taking advantage of his position as
president of RBSM, falsified various loan documents to make it appear that an
Enrico Carlos secured a loan of P8 million from RBSM; that petitioner
succeeded in obtaining the loan proceeds; that he later converted the loan
proceeds to his own personal gain and benefit; and that his action caused
damage and prejudice to RBSM, its creditors, the BSP, and the PDIC.
Significantly, this is
not the first occasion that we adjudge the sufficiency of similarly worded informations. In Soriano
v. People,[45]
involving the same petitioner in this case (but different transactions), we
also reviewed the sufficiency of informations for DOSRI violation and estafa
thru falsification of commercial documents, which were almost identical, mutatis mutandis, with the subject
informations herein. We held in Soriano
v. People that there is no basis for the quashal of the informations as
“they contain material allegations charging Soriano with violation of DOSRI
rules and estafa thru falsification of commercial documents”.
Petitioner raises the theory that he could not possibly
be held liable for estafa in concurrence with the charge for DOSRI
violation. According to him, the DOSRI
charge presupposes that he acquired a loan, which would make the loan proceeds
his own money and which he
could neither possibly misappropriate nor convert to the prejudice of another,
as required by the statutory definition of estafa.[46] On the other hand, if petitioner did not
acquire any loan, there can be no DOSRI violation to speak of. Thus, petitioner posits that the two offenses
cannot co-exist. This theory does not
persuade us.
Petitioner’s theory is based on the false premises that
the loan was extended to him by the bank in his own name, and that he became
the owner of the loan proceeds. Both
premises are wrong.
The bank money (amounting to P8 million) which
came to the possession of petitioner was money held in trust or administration by him for the bank, in his
fiduciary capacity as the President of said bank.[47] It is not accurate to say that petitioner
became the owner of the P8
million because it was the proceeds of a loan.
That would have been correct if the bank knowingly extended the loan to petitioner himself. But that is not the case here. According to the information for estafa, the
loan was supposed to be for another person, a certain “Enrico Carlos”;
petitioner, through falsification, made it appear that said “Enrico Carlos”
applied for the loan when in fact he (“Enrico Carlos”) did not. Through such fraudulent device, petitioner
obtained the loan proceeds and converted the same. Under these circumstances, it cannot be said
that petitioner became the legal
owner of the P8 million. Thus,
petitioner remained the bank’s fiduciary with respect to that money, which
makes it capable of misappropriation or conversion in his hands.
The next question is whether there can also be, at the
same time, a charge for DOSRI violation in such a situation wherein the accused
bank officer did not secure a loan in
his own name, but was alleged to have used the name of another person in order
to indirectly secure a loan from the bank.
We answer this in the affirmative.
Section 83 of RA 337 reads:
Section 83. No
director or officer of any banking institution shall, either directly or
indirectly, for himself or as the representative or agent of others, borrow
any of the deposits of funds of such bank, nor shall he become a guarantor,
indorser, or surety for loans from such bank to others, or in any manner be
an obligor for moneys borrowed from the bank or loaned by it, except with the
written approval of the majority of the directors of the bank, excluding the
director concerned. Any such approval
shall be entered upon the records of the corporation and a copy of such entry
shall be transmitted forthwith to the Superintendent of Banks. The office of any director or officer of a
bank who violates the provisions of this section shall immediately become
vacant and the director or officer shall be punished by imprisonment of not
less than one year nor more than ten years and by a fine of not less than one
thousand nor more than ten thousand pesos.
x x x
The prohibition in Section 83 is broad enough to cover various modes of borrowing.[48] It covers loans by a bank director or officer (like herein petitioner) which are made either: (1) directly, (2) indirectly, (3) for himself, (4) or as the representative or agent of others. It applies even if the director or officer is a mere guarantor, indorser or surety for someone else's loan or is in any manner an obligor for money borrowed from the bank or loaned by it. The covered transactions are prohibited unless the approval, reportorial and ceiling requirements under Section 83 are complied with. The prohibition is intended to protect the public, especially the depositors,[49] from the overborrowing of bank funds by bank officers, directors, stockholders and related interests, as such overborrowing may lead to bank failures.[50] It has been said that “banking institutions are not created for the benefit of the directors [or officers]. While directors have great powers as directors, they have no special privileges as individuals. They cannot use the assets of the bank for their own benefit except as permitted by law. Stringent restrictions are placed about them so that when acting both for the bank and for one of themselves at the same time, they must keep within certain prescribed lines regarded by the legislature as essential to safety in the banking business”.[51]
A direct borrowing is
obviously one that is made in the name of the DOSRI himself or where the DOSRI
is a named party, while an indirect
borrowing includes one that is made by a third party, but the DOSRI has a stake
in the transaction.[52] The latter type – indirect borrowing – applies
here. The information in Criminal Case 238-M-2001 alleges that petitioner “in
his capacity as President of Rural Bank of San Miguel – San Ildefonso branch x x
x indirectly borrow[ed] or secure[d] a loan with [RBSM] x x x
knowing fully well that the same has been done by him without the
written consent and approval of the majority of the board of directors x x x,
and which consent and approval the said accused deliberately failed to obtain
and enter the same upon the records of said banking institution and to transmit
a copy thereof to the supervising department of the said bank x x x by using the name of one depositor Enrico
Carlos x x x, the latter having no knowledge of the said loan, and once in
possession of the said amount of eight million pesos (P8 million),
[petitioner] converted the same to his own personal use and benefit”.[53]
The foregoing information describes the manner of securing the loan as indirect;
names petitioner as the benefactor of the indirect loan; and states that the
requirements of the law were not complied with. It contains all the required
elements[54]
for a violation of Section 83, even if petitioner did not secure the loan in
his own name.
The broad interpretation of the prohibition in Section 83 is justified
by the fact that it even expressly
covers loans to third parties where the third parties are aware of the
transaction (such as principals represented by the DOSRI), and where the
DOSRI’s interest does not appear to be beneficial but even burdensome (such as
in cases when the DOSRI acts as a mere guarantor or surety). If the law finds it necessary to protect the
bank and the banking system in such situations, it will surely be illogical for
it to exclude a case like this where the DOSRI acted for his own benefit,
using the name of an unsuspecting person. A contrary interpretation will effectively
allow a DOSRI to use dummies to circumvent the requirements of the law.
In sum, the informations filed against petitioner do not
negate each other.
Third
Issue:
Is a
Rule 65 petition for certiorari the proper remedy against
an Order denying a Motion to Quash?
This
issue may be speedily resolved by adopting our ruling in Soriano v. People,[55] where we held:
In fine, the Court has consistently held that a
special civil action for certiorari is not the proper remedy to assail
the denial of a motion to quash an information. The proper procedure in such a
case is for the accused to enter a plea, go to trial without prejudice on his
part to present the special defenses he had invoked in his motion to quash and
if after trial on the merits, an adverse decision is rendered, to appeal
therefrom in the manner authorized by law. Thus,
petitioners should not have forthwith filed a special civil action for certiorari
with the CA and instead, they should have gone to trial and reiterated the
special defenses contained in their motion to quash. There are no special or
exceptional circumstances in the present case that would justify immediate
resort to a filing of a petition for certiorari. Clearly, the CA did not
commit any reversible error, much less, grave abuse of discretion in dismissing
the petition.[56]
Fourth Issue:
Whether petitioner is entitled to a writ of
injunction
The requisites to
justify an injunctive relief are: (1) the right of the complainant is clear and
unmistakable; (2) the invasion of the right sought to be protected is material
and substantial; and (3) there is an urgent and paramount necessity for the
writ to prevent serious damage. A clear
legal right means one clearly founded in or granted by law or is “enforceable
as a matter of law.” Absent any clear and unquestioned legal right, the
issuance of an injunctive writ would constitute grave abuse of discretion.[57] Caution and prudence must, at all times,
attend the issuance of an injunctive writ because it effectively disposes of
the main case without trial and/or due process.[58] In Olalia v. Hizon,[59]
the Court held as follows:
It has been consistently held that there is no power the exercise of
which is more delicate, which requires greater caution, deliberation and sound
discretion, or more dangerous in a doubtful case, than the issuance of an
injunction. It is the strong arm of
equity that should never be extended unless to cases of great injury, where
courts of law cannot afford an adequate or commensurate remedy in damages.
Every court should remember that an injunction is a limitation upon the
freedom of action of the [complainant] and should not be granted lightly or
precipitately. It should be granted only
when the court is fully satisfied that the law permits it and the emergency
demands it.
Given
this Court's findings in the earlier issues of the instant case, we find no
compelling reason to grant the injunctive relief sought by petitioner.
WHEREFORE, the petition is DENIED. The assailed
SO ORDERED.
MARIANO C.
Associate Justice
WE CONCUR:
ANTONIO T. CARPIO
Associate Justice
Chairperson
RENATO C. CORONA Associate Justice |
ARTURO D. BRION Associate Justice |
JOSE P. PEREZ
Associate Justice
ATTESTATION
I
attest that the conclusions in the above Decision had been reached in
consultation before the case was assigned to the writer of the opinion of the
Court's Division.
ANTONIO T. CARPIO
Associate Justice
Chairperson, Second Division
C E R T I F I C A T I O N
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
had been reached in consultation before the case was assigned to the writer of
the opinion of the Court’s Division.
REYNATO S. PUNO
Chief Justice
*
In lieu of Associate Justice Roberto
A. Abad who is on leave per Special Order No. 812 dated
[1] The
Petition for Review on Certiorari under Rule 45 filed before the Court
erroneously included Judge Arturo G. Tayag among its public respondents. We have deleted his name in the case title in
accordance with Section 4 (a), Rule 45 of the Rules of Court, which reads:
Sec.
4 Contents of petition. -- The
petition shall be filed in eighteen (18) copies, with the original copy
intended for the court being indicated as such by the petitioner, and shall (a)
state the full name of the appealing party as the petitioner and the adverse
party as respondent, without impleading the lower courts or judges thereof
either as petitioners or respondents; x x x (Emphasis
supplied)
[2] Director, Officer, Stockholder and Related Interest.
[3] The General Banking Act.
[4] Rollo, pp. 10-23.
[5]
[6]
[7]
[8] Bank
Attorney III Jose R. Fajardo, Deputy Director Alfonso C. Peñaco IV, and
Director Vicente S. Aquino. CA rollo,
p. 36.
[9]
[10]
[11] Increasing the Penalty for Certain Forms of Swindling or Estafa.
[12] Amending Further Republic Act No. 337, As Amended, Otherwise Known as the “General Banking Act”.
[13] CA rollo,
pp. 38-39.
[14]
[15]
[16]
[17]
[18]
[19]
[20] Presided by Hon. Arturo G. Tayag but subsequently raffled off to Branch 17, Regional Trial Court, Malolos, Bulacan, presided by Judge Ma. Theresa V. Mendoza- Arcega, rollo, p. 838.
[21] CA rollo, pp. 27-33.
[22]
[23] Sec. 83. No
director or officer of any banking institution shall, either directly or
indirectly, for himself or as the representative or agent of others, borrow any
of the deposits of funds of such bank, nor shall he become a guarantor,
indorser, or surety for loans from such bank to others, or in any manner be an obligor
for moneys borrowed from the bank or loaned by it, except with the written
approval of the majority of the directors of the bank, excluding the director
concerned. Any such approval shall be entered upon the records of the corporation and a copy
of such entry shall be transmitted forthwith to the Superintendent of
Banks. The office of any director or
officer of a bank who violates the provisions of this section shall immediately
become vacant and the director or officer shall be punished by imprisonment of
not less than one year nor more than ten years and by a fine of nopan> CA rollo,
pp. 30-31.
[26]
[27]
[28]
[29]
[30] Rollo,
pp. 30-31.
[31]
[32]
[33] CA rollo, pp. 363-372.
[34] Rollo,
p. 855.
[35]
[36]
[37] G.R.
No. 163400,
[38] Rollo,
pp. 881-883.
[39] Supra
note 36.
[40] Ting v. Velez-Ting, G.R. No. 166562,
[41] G.R.
No. 175057,
[42]
[43] CA rollo, pp. 30-31.
[44] Soriano v. People, G.R. Nos. 159517-18,
June 30, 2009, 591 SCRA 244, 257-258, citing Caballero v. Sandiganbayan,
G.R. Nos. 137355-58, September 25, 2007, 534 SCRA 30, 43 and Torres v. Hon.
Garchitorena, 442 Phil. 765, 777 (2002).
[45]
[46] Rollo,
p. 864.
[47] Fletcher
Cyclopedia of the Law of Corporations §838 (perm. ed., 1986 rev. vol.)
states that:
“At
common law, and by the modern current of authority in this country, and in
[48] Go v. Bangko Sentral ng Pilipinas, G.R.
No. 178429,
[49]
[50] 10 Am
Jur 2d, Banks, Section 239.
[51] People v. Knapp, 206 NY 373, a case cited
in Go v. Bangko Sentral ng Pilipinas,
supra.
[52] People v. Concepcion, 44 Phil. 126 (1922).
[53] CA rollo,
pp. 24-25.
[54] In Go v. Bangko Sentral ng Pilipinas, supra note 47, the elements of a DOSRI law violation were enumerated:
“1. the offender is a director or officer of any banking institution;
2. the offender, either directly or indirectly, for himself or as representative or agent of another, performs any of the following acts:
a. he borrows any of the deposits or funds of such bank; or
b. he becomes a guarantor, indorser, or surety for loans from such bank to others, or
c. he becomes in any
manner an obligor for money borrowed from bank or loaned by it;
3. the offender has performed any of such acts without the written approval of the majority of the directors of the bank, excluding the offender, as the director concerned”.
[57] Boncodin
v. National Power Corporation Employees Consolidated
[58] F. Regalado, Remedial Law Compendium, Vol. I, p. 639 (7th
revised ed., 1999).
[59] 274
Phil. 66, 75-76 (1991).