You are on page 1of 3

SUMMARY OF FACTS: The accused is charged with qualified theft by his employer, a banking

corporation, through the use of skimming devices in ATMs. The corporation authorized a law firm
to file a criminal complaint against the Accused, but another person not related to the
representative law firm was the one who filed the complaint. The fact of lack of authority of the
person who filed the complaint was not discovered until after the accused was arraigned.
QUERY: What is the effect of the lack of authority of the complainant from the corporation?
ANSWER: None. The deficiency in the complaint/information arising from the lack of authority of
the one who filed the complaint from his corporate principal was not jurisdictional. 1 It did not
detract from the unquestioned authority of the Public Prosecutor to file the Information, nor
impair the jurisdiction of the Court to act on the same. 2
This issue has often been raised in B.P. 22 cases. One such case is Tam Wing Tak v. Makasiar,3
wherein the Supreme Court affirmed the dismissal of a criminal case for violation of B.P. Blg. 22
for lack of authority of the private complainant, thus:
Second, it is not disputed in the instant case that Concord, a domestic corporation,
was the payee of the bum check, not petitioner. Therefore, it is Concord, as payee
of the bounced check, which is the injured party. Since petitioner was neither a
payee nor a holder of the bad check, he had neither the personality to sue nor a
cause of action against Vic Ang Siong. Under Section 36 of the Corporation
Code, read in relation to Section 23, it is clear that where a corporation is
an injured party, its power to sue is lodged with its board of directors or
trustees. Note that petitioner failed to show any proof that he was
authorized or deputized or granted specific powers by Concord's board of
director to sue Victor And Siong for and on behalf of the firm. Clearly,
petitioner as a minority stockholder and member of the board of directors
had no such power or authority to sue on Concord's behalf.
The same conclusion was reached in another B.P. 22 case, Muoz v. People of the
Philippines,4 which was decided in 2008.
The same rule was applied in Ilusorio v. Ilusorio,5 which involved a criminal complaint for
robbery and qualified trespass.

1 Muoz v. People of the Philippines, G.R. No. 162772, 14 March 2008.

2 People of the Philippines v. Garfin, G.R. No. 153176, March 29, 2004, 426 SCRA 393; Cruz v.
Sandiganbayan, G.R. No. 134493, August 16, 2005, 467 SCRA 52; Romualdez v. Sandiganbayan,
434 Phil. 670; Cudia v. Court of Appeals, 348 Phil. 190 (1998).
3 403 Phil. 391 (2001).
4 Supra, Note 1.
5 G.R. No. 171659, 13 December 2007.

However, it bears emphasis that in both cases, the deficiency in the complaint was challenged by
the accused at the preliminary investigation stage, or before he entered a plea upon
arraignment. The present case involves one that has passed the arraignment in the trial court.
Thus, the accused is barred from raising such objection under Section 9, Rule 117 of the Rules of
Court, to wit:
Section 9. Failure to move to quash or to allege any ground therefor. The failure
of the accused to assert any ground of a motion to quash before he pleads to the
complaint or information, either because he did not file a motion to quash or failed
to allege the same in said motion, shall be deemed a waiver of any objections
except those based on the grounds provided for in paragraphs (a), (b), (g), and (i) of
section 3 of this Rule.

SIDE NOTE: Bank deposits are governed by laws on simple loans. The money in the banks,
including ATMS, therefore, belong to the bank and not to the depositor. And as much as Section
12, Rule 110 of the Revised Rules of Criminal Procedure, as amended, defines an offended party
as the person against whom or against whose property the offense was committed, theft of
money in the bank was committed against the bank, then the bank is the private offended party.
However, many banks have a disclaimer with their ATM card holders that the bank will not be
responsible for any loss resulting from unauthorized use of their ATMs. Most banks also deny
refund to depositors victimized by ATM fraud. Notably, the BSP so far is not requiring concerned
banks to do a refund. If this is so in the instant case, then the banking corporation does not have
any interest in this case to begin with. It does not matter if the agent who filed the complaint was
authorized or not, because his principal bank itself did not have personality to sue or a cause of
action against the accused. It is the ATM card holder who has interest in filing the criminal case.
At least, insofar as the civil aspect of the criminal case is concerned, the bank would not have a
cause of action if it indeed executed a disclaimer. In Ramiscal, Jr. v. Hon. Sandiganbayan,6
the Supreme Court held that Under Section 16, Rule 110 of the Revised Rules of Criminal
Procedure,7 the offended party may also be a private individual whose person, right, house,
liberty or property was actually or directly injured by the same punishable act or omission of the
accused, or that corporate entity which is damaged or injured by the delictual acts
complained of. Such party must be one who has a legal right; a substantial interest in the
subject matter of the action as will entitle him to recourse under the substantive law, to recourse
if the evidence is sufficient or that he has the legal right to the demand and the accused will be
protected by the satisfaction of his civil liabilities. Such interest must not be a mere expectancy,
subordinate or inconsequential. The interest of the party must be personal; and not one
based on a desire to vindicate the constitutional right of some third and unrelated

6 G.R. Nos. 140576-99, 13 December 2004.

7 Section 16. Intervention of the offended party in criminal action. Where the civil action for
recovery of civil liability is instituted in the criminal action pursuant to Rule 111, the offended
party may intervene by counsel in the prosecution of the offense.

In case the complainant bank, like most banks, executed a disclaimer against liability arising
from skimming devices, then it is not the private offended party that may file a criminal case.